Mississippi Advisory Opinions December 18, 1991: 19911218 (December 18, 1991)

Advisory Opinion Text

Constance Slaughter-Harvey, Esquire

Assistant Secretary of State

Post Office Box 136

Jackson, Mississippi 39205

Dear Ms. Harvey:

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

“This is a request for an Official Attorney General's opinion regarding special elections for state judges in light of the Kirksey v. Mabus litigation.

This question arises from the situation in the Nineteenth Circuit Court District in which two vacancies have occurred this year, and each vacancy has subsequently been filled by gubernatorial appointment. Under Miss.Code Ann. Sections 23-15-845 through 849, both vacancies must be permanently filled by special election on November 3, 1992, with primaries to be held March 10, 1992.

The Kirksey v. Mabus court order provides no instruction regarding the filling of vacancies, and current state law only presupposes the old ‘Post’ system. Our questions, therefor, are: Should each judgeship be filled through separate primaries for nomination and separate special elections? OR Should the judgeships be filled together under the at-large system ordered by the federal court? Specifically, should the ballot be structured such that all the candidates are listed together with the voter choosing one or two candidates or should the candidates be listed so that each vacancy represents a separate special election?”

In Martin/Kirksey v. Mabus, Civil Action No. J85-0960(B), the Final Judgement of Three-Judge District Court issued December 29, 1988 as amended by order of January 17, 1989, provides that the election of chancellors and judges in nineteen chancery and circuit court districts, including the Nineteenth Circuit Court District, will be conducted in the manner provided for in said order. We are enclosing a copy of this order for your convenience. The order sets forth certain “special provisions” that govern these elections. See paragraph 11 of said order beginning on page 12.

Paragraph 14 specifically provides that “any elections to fill judicial vacancies are subject to the terms of this judgement”. It is the opinion of this office that the two (2) vacancies must be filled in accordance with the “special provisions” of the aforementioned order as well as the applicable statutory provisions unaffected by said order just as the elections in 1989 were conducted. This means that primary elections will be conducted on March 10, 1992 (Super Tuesday) and party candidates shall qualify and run at-large for the nominations for the two positions without reference to a numbered place or subdistrict residency requirement. The qualified electors in the Nineteenth Circuit Court District may vote for one or two candidates in either the Democratic or Republican Primary.

In response to your specific question and based on the above, it is the opinion of this office that names of all candidates who qualify to run in a primary will appear on the appropriate party's primary ballot and all such candidates will be competing for their party's nominations for the two vacant judgeships. Following the primaries, assuming that at least two (2) candidates qualify for each primary, the respective parties will determine their two (2) nominees in accordance with the formula set out on page 14 of the court order. The election to fill the vacancies will be conducted simultaneously with the November, 1992 General Election and the names of the nominees of each party and any independent candidates will appear on the general election ballot under the designation “Special Election” and the two (2) candidates who receive the highest number of lawful votes will be elected to the two (2) judgeships.

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General.

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Notes:

Mississippi Code Annotated §§ 23-15-845 through 23-15-849 (Revised 1990) require that vacancy nominations for circuit judges be made in primary elections conducted at the same time as the congressional primaries when such vacancies are being filled in years that congressional elections are held.

Mississippi Code Annotated § 23-15-833 (Revised 1990).

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