Mississippi Advisory Opinions September 20, 1979: 19790920 (September 20, 1979)

Advisory Opinion Text

Mrs. Lorena Dean

Circuit Clerk

Franklin County Courthouse

Meadville, Mississippi 39653

Re: Elections—Supervisors—Qualifications to Run for Office

Dear Mrs. Dean:

This is in response to your letter of request for an opinion from this office dated September 13, 1979, wherein you stated that following:

‘I am writing you at the request of Mr. A. D. Bowlin, chairman of Franklin County Election Commission.

‘We would like to have an opinion on Section 19–3–3 of Mississippi Code 1972 Annotated. We have a man who has filed a petition and qualification affidavit to be a candidate for Board of Supervisors, District 2, Franklin County, Mississippi. He does not own any real estate. Can the Election Commissioners refuse to place his name on the ballot for the General Election?

‘We would appreciate this opinion as quickly as possible.’

As a general rule, all qualifications required of a qualified elector to be eligible to be a candidate for public office are required to be met at the time such candidate is elected. This interpretation comes from two Mississippi Supreme Court decisions, Plunkett v. Miller , 162 Miss. 149, 137 So. 737, and Roane v. Matthews , 75 Miss. 94, 21 So. 665.

We have previously issued opinions which enunciate this rule of the Court and we still are of the opinion that it applies in all areas where the Election Commission can determine with certainty that all qualifications of a candidate can and will be met at the time of the candidate's election.

Accordingly, in reaching the conclusion which is the basis of this opinion, I believe it to be in harmoney with and not contradictory to other opinions wherein we have quoted the Mississippi Supreme Court rule that:

‘. . . ‘eligibility to office’ meant in Section 250 (of the Mississippi Constitution) is eligibility at the time of election.'

Section 19–3–3 of the Mississippi Code of 1972, Annotated, reads as follows:

‘A person shall not be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen, and the owner of real estate of the value of one thousand five hundred dollars.’

It is possible that a candidate could produce evidence that the candidate would be a freeholder and own land of the value required in the above cited statute. However, if the evidence was of such a nature that the Election Commission could not determine with certainty that this condition to holding the office of supervisor was absolutely going to occur at the time of the election, in this case, prior to November 6, 1979, then the Election Commission would be acting within its authority not to qualify such candidate. The candidate, if otherwise qualified, could, of course, qualify himself as to the freeholder requirement by becoming a freeholder in accordance with the above cited statute prior to the ballot being printed.

I do not believe the Mississippi Supreme Court intended that any person be put on the ballot unless they had met the requirements or qualifications of the office they seek or proved to the Election Commission that they absolutely could and would be able to meet such requirements and qualifications if elected.

To hold otherwise would require the Election Commission to first go through the process of an election. After that, if all the requirements and qualifications had not been met by the candidate, then it could, and probably would, lead to a Court challenge and, probably, to an additional election.

The two Mississippi Supreme Court cases alluded to both dealt with nonpayment of taxes prior to becoming candidates, which was then a condition precedent to becoming a qualified elector and was a condition that could not be cured by winning the election.

So, simply put, unless the candidate is or will be a qualified elector before November 6, 1979, and further, unless the candidate for supervisor can prove to the Election Commission that he or she is a freeholder as required by statute before their election or will be (and I do not mean by this a simple promise or statement that they will become a freeholder as required by statute, but absolute proof that they will be such freeholder, subject to no contingencies before their election) then, the Election Commission could refuse to qualify and put such candidate's name on the ballot as to having met the requirements to hold the office of supervisor.

I am of the opinion that the above is not only the law but also common sense and that it is in harmony with previous opinions of this office, as well as the rulings of the Supreme Court. Their opinions were written in a retrospective light and not in a prospective light.

I do not believe for one moment that the Supreme Court today would countenance a candidate or group of candidates being qualified to run for office on a contingency that they may meet the requirements at the time they may be elected. I think they would require the Election Commission to be certain that they would meet the requirements at the time of their election otherwise, people would be voting in a vacuum.

My opinion is in regard to the specific question which you presented to me.

Sincerely,

A. F. Summer Attorney General.