Mississippi Advisory Opinions May 15, 1987: AGO 000007870 (May 15, 1987)

AGO 000007870.

Dear Mr. Gill:

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

As you may know, the City of Gautier was incorporated in June of 1986, and has been functioning since that time. At the time of the incorporation, Gautier began city government as a city manager/city council government. The incorporation provided for five city councilmen and one mayor to serve as the city council each with one vote.

Unfortunately, one of the City Councilmen, who was appointed at large, Glen Cox, was deceased at the time of the incorporation. We therefore have a vacant seat on the City Council which we have not declared vacant at this point.

My question is, can we declare the seat of Glen Cox vacant, and call a special election before obtaining voting rights approval from the Justice Department under the Voting Rights Act?

The procedure for filling a municipal vacancy is set forth by Miss. Code Ann. 23-15-857 (Supp. 1986; Special Pamphlet). Pursuant to our phone conversation on May 6, 1987, it would appear that the unexpired term would exceed six months and therefore 23-15-857(2) would be applicable.

As to the application of the Voting Rights Act of 1965 as amended and extended, this office does not issue opinions interpreting federal law. However we would bring your attention to the procedures adopted by the Department of Justice for administration of 5 of the Voting Rights Act of 1965, as amended. In particular, please see 28 C.F.R. 51.17 regarding special elections.

In 28 C.F.R. 51.1, as well as in the act itself it is stated that any change covered by 5 may not be enforced until either: (1) A declaratory judgment is obtained from the U. 5. District Court for the District of Columbia that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group or (2) It has been submitted to the Attorney General and the Attorney General has interposed no objection within the sixty (60) day period following submission.

Also in our telephone conversation the question arose as to the need to submit, pursuant to 5, Gautier's incorporation. In this regard please see 28 C.F.R. 51.13(e) wherein a list setting forth changes affecting voting includes:

(e)Any change in the constituency of an official or the boundaries of a voting unit (e.g., through redistricting, annexation, deannexation, incorporation, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections).

See also our opinion to the Honorable John W. Chapman dated May 28, 1986, and attached hereto.

Hopefully you will find this responsive to your request. Should you have any questions or if we may be of further assistance please do not hesitate to contact this office.

Sincerely,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY

John H. Emfinger Special Assistant Attorney General

JHE :mfd Enclosure