Mississippi Advisory Opinions April 30, 1991: 19910430 (April 30, 1991)

Advisory Opinion Text

Ms. Sue Sautermeister

Hinds County Election Commission

Post Office Box 946

Jackson, Mississippi 39205-0946

Dear Ms. Sautermeister:

Attorney General Mike Moore has received your letter requesting an opinion from this office and has assigned it to me for research and reply.

Your letter presents for opinion several related questions concerning redistricting and its effect on a candidate's eligibility to seek office from his newly created district. You also pose several questions involving a candidate's eligibility to seek office where he has been “redistricted” out of his former district and he moves back in an area within the new lines of his former district.

Your precise questions are as follows:

1. If a candidate's precinct gets redistricted, in which district may he seek office—the “old” or “new” district? If he moves back into his old district, is he still eligible to run in that district?

2. Candidate has established residency in pre-redistricted precinct. Due to redistricting, this district has been redrawn and he no longer resides in this district. If he moves within the “new” district lines, would his residency requirement be [sic] met?

3. Candidate moves into another precinct which remained within “old” district. Does this meet residency requirements since it's still within the district?

4. Redistricting moves a candidate's home precinct into a new district. He has lived in the former district and county for the required number of years. Is he eligible to run for office in this “new” district?

5. Is an incumbent able to move back into “his district” and run if he has been districted out? Does this meet residency requirements?

6. If a candidate voluntarily moves from his district, is he eligible to run for office in the new district if he hasn't met statutory residency requirements?

7. If a candidate is redistricted out of his old district, can he still run for the office in the old district, and then move into the district upon election?

8. Due to redistricting, a candidate's precinct falls within a new district. Is he eligible to run for office even though he doesn't meet residency requirements for the new district?

We note your request that we answer the above questions from the standpoint of which offices a candidate could properly seek under the particular situations listed. In view of the nature of your request, it is obvious that the only relevant offices to consider would be district offices, since countywide and statewide offices are not affected by redistricting. While this opinion will not discuss each and every district office, we will address categories of district offices from the standpoint of those having the shortest residency requirement and those having the longest residency requirement. This approach will give you the information you seek.

A careful review of your eight (8) questions reveals that Questions 4 and 8, together with the first part of Question 1, are essentially the same inquiry. These questions concern the situation where the candidate's residency remains the same and only the district lines have changed, causing him to reside in a newly created district.

It is the opinion of this office that a candidate whose residency is continuous and uninterrupted may apply his previous period of residency in his former district to the period he has resided in the newly created district to satisfy the residency requirements for holding office from such district. This view was set forth in an opinion of this office dated July 8, 1983 to Mr. Burkett H. Martin, a copy of which is enclosed. This principle of combining periods of residency where there has been a change in jurisdictions without a change of location by the candidate or voter was initially announced in Renner v. Bennett , 21 Ohio St. 431 (1871) and later in Gibson v. Wood , 49 S.W. 768 (KY.1899). The court in Gibson, explaining that in such situations the change is a change in jurisdictions and not a change in residency, stated as follows:

“It seems to us it is sufficient that the candidate at the time of the election has a ‘residency’ in the political and jurisdictional sense of the term, within the proper political division and has resided in the same place for the prescribed length of time to fulfill the requirement of the Constitution. In such a case, it is true, in the primary sense of the words, that there is no change of residence but only a change of jurisdiction. To say that there is a change of residence is to give the words a secondary meaning.”

In view of the above, our specific response to the first part of Question 1 is that the candidate, if otherwise qualified, may seek office from the “new” district. Our specific response to Questions 4 and 8 is: Yes, the candidate, if otherwise qualified, is eligible to seek office from the newly created district. Our answers to the preceding questions assume that the continuous period of residency in the old and new district is at least equal to the period of residency required for the particular office sought.

It should also be noted that we have construed Question 8, and particularly the phrase “even though he doesn't meet residency requirements for the new district” to mean that the newly created district has been in existence for a period less than the statutory residency period required for the particular office. As stated above, the candidate's period of residency in the former district is applied to the period of residency in the newly created district, which by itself would be insufficient, to satisfy the residency requirements for holding office from that district.

Turning to your remaining questions, our review of these questions reveals that they also present a single inquiry. Questions 2, 5, 6 and 7, together with the second part of Question 1 concern a situation where a candidate has been “redistricted” out of his former district and he moves back into an area within the new lines of his former district. Your inquiry is whether or not a candidate under such circumstances can meet the residency requirements for holding office from his old district.

It is the opinion of this office that where a candidate is “redistricted” out of his old district and he moves back into an area or location within the new configuration of his former district, he cannot utilize his previous period of residency for the purpose of satisfying residency requirements. On the other hand, if the office sought requires only that the individual be a qualified elector of the county and a resident of the district, such as that required for county supervisors and constables, an individual could meet the residency requirements if the redistricting and the change in residency occurred on or before the date the party executive committee, or the election commission for independent candidates, meet to determine candidate qualifications. This conclusion would also apply to the office of justice court judge, assuming the candidate was also a resident of the county for two (2) years next preceding the election as required by Miss. Const. of 1890, ART. VI, § 171.

Specific responses to your second category of questions are not offered due to the multitude of contingencies. However, the crucial point to remember is that by changing residency to another district an individual loses the ability to utilize his previous period of residency to satisfy the residency requirements for holding office from the newly created district. In such cases, residency must be established independently of any period of prior residency.

We are unable to determine from Question 3 whether or not the candidate's change in residency involved a change of districts. If so, our response would be the same as that above for Questions 2, 5, 6 and 7, etc. If, however, at all times the candidate's residency was in a geographic area within the configuration of the newly created district, his district residency would be continuous and would thereby be unaffected by the redistricting.

Sincerely,

Mike Moore Attorney General.

Giles W. Bryant Special Assistant Attorney General.

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Notes:

The word “candidate(s)” as used throughout this opinion refers to an individual who is desirous of seeking elective office and does not necessarily include an individual who has met all legal requirements for having his name placed on the ballot.

The only variation presented in Question 5 is that the candidate is an incumbent, and in Question 7 the candidate moves back into his old district “upon election.” In view of our opinion on your major inquiry, these variations are of no legal consequence.

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