Mississippi Advisory Opinions September 08, 1993: AGO 000006980 (September 8, 1993)

AGO 000006980.

Dear Ms. Doggett:

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

"I am writing to respectfully request a written opinion on three questions related to elections.

1. Who is responsible for certifying names of voters when petitions are presented to a Board of Trustees or Board of Supervisors?

2. Once a petition calling for an election on issuing tax notes has been checked and certified, should the question appear on the ballot even though the Board of Trustees intends to challenge the petition?

3. Neither the Enterprise nor Quitman Consolidated School Districts have held Trustee elections since 1988, because of non-compliance with MS Code 37-7-207.

What is the status of this law? In your opinion should both our school districts hold elections for Board of Trustees in November?

I would appreciate any guidance you can give me on these questions, since the qualifying deadline for the Trustee election is approaching."

Mississippi Code Annotated Section 23-15-135 (Revised 1990) provides:

"The registration books of the several voting precincts of each county and the pollbooks heretofore in use shall be delivered to the registrar of the county, and they, together with the registration books and pollbooks hereafter made, shall be records of his office, and he shall carefully preserve the same as such; and after each election the pollbooks shall be speedily returned to the office of the registrar."

Section 1-3-76 provides:

"When any petition is filed by qualified electors of a county or municipality requesting a vote on matters affecting all or any portion of a county or municipality, the certifying official shall post a list of all names disqualified from the petition and the reason for disqualification at the courthouse or city hall, as the case may be. A person whose signature has been disqualified by the certifying official may, within ten (10) days after said notice has been posted, appear before such certifying official and present evidence of his qualification accompanied by a notarized affidavit stating the reason that his signature is qualified for the petition. Based upon such information, the certifying official shall reconsider his disqualification and may allow the signature to be counted if such action appears justified." (emphasis ours)

Section 23-15-135, supra, provides that the registration books are to be preserved as a record of the county registrar's office.

Section 1-3-76 supra, clearly contemplates that an individual official as opposed to a board is the "certifying official".

Therefore, in response to your first question and based on the above quoted statutes, it is the opinion of this office that the county registrar is the "certifying official" for the purpose of certifying the number of signatures of qualified electors on petitions calling for an election pursuant to a particular statute as well as on nominating petitions for candidates for public offices.

In response to your second question, it is our understanding that the proposed issuance of notes is pursuant to Section 37-59- 101 et seq. Section 37-59-105 provides that upon the filing of a petition signed by not less than twenty percent (20%) of the qualified electors of the school district, the school board shall, not later than the next regular meeting, adopt a resolution calling an election to be held upon the question of the incurring of said indebtedness. As stated in our response to your first question, the county registrar is the appropriate certifying official. The canvas of the signatures on the petition by the school board should be made at a scheduled or duly called special meeting open to the public at which time a determination is to be made as to the sufficiency of the petition, providing the opportunity for any person to be heard relative thereto. The registrar's certification is prima facie evidence that the petition was signed by the individuals whose names appear thereon and that said individuals are qualified electors. In order for the school board to disregard any name appearing on the petition, substantial evidence must be presented at an open meeting with proper notice and the opportunity for interested parties to be heard. Miles v. Board of Supervisors of Scott County, 33 So. 2d 810 (1948)

In response to your third question, it is the opinion of this office that trustee elections for the Enterprise and Quitman Consolidated School Districts should be held on Tuesday, November 2, 1993 in accordance with Mississippi Code Annotated Section 37- 7-207 (Revised 1990) as amended by Chapter 567 (1990). Chapter 567 enables consolidated school districts to continue electing school trustees on an at large basis or to elect trustees from single member election districts.

Chapter 567 was precleared under Section 5 of the Voting Rights Act of 1965 by operation of law on April 23, 1991 when the Attorney General of the United States failed to interpose an objection to the implementation of the law. On February 21, 1991 the State of Mississippi submitted a detailed and voluminous response to an earlier request for additional information in connection with the state's original submission of Chapter 567 (1990). On April 22, 1991 the Attorney General of the United States, instead of objecting to the implementation of Chapter 567, issued another request for information contrary to the decision in Garcia v. Uvalde County, 455 F. Supp. 101 (W.D. Tex 1978). Under this decision, the Attorney General of the United States may not extend the 60-day period within which he must object to a voting law change by continually requesting additional information, thereby restarting the review period.

Therefore, in our view, Chapter 567 governs the election of consolidated school district trustees.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Assistant Attorney General

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