Mississippi Advisory Opinions May 19, 2017: AGO 2017-00154 (May 19, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Carlton Baker

SUBJ: Elections - Primary

SBCD: 70

TEXT: The Honorable Carlton Baker

Circuit Clerk, Calhoun County

Post Office Box 25

Pittsboro, Mississippi 38951

Re: Primary Election prior to Special Election to fill vacancy

Dear Mr. Baker:

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

Background

It is our understanding that, pursuant to Mississippi Code Annotated Sections 23-15-839 and 23-15-833, a special election will be held on Tuesday, November 7, 2017, to fill a vacancy on the Calhoun County Board of Supervisors.

You state that you received notice from the Calhoun County Democratic Executive Committee that the said committee intends to hold a Democratic Primary on August 1, 2017, with a candidate qualifying deadline of June 2, 2017, for the purpose of selecting a Democratic nominee for the November special election.

You correctly note that Mississippi Code Annotated Section 23-15-841, which authorizes political parties to conduct primaries prior to special elections to fill vacancies in county and county district offices, stands repealed effective July 1, 2017, pursuant to House Bill 467, 2017 Regular Session.

Issue Presented

You ask if you should proceed with preparation for the Democratic Party Primary scheduled for August 1, 2017.

Response

No. From and after July 1, 2017, there will be no legal authority to hold a primary to select a party nominee for a special election to fill a vacancy in a county or county district office.

Applicable Law and Discussion

Section 23-15-291 provides:

All nominations for state, district, county and county district officers made by the different parties of this state shall be made by primary elections. All primary elections shall be governed and regulated by the election laws of the state in force at the time the primary election is held.

(Emphasis added)

Section 201 of House Bill 467 provides:

Section 23-15-841, Mississippi Code of 1972, which provides for the holding of a primary election in special elections for county and county district seats, is repealed.

Section 205 of House Bill 467 provides:

This act shall take effect and be in force from and after July 1, 2017, except for Sections 3, 9, 13, 14, 15, 18, 19, 21, 24, 31, 70, 108, 115, 116, 117, 118, 119, 184 and 188, which shall take effect and be in force from and after passage.

With the repeal of Section 23-15-841 effective July 1, 2017, the election laws in effect on August 1, 2017, will have no provision authorizing a political party to conduct a primary to select a party nominee for a special election to fill a vacancy in a county or county district office. Therefore, there can be no party primary on August 1, 2017, pursuant to Section 23-15-841, to select a party nominee for the November special election.

Conclusion

Since the election laws in effect on August 1, 2017, will provide no legal authority for a political party to conduct a primary to select a nominee for a special election to fill a vacancy in a county or county district office, you should not proceed with any preparations for the scheduled primary. Any eligible person may qualify as a candidate in the November 7, 2017 special election by filing, not later than 5:00 p.m. on Friday, September 8, 2017, a petition with the Board of Supervisors signed by not less than fifteen (15) qualified electors of the supervisor’s district where the vacancy exists, pursuant to Sections 23-15-839 and 23-15-359.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General