Mississippi Advisory Opinions May 05, 1997: AGO 000011969 (May 5, 1997)

AGO 000011969.

Dear Mr. Gowan:

Attorney General Mike Moore has received your request for an official opinion of this office and has assigned it to me for a reply. In your letter you state in pertinent part:

On March 25, 1997, a qualifying petition for a prospective candidate for Alderman was received by the Town of Shuqualak. The petition contained 15 names. At the time the petition was brought in the Town Clerk, after reviewing the petition, told the prospective candidate that one of the persons who had signed the petition was not a qualified elector. The would be candidate took his petition back and by using "white-out" took that name off the petition and got another person to sign in that blank space bring the total number of names on the petition back up to 15. Subsequently the person whose name was removed with "white out" has now registered and become a qualified elector and did so prior to action on the petition by the election commission.

On April 3, 1997, one of the people who has signed the petition died. On April 15, 1997, the election commission for the Town of Shuqualak considered the other petitions but did not act on this one.

We have two questions which we request that you address with an opinion:

1. Should the candidate's name be put on the ballot whose petition bears fifteen signatures, but one of whom is no longer living?

2. If the signature of the dead person should not be counted can the candidate "revive" the signature of the person whose name he used "white-out" because she was not an elector, but she has now qualified?

As you know ballots must be printed in the next few days and we request and expedited opinion if that is possible.

We have previously opined that if an individual who casts a lawful absentee ballot dies prior to the time the determination whether the absent voter is in fact a qualified elector is made, he is no longer a qualified elector and his ballot cannot be counted. MS AG Op., Anderson (December 20, 1989), attached. In the situation you present, the same analysis can be applied. If someone signs a candidate's qualifying petition and is a qualified elector at that time but subsequently dies prior to such time as the petitions are reviewed by the proper election officials to determine that the candidate has the requisite number of qualified electors' signatures, then the deceased is no longer a qualified elector and his name does not count toward the number of requisite signatures.

In response to your second question, there is no procedure for "reviving" a name once the name has been removed or erased from the qualifying petition.

If this office can be of any further assistance, please let us know.

Very truly yours,

MIKE MOORE,

ATTORNEY GENERAL

By: Sandra Murphy Shelson

Special Assistant Attorney General