Mississippi Advisory Opinions August 20, 1979: 19790820 (August 20, 1979)

Advisory Opinion Text

Judge Floyd Peeples

Justice Court Judge

District 3, Leflore County

Post Office Box 468

Greenwood, Mississippi 38930

Re: Elections—Candidates and voters in Primary and General Elections

Dear Judge Peeples:

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:

‘I would like to have—in writing—an opinion as to the legality of the following: (1) Is it possible to run for an office as a Democrat of Republican and lose and turn around and run for another office as an Independent? and (2) If a person votes in a primary election as either a Democrat or Republican and then qualify and run as an Independent? This question has arisen in both instances here and we'd very much appreciate it if you would give us a written opinion.’

Taking your questions in the order presented, it is the opinion of this office that:

1. The answer is ‘no’. See the opinion of this office to Honorable Rush Clements, Attorney of Rolling Fork, Mississippi, dated August 17, 1979, attached hereto and incorporated herein by reference.

A. F. Summer Attorney General.

ATTACHMENT

August 17, 1979

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:

ATTACHMENT

July 12, 1979

Honorable James L. Mashburn

Co-Chairman

Democratic Executive Committee

Route 1, Box 114

Buckatunna, Mississippi 39322

Dear Mr. Mashburn:

Attorney General Summer has received your request for opinion and has referred it to the undersigned for research and reply.

First, your very kind expressions of appreciation and interest in Attorney General Summer, Mr. Clark and myself are more sincerely appreciated. You are certainly to be commended for your sincere dedication and service in the interest of free and fair elections in Mississippi.

You request an opinion as to whether an individual may vote in both the first and second primaries this year and be an independent candidate in the general election this Fall.

The Mississippi Supreme Court decided this question in the case of Bowen v. Williams (1960), 238 Miss. 57, 117 So.2d 710. The Court stated on Page 62 of the Mississippi Reporter:

‘The legislature has determined who are entitled to participate in the primary elections, but it has not declared that anyone who votes in a primary election is not eligible to become an independent in the general election. It has declared to the contrary in Sec. 3260, Code of 1942, by the language heretofore quoted therefrom .’

(Emphasis added).