Mississippi Advisory Opinions December 21, 1987: AGO 000008160 (December 21, 1987)

AGO 000008160.

Dear Representative Vecchio:

Attorney General Edwin Lloyd Pittman has received you request for an opinion and has assigned it to me for research and reply. A copy of your letter is attached hereto and incorporated herein by reference.

Basically, you seek guidance as to the manner of conducting the election for the commissioners for the Gautier Utility District. House Bill 1376, which provides for their election, provides no detail as to how such election shall be conducted.

In Simpson Countv v. Burkett, 178 MS 44, 172 So.2d 329 (1937), the Mississippi Supreme Court held that where a statute provides for a matter to be submitted to the voters of the entire county but is silent as to the notice necessary to be given, one must apply such election laws as bear the closest analogy to the election provided for under the statute.

In your letter you ask several questions which we will answer specifically below:

QUESTION 1: What is the appropriate time when such election may be held?

RESPONSE:The bill specifically provides as follows:

. . .The commissioner shall be elected at the regular election in November, 1987 if this chapter as herein amended is approved under the Federal Voting Rights Act of 1965 prior to September 1, 1987. If approval is not received prior to September 1, 1987, then the commissioner shall be elected in either a regular election occurring within one hundred eighty (180) days following approval or at a special election called for such purpose on a date within one hundred eighty (180) days following approval.

Pursuant to the information which you have supplied, preclearance of this provision was not obtained prior to September 1, 1987.

Accordingly, the matter was not submitted to the electorate during the November general election. You have supplied a copy of a letter from the Justice Department dated October 19, 1987, wherein the United States Attorney General does not interpose any objections to the change submitted. It would seem that the latter portion of the language quoted above would be applicable. That is, any election would be required to be conducted within one hundred eighty (180) days of preclearance either in a regular election scheduled during that time period or a special election called for this purpose.

QUESTION 2: What official or officials are authorized to call such election?

RESPONSE: In the bill, there is specific directions that vacancies shall be filled by the procedure set forth in Miss. Code Ann. Section 23-15-839 (Supp. 1987) Under that section the board of supervisors of the county would declare a vacancy in a county district office and would make an order, in writing, directed to the commissioners of elections, commanding an election to be held. It is the opinion of this office that the original election in this instance would be called in the same manner.

QUESTION 3: Is a primary election required if candidates wish to run by political party?

RESPONSE: It would appear that the intent of the bill was to equate the commissioners of the Gautier Utility District with county district officers. Accordingly, unless the executive committees of the county seeks to utilize the procedure set forth by Miss. Code Ann. Section 23-15-841 (Supp. 1987) there would not be a primary election.

QUESTION 4: What is the manner, time and procedure for candidates to qualify?

RESPONSE: Pursuant to Section 23-15-835 (Supp. 1987) immediately upon receiving an order from the board of supervisors, the commissioners of elections of the county should give notice of the special election by posting notices at the courthouse and in each supervisor's district in the county for ninety (90) days prior to such election. If a primary election is not called by the county executive committees, candidates should proceed to qualify by filing petitions as required by Miss. Code Ann. Section 23-15-359 (Supp. 1987) with the circuit clerk. Because there is not specific provision for the number of qualified electors required on a petition required to be filed under this section, it is the opinion of this office that such petition should contain the signature of not less than fifteen (15) qualified electors of the particular district in which the person seeks election. [If the county executive committees seek to have a primary election, then candidates would qualify as provided by Miss. Code Ann. Section 23-15-299 (Supp. 1987)]. Pursuant to Section 23-15-835, the election shall then be prepared for and held as in the case of a general election.

Should no candidate receive a majority of the votes casted in such an election, then a run-off election should be held two (2) weeks after such election and the two (2) candidates who receive the highest popular votes for such office shall have their names submitted as such candidates to the said run-off and the candidate who leads in such run-off election shall be elected to office. See Section 23-15-833.

Hopefully the above is responsive to your request. If we can 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:dw Enclosure