Mississippi Advisory Opinions April 10, 1991: 19910410 (April 10, 1991)

Advisory Opinion Text

K. Maxwell Graves, Jr., Esquire

Attorney for Town of Roxie

Post Office Box 607

Meadville, Mississippi 39653

Dear Mr. Graves:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. A copy of your letter is enclosed for reference. We understand your letter to present four questions relative to a new municipal special election which has been necessitated by the finding by the municipal election commissioners that the special election held on March 26, 1991 was irregular pursuant to Mississippi Code Annotated § 23-15-593 (1972) in that the will of the electorate could not be determined because of substantial irregularities in the operation of the one (1) and only precinct in the Town of Roxie.

We will restate the questions in the order presented and respond to each separately.

QUESTION 1:

Pursuant to Section 23-15-593, must the pollworkers who worked in the March 26 election be replaced?

RESPONSE: Section 23-15-593 provides that, under certain circumstance, ballot boxes in which there have been “failures in material particulars” may be thrown out if it is impossible to determine the will of the voters at such precinct and authorizes the commission to hold another election at such box(es) and requires the appointment of new managers to hold such new election.

Section 23-15-221, as pointed out in your letter, provides for the appointment of municipal election commissioners and specifies certain duties that such commissioners are to perform. It provides in part:

“The said election commissioners shall, in case there be but one (1) election precinct in the municipality, act as election managers themselves.”

Section 23-15-593 is actually a statute pertaining to county elections. However, it is our opinion that, since there are no statutes that specifically address under what circumstances ballot boxes can be “thrown out”, the same provisions would constitute the general authority for municipal commissioners to “throw out” ballot boxes under the conditions specified therein.

Section 23-15-221 is a statute that specifically applies to appointment of municipal election commissioners and their duties.

The Mississippi Supreme Court has held on numerous occasions that the terms of a statute dealing with a specific subject controls over general statutes. Gulley v. Lumbermen's Mutual Casualty Company , 166 So. 541 (1936); Dunn Construction Company v. Craig , 2 So.2d 166 (1941); Price v. Price , 32 So.2d 124 (1947); Bailey v. Emmich Bros. , 37 So.2d 797 (1949); McCullen v. State ex rel. Alexander , 63 So.2d 856 (1953); McCrory v. State , 210 So.2d 877 (1968); McCaffrey's Food Market, Inc. v. Mississippi Milk Commission , 227 So.2d 459 (1969); Lincoln County v. Entrician, 230 So.2d 801 (1970) .

It is the opinion of this office that Section 23-15-221 is a specific statute regarding the duties of municipal election commissioners and that its provisions requiring said commissioners to act as managers when the municipality has only one precinct controls over Section 23-15-593 which is viewed as the general statutory authority for the municipal commissioners to “throw out” ballot boxes under certain conditions.

Therefore, in response to your first question, it is the opinion of this office that the municipal election commissioners must act as managers in the new election.

QUESTION 2: Can persons other than the three candidates who lawfully qualified prior to the March 26 election file qualifying petitions and become candidates in the new election?

RESPONSE: Section 23-15-593 does not contemplate or authorize setting up a new period in which to allow additional candidates to qualify when a box or boxes are “thrown out” pursuant thereto. As previously stated Section 23-15-593 was adopted with county elections in mind. If certain boxes are “thrown out” in a county election the results in the remaining boxes remain valid and the new election is held only in the boxes where the irregularities occurred. Therefore, it is our opinion that names of the three original candidates and no others will appear on the ballot for the new election.

QUESTION 3: Can the ballots left over from the March 26 election may be used in the new election provided the dated is corrected on said ballots?

RESPONSE: Yes.

QUESTION 4: Must the governing authorities act within ten days of the March 27 action of the election commissioners “throwing out” the ballot boxes?

RESPONSE: Section 23-15-593 specifically provides that the election commissioners may order another election. Therefore, it does not appear that the municipal governing authorities would be required to enter any order setting the date for the new election but rather, such order would be entered by the election commission. We are of the opinion that the election commission should do so as soon as is practical but are of the further opinion that the ten day provision you refer to would not be applicable.

Sincerely

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.

ATTACHMENT

April 1, 1991

Attn: Hon. Phil Carter

Office of the Attorney General.

P.O. Box 220

Jackson, Mississippi 39205

RE: Special Election Town of Roxie

Dear Mr. Carter:

In reference to my letter dated March 27, 1991, which was a report to Mayor Betty Norris, relative to a Special Election on the 26th day of March, 1991, which led to the action of the Elections Commissioner of the Town of Roxie on the 27th day of March, 1991, voiding that election, three questions have developed concerning matters arising out of the need for this second Special Election.

First, the question has developed under interpretations of Section 23-15-593, Mississippi Code Annotated, 1972, as amended, relative to whether the poll workers must be replaced in the holding of the second election. This section must be read in conjunction with Section 23-15-221, which provides for the duties of the municipal election commissioners, and provides that the Election Commissioners will be election managers themselves. It would appear that any interpretation of Section 23-15-593 must take into consideration the mandates of Section 23-15-221, which states that the election commissioners shall in case there be but one election precinct in the municipality act as election managers themselves. In the Town of Roxie there is only one precinct. Please advise if this is the correct interpretation of this matter.

Second, the question has developed in interpreting again Section 23-15-593 in light of the fact that this is a municipality election and that only one precinct is involved, may additional candidates qualify. In other words, may a person qualify in the second Special Election other than Lloyd Passenger, Michael Wright and Luther Malone, the three persons who qualified in the first Special Election. Remembering that there was one right-in for Lewis Wilkinson in the voided Special Election.

Third, I would also like to have your opinion on whether or not the ballots left over and dated March 26, 1991, may be corrected to the date of the next Special Election and used again without additional printing. This would presume that none of the original qualifying candidates would withdraw. In the event that one of the qualifying candidates desires to withdraw please advise the correct procedure for such withdrawal.

I would appreciate it very much if you would give me an immediate opinion on these three points.

In light of the statutory provision for holding a Special Election as provided by Section 23-15-857, that provides that the Mayor and Board of Aldermen must take action not later than ten (10) working days after such vacancy shall have occurred. My first letter interpretated this statute as requiring the Mayor and Board of Aldermen to pass a Resolution within ten (10) days of the action of the Election Commissioners in voiding the election on the 27th day of March, 1991. If for some reason definitive answers cannot be found to the first three questions, timely enough to comply with the ten (10) day statutory provision of Section 23-15-857, I would further need an opinion relative to this matter.

Thank you very much for your assistance throughout this entire matter.

Yours very truly

K. Maxwell Graves, Jr. Attorney at Law.