Mississippi Advisory Opinions January 12, 2001: AGO 000014182 (January 12, 2001)

AGO 000014182.

Dear Mr. Mitchell:

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

Batesville is a code charter municipality. The City is divided into four (4) wards. The City's elective officers are a Mayor and five (5) Aldermen. The Mayor and one (1) Alderman (known as the Alderman-At-Large) are elected by vote of the entire electorate of the City and may reside anywhere in the City. The other four (4) Aldermen are elected by vote of the electorate of their individual wards and each Alderman must live in the ward that he or she represents.

The City has recently completed an annexation. The City is redrawing its ward boundaries to include the newly annexed territory. The annexation and the redistricting are being submitted to the United States Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965.

I have several questions involving various scenarios. I would appreciate your guidance in how the City should handle the 2001 election process under the various scenarios. Under each of the following scenarios: (1) may the City conduct an election; (2) may the people in the annexed territory (a) vote in the municipal elections and (b) run for office? If they can vote, then for which candidate may they vote? If they can run for office, then for which office may they run for?

The scenarios are as follows:

1. If at the time of the qualifying deadline for candidates: (a) neither the annexation nor the redistricting has been pre-cleared; (b) the redistricting has not been pre-cleared but the annexation has been pre-cleared; and (c) the annexation and the redistricting have both been pre-cleared.

2. If after the qualifying deadline, but before the deadline to register to vote in the City and/or ward: (a) neither the annexation nor the redistricting has been pre-cleared; (b) the redistricting has not been pre-cleared but the annexation has been pre-cleared; and (c) the annexation and the redistricting have both been pre-cleared.

3. If after the deadlines to qualify as a candidate and to register to vote, but at the time of the election (primary, second primary, or general): (a) neither the annexation nor the redistricting has been pre-cleared; (b) the redistricting has not been pre-cleared but the annexation has been pre-cleared; and (c) the annexation and the redistricting have both been pre-cleared.

Please take me through these scenarios and advise me as to how the City should handle the election, the candidates and/or the voters. If there is a scenario that I have overlooked, please alert me to that and offer some guidelines for that scenario also. (I have assumed, but I could be wrong, that the Justice Department would not pre-clear the redistricting and refuse to pre-clear the annexation and therefore I have sought no guidance on that scenario. If that scenario is a possibility, then please help me through that also.)

We begin our response to your inquiry by stating that regardless of what action may or may not be taken by the U.S. Department of Justice, the City of Batesville is statutorily required to conduct elections as scheduled unless otherwise ordered by a court of competent jurisdiction. See Mississippi Code Annotated, Sections 23-15-171 and 23-15-173 (Revised 1990).

As to the rights of citizens who reside in the newly annexed area to vote and be candidates for municipal offices, we have previously said that such residents may begin registering to vote only upon approval of the annexation by the U.S. Department of Justice. We further have opined that, upon such approval, residents of a newly annexed area may become candidates for municipal office by filing the necessary qualifying documents provided they meet all qualification requirements including the thirty-day registration requirement as of the date of the general election. See MS AG Op., Permenter (April 18, 1985) (copy enclosed). 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. See MS AG Op., Magee (July 31, 1991) (copy enclosed).

We have previously addressed the situation in which the annexation was pre-cleared but the redistricting had not been pre-cleared by saying that while Section 21-8-7(d) is specifically applicable to municipalities operating under the mayor-council form of government, it could be applied to municipalities operating under other forms of government as the most analogous statutory provisions. See MS AG Op., Myers (March 20, 1998) (copy enclosed). Section 21-8-7(4)(d) provides:

If annexation of additional territory into the municipal corporate limits of the municipality shall occur less than (6) months prior to the first party primary of a general municipal election, the council shall, by ordinance adopted within three (3) days of the effective date of such annexation, assign such annexed territory to an adjacent ward or wards so as to maintain as nearly as possible substantial equality of population between wards; any subsequent redistricting of the municipality by ordinance as required by this chapter shall not serve as the basis for representation until the next regularly scheduled election for municipal councilmen.

Our responses to the specific scenarios you presented are based on the assumption that, if the U.S. Department of Justice approves the annexation but does not approve the redistricting, there will be sufficient time for the governing authorities to assign newly annexed territory to existing wards in accordance with Section 21-8-7(4)(d).

With the above in mind, if at the time of the qualifying deadline for candidates, neither the annexation nor the redistricting has received Justice Department approval, the citizens of the newly annexed area may not register to vote or file qualifying papers as candidates for municipal office. However, we are of the opinion that residents of the newly annexed area could file qualifying papers prior to the deadline in anticipation of Justice Department approval and if the annexation is subsequently approved they would be legitimate candidates, provided that they possess all the qualifications required of the office they seek and the ballots have not been printed. If the annexation has been approved but the redistricting has not been approved, the municipal governing authorities should assign such annexed territory to an adjacent ward or wards so as to maintain as nearly as possible substantial equality of population between wards in accordance with Section 21-8-7(4)(d). This would allow citizens in the newly annexed area to vote and qualify as candidates for either an at-large office or an office of the ward to which they are assigned. Obviously, if both the annexation and redistricting have received Justice Department approval, citizens in the newly annexed area may vote and be candidates either for an at-large office or for an office of their respective wards.

If, after the qualifying deadline but before the deadline to register to vote, the annexation is pre-cleared, residents of the newly annexed area could register to vote but it would be too late for them to file qualifying papers as candidates. However, again, if such a resident files proper qualifying papers for an at-large office prior to the qualifying deadline in anticipation that the annexation would be approved and such approval is subsequently granted, we are of the opinion that said resident would be a legitimate candidate provided, of course, that he possesses all the qualifications to hold such office and the ballots have not been printed. Further, based on our stated assumption that there will be sufficient time prior to the election to assign newly annexed territory to existing wards if the annexation is approved but the redistricting is not, if such a resident files the proper qualifying papers for a ward office prior to the qualifying deadline in anticipation of Justice Department approval, he would be a legitimate candidate, again assuming that he possesses all the qualifications to hold the office he seeks and the ballots have not been printed. If the annexation and redistricting are both approved, obviously newly annexed residents could register to vote. Again, if such a resident filed the proper qualifying papers prior to the qualifying deadline in anticipation that the annexation and redistricting would be approved, he would be a legitimate candidate, provided he meets all qualifications to hold the office he seeks and the ballots have not been printed.

If the deadline to register to vote passes and the annexation has not been approved by the Justice Department, residents of the newly annexed territory could not register to vote and could not be candidates in the regularly scheduled municipal elections.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General