Mississippi Advisory Opinions August 17, 1979: 19790817 (August 17, 1979)

Advisory Opinion Text

Honorable Rush M. Clements

Clements And Clements

Attorneys At Law

210 Locust Street

Rolling Fork, Mississippi 39159

Re: Elections—As Candidate in Primary and General for different offices

Dear Mr. Clements:

Your letter request of August 14, 1979, addressed to Honorable A.F. Summer, Attorney General, has been received and assigned to this writer for research and reply. Your letter states:

“As Attorneys for the Board of Election Commissioners, please tell us if a party can run in the primary election as a candidate for one office and, upon his defeat, run as an independent in the general election for a different office.”

The Mississippi Supreme Court in the case of Mississippi State Board of Election Commissioners v. Meredith, (1974) 301 So.2d 571, said:

“... The statute (then § 3260, Mississippi Code of 1942 and now § 23–5–134, Mississippi Code of 1972) authorizes independent candidates to qualify, but such candidate should be truly independent. One may not adopt the label ‘independent’ after having participated as a candidate in a preceding party primary....”

In this same case, the Mississippi Supreme Court reaffirmed Ruhr v. Cowan, 146 Miss. 870, 112 So. 386 (1927), and further said:

“We reaffirm the holding in Ruhr that a candidate must resort to one of the methods authorized by Section 3260 as amended, but he cannot resort to both. To hold otherwise would radically alter the election process in the State of Mississippi and permit an individual to run as an independent in the general election regardless of the extent or nature of his participation in the preceding primary so long as he was not nominated by a political party. It would further alter the electoral process by permitting a defeated candidate in a preceding party primary to run in a general election. We do not glean from the amendment to the statute the legislative intent to authorize such action.” (Emphasis supplied)

Based on these decisions, it is clear that a person cannot be a candidate in the primary election for one office, and failing to get the party nomination, thereafter be an Independent candidate in the general election for the same office, or, a different office.

With best wishes, I am

Sincerely yours,

A.F. Summer, Attorney General.