Mississippi Advisory Opinions October 21, 1991: AGO 000005414 (October 21, 1991)

AGO 000005414.

Dear Mr. Savely:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

As you are aware, September 17th elections were held Statewide. In Pontotoc County there were seven candidates running for the Circuit Clerk's office. The incumbent, Donald Luther, had 3, 380 votes; the number two person had 1, 548 votes; the number three person has 1, 247; the number 4, 5, 6, and 7 candidates had a combined total of votes at 2, 585. Donald Luther died the following Saturday from complications from stomach surgery.

The Democratic executive committee asked for your guidance in preparing for a run-off election. Your office said to move the next two "vote-getters" up and continue with the election. As a member of the Pontotoc Executive Committee I objected this because of the vote spread. It would not appear to be the will of the voters to proceed in this direction. The law does not deal directly, as I see it, with the lead vote- getter leaving the race. I would like a formal opinion as soon as possible on how your office reached the above conclusion.

In response to your inquiry, Mississippi Code Annotated Section 23-15-305 (Rev. 1990) states, in part:

If no candidate received such majority of the votes cast in the first primary, then the two (2) candidates who receive the highest number of votes cast for such office shall have their names submitted as such candidates to the second primary and the candidate who leads in such second primary shall be nominated for the office.

If the candidate who received the second highest number of votes cast for such office for any reason declines to enter the second primary, then in that event the candidate who received the third highest shall have his name submitted to the second primary, together with the candidate who received the highest number of votes cast for such office.

If the candidate who received the third highest number of votes cast for such office for any reason declines to enter the second primary, then in that even the candidate who received the fourth highest shall have his name submitted to the second primary, together with the candidate who received the highest number of votes cast for such office.

Even though this Code section does not specifically deal with the problem of candidate number one dying before the second primary, this section is analogous to the same. This section states that the two candidates who received the highest number of votes shall be in the second primary. If the candidate who received the highest number of votes does not enter the second primary, then the candidates who have the second and third highest number of votes are the two candidates having the highest number of votes.

Furthermore, this section specifically permits candidate number three to take the place of candidate number two if for any reason, which would include death, candidate number two does not enter into the second primary. Therefore, candidates number three and four would become candidates number two and three, respectively. In our opinion, the "new" candidate number three is also allowed to take the place of "new" candidate number two if the former does not enter the second primary.

Since the legislature specifically provided for candidates number three and four to shift up in ranking if a candidate above them withdraws from the second primary, it is our opinion that candidates number two and three would shift up to number one and two, respectively, if original candidate number one dies.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PCC:mfd