MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Apportionment and Elections

By: Representative Denny

AN ACT TO PROVIDE THAT THE COMMISSIONERS OF ELECTION SHALL SUPERVISE ALL PRIMARY ELECTIONS AND SHALL CERTIFY THE RESULTS OF THE PRIMARY ELECTIONS TO THE EXECUTIVE COMMITTEES; TO PROVIDE THAT PARTY PRIMARIES SHALL BE HELD TOGETHER IN ONE PLACE AND AT THE SAME TIME; TO PROVIDE THAT EACH PARTY SHALL HAVE AN EQUAL NUMBER OF POLL WORKERS DURING AN ELECTION; TO ALLOW A VOTER TO VOTE FOR ANY CANDIDATE REGARDLESS OF PARTY AFFILIATION; TO PROVIDE THAT THERE SHALL BE SEPARATE COLUMNS ON THE BALLOT FOR EACH POLITICAL PARTY AND EACH CANDIDATE SHALL BE LISTED UNDER THE POLITICAL PARTY WITH WHICH HE OR SHE IS AFFILIATED; TO AMEND SECTIONS 23-15-171, 23-15-263, 23-15-265, 23-15-267, 23-15-295, 23-15-303, 23-15-331, 23-15-333 AND 23-15-597, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO BRING FORWARD SECTIONS 23-15-921 THROUGH 23-15-941, MISSISSIPPI CODE OF 1972, WHICH PROVIDE THE PROCEDURES FOR CONTESTING PRIMARY ELECTIONS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 23-15-171, Mississippi Code of 1972, is amended as follows:

23-15-171. (1) Municipal primary elections shall be held on the first Tuesday in May preceding the general municipal election and, in the event a second primary shall be necessary, the second primary shall be held on the third Tuesday in May preceding the general municipal election. At the primary election the municipal executive committee shall perform the same duties as are specified by law and performed by members of the county executive committee with regard to state and county primary elections. Each municipal executive committee shall have as many members as there are elective officers of the municipality, and the members of the municipal executive committee of each political party shall be elected in the primary elections held for the nomination of candidates for municipal offices. The municipal commissioners of election shall prepare the ballots, shall supervise the municipal primary elections, shall count the ballots with the executive committee of each party present and shall certify the results of the votes for each political party to the executive committee of each political party. There shall be an equal number of poll workers from each political party at the voting precinct. The poll workers shall be appointed by the municipal commissioners of election with recommendations from the municipal executive committee. The provisions of this section shall govern all municipal primary elections as far as applicable, but the officers to prepare the ballots and the managers and other officials of the primary election shall be appointed by the municipal executive committee of the party holding the primary, and the returns of the election shall be made to the municipal executive committee. Vacancies in the executive committee shall be filled by it.

(2) Provided, however, that in municipalities operating under a special or private charter which fixes a time for holding elections, other than the time fixed by Chapter 491, Laws of 1950, the first primary election shall be held exactly four (4) weeks before the time for holding the general election, as fixed by the charter, and the second primary election, where necessary, shall be held two (2) weeks after the first primary election, unless the charter of any such municipality provides otherwise, in which event the provisions of the special or private charter shall prevail as to the time of holding the primary elections.

(3) All primary elections in municipalities shall be held and conducted in the same manner as is provided by law for state and county primary elections.

SECTION 2. Section 23-15-263, Mississippi Code of 1972, is amended as follows:

23-15-263. (1) The county commissioners of election shall have the ballots printed, shall supervise the county primary elections, shall count the ballots with the executive committee of each political party present and shall certify the results of the votes for each party to the executive committee of each party. There shall be an equal number of poll workers from each party at the voting precinct. The poll workers shall be appointed by the county commissioners of election with recommendations from the county executive committee.

(2) The county executive committee * * * shall be subject to all the penalties to which county election commissioners are subject, except that Section 23-15-217 shall not apply to members of the county executive committee who seek elective office.

(3) A member of a county executive committee shall be automatically disqualified to serve on the county executive committee, and shall be considered to have resigned therefrom, upon his qualification as a candidate for any elective office. The provisions of this subsection shall not apply to a member of a county executive committee who qualifies as a candidate for a municipal elective office.

