Mississippi Advisory Opinions March 31, 2017: AGO 2017-00099 (March 31, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Gary Herring

SUBJ: Elections - Municipal

SBCD: 69

TEXT: The Honorable Gary E. Herring

Mayor, City of Guntown

Post Office Box 27

Guntown, Mississippi 38849

Re: Qualifications of candidates

Dear Mayor Herring:

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

Issues Presented

Your first question concerns the residency requirements of candidates for municipal office. Particularly, you reference a factual situation in which a candidate for municipal office is in the process of building a new home inside the jurisdiction he seeks to serve but has temporarily moved to another nearby town until his newly constructed home is completed.

Your second question concerns a candidate who submitted a petition with fifty-one signatures that appear to be the signatures of qualified electors of the municipality. We understand that there are allegations that two of the signatures are those of persons who no longer are qualified electors. The basic question that we will address is whether the municipal election commission is bound by the municipal clerk’s certification that there are fifty-one signatures of qualified electors on the petition and is, therefore, required to place the candidate’s name on the ballot.

Responses

We preface our responses by stating that pursuant to Mississippi Code Annotated Section 7-5-25, opinions of the Attorney General are issued on questions of law only.

Therefore, we cannot, by official opinion, make factual determinations on the qualifications of candidates for public office. Whether a particular candidate is qualified to have his or her name placed on the ballot is a question of fact that must be made by the municipal election commission subject to judicial review. With that in mind, we will respond to your request by stating the general law that is applicable to each of your questions.

Regarding your first question, a candidate for municipal office who had established a legitimate residency within the corporate limits of the municipality may temporarily live outside the municipality provided he or she has not abandoned the municipal residence with no intent to return.

Regarding your second question, in order to qualify as an independent candidate for a municipal office of a municipality having a population of one thousand (1,000) or more, one must file a petition with the municipal clerk that contains the signatures of not less than fifty (50) qualified electors of the municipality. See Mississippi Code Annotated Section 23-15-361.

While the municipal registrar (municipal clerk) certifies the number of signatures of municipal qualified electors on a candidate’s petition, the municipal election commission must make the final adjudication of the sufficiency of a candidate’s petition subject to judicial review. Therefore, the election commission is not bound by the registrar’s certification and may consider whether one or more individuals who signed the petition are, in fact, qualified electors of the municipality.

Applicable Law

The general rule on residency for purposes of voting and holding public office is that once a legitimate residency is established, that residency continues until it is abandoned in favor of another with no intent to return. MS AG Op., Thomas (February 4, 1992), citing Hubbard v. McKey, 193 So.2d 129 (Miss. 1966).

Municipal election commissions make decisions on whether or not to disqualify certain signatures on independent candidates’ petitions. Such decisions must be based on factual determinations relating to the validity of such signatures and cannot be arbitrary and capricious. Edwards v. Wallace, 143 So.3d 557 (Miss. 2014).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General