Mississippi Advisory Opinions July 16, 1999: AGO 000013267 (July 16, 1999)

AGO 000013267.

Dear Mr. Long:

Attorney General Mike Moore has received your request for an Official Opinion from this office and has assigned it to me for research and reply.

Your letter states and asks:

On March 15, 1999, the Humphreys County Democratic Executive Committee appointed and certified Mr. Henry Reed as the Democratic candidate for District 1 Supervisor in the August 3, 1999, primary election. Not pleased with the outcome of the County Executive Committee's action, the Mississippi Democratic Party sent representatives to Humphreys County to hold a straw poll on May 15, 1999, for District 1 voters. About 20 voters participated in the poll and nominated Mr. Marvin Williams for the Democratic candidate for District 1 Supervisor.

On June 25, 1999, the Mississippi Democratic Party instructed the Humphreys County Democratic Executive Committee to put Mr. Marvin Williams' name on the August 3, 1999, primary ballot instead of Mr. Henry Reed's name. Mr. Marvin Williams has not been certified as a candidate by the Humphreys County Democratic Executive Committee.

The Humphreys County Democratic Executive Committee would like a written opinion as to whether the Mississippi Democratic Party can instruct the County Executive Committee as to which name is placed on the ballot for the August 3, 1999, primary election. We would also like to know the legal procedures of removing Mr. Henry Reed's name after he has been certified as the candidate for this office.

By way of background, we understand that the prior candidate was killed after he had qualified and after the time for qualifying has ended, and was the sole qualifying candidate for the office since no other person qualified as a party candidate. Another individual had qualified as an independent.

In MS AG Op., Clark (March 11, 1999), we opined that the party was entitled to nominate a candidate in the deceased candidate's place. A copy of said opinion is enclosed.

Said opinion did not, however, address the question you now raise: whether the state party may direct the county executive committee to nominate a particular person in lieu of the person already chosen by the county executive committee.

Section 23-15-317, upon which the Clark opinion is founded, empowers the "municipal, county or state executive committee with which the original nominee qualified as a candidate in the primary election" to nominate a nominee for the office. Although Section 23-15-317 is in regard to candidates that die, resign or are removed after the party primaries but before the general election, it is the only statute that addresses the death of a candidate after the time for qualifying has ended, and we must again look to this statute for guidance.

Section 23-15-317 empowers the executive committee "with which the original nominee qualified as a candidate" to nominate a successor. We find no requirement that a candidate for county district supervisor qualify as a candidate with any executive committee other than the county party executive committee. Under the facts presented, the candidate now deceased had qualified with and been certified by the Humphreys County Democratic Executive Committee. There was and is no requirement that a candidate for county district supervisor qualify with and be certified by the state executive committee. It logically follows that the Humphreys County Democratic Executive Committee, and only the Humphreys County Democratic Executive Committee, is empowered to nominate a nominee for the office of District 1 Supervisor, which action it has taken.

We now look to the powers of the state political party, the Mississippi Democratic Party, to order the Humphreys County Democratic Executive Committee to remove its nominee from the ballot and place thereon instead its chosen candidate for said office.

The only statutory provisions we find that empowers the state political party or executive committee thereof to direct a county executive committee to take action are Sections 23-15-295 (withdrawal of a candidate for state or state district office), 23-15-331 (furnish list of candidates for state or state district office), 23-15-923 (notice of election contests for state or state district office), and 23-15-1053 (procedures for selection of county executive committees). None of these statutes empower a state political party to nominate a particular person as nominee for a particular county office when the sole qualified candidate dies after the time for qualifying has ended but before the primary.

Therefore, it is the opinion of this office that the Mississippi Democratic Party does not have the power to order the Humphreys County Democratic Executive Committee to remove its nominee from the ballot and place thereon instead its chosen candidate for said office.

We believe that the question of the legal procedures of removing a name from the ballot after he has been certified as the candidate for this office by the county executive committee is now moot.

Very truly yours,

MIKE MOORE

ATTORNEY GENERAL

By Edwin T. Cofer

Special Assistant Attorney General