 * * *

23-15-263. (1) The county commissioners of election shall have the ballots printed, shall supervise the county primary elections, shall count the ballots with the executive committee of each political party present and shall certify the results of the votes for each party to the executive committee of each party. There shall be an equal number of poll workers from each party at the voting precinct. The poll workers shall be appointed by the county commissioners of election with recommendations from the county executive committee.

(2) Unless otherwise provided in this chapter, the county executive committee at primary elections shall * * * resolve contests in regard to primary elections, and perform all other duties required by law to be performed by the county executive committee; however, each house of the Legislature shall rule on the qualifications of the membership of its respective body in contests involving the qualifications of the members. The executive committee shall be subject to all the penalties to which county election commissioners are subject, except that Section 23-15-217 shall not apply to members of the county executive committee who seek elective office.

(3) A member of a county executive committee shall be automatically disqualified to serve on the county executive committee, and shall be considered to have resigned therefrom, upon his qualification as a candidate for any elective office. The provisions of this subsection shall not apply to a member of a county executive committee who qualifies as a candidate for a municipal elective office.

 * * *

SECTION 3. Section 23-15-265, Mississippi Code of 1972, is amended as follows:

23-15-265. The commissioners of election of each county shall meet not less than two (2) weeks before the date of any primary election and appoint the managers and clerks for same * * *. The number of managers and clerks appointed by the county commissioners of election shall be the same number as commissioners of election are allowed to appoint pursuant to Sections 23-15-231 and 23-15-235. If the county commissioners of election fail to meet on the date named, supra, further notice shall be given of the time and place of meeting.

SECTION 4. Section 23-15-267, Mississippi Code of 1972, is amended as follows:

23-15-267. The ballot boxes provided by the regular commissioners of election in each county shall be used in primary elections, and the county commissioners of election shall distribute them to the voting precincts of the county before the time for opening the polls, in the same manner, as near as may be, as that provided for in general elections. If an adjournment shall take place after the polls are open and before all votes are counted, the ballot box shall be securely locked so as to prevent the admission into it or the taking of anything from it during the time of adjournment; and the box shall be kept by one of the commissioners, and the key by another of the commissioners, and the commissioner having the box shall carefully keep it, and neither undertake to open it himself or permit it to be done, or to permit any person to have access to it during the time of adjournment. The box shall not be removed from the polling building or place after the polls are open until the count is completed if as many as three (3) electors qualified to vote at the election object. After each election, the ballot boxes of those provided by the regular commissioner of election shall be delivered, with the keys thereof immediately and as soon thereafter as possible, and without delay to the clerk of the circuit court of the county. The person, or persons, whose duty it is to comply with the provisions of this section and who shall fail, or neglect, for any cause, to deliver the boxes or any of them as * * * provided in this section, upon conviction, shall be fined not less than Two Hundred Dollars ($200.00) and be imprisoned in the county jail of the residence of the person, or persons, who violates any of the provisions of this section, for a period of not less than thirty (30) days or more than six (6) months, and fined not more than Five Hundred Dollars ($500.00).

SECTION 5. Section 23-15-295, Mississippi Code of 1972, is amended as follows:

23-15-295. When any person has qualified in the manner provided by law as a candidate for party nomination in any primary election, the person shall have the right to withdraw his name as a candidate by giving notice of his withdrawal in writing to the secretary of the proper executive committee at any time before the printing of the official ballots, and in the event of the withdrawal the name of the candidate shall not be printed on the ballot. When a candidate for party nomination for a state or district office who has qualified with the state executive committee withdraws as a candidate, as provided in this section, after the sample of the official ballot has been approved * * * by the State Executive Committee and certified by the State Commissioner of Elections, the * * * State Commissioners of Elections shall forthwith notify the county commissioners of election of each county affected or involved of the fact of the withdrawal and the notification shall authorize the county commissioners of election to omit the name of the withdrawn candidate from the ballot if the notification is received before the printing of the ballot. In the case of the withdrawal of any candidate, the fee paid by the candidate shall be retained by the state or county executive committee, as the case may be.

SECTION 6. Section 23-15-303, Mississippi Code of 1972, is amended as follows:

23-15-303. When two (2) or more political parties or political organizations are holding primary elections, each shall be conducted together in one (1) place by the commissioners of election and at the same time. A voter shall be allowed to vote for any candidate regardless of party affiliation or lack of party affiliation.

