Mississippi Advisory Opinions September 19, 1986: 19860919 (September 19, 1986)

Advisory Opinion Text

Honorable Percy L. Reece

Honorable Russell Smart

Noxubee County Election Commission

505 South Jefferson Street

Macon, Mississippi 39341

Dear Messrs. Reece and Smart:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“I am writing as a followup to our conversation on September 8, 1986, regarding a person who has turned in a petition to run for County Board of Education prior to filing date (before 90 days) for the General Election. The person qualifying and the Circuit Clerk state they were unaware of the filing date. On August 5, 1986, petition names were checked and certified by the Circuit Clerk as being qualified voters of the Board of Education district. On August 21, 1986, an affidavit was filed with the Circuit Clerk.

“The Commissioners received one petition, one certification and one affidavit from the Circuit Clerk for this candidate. We would like to have a written opinion as to what legal procedure we should take in this case. Should this person's name be placed on the ballot?”

Mississippi Code Annotated § 37-5-9 (Supp.1985) provides in part:

“The name of any qualified elector who is a candidate for the county board of education shall be placed on the ballot used in the general elections by the county election commissioners, provided that the candidate files with the county election commissioners, not more than ninety (90) days and not less than sixty (60) days prior to the date of such general election, a petition of nomination signed by not less than fifty (50) qualified electors of the county residing within such supervisors district....”

The decision as to whether or not the name of the individual in question should be placed on the ballot must be made by the commission consistent with the facts.

If, as a matter of fact, the commission determines that the act of filing a certification of candidacy within the statutory qualification period and/or any other affirmative act(s) regarding such candidacy constituted the filing of the required petition, the commission would be fully justified in placing that person's name on the ballot.

Should the commission have difficulty in making this determination because of the factual circumstances the potential candidate should, in the opinion of this office, be given the “benefit of the doubt” since the ultimate decision of who will hold the office in question will be made by the voters on election day.

Very truly yours,

Edwin Lloyd Pittman, Attorney General

Phillip C. Carter, Special Assistant Attorney General