Mississippi Advisory Opinions November 13, 1979: 19791113 (November 13, 1979)

Advisory Opinion Text

Mrs. Emily B. Jones

Quandary Plantation

Route 1

Box 151

Isola, Mississippi 38754

Re: General Elections—Contest

Dear Mrs. Jones:

Your letter request of November 10, 1979, addressed to the undersigned, has been received and assigned to this writer for research and reply. Your letter states:

‘In the single county District 53 election for Representative in Washington County one of the candidates, Nick Crawford, lost the race by seventeen votes to Perrin Grissom. Mr. Crawford's lawyer, Ernest Lane, has cited Section 23–3–19 in the Mississippi Code, 1972, as giving the Election Commission authority to order another election For Ward's Recreation Center precinct where witnesses say there were irregularities. Are we correct in saying that Section 23–3–19 does not apply to this situation because it is a law pertaining to primaries?

‘We are having a recount of all the precincts in which Mr. Crawford and Mr. Grissom were candidates on Wednesday morning, November 14. Unless there are discrepancies in this recount we will mail our recapitulation sheets to the Secretary of State, certifying the election as it now stands, with Mr. Grissom as the winner. As we understand it this will mean according to Section 23–5–191 of the Mississippi Code that the contested election will then come before the House. Is this correct?

‘In the 1978 Cumulative Supplement to the Code Section 3280 states that within ten days of the election the results shall be returned to the Secretary of State. Should we wait until Friday, November 16, to return them?’

We answer your questions in the order presented.

1. Section 23–3–19 provides in part:

‘. . . And when the said box is opened and examined by the county executive committee and it is found that there have been failures in material particulars to comply with the requirements of this and section 23–3–17 to such an extent that it is impossible to arrive at the will of the voters at such precinct, the entire box may be thrown out, unless it be made to appear with reasonable certainty that the irregularities were not deliberately permitted or engaged in by the managers at that box, or by one of them responsible for the wrong or wrongs, for the purpose of electing or defeating a certain candidate or candidates by manipulating the election or the returns thereof at that box in such manner as to have it thrown out; in which latter case the county executive commiitte shall conduct such hearing and make such determination in respect to said box as may appear lawfully just, subject to a judicial review of said matter as elsewhere provided by this chapter. Or the executive committee , or the court upon review, may order another primary election to be held at that box within five days from the date of the order, appointing new managers to hold the same.’ (Emphasis ours)

In view of the foregoing statutory language, it is the opinion of this office that said section is applicable only to primaries.

2. In response to your second question, while it is the opinion of this office that § 23–5–191 and -193 (attached hereto and incorporated herein for reference) are applicable, they are not exclusive of § 23–5–187 which provides in its last sentence:

‘. . . In case the election of district attorney or other state district election be contested , the petition may be filed in any county of the district or in any county of an adjoining district within twenty days after the election, and like proceedings shall be had thereon as in the case of county officers, and the person found to be entitled to the office shall qualify as required by law and enter upon the duties of his office.’

and that either of said statutes may be availed by any candidate desiring to contest the election.

In passing, it is the further opinion of this office that there are no statutory provisions for a ‘recount’ of votes in a general election. However, the Election Commissioners can conduct a recount purely at their option and discretion but are not statutorily required to do so.

3. The answer, in our opinion, is ‘no’. Section 3280 (found on pages 294 and 294 of the 1978 Cumulative Supplement to Volume 6, Code of 1972) attached hereto for mutual reference provides ‘. . . within ten days after the election. . . .’. Therefore, at anytime within ten days of the day of the election the results shall be transmitted to the Secretary of State and it is not necessary to wait the full ten days if the results have been ascertained prior thereto.

Sincerely yours,

A. F. Summer Attorney General.

John M. Weston Special Assistant Attorney General.