Mississippi Advisory Opinions October 07, 1988: AGO 000008410 (October 7, 1988)

AGO 000008410.

Dear Mr. Gex:

Attorney General Mike Moore has received your letter requesting an opinion from this office and has assigned it to me for research and reply.

Your letter states as follows:

In reference to the captioned matter, I have been requested by the Hancock County Election Commission to obtain an opinion relative to the upcoming school board election.

House Bill 1127, in short, in paragraph 2 of Section 1, says, "The board of supervisors of any county upon the request of the county school board ...", and Section 3 of the House Bill repeals the enabling legislation whereby the members of the school board run from their district but are elected by vote of all of the qualified electors in the county school district. I have advised the superintendent of education of this house bill and the school board has failed to make a request of the board of supervisors to have the election based on each separate district of the school district. The bill further states that the act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended.

My questions are:

1. Can the county order the election of school district members from each district rather than from the district as a whole without a request from the school board, and if so, how does the county spread on its minutes that the school districts, for election purposes, shall be the same as the board of supervisors districts until after the results of the 1990 census?

2. Has this bill been approved by the Justice Department, and if not, do the candidates run from the district as a whole in November 1988?

Your letter presents several questions for our review and consideration. This opinion will treat these inquires in reverse order--responding first to those included in question number two (2), and then to those questions embodied in question number one (1).

On June 15, 1988, Chapter 44, 1988 Laws of Mississippi (hereinafter referred to as "Chapter 444") was precleared under Section 5 of the Voting Rights Act of 1965, as amended and extended (42 U.S.C. 1973c). The federal preclearance applied to all provisions of Chapter 444 except the provision repealing 37-5-5, Miss. Code Ann. (1972) which was precleared under Section 5 of the Voting Rights Act on August 9, 1988. Section 37-5-5, supra, authorized an at-large county school bond election in the limited situation where eighty percent (80%) or more of the territory of a supervisor's district constituted one or more municipal separate or special municipal separate school districts.

Chapter 444 repealed all at-large election provisions for county school boards. Accordingly, in response to your question relative to at-large elections at the November 8, 1988 general election, there is no authority under current Mississippi law to elect county school board members from the county at large. Chapter 444, in addition to repealing the statutes which provided for at-large elections for county school board members, also authorized the establishment of special single member board of education districts. Such authority is now codified as 37-5-1(2), Miss. Code Ann. (Supp. 1988) which provides as follows:

(2) The board of supervisors of any county upon the request of the county school board shall provide by order entered on its minutes, that each member of the county board of education for such county shall be elected from and shall be a resident and qualified elector in a special district determined in the following manner. The board of supervisors of such a county shall apportion the county school district into five (5) single member board of education districts. The board of supervisors shall place upon its minutes the boundaries determined for the new five (5) board of education districts. The board of supervisors of said county shall thereafter publish the same in some newspaper of general circulation within said county for at least three (3) consecutive weeks and after having given notice of publication and recording the same upon the minutes of the board of supervisors of said county, said new district lines will thereafter be effective. The board of supervisors of said county shall reapportion the board of education districts in accordance with the procedure described herein for the original apportionment of districts as soon as practicable after the results of the 1990 decennial census are published and as soon as practicable after every decennial census thereafter.

With the passage of Chapter 444 and its effectuation under Section 5 of the Voting Rights Act, there are now two (2) available methods of electing county school board members. One is by special single member education districts authorized by 37-5-1(2), supra, and the other is by supervisors' districts as provided for by 37-5-1-(1). Elections for county school boards by supervisors' districts have previously been authorized, but for many counties such an election method posed serious malapportionment problems. Therefore, many counties opted for at-large elections due to the proscriptions embodied in 37-5-3, Miss. Code Ann. (1972), which provides as follows: 37-5-3. Residency requirements of members and electors.

No person who is a resident of the territory embraced within a municipal separate school district or a special municipal separate school district shall be eligible to be a member of the county board of education. Qualified electors residing within a municipal separate school district or special municipal separate school district shall not be eligible to vote or participate in the election of members of the county board of education.

The provisions of this section shall be applicable in the case of a special municipal separate school district and a line consolidated school district of which another county is the home county which together occupy all of the territory of a supervisors district of the county.

In response to your first question, under the provisions of Chapter 444, the county can order school board elections from supervisors' districts without a request from the county school board, but Chapter 444 places the responsibility of requesting the establishment of special single member education districts with the various county school boards. If special single member education districts have not been established and precleared under Section 5 of the Voting Rights Act in time for the November, 1988 General Election, the county must look to 37-5- 1(1), supra, and to 37-5-7(1), Miss. Code Ann. (Supp. 1988) for the authority and the procedure to follow in holding school board elections. Section 37-5-7(1) provides as follows:

On the first Tuesday after the first Monday in May, 1954, an election shall be held in each county in this state in the same manner as general state and county elections are held and conducted, which election shall be held for the purpose of electing the county boards of education established under the provisions of this chapter. At such election, the members of the said board from Supervisors Districts One and Two shall be elected for the term expiring on the first Monday of January, 1957; members of the board from Supervisors Districts Three and Four shall be elected for a term expiring on the first Monday of January, 1959; and the member of the board from Supervisors District Five shall be elected for a term expiring on the first Monday of January, 1955. Except as otherwise provided in subsection (2), all subsequent members of the board shall be elected for a term of six (6) years at the regular general election held on the first Monday in November next preceding the expiration of the term of office of the respective member or members of such board. All members of the county board of education as herein constituted, shall take office on the first Monday of January following the date of their election.

Under 37-5-7(1) above, the terms of those school board members residing in Supervisors' Districts Three (3) and Four (4) expire on the first Monday of January, 1989. Section 37-5-7(1) requires that the election to fill these two positions for the six-year term beginning January, 1989 shall be held at the regular general election in November, 1988. In response to your second inquiry under question number one (1), if the school board does not request the establishment of special single member education districts as authorized by 37-5-1(2), Miss. Code Ann. (Supp. 1988), then the school board elections for Districts Three and Four shall be held in accordance with 37-5-1(1) and 37-5-7(1), Miss. Code Ann. (Supp. 1988) and the board of supervisors need not enter the order called for by 37-5-1(2).

In summary, it is the opinion of this office that there is no authority to hold county school board elections from the county at large, and until special single member education districts are established under 37-5-1(2) and the elections held under 37-5-7(2), county school board elections must be held by supervisors' districts as authorized by 37-5-1(1) and in accordance with 37-5-7(1).

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By: Giles W. Bryant Special Assistant Attorney General

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