Mississippi Advisory Opinions October 24, 1980: AGO 000001950 (October 24, 1980)

AGO 000001950.

Dear Mr. Fox:

Attorney General Bill Allain has received your letter and has assigned it to me for research and reply. Your letter states:

"This writer represents the City of Clinton, Mississippi as its attorney. A situation has developed with regard to the forthcoming municipal elections of 1981, in which situation we need guidance.

"The City is in possession of a letter from Bureau of Census with date of April, 1976 in which the census for the entire City is stated to be in excess of a population of 12,000. The city has no argument with that figure and in fact, considers the population to be in excess of 15,000.

"As you know, the census of 1980 has been taken. No report of the census, and particularly the block census, has been rendered, however. We have a letter of recent date from the Regional Office of the Census Bureau in Dallas, Texas which expressly states that the block report will not be ready prior to April, 1981.

"Because of the 1976 letter mentioned above, and actions of the City taken in recognition of the population being in ex- cess of 10,000, we do not now feel that we can conscientious- ly represent that the City of Clinton has less than 10,000 population. We feel that the provisions of 3374-46, Missis- sippi Code of 1942 apply as required by Stewart v. Waller, 404 Fed. Supp. 206.

"The requirements of 23-1-63, Mississippi Code of 1972, Anno- tated and the Voting Rights Act conflict most inharmoniously with our factual situation. We are required to present any re- districting plan to the Department of Justice for approval be- fore implementation. We are, I understand, required to redis- trict according to the teachings of the one-man-one-vote doc- trine; whatever that means. We do understand that the require- ments are that no discrimination or dilution in voting exist.

For this reason the 'block' census becomes vital. If it is un- available until April, 1981, there seems no way to avoid liti- gation.

"We cannot implement a division of the City into wards without fear of dissent. It occurs to us that other municipalities within the State are confronted with the same dilemma. Would you favor us with your ad- vice?"

It is understood that Clinton has a Code charter form of mu- nicipal government and there are five aldermen in office who were elected at large.

Initially, there is addressed your mention of Section 23-1- 63 of the Code which purports to make provisions for how mu- nicipal elections are held. The section is shown as derived from a section of Chapter 506, General Laws of 1970. Chapter 506 was not approved by the United States Attorney General and is not now the law. The statutes that were amended or repealed by Chapter 506 are effective as such statutes existed prior to the enactment of Chapter 506, and as any such statutes have been amended and not objected to by the United States Attorney Gener- al.

Mississippi general elections, except for certain private charter municipalities, are governed in general by the provisions of Chap- ter 11 of Title 21 of the Code. There are additional sections in Title 23 which also govern such elections and which will be refer- red to upon specific inquiries.

It appears from your letter that by now there is an official government record which records that the Clinton population is now in excess of 12,000.

The decision in Stewart affected Code charter municipalities with populations in excess of 10,000. The court said at Pages 209, 210, 218 and 219:

"...Prior to 1962, aldermanic elections were conducted pursuant to a state statute, applicable to code charter mu- nicipalities only, which required cities having a population of over 10,000 to elect six aldermen by wards and one from the municipality at large. Under the same statute, municipa- lities having less than 10,000 residents could, in the discre- tion of the municipal authorities choose to elect all five of their aldermen by at-large balloting or four by wards and one from the municipality at large.

"At the 1962 legislative session, however, the aldermanic election law was substantially altered. In place of the former statute there was substituted the present statute, 2137, which mandates at-large aldermanic elections for all posts in all mu- nicipalities, irrespective of population.

"Ordered, adjudged and decreed:

1. That 21-3-7 of the Mississippi Code of 1972, which was enacted by Chapter 537, Mississippi Laws of 1962, is here- by declared null and void, as repugnant to the Fourteenth and Fifteenth Amendments to the Constitution of the United States.

2. That in view of the unconstitutionality of the aforesaid 21-3-7 in its entirety, the statute law of Mis- sissippi, as it existed prior to the passage of 21-3-7, is declared to be in full force and effect as if it had never been repealed, subject, of course, to further con- stitutional enactment by the Mississippi Legislature.

The statute law existing prior to the passage of Section 21- 3-7, declared by the decision to be in full force and effect, provides as stated in the decision footnotes at Pages 209 and 210:

"... 3. 'In all municipalities operating under a code charter and having a population of less than ten thousand, ac- cording to the latest available federal census, there shall be five aldermen, which aldermen may be elected from the municipa- lity at large, or the discretion of the municipal authorities, the municipality may be divided into four wards, with one alder- men to be elected from each ward and one from the municipality at large. In all such municipalities having a population of ten thousand, or more, according to the latest available federal census, there shall be seven aldermen, and the municipality shall be divided into six wards with one aldermen to be elected from each ward and one from the municipality at large. The municipal authorities may establish as many voting precincts in each ward as may be necessary and desirable. The mayor of the municipality shall be elected from the municipality at large.' Gen. Laws of Miss., ch. 491, 36 (1950). Miss.Code Ann. 3374-36 (1942). ..."

There has not been since the decision any "...further constitutional enactment by the Mississippi Legislature Hence, Code charter municipalities regulated by statute with a population in excess of 10,000, are to have elec- tion arrangements for aldermen as provided in the statute existing prior to 1962: seven aldermen and the municipali- ty divided into six wards with one alderman to be elected from each ward and one from the municipality at large. All, of course, subject to the action of a federal court concer- ning litigation affecting a particular code charter munici- pality.

It appears from your letter and the above that the Clinton governing authorities may be well advised to consider now obtaining professional assistance to make a plan as soon as possible to district the municipality for election of alder- men in accordance with the Stewart decision and to submit the plan to the United States Attorney General for consider- ation under the Voting Rights Act of 1965.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S. E. Birdsong, Jr. Assistant Attorney General

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