Mississippi Advisory Opinions March 05, 1981: AGO 000002593 (March 5, 1981)

AGO 000002593.

Dear Mr. Hobbs:

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

"As counsel for the City of Brookhaven, Mississippi, a code charter municipality, we call your attention to the following statutes:

Code Section 23-1-31 (1942 Code Section 3118.7, as amended by Chapter 506, Laws of 1970) Code Section 23-1-85 (Section 3, Chapter 485, Laws of 1976)

as being pertinent, and to your recent memorandum indi- cating that 3 April 1981 was the deadline for independent candidates for municipal election to qualify and that 12 April 1981 was the deadline for political party candidates to qualify.

"We request your opinion on the following question:

If a person otherwise qualified to be a candidate for municipal elective office in a code charter municipality in the 1981 elections qualifies as an independent candidate by performing the necessary acts on or before 3 April 1981, and later decides to run instead in a party primary for nomination by the party, may such person withdraw as an in- dependent candidate and by performing the neces- sary acts to qualify as a candidate for nomina- tion in the party primary election on or before 12 April 1981 become a candidate for nominations the political party?

"If so, by what method should the party withdraw as an independent candidate?"

We note that the cited Section 21-1-31 as shown in Volume 6 of the 1972 Code is not effective since it was purportedly derived from Chapter 506, Laws of 1976. Chapter 506 was ob- jected to by the United States Attorney General and never va- lidated by any federal court. Therefore, the appropriate re- ference for the subject of Section 21-1-31 is the 1942 Code Section 3118.7 which you also cited.

We also note that the cited Section 21-1-85 which appears in the 1980 Cumulative Supplement to Volume 6 of the 1972 Code is not effective since Chapter 485, Laws of 1976, was objected to by the United States Attorney General and has not been valida- ted by any federal court.

The cited Section 3118.7, found in the 1980 Cumulative Supplement to Volume 6 of the 1972 Code, is considered to be effective and provides in part:

"upon 3118.7. Withdrawal of name as candidate.

When any person has qualified in the manner provided by law as a candidate for party nomination in any primary election such person shall have the right to withdraw his name as a candidate by giving notice of his withdrawal in writing to the secretary of the proper executive committee at any time prior to the printing of the official ballot, and in the event of such withdrawal the name of such can- didate shall not be printed on the ballot.

Section 3118.7 addresses qualification of candidates for par- ty nomination in a primary election. You will recall that Sec- tion 23-5-134 of the 1972 Code, now effective, provides for qua- lification of persons as candidates to run in a municipal gener- al election as independents by presentation to the Municipal E- lection Commission of a petition with the requisite number of names of qualified electors.

Section 3261 appearing in the 1980 Cumulative Supplement to Vo- lume 6 of the 1972 Code, and effective, provides concerning the general election ballot:

"upon 3261. Names of candidates not to be left off the ballot.

After the proper officer has knowledge of or has been notified of the nomination, as provided, of any candidate for office, the officer shall not omit his name from the ballot, unless upon the written request of the candidate nominated, made at least ten (10) days before the election; and every ballot shall contain the names of call candidates nominated as specified, and not duly withdrawn."

We interpret the provisions in Section 3261 to provide statutory authority for a person who has in 1981 qualified with a municipal election commission as a candidate in the 1981 municipal general election to withdraw from such candidacy at a date prior to the 1981 deadline date for qualifying as a candidate for nomination in a municipal primary election to be held on May 12, 1981, and it is the opinion of this office that such person is not thereaf- ter prohibited by such act of qualification and withdrawal from attempting to qualify timely as a candidate for nomination in a municipal primary election to be held on May 12, 1981.

Such person having qualified as an independent candidate may effect withdrawal by timely written request to the Municipal Election Commission.

With kind regards, I am

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY:

S. E. Birdsong, Jr. Assistant Attorney General

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