Mississippi Advisory Opinions February 07, 1996: AGO 96-0036 (February 07, 1996)

Advisory Opinion Text

Hon. James D. Spinks

Attorney, Town of Scooba

Post Office Box 26

Dekalb, Mississippi 39328

Re: Special election to fill board of aldermen vacancy

Dear Mr. Spinks:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter has been attached for reference.

In your letter you state that a vacancy occurred on the board of aldermen. A special election was held on November 21, 1995 to fill the vacancy. Each of the two candidates who qualified to run received 24 votes. A runoff election was never held. The election commissioners offered to decide the election by lot, but the candidates refused. One of the candidates filed an election contest but process has not been issued. You also state that it is your understanding that there is a strong possibility that neither candidate should have been placed on the ballot.

You specifically inquire:

1. Does the Board of Aldermen have the authority to declare a vacancy on the said Board and order a new Special Election to be held in Ward 4 of the Town of Scooba, in light of the pending lawsuit, although no process has been issued or served?

2. If a new Special Election is held, are members of the Town of Scooba Election Commissioners authorized by law to serve as election managers?

In response to your first question, in the event process is served in the election contest, the election is in controversy and the court will settle the matter. However, if the complaint has been dismissed for failure to perfect the election contest, or the court does not either declare a winner or order a new election, then the board would need to begin the process to fill the vacancy again and set another date to hold a special election. The date for the special election should be submitted to the United States Department of Justice for preclearance pursuant to the Voting Rights Act of 1965. The election commissioners also need to ensure that the candidates are qualified electors of the municipality and are not disqualified from holding office. If a runoff is required, the election commissioners need to properly conduct such.

Therefore, it is the opinion of this office that the board may only order a new election:

1) if the court directs the board to do so; or

2) if the court does not declare a winner and fails to order a new election; or

3) upon dismissal of the complaint for failure to perfect the election contest.

Regarding your second question, Section 23-15-221 of the Mississippi Code Annotated provides that if there is only one election precinct in the municipality, the municipal election commissioners shall act as election managers.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore, Attorney General.

Sandra M. Shelson, Special Assistant Attorney General.

January 18, 1996

Honorable Phil Carter

Office of the Attorney General

P. O. Box 220

Jackson, MS 39205-0220

Dear Sir:

I represent the Town of Scooba, Mississippi, a code charter municipality, and have been asked by the Board of Aldermen to request an opinion from your office concerning special elections.

A vacancy occurred on the Board of Aldermen. The remaining Board called for a special election to be held pursuant to §23-15-857, Mississippi Code of 1972, on Tuesday, November 21, 1995, to fill the vacancy of the position of Alderman in and for Ward 4 of the Town of Scooba.

Two candidates qualified, C. W. Smith and Betty J. Glaspie. The election was held, and both candidates received 24 votes. My understanding of §23-15-857 is that in such a case a runoff should have been held in one (1) week, on November 28, 1995, and both names placed on the ballot for the runoff. However, the Election Commission of the Town of Scooba failed to hold a runoff election. The Election Commission met with the candidates, or their representatives, and offered to decide the contest by lot. Because of allegations by each candidate that the other should not have been allowed to qualify, the candidates refused to allow the election to be decided by lots.

On December 8, 1995, Betty J. Glaspie filed an election contest in the Circuit Court of Kemper County, Mississippi, alleging that because of certain irregularities she should be declared the winner of the special election. An amended Complaint was filed December 14, 1995, but process has not been issued on either the Complaint or the Amended Complaint.

Based on information that has been made available to me, there is a strong possibility that neither candidate should have been placed on the ballot. One of the candidates had registered with the County Registrar on September 29, 1986, but never registered to vote in the Town of Scooba. The other candidate possibly had an insufficient number of valid signatures on his petition. If this information is accurate, I would assume that the Circuit Court would have to invalidate the November 21st election and direct the Town to hold a new election. There were other possible irregularities.

Our questions are as follows:

1. Does the Board of Aldermen have the authority to declare a vacancy on the said Board and order a new Special Election to be held in Ward 4 of the Town of Scooba, in light of the pending lawsuit, although no process has been issued or served?

2. If a new Special Election is held, are members of the Town of Scooba Election Commission authorized by law to serve as election managers?

Your prompt attention to this request will be greatly appreciated. The next regular meeting of the Board of Aldermen will be held on February 6, 1996, and the remaining Aldermen would like to have an answer by that date if at all possible. Please do not hesitate to call me if you would like to discuss any aspect of this request.

Very truly yours,

James D. Spinks.