Mississippi Advisory Opinions August 26, 2016: AGO 2016-00371 (August 26, 2016)

Advisory Opinion Text

AUTH: Reese Partridge

RQNM: Wade White

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: Wade White, Esq.

Board Attorney, Neshoba County Board of Supervisors

501 Main Street

Philadelphia, Mississippi 39350

Re: Election commissioner qualifying petition

Dear Mr. White:

Attorney General Jim Hood has received your request and assigned it to me for research and reply.

Question Presented

A candidate submits to the Board of Supervisors a petition to qualify for the office of County Election Commissioner District 1, but the petition states the petition is for District 3. The qualified electors signing the petition reside in District 1, and the petition was certified by the county registrar. The candidate, also the incumbent for District 1, is a resident of District 1. May the Board of Supervisors accept the petition as being valid for District 1 County Election Commissioner?

Response

Yes.

Applicable Law

Miss. Code Ann. Section 23-15-213 (1972) reads, in pertinent part, as follows:

The qualified electors of each supervisors district shall elect, at the general election in 1984 and every four (4) years thereafter, in their district one (1) commissioner of election. No more than one (1) commissioner shall be a resident of and reside in each supervisors district of the county; it being the purpose of this section that the county board of election commissioners shall consist of one (1) person from each supervisors district of the county and that each commissioner be elected from the supervisors district in which he resides.

Candidates for county election commissioner shall qualify by filing with the clerk of the board of supervisors of their respective counties a petition personally signed by not less than fifty (50) qualified electors of the supervisors district in which they reside, requesting that they be a candidate, by 5:00 p.m. not later than the first Monday in June of the year in which the election occurs and unless the petition is filed within the required time, their names shall not be placed upon the ballot. All candidates shall declare in writing their party affiliation, if any, to the board of supervisors, and such party affiliation shall be shown on the official ballot.

The petition shall have attached thereto a certificate of the registrar showing the number of qualified electors on each petition, which shall be furnished by the registrar on request. The board shall determine the sufficiency of the petition, and if the petition contains the required number of signatures and is filed within the time required, the president of the board shall verify that the candidate is a resident of the supervisors district in which he seeks election and that the candidate is otherwise qualified as provided by law, and shall certify that the candidate is qualified to the chairman or secretary of the county election commission and the names of the candidates shall be placed upon the ballot for the ensuing election.

Discussion and Conclusion

The statutory requirements for qualifying for the office of county election commissioner are contained in Miss. Code Ann. Section 23-15-213. Candidates run by board of supervisor districts. All candidates, whether running under a party label or as an independent, must file with the clerk of the board of supervisors a qualifying petition containing the names of at least 50 qualified electors who reside in the district which the candidate seeks to represent. There are no at-large positions.

In City of Clinton v. Smith, 493 So. 2d 331 (Miss. 1986), the Mississippi Supreme Court set out the minimum which must appear on a petition for a referendum:

(W)e hold that each signature of a registered voter, before that signature may be validated and counted toward the number of signatures required by statute, must appear upon a page which contains language expressing in an intelligible manner the desire of the signing party that a particular referendum election be called, that is, language sufficient that one reading it before signing would not likely be misled as to the effect and import of his or her signature.

Consequently, this office has routinely advised that signatures on candidate petitions, in order to be valid, must appear on a page which contains the candidate's name, the office sought, and the date of the election. Our understanding of the facts here is that the petition pages had the candidate's name and the date of the election, and further that the office sought is correct but the district number is not correct. The facts also indicate that the qualified electors who have already signed the petition and had their petition signatures certified are residents of the correct district.

Our office has previously opined on the sufficiency of candidate qualifying petitions. In MS AG Op., Wolfe (July 13, 2012), citing City of Clinton v. Smith, we opined that the candidate's name must appear on a petition page in order for signatures on that page to be valid.

In MS AG Op., Sorrel (March 23, 2009), again citing City of Clinton v. Smith, we advised the City of Southaven that if a signature page of a candidate petition lacks either the candidate's name or the ward number of a candidate for alderman, then the signatures on that page may not be counted. However, Southaven has aldermen elected by ward as well as an at-large alderman; therefore, voters could be mistaken as to which office the candidate sought election, since he would have been qualified to run in only one ward alderman office, the ward in which he resided for electoral purposes.

Since there is no at-large county election commission office, voters signing the candidate petition are "not likely to be misled" if the district number on the petition is incorrect, as evidenced by the fact the requisite number of signatures on the petition are by qualified electors of the district in which the candidate resides. Therefore, the board of supervisors, exercising its authority to determine the sufficiency of the petition, may find that the petition is valid, subject to judicial review.

In situations which necessitate the correction of candidate petitions, we have opined that the office having authority to certify a petition may make the required correction. See MS AG Op., Ezell (January 16, 1991) and MS AG Op., McMullin (April 18, 2003). Those opinions concerned redistricting but would have applicability in this fact situation as well. Accordingly, for a county election commissioner candidate petition, the board of supervisors may make the required notation on the petition.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Reese Partridge, Special Assistant Attorney General