Mississippi Advisory Opinions July 27, 1984: AGO 000010332 (July 27, 1984)

AGO 000010332.

Dear Mr. Ferguson:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

"Recently, the untimely death of one of our most energetic, dedicated and hard working Supervisors has created a situation of some concern to this Board, and particular to this Supervisor.

"What, in your opinion as Attorney General, would prevent the Warren County Board of Supervisors from setting and holding a special election to fill the vacancy created by the death of Mr. Z. B. Fry? Is there any state legislation that will prevent us from setting a date and holding an election on or before November 6, 1984? Any federal regulations that would prevent the same?"

Chapter 465, Laws of 1984 was passed by the Mississippi Legislature and submitted to the United States Attorney General for approval in accordance with the provisions of the Federal Voting Rights Act of 1965. Such approval is required before said law becomes effective. It provides in part:

"Section 1. Section 23-5-203, Mississippi Code of 1972, is amended as follows:

23-5-203. Except as otherwise provided by law, the first Tuesday after the first Monday in November of each year shall be designated the regular special election day and on that day, an election shall be held to fill any vacancy in county, county district, and district attorney elective offices.

In those years when the regular special election day shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot, but shall be clearly distinguished as general election candidates or special election candidates.

Section 2. Section 23-5-197, Mississippi Code of 1972, is amended as follows:

23-5-197. When a vacancy shall occur in any county or county district office, the same shall be filled by appointment by the board of supervisors of the county, by order entered upon its minutes, where the vacancy occurs, or by appointment of the president of the board of supervisors, by and with the consent of the majority of the board of supervisors, if such vacancy occurs when said board is not in session, and the clerk of the board shall certify to the Secretary of State the fact of the appointment, and the person so appointed shall be commissioned by the Governor; and if the unexpired term be longer than six (6) months, such appointee shall serve until a successor is elected as hereinafter provided, unless the vacancy shall occur before ninety (90) days prior to the general election in a year in which an election would normally be held for that office as provided by law, in which case the person so appointed shall serve the unexpired portion of the term. Such vacancies shall be filled for the unexpired term by the qualified electors at the next regular special election day occurring more than ninety(90) days after the occurrence of the vacancy."

As of this date we have not received any communication from the United States Justice Department on the status of the above quoted law.

In response to your specific question, since we are not at this moment governed by Chapter 465, Supra, there would be no legal prohibition against the board declaring a vacancy and setting a date for a special election in accordance with the Mississippi Code Annotated 23-5-197 (1972) (Copy enclosed).

However, since the United States Attorney General's decision on the approval or disapproval of the statute in question is expected shortly, the board may wish to consider delaying the adoption of an order declaring a vacancy and setting a date for a special election until said decision is received.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY Phillip C. Carter Special Assistant Attorney General

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Enclosure