Mississippi Advisory Opinions May 11, 1972: 1972-0008 (May 11, 1972)

Advisory Opinion Text

Honorable Byrd P. Mauldin

Attorney at Law

Pontotoc, Mississippi 38863

Dear Mr. Mauldin:

I have your letter of April 24, 1972, in which you state:

“Please forward me any information or bulletin you have on holding elections.

“I am particularly interested in a special election being held in the City of Pontotoc.”

With respect to an election information bulletin, I am happy to enclose herewith an outline for the June 6 primary election which I trust will be of value to you.

With respect to a special municipal election, the following information is respectfully furnished.

Section 3293, Mississippi Code of 1942, Recompiled and Amended, which was last amended on May 10, 1966, was repealed by Section 2, Chapter 494, Laws of 1971 on April 5, 1971. Up until this statute was repealed, it provided for the filling of vacancies in municipal offices.

Apparently, Section 21-11-9 Code 1972 Mississippi Code of 1942, Recompiled, was amended by Section 1, Chapter 494, Laws of 1971, approved April 5, 1971, to take the place of repealed Section 3293, supra. I enclose a photocopy of Section 21-11-9 Code 1972 supra, for your ready reference.

However, you will note the underlined language of Section 21-11-9 supra, beginning with the word “Under” being the second word from the right margin in the 14th line from the top and ending with the word “commission” appearing five words from the right margin in the 19th line from the top, refars to enactments contained in the open primary law of 1970. This law was held by the federal court in the case of Evers v. State Board of Election Commissioners , 327 F.Supp. 640, to be ineffective and of no force and effect. For this reason, it is my opinion that this part of Section 21-11-9 supra, is of no force and effect, being a reference to enactments held by the court to be ineffective.

With respect, therefore, to how a Candidate may have his or her name placed upon the special municipal election ballot, one must refer to Section 3260, Mississippi Code of 1942, Recompiled, as appears in the main volume and subsections (e) or (f), whichever is applicable based upon population. Section 3260 as appears in the main volume, supra, applies since the amendments thereto were held by the United States Supreme Court on March 3, 1969, to be ineffective in the case of Allen v. Board of Election Commissioners , 22 L.Ed. 2d 1, 89 S.Ct. 817, 393 U.S. 544.

As to additional requirements of the petition filed under Section 3260, supra, referring to Section 1-3-75 Mississippi Code of 1972 Recompiled and Amended, which provides:

“All petitions presented to any governing body of the State of Mississippi or any of its subdivisions, or municipalities thereof, must be signed personally by each petitioner; otherwise, said signature shall not be counted as a valid signature of such petition.”

As to the method or mode of publishing the notice of such special election, please refer to Section 21-11-11 Mississippi Code of 1972 Recompiled, as the applicable statute, where ” . . . the statute authorizing or requiring such election does not specify the time within which such election shall be called, . . .” Of course, it is to be noted that Section 21-11-9 supra, requires at least 30 days notice of such election but does not set forth when such election is required to be held. For this reason, it is my opinion that Section 21-11-11 supra, is applicable with respect to the mode or method of publishing such notice. Compliance with such mode or method must, however, provide at least 30 days notice of such election, the first publication of which notice, therefore, must not be less than 30 days prior to the election and published once each week for three weeks next preceding the date of such election in a newspaper published in the municipality and by posting a copy of such notice at three public places in such municipality.

Trusting the above and foregoing is a complete resume of the present statutes controlling the conduct of municipal special elections to fill vacancies, I am

Yours very truly,

A. F. Summer Attorney General.