The board of supervisors or the supervisor of the district in which the voting precinct is located shall have authority, and it is made its and his duty * * * to specifically designate the * * * place where the precinct election of the parties shall be held * * *.

SECTION 7. Section 23-15-331, Mississippi Code of 1972, is amended as follows:

23-15-331. It shall be the duty of the state executive committee of each political party to furnish to each county executive committee, not less than fifty (50) days before the election, the names of all state and state district candidates and all candidates for legislative districts composed of more than one county or parts of more than one county who have qualified as provided by law * * *.

SECTION 8. Section 23-15-333, Mississippi Code of 1972, is amended as follows:

23-15-333. The county commissioners of election shall have printed all necessary ballots, for use in primary elections. The ballots shall contain the names of all the candidates to be voted for at the election, and there shall be left on each ballot one (1) blank space under the title of each office for which a nominee is to be elected; and in the event of the death of any candidate whose name shall have been printed on the ballot, the name of the candidate duly substituted in the place of the deceased candidate may be written in the blank space by the voter. There shall be separate columns on the ballot for each political party and each candidate shall have his or her name listed under the political party with which he or she is affiliated. A voter shall be allowed to vote for any candidate regardless of party affiliation or lack of party affiliation. The order in which the titles to the various offices shall be printed, and the size, print and quality of the paper of the ballot is left to the discretion of the county commissioners of election. Provided, however, that in all cases the arrangement of the names of the candidates for each office shall be alphabetical. No ballot shall be used except those so printed.

The county commissioners of election shall also prepare full instructions for the guidance of electors at elections as to obtaining ballots, the manner of marking them, and the mode of obtaining new ballots in the place of those spoiled by accident. The instructions shall be printed in large, clear type on "Cards of Instruction," and the county executive committee shall furnish the same in sufficient numbers for the use of electors. The cards shall be preserved by the officers of election * * * and they may be used, if applicable, in subsequent elections.

SECTION 9. Section 23-15-597, Mississippi Code of 1972, is amended as follows:

23-15-597. The county commissioners of election shall meet on the first or second day after each primary election, shall receive and canvass the returns which must be made within the time fixed by law for returns of general elections and certify the results to the county executive committee. The county executive committee shall announce the name of the nominees for county and county district offices and legislative offices for districts containing one (1) county or less, and the names of those candidates to be submitted to the second primary. The vote for state and state district offices and legislative offices for districts containing more than one (1) county or parts of more than one (1) county shall be tabulated by precincts by the state commissioners of election, who shall certify and return the results to the State Executive Committee, the returns to be mailed by registered letter or any safe mode of transmission within thirty-six (36) hours after the returns are canvassed and the result ascertained. The state commissioners of election shall meet a week from the day following the first primary election held for state and state district offices and legislative offices for districts containing more than one (1) county or parts of more than one (1) county, and shall proceed to canvass the returns and to certify the results to the State Executive Committee. The State Executive Committee shall announce the names of those nominated for the different offices in the first primary and the names of those candidates whose names are to be submitted to the second primary election. The state commissioners of election also shall meet a week from the day on which the second primary election was held and receive and canvass the returns for state and district offices, if any, and legislative offices for districts containing more than one county or parts of more than one county, if any, voted on in the second primary. An exact and full duplicate of all tabulations by precincts as certified under this section shall be filed with the circuit clerk of the county who shall safely preserve the same in his office.

SECTION 10. Section 23-15-921, Mississippi Code of 1972, is brought forward as follows:

23-15-921. Except as otherwise provided by Section 23-15-961, a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, or as the nominee of a legislative district composed of one (1) county or less, may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three (3) members of said committee, notice of which contest shall be served five (5) days before said meeting, and after notifying all parties concerned proceed to investigate the grounds upon which the election is contested and, by majority vote of members present, declare the true results of such primary.

SECTION 11. Section 23-15-923, Mississippi Code of 1972, is brought forward as follows:

23-15-923. Except as otherwise provided in Section 23-15-961, a person desiring to contest the election of another returned as the nominee in state, congressional and judicial districts, and in legislative districts composed of more than one (1) county or parts of more than one (1) county, upon complaint filed with the Chairman of the State Executive Committee, by petition, reciting the grounds upon which the election is contested. If necessary and with the advice of four (4) members of said committee, the chairman shall issue his fiat to the chairman of the appropriate county executive committee, and in like manner as in the county office, the county committee shall investigate the complaint and return their findings to the chairman of the state committee. The State Executive Committee by majority vote of members present shall declare the true results of such primary.

