Mississippi Advisory Opinions July 28, 1989: 19890728 (July 28, 1989)

Advisory Opinion Text

June 12, 1989

Danny K. Clearman, Esquire

Attorney at Law

P.O. Box 85

Decatur, MS 39327

Office of the Attorney General

Fifth Floor

Carroll Gartin Justice Building

P.O. Box 220

Jackson, Mississippi 39205

ATTENTION: SAM KEYES

Dear Mr. Clearman:

Attorney General Mike Moore has received your request for an opinion on behalf of Mr. W.M. McMullan, an elections commissioner of Newton County, and has assigned it to me for research and reply.

Your letter presents for opinion the question of whether Section 23–15–127, Miss.Code Ann. (Supp.1988), as construed by the Supreme Court in Pearson v. Parsons , 541 So.2d 447 (Miss.1989), vest responsibility for decisions relative to county redistricting in the various county elections commissions instead of in the county boards of supervisors. You also ask if members of the county boards of supervisors actively participate in redistricting would they be barred under Section 23–15–217 from running for reelection before the terms of the county elections commissioners expire?

It is the opinion of this office that the decision of the Supreme Court in Pearson v. Parsons, supra, did not alter the statutory authority vested in the county boards of supervisors to change the boundaries of the supervisors districts and voting precincts of the county. Furthermore, it is also our opinion that members of the county boards of supervisors who exercise their statutory responsibility to redistrict the county election districts are not barred under Section 23–15–217, Miss.Code Ann. (Supp.1988), from running for reelection before the terms of elections commissioners expire.

As you point out, Section 23–15–283 places county redistricting authority in the boards of supervisors. This code section provides inter alia:

§ 23–15–283. Alteration of boundaries.

The board of supervisors shall have power to alter the boundaries of the supervisors districts, voting precincts and the voting place therein; and if they order a change in the boundaries, they shall notify the commissioners of election, who shall at once cause the registration books of voting precincts affected thereby to be so changed as to conform to the change of districts, and to contain only the names of the qualified electors in the voting precincts as made by the change of boundaries.

Section 23–15–153 places the authority in the various county elections commissions to revise the registration books and pollbooks of the voting precincts and to purge from such books the names of all persons who have died, moved or become disqualified as electors. Section 23–15–127 grants similar authority to the elections commissions with respect to the primary elections pollbooks. This code section states in pertinent part:

“The election commissioners of the county or city shall revise such primary pollbooks at the time and in the manner and in accordance with the laws now fixed and in force for revising pollbooks now provided for under the law, except they shall not remove therefrom any person who is qualified under the provisions hereof to participate in such primary elections.”

Language in Pearson v. Parsons does at first blush seem to suggest that if the board of supervisors made the decisions on redistricting that they would be encroaching upon the authority of elections commissioners in this regard, and in so acting as elections commissioners they would be subject to the prohibition contained in Section 23–15–217 barring such officials from seeking any other office during their terms of office. This language is as follows:

“There is no evidence that the Board of Supervisors made the decisions on the redistricting; their participation was limited to supplying information. The evidence demonstrates that it was the Election Commission which made the decisions as to redistricting pursuant to the statutory requirement of Miss.Code Ann., § 23–15–127 (Supp.1986) Meeks, supra, is distinguishable from these facts. Therefore, the trial court did not err when it found that the Board of Supervisors' involvement in the redistricting process was permissible.” 541 So.2d 455. (Emphasis added)

A careful reading of the decision in Pearson, supra, reveals that the appellants eighth (8th) assignment of errors complained of the board of supervisors actions in relation to the conducting of a partial purging and adjustment of the pollbooks. Therefore, the dicta in the court's opinion pertaining to the decisions made on redistricting must be read as referring to the purging decisions and decisions relative to the revision of the pollbooks that had to be made in connection with a redistricting in that county. The court was not making reference to the decisions with respect to the altering of the district lines which is within the authority of the county board of supervisors. This is further apparent by the court's reference to Section 23–15–127, supra, which as set out above pertains to the authority of the elections commissioners to purge and revise the pollbooks. The court's decision does make it clear that the board of supervisors should not revise the pollbooks other than to provide the elections commissioners with the necessary redistricting information.

Therefore, the decision of the Supreme Court in Pearson v. Parsons , 541 So.2d 447 (Miss.1989), should not be read as limiting the authority of the boards of supervisors with respect to redistricting the county and further should not be interpreted as requiring the application of the proscription of Section 23–15–217, supra, whenever a board of supervisor exercises its redistricting responsibilities.

We would point out that in certain cases, a board of supervisors is statutorily required to act as an elections commission. Section 23–15–215, Miss.Code Ann. (1988 Supp.) calls for the board of supervisors to perform the duties of an elections commission where there are no elections commissioners in the county or where they fail to act. Also, Section 23–15–217 vests in the board of supervisors all the duties and powers of an elections commission in any case involving the election of a county election commissioner wherein there is a contest. We do not feel that even where a board of supervisors is statutorily required to act as an elections commission that the prohibition against elections commissioners seeking other office during their term could be applied to members of county boards of supervisors so as to prevent them from seeking reelection to their supervisor position.

Sincerely,

Mike Moore Attorney General

ATTACHMENT

Dear Sam:

Mr. W.M. McMullan, an election commissioner here in Newton County, asked that I help him formulate the enclosed request for an Attorney General Opinion. Briefly, the question involves the degree of involvement which the County Board of Supervisors may exercise in redrawing election districts. While Miss.Code Ann. Section 23–15–283 (Supp.1988) and its predecessor Section 23–5–11 (1972) permit the Board of Supervisors to alter election boundaries, dicta in Pearson v. Parsons , 541 So.2d 447, 454–55 (Miss.1989) appears to interpret Section 23–15–127 to vest decisions relative to redistricting in the Election Commission. Further, Pearson suggests that if the Supervisors actively participate in redistricting they may be barred under Section 23–15–217 (Supp.1988) from running for re-election before the terms of the Election Commissioners expires.

We anticipate a possible court challenge to any action taken by the Board, but feel that an opinion from your office could resolve the matter without litigation.

Work is progressing on the redistricting and the results are due soon. We would therefore ask that you give this appropriate priority.

Thanks for the help. Come see me when you are in this side of the State.

Sincerely, Danny K. Clearman

ATTACHMENT

Request for Attorney General Opinion

Due to an apparent conflict between the wording of Mississippi Code Annotated Section 23–15–283 and the interpretation of Section 23–15–127 by the Mississippi Supreme Court in Pearson v. Parsons , 541 So.2d 447 (Miss.1989), I request an Attorney General Opinion to assist me in my capacity of County Election Commissioner on the following matters:

(1) What function, if any, is a County Election Commissioner to have in the actual drawing of boundary lines to comply with required redistricting.

(2) In the event that a County Board of Supervisors makes all significant decisions regarding the location of new election boundaries, are they barred under Mississippi Code Annotated Section 23–15–217 (Supp.1988) from seeking office other than that of Election Commissioner by virtue of the board members “acting as Election Commissioners.”

Thank you for your assistance.

Sincerely, W.M. McMullan Election Commissioner Newton County, MS