Mississippi Advisory Opinions June 26, 2017: AGO 2017-00201 (June 26, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Kim Turner

SUBJ: Elections - Municipal

SBCD: 69

TEXT: Kimberly P. Turner, Esquire

Assistant Secretary of State, Elections Division

Post Office Box 136

Jackson, Mississippi 39205

Re: Unopposed candidates’ names left off ballot

Dear Ms. Turner:

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

Background

You state that four (4) municipalities have filed certified election results which failed to certify those municipal candidates who were unopposed for office.

Your letter states:

City 1 certified the election results and candidate for mayor, failing to certify the unopposed municipal candidate for aldermen at large; city 2 certified the election results and candidates for mayor and alderman, ward 3, failing to certify the unopposed municipal candidates for the aldermen from the remaining wards; city 3 certified the election results and candidate for alderman, ward 4, failing to certify the unopposed municipal candidates for mayor and the aldermen from the remaining wards; and city 4 certified the election results and candidates for mayor and aldermen from all wards except ward 4, failing to certify the unopposed municipal candidate for alderman, ward 4.

You then state:

It is not the validity of the Municipal General Elections held in these cities which is in question, but whether the unopposed candidates, whose names were not placed upon each city’s General Election ballot as was required by Section 23-15-361, Miss. Code Ann., were in fact elected. The General Election conducted by these cities was valid, but only with regard to those candidates whose names were placed on the General Election ballot. Cases such as Thompson v. Jones, 17 So.3d 524 (Miss. 2008) and Wilbourn v. Hobson, 608 So.2d 1187 (Miss. 1992), which consider whether a violation of a particular statute renders an election void, appear to be inapplicable. Furthermore, determining Section 23-15-361(6), Miss. Code Ann., to be directory as opposed to mandatory, would wholly nullify the statute itself, rendering it meaningless.

Questions Presented

Question 1: Have these unopposed municipal candidates been elected in accordance with Mississippi law if the cities’ election commissioners failed to place their names upon the General Election ballot as required by Section 23-15-361(6), Miss. Code Ann.?

Question 2: If these unopposed municipal candidates have not been elected in accordance with Mississippi law by reason of the cities’ election commissioners failure to place their names upon the General Election ballot, must the municipal governing authorities declare a vacancy in those municipal positions after July 3, 2017 and thereafter set a special election for those municipal positions in accordance with Section 23-15-857, Miss. Code Ann.?

Responses

In response to your first question, we are of the opinion that, upon certification by the appropriate municipal election commission that the candidates in question were elected to their respective offices by virtue of being unopposed, they have been lawfully elected.

Our response to your first question renders your second question moot.

Applicable Law and Discussion

As cited and quoted in your letter, Mississippi Code Annotated Section 23-15-361 sets forth, inter alia, how the names of unopposed candidates in municipal general elections are to be treated insofar as the printing of the ballots are concerned. Section 23-15-361(6) provides:

If after the deadline to qualify as a candidate for an office or after the time for holding any party primary election for an office, there shall be only one (1) person who has duly qualified to be a candidate for the office in the general election the name of such person shall be placed on the ballot; provided, however, that if there shall be not more than one (1) person duly qualified to be a candidate for each office on the general election ballot, the election for all offices on the ballot shall be dispensed with and the municipal election commission shall declare each candidate elected without opposition if the candidate meets all the qualifications to hold the office as determined pursuant to a review by the commission in accordance with the provisions of subsection (5) of this section and if the candidate has filed all required campaign finance disclosure reports as required by Section 23-15-807.

Discussing whether votes in an election were illegally cast, the Mississippi Supreme Court in Thompson v. Jones stated:

The illegality of the votes depend on the statute of the Election Code which they violate. If the violated statute does not expressly state “that a particular act is essential to the election's validity or that omission of the particular act will render the election void, the statute is considered directory rather than mandatory, so long as the irregular act is not intended to affect the integrity of the election.” Rogers , 636 So.2d at 647–648 citing Riley v. Clayton , 441 So.2d 1322 (Miss.1983).

If the statute is directory, the next hurdle to overcome is the presence of fraud. In Straughter v. Collins , 819 So.2d 1244, 1252 (Miss. 2002), this Court noted that “mere technical irregularities in the casting of a ballot are not grounds for invalidation absent evidence of fraud or intentional wrongdoing.” (citing Campbell v. Whittington , 733 So.2d 820 (Miss.1999)). Thompson argues that where there is no evidence of fraud or intentional wrongdoing ballots should not be disallowed for failure to strictly comply with the technical requirements of the statute. The foundation of Thompson's argument is Wilbourn v. Hobson , 608 So.2d 1187 (Miss.1992). But that foundation is for the wrong structure. Wilbourn dealt with affidavit ballots and not absentee ballots. This Court in Campbell distinguished affidavit ballots from absentee ballots by stating “[a]s opposed to voting at the polls, in a public setting where the integrity of the election process can be ensured, absentee voting takes place in a private setting where the opportunity for fraud is greater.” Campbell , 733 So.2d at 827. Furthermore, this Court has held that “[t]he real issue presented by this and many other election contests we routinely deal with is a flawed and failed absentee ballot process. The privilege of voting by absentee ballot is created by Miss. Code Ann. Section 23-15-621 (Rev. 2001), and those administering elections must strictly conform to statutory requirements.” Boyd , 912 So.2d at 134. (Emphasis added.)