SECTION 12. Section 23-15-925, Mississippi Code of 1972, is brought forward as follows:

23-15-925. For the proper enforcement of the preceding sections the committee has the power to subpoena and, if necessary, attach witnesses needed in said investigation.

SECTION 13. Section 23-15-927, Mississippi Code of 1972, is brought forward as follows:

23-15-927. When and after any contest has been filed with the county executive committee, or complaint with the State Executive Committee, and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred, or if more than one county to be involved then in one (1) of said counties, a sworn copy of his said protest or complaint, together with a sworn petition, setting forth with particularity wherein the executive committee has wrongfully failed to act or to fully and promptly investigate or has wrongfully denied the relief prayed by said contest, with a prayer for a judicial review thereof. But such petition for a judicial review shall not be filed unless it bear the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted, and the petitioner shall give a cost bond in the sum of Three Hundred Dollars ($300.00), with two (2) or more sufficient sureties conditioned to pay all costs in case his petition be dismissed, and an additional bond may be required, by the judge or chancellor, if necessary, at any subsequent stage of the proceedings. The filing of such petition for judicial review in the manner set forth above shall automatically supersede and suspend the operation and effect of the order, ruling or judgment of the executive committee appealed from.

SECTION 14. Section 23-15-929, Mississippi Code of 1972, is brought forward as follows:

23-15-929. Upon the filing of the petition certified as aforesaid, and bond, the circuit clerk shall immediately, by registered letter or by telegraph or telephone, or personally, notify the Chief Justice of the Supreme Court, or, in his absence, or disability, some other judge of the Supreme Court, who shall forthwith designate and notify a circuit judge or chancellor of a district other than that which embraces the county or any of the counties, involved in the contest or complaint, to proceed to said county wherein the contest or complaint has been filed there to hear and determine said contest or complaint, and it shall be the official duty of the said circuit judge or chancellor to proceed to the discharge of the designated duty at the earliest possible date to be fixed by the judge or chancellor and of which the contestant and contestee shall have reasonable notice, to be served in such reasonable manner as the judge or chancellor may direct, in response to which notice the contestee shall promptly file his answer, and also his cross-complaint if any he have to prefer.

SECTION 15. Section 23-15-931, Mississippi Code of 1972, is brought forward as follows:

23-15-931. When the day for the hearing has been set, the circuit clerk shall issue subpoenas for witnesses as in other litigated cases, and he shall also issue a summons to each of the five (5) election commissioners of the county, unless they waive summons, requiring them to attend said hearing, throughout which hearing the said commissioners shall sit with the judge or chancellor as advisors or assistants in the trial and determination of the facts, and as assistants in counts, calculations and inspections, and in seeing to it that ballots, papers, documents, books and the like are diligently secured against misplacement, alteration, concealment or loss both in the sessions and during recesses or adjournments; the judge or chancellor being, however, the controlling judge both of the facts and the law, and to have all the power in every respect of a chancellor in term time; and the tribunal shall be attended by the sheriff, and clerk, each with sufficient deputies, and by a court reporter. The special tribunal so constituted shall fully hear the contest or complaint de novo, and the original contestant before the party executive committee shall have the burden of proof and the burden of going forward with the evidence in the hearing before the special tribunal. The special tribunal, after the contest or complaint shall have been fully heard anew, shall make a finding dictated to the reporter covering all controverted material issues of fact, together with any dissents of any commissioner, and thereupon, the trial judge shall enter the judgment which the county executive committee should have entered, of which the election commissioners shall take judicial notice, or if the matter be one within the jurisdiction of the State Executive Committee, the judgment shall be certified and promptly forwarded to the Secretary of the State Executive Committee, and in the absence of an appeal, it shall be the duty of the State Executive Committee forthwith to reassemble and revise any decision theretofore made by it so as to conform to the judicial judgment aforesaid; provided that when the contest is upon a complaint filed with the State Executive Committee and the petition to the court avers that the wrong or irregularity is one which occurred wholly within the proceedings of the state committee, the petition to the court shall be filed in the circuit or chancery court of Hinds County and, after notice served, shall be promptly heard by the circuit judge or chancellor of that county, without the attendance of commissioners.

