Mississippi Advisory Opinions April 19, 1995: AGO 000009797 (April 19, 1995)

AGO 000009797.

Dear Mr. Evans:

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

"During the process of certifying party primary candidates, the Leflore County Republican Executive Committee has asked several questions regarding election law for which I cannot supply answers. Therefore, I am asking your office for an official opinion as to the following issues:

1. What is the deadline for certification as required by MCA Section 23-15-299 (6)? What is the effect upon the primary and nomination process if the executive committee fails to certify candidates within the proper time period?

2. MCA Section 23-15-299 (6) requires the executive committee to 'determine whether or not each candidate is a qualified elector.' The term 'qualified elector' is defined by MCA Section 23-15-11 to include proper registration to vote. A person cannot be a qualified elector who is not qualified to vote. If the executive committee concludes, based upon clear and convincing evidence, that a candidate's registration to vote was fraudulently obtained or void for any other reason, does that preclude the committee from certifying that candidate?

3. If the committee finds that a candidate for coroner or supervisor is not a qualified elector as of the filing deadline (March 1, 1995 in this year), because he has failed to register to vote, or because his registration was illegal or fraudulently obtained, can that deficiency be cured by the candidate, after the filing deadline, by his making application for registration before the certification process is concluded by the executive committee?

4. If the committee formally declines to certify a candidate for the reasons cited in 3 above, and the candidate then applies for registration, may or should the committee re-examine the certification of that candidate? How long after the qualifying deadline may a candidate re-apply for certification?"

In response to your first question, there is no statutory deadline by which a party executive committee must complete its certification of candidates. As a practical matter, the determination of the qualifications of candidates must be completed in sufficient time to have ballots printed and available for absentee voting purposes at least forty-five (45) days prior to the first primary which is scheduled for August 8, 1995. See Mississippi Code Annotated, Sections 23-15-191 and 23-15-715.

In response to your second question, if a particular candidate's name appears on the official voter registration records in the office of the circuit clerk and he meets all other qualifications, it is our opinion that a party executive committee may lawfully place that candidate's name on the ballot. Any evidence that indicates that his name should not be on the voter registration records should be immediately presented to the county election commission. The election commission has a duty to remove the name of any individual who has become disqualified, for any reason, from the registration records. If the commission finds, as a matter of fact, that the individual is not eligible to have his name on the voter rolls, the name must be removed by said commission. If the commission, upon a proper finding of fact, removes the individual's name from the voter rolls, the party executive committee would be precluded from certifying that individual as eligible to have his name on the primary election ballot.

In response to your third question, we are of the opinion that an individual may be certified as a candidate provided he has registered to vote and meets all other qualifications at the time the executive committee meets to certify candidates even though that individual may not have been a qualified elector as of the qualifying deadline. This conclusion is based on our prior opinion addressed to Mr. John H. Magee, dated July 31, 1991 and the opinions attached thereto which cite the cases of Plunkett v. Miller, 137 So. 737 (Miss. 1931) and Roane v. Matthews, 21 So. 665 (1897). These cases established the general rule that a candidate must meet the qualifications at the time such candidate is elected to office. In Magee we said that "absolute proof that the candidate will meet the qualifications of the office he seeks at the time of the election, subject to no contingencies, must be presented to the election officials at the time they meet to rule on candidate qualifications in order for said officials to place his name on the ballot".

In response to your fourth question, in Magee we opined that a party executive committee may allow a potential candidate a reasonable amount of time to complete eligibility requirements provided it does not interfere with the timely printing of the ballots.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Assistant Attorney General

PC:sm Enclosure