Thompson v. Jones, 17 So.3d 524 (Miss. 2008)(citing Rogers v. Holder, 636 So.2d 645 (Miss. 1994)).

In Thompson , the Court held that statutory requirements for casting absentee ballots must be strictly followed, because the opportunity for fraud is great. In the instant case, the failure to include an unopposed candidate’s name on a ballot presents absolutely no opportunity for fraud. Therefore, the provisions of Section 23-15-361 should be viewed as directory and not essential to the validity of certifications of the election of the unopposed candidates in question.

We do not agree that considering the provisions of Section 23-15-361(6) as directory nullifies and renders the statute meaningless. It is unfortunate that some municipal election commissions may have failed to comply with those statutory directives. However, concluding that those provisions are directory as opposed to mandatory does not relieve municipal election commissioners from compliance with those provisions in future elections.

In an analogous situation, the Court has held that Miss. Code Ann. Section 13-5-87, which concerns the drawing, summoning and impaneling of juries, is directory rather than mandatory. Page v. Siemens Energy and Automation, Inc., 728 So.2d 1075 (Miss. 1998). The Court did not suggest or imply that such characterization of the statute as directory had the effect of rendering the statute meaningless.

The consequences of interpreting the provisions of Section 23-15-361(6) to make the printing of ballots for an uncontested office mandatory as opposed to directory would be that, as of July 1, 2017, the offices in question would have to be declared vacant. This would require municipal governing authorities to order special elections to fill those vacancies and would require individuals who were the only ones to meet all legal requirements and who are clearly entitled to the offices they sought, to qualify again as candidates in a special election. Those individuals should not be punished for failures on the part of the municipal election officials to comply with statutory provisions that are directory. This is especially true where the statute does not specify that compliance is essential to the validity of the election and the facts demonstrate a complete absence of any opportunity for fraud.

The Mississippi Supreme Court has stated: “In construing statutes, however, the chief aim of the courts should be to reach the real intention of the legislature. A construction which will bring about manifestly unthought-of and unjust results will be avoided, if possible, and, if necessary to avoid such results, the courts will widen or narrow the letter of the statute.” Anderson v. Lambert , 494 So. 2d 370 (Miss. 1986). The Court has further recognized that “(u)nthought of results must be avoided if possible, especially if injustice follows, and unwise purpose will not be imputed to the Legislature when a reasonable construction is possible.” Zeigler v. Zeigler , 174 Miss. 302, 310, 164 So. 768, 770 (1935).

In ruling on the necessity of a special election where there were only two candidates for an office and the winning candidate was declared to be unqualified based on residency, the Mississippi Supreme Court said:

As for whether a special election was necessary in this case, we believe that Sanders's argument that no other candidates remained for there to be a special election is a compelling argument. For the foregoing reasons, this Court affirms the trial court's finding that Miss. Code Ann. Section 23-15-951 is the applicable statute and that a special election was not necessary.

We are of the opinion that the same principle applies when there is only one person duly qualified as a candidate for a particular office. Therefore, declaring vacancies and conducting special elections in the instant set of circumstances is not necessary.

Declaring unopposed candidates for a municipal office elected without their names appearing on a ballot is not unprecedented. Section 23-15-857 provides that, in a special election to fill a vacancy in a municipal office, if nineteen (19) days prior to the date of the election only one (1) person shall have qualified as a candidate, the governing authority, or reminder of the governing authority, shall dispense with the election and appoint that one (1) candidate in lieu of an election.

Conclusion

Practicalities and common sense, as well as the cases cited above, dictate that we construe statutory provisions, if possible, in a manner that avoids an unwise and unjust result. To say that failure on the part of municipal election commissions to follow the directives of a statute that is not essential to determining the just results of an election voids the election would require candidates who did everything legally required of them in seeking public office to re-qualify and run in a special election that would have to be called by the municipalities involved to fill vacancies created by such interpretation. This would entail significant and unnecessary expenditures and would be an unwise and unjust result that cannot be imputed to the Mississippi Legislature.

Under the particular circumstances of this case, the unopposed candidates whose names did not appear on the general election ballot should be certified as elected without opposition and are fully eligible to assume the duties of their respective offices on July 3, 2017.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General