Mississippi Advisory Opinions December 16, 1985: AGO 000009135 (December 16, 1985)

AGO 000009135.

Dear Ms. Price:

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

Your letter states:

"1) What constitutes a legal residence?

"2) How long may a person remain on the poll books and not vote before the elec- tion commissioners administratively remove that person?

"3) Who provides legal counsel for election commissioners?

"4) Must all (15) electors who sign a candidate's petition be registered in that district at that time and/or by the qualifying deadline of the candidate?"

In response to your first question please see the enclosed copy of an opinion addressed to Honorable Bernard Handy, dated July 29, 1981. In summary that opinion states that the residence qualification is a factual determination to be made by the Election Commission and cites several Mississippi Supreme Court decisions as guidelines for the commissioner's consideration in making that determination.

In response to your second question, Mississippi Code Anno- tated 23-5-82 (Supp. 1985) sets forth the procedure whereby the commissioners of election may erase the names of all persons who have not voted in at least one (1) election in the last four (4) successive years. A copy of that code section is enclosed for your convenience.

Please note that prior to any such action a specific notice procedure must be followed. This procedure is set out in paragraph (2) of the above mentioned Code section. Subparagraph (2)(d) provides that a person whose name has been so removed may cast an affidavit ballot at an election and that said ballot shall be counted and the name of the person casting the ballot shall be reentered on the registration books if such person is not otherwise disqualified.

Also note that paragraph (3) provides that no one who was registered by any federal registrar shall be removed except in conformity with applicable federal law, rules or regulations.

Paragraph (4) provides that "no years in which a person has not voted prior to January 1, 1984, shall be used in calculating the four-year period . . .". Therefore, 1984 is the first year that may be counted in calculating the four-year period.

In response to your third question, Section 23-5-97 provides in part:

(1) The board of election commissioners is hereby authorized and empowered to employ and set or determine the duties of and determine the compensation of such investigators, legal counsel, secretaries, technical advisors, and any other employees or persons who or which said board or a majority thereof may deem necessary to enable them to discharge the duties and obligations presently or hereafter vested in them.

However, before employing such persons or setting or determining said compensation, the election commissioners must first have the approval of the board of supervisors of the county."

The above quoted Code section authorizes the county election commissioners to employ legal counsel but specifically requires prior approval of the board of supervisors.

Therefore, the election commission may not employ legal counsel unless the board of supervisors first approves same.

Furthermore, Section 19-3-47(b) authorizes county boards of supervisors, in their discretion, "to employ counsel in all civil cases in which the county is interested . . . and in criminal cases against a county officer for malfeasance or dereliction of duty in office, when by the criminal conduct of the officer the county may be liable to be affected pecuniarily, to conduct the proceeding instead of the district attorney, or in conjunction with him . . .".

Therefore, in response to your specific question and based on the above, it is the opinion of this office that the county board of supervisors must either approve the employment of legal counsel by the county election commission pursuant to Section 23-5-97, supra, or make the proper factual determinations concerning a particular case and employ counsel to represent the interests of the county pursuant to Section 19-3-47(b), supra.

In response to your fourth question Section 23-5-134 pro- vides in part:

"The commissioner shall also have printed on the ballot in any general or special election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office by a petition filed with said commissioner, not less than sixty (60) days prior to the election, and signed by not less than the following number of qualified electors:

* * * *

(f) For an office elected by the qualified electors of a supervisors district or a municipality having a population of less than one thousand (1,000), not less than fifteen

(15) qualified electors."

Registration is, of course a prerequisite to being a qualified elector. Therefore a petition, in order to meet the above statutory requirements, must contain the signatures of at least fifteen (15) individuals who are properly registered and possess all other qualifications required of qualified electors.

Therefore, it is the opinion of this office that at the time the election commission meets to determine the sufficiency of the candidates' petitions the signatures on the petitions must appear on the registration books of the district from which the office in question is to be filed, and such person must be or will have been registered not less than thirty (30) days prior to the election date and otherwise qualified to vote.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY Phillip C. Carter Special Assistant Attorney General

PCC:mfd Enclosures