SECTION 16. Section 23-15-933, Mississippi Code of 1972, is brought forward as follows:

23-15-933. The contestant or contestee, or both, may file an appeal in the Supreme Court within the time and under such conditions and procedures as are established by the Supreme Court for other appeals. If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as three (3) commissioners are and have been in attendance, the facts shall not be subject to appellate review. But if not so many as three (3) of the commissioners are or have been in attendance, or if one or more commissioners dissent, upon review, the Supreme Court may make such findings as the evidence requires.

SECTION 17. Section 23-15-935, Mississippi Code of 1972, is brought forward as follows:

23-15-935. The trial judge shall have the same power to compel the attendance of the election commissioners upon and throughout the hearings as is given to the judge of a circuit court to compel the attendance of jurors, and the commissioners must attend unless physically unable so to do. But if any one or more or all of the commissioners are absent so as to not be served with notice, or is or are physically unable to attend, the trial judge shall proceed without them or any of them, so that the hearing shall not be delayed on their account or on account of any one or more of them. When, under Section 23-15-937, the hearing is transferred in whole or in part to another county or counties, the election commissioners of the county or counties to which the hearing is transferred shall attend the hearings in their respective counties, subject to foregoing provisions in respect to absent or disabled commissioners.

SECTION 18. Section 23-15-937, Mississippi Code of 1972, is brought forward as follows:

23-15-937. If more than one county be involved in a contest or complaint, the judge or chancellor shall have authority to transfer the hearing to a more convenient county within the district, if in relation to a district office, or within the state if a state office; or the judge or chancellor may proceed to any county or counties wherein the facts complained of are charged to have transpired, and there hear the evidence and make a finding of facts relating to that county and any convenient neighboring county or counties, but, in any event, if possible with due diligence to do so, the hearing must be completed and final judgment rendered in time to permit the printing and distribution of the official ballots at the election for which the contested nomination is made. When any judge or chancellor lawfully designated to hear a contest or complaint, in this section mentioned, shall not promptly and diligently proceed with the hearing and final determination of such a contest or complaint, he shall be guilty of a high misdemeanor in office unless excused by actual illness, or by an equivalent excuse. When no final decision has been made in time as hereinabove specified, the name of the nominee declared by the party executive committee shall be printed on the official ballots as the party nominee, but the contest or complaint shall not thereby be dismissed but the cause shall nevertheless proceed to final judgment and if the said judgment be in favor of the contestant, the election of the contestee shall thereby be vacated and the Governor, or the Lieutenant Governor in case the Governor be a party to the contest, shall call a special election for the office or offices involved, if the contestee has already entered upon the term he shall vacate the office upon the qualification of the person elected at said special election, and may be removed by quo warranto if he fail so to do.

SECTION 19. Section 23-15-939, Mississippi Code of 1972, is brought forward as follows:

23-15-939. The reasonable traveling expenses of the judge or chancellor shall be paid by order of the board of supervisors of the county or counties wherein a contest or complaint under this section is heard, upon an itemized certificate thereof by the said judge or chancellor. The election commissioners shall be compensated for their services rendered under this section as is provided in Section 23-15-227.

SECTION 20. Section 23-15-941, Mississippi Code of 1972, is brought forward as follows:

23-15-941. If upon the hearing of a primary election contest or complaint, under Section 23-15-931, it shall distinctly appear to the trial judge that any person, including a candidate or election officer, has willfully and corruptly violated any primary election statute and such violation is by said statute made a criminal offense, whether a misdemeanor or a felony, it shall be the duty of the trial judge to issue immediately his warrant for the arrest of the guilty party, reciting in his order therefor, in brief, the grounds or causes for the arrest. Such warrant and a certified copy of the order shall be forthwith placed in the hands of the sheriff of the county wherein the offense occurred, and the sheriff shall at once, upon receipt of the warrant, arrest the party and commit him to prison, unless and until the party give bond in the sum of Five Hundred Dollars ($500.00) with two (2) or more good and sufficient sureties conditioned for his appearance at the next term of the circuit court and from term to term until discharged by law. When the arrest has been made and the bond, if any, given, the sheriff shall deliver all the papers therein with his return thereon to the circuit clerk who shall file, and thereafter personally deliver, the same to the foreman of the next grand jury.

SECTION 21. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 22. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.