Mississippi Advisory Opinions December 04, 1990: 19901204 (December 04, 1990)

Advisory Opinion Text

Robert E. Buck, Esquire

Attorney for City of Mound Bayou

Post Office Box 604

Greenville, Mississippi 38702–0604

Dear Mr. Buck:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“A vacancy exists on the Board of Aldermen of the City of Mound Bayou by virtue of the recent death of Mr. Felix Tate, one of the aldermen. The position held by the deceased alderman was challenged in an election contest by a losing candidate in the most recent municipal election. The election contest was tried in the Circuit Court of Bolivar County Mississippi and a decision was rendered in favor of the deceased alderman. Thereafter, an appeal was taken from said decision to the Supreme Court of the State of Mississippi and is presently pending before the Supreme Court.

Please advise in light of the above facts whether a special election can be held in accordance with the statute to fill said vacancy or whether said election must be postponed until the Supreme Court has rendered its decision.

Assuming that the election commission can, and does, proceed to hold a special election and a person other than the election contestant wins the position, please advise what effect a ruling by the Supreme Court would have which reverses the decision of the Circuit Court of Bolivar County and declares the election contestant the winner of the aforesaid general election.

Please advise whether, if a special election is to be held, whether it will be necessary to obtain preclearance by the United States Justice Department.”

Mississippi Code Annotated § 23–15–857(2) (1972) provides:

“When it shall happen that there is a vacancy in an elective office in a city, town or village the unexpired term of which shall exceed six (6) month, the governing authority or remainder of the governing authority of said city, town or village shall make and enter on the minutes an order for an election to be held in such city, town or village to fill the vacancy and fix a date upon which such election shall be held....” (emphasis added)

It is the opinion of this office that, absent a valid order from a court of competent jurisdiction to the contrary, the above quoted statute requires the municipal governing authorities to act to fill the vacancy in question by calling a special election as provided for therein. Whoever is elected at said special election will serve the remainder of the term unless a court of competent jurisdiction orders otherwise. It is our understanding that the date for the special election must be submitted to the U.S. Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965.

Sincerely,

Mike Moore, Attorney General

Phil Carter, Special Assistant Attorney General.