MISSISSIPPI LEGISLATURE

2005 Regular Session

To: Elections

By: Senator(s) Dawkins, Williamson

Senate Bill 2764

AN ACT TO ESTABLISH A PROCEDURE BY WHICH ANY ELECTED PUBLIC OFFICIAL MAY BE REMOVED IN AN ELECTION HELD FOR THAT PURPOSE; TO PROVIDE THAT A HEARING SHALL BE HELD BY A REMOVAL COUNCIL TO DETERMINE IF THERE IS JUST CAUSE FOR THE REMOVAL OF THE ELECTED OFFICIAL AFTER A PETITION CONTAINING THE REQUISITE NUMBER OF SIGNATURES HAS BEEN FILED REQUESTING THE REMOVAL OF THE OFFICIAL; TO PROVIDE THAT IF AN OFFICIAL IS REMOVED, A SPECIAL ELECTION SHALL BE CALLED TO FILL THE VACANCY CREATED BY THE REMOVAL; TO PROVIDE THAT THE SECRETARY OF STATE OR REGISTRAR SHALL CERTIFY THE NAMES OF QUALIFIED ELECTORS SIGNED ON A PETITION FOR THE REMOVAL OF AN ELECTED OFFICIAL; TO AMEND SECTIONS 25-5-3, 25-5-7, 25-5-9, 25-5-13, 25-5-15, 25-5-17, 25-5-19, 25-5-21, 25-5-23, 25-5-25, 25-5-27, 25-5-33 AND 25-5-37, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 25-5-3, Mississippi Code of 1972, is amended as follows:

25-5-3. The Governor is hereby empowered, in accordance with the provisions of Section 139 of the Mississippi Constitution of 1890, through the procedure and under the regulations prescribed in Sections 25-5-3 through 25-5-37 and for the reasons and causes set forth, to remove any elective statewide, state-district, county or municipal officer in this state; and every elective officer of the state or any state-district, county or municipality in this state may be removed from office by the Governor or Lieutenant Governor, if the Governor is the officer to be removed, at any time when done in compliance with the regulations hereinafter set forth.

SECTION 2. Section 25-5-7, Mississippi Code of 1972, is amended as follows:

25-5-7. Before the Governor shall consider the removal from a statewide, state-district, county or municipal office of any elective statewide, state-district, county or municipal officer, there shall be first filed with him a petition signed by not less than fifty-one percent (51%) of the qualified electors of the state, state-district, county or municipality, as the case may be, demanding the removal of the officer. The petition shall contain a general statement, in not more than two hundred (200) words, of the ground or grounds on which the removal is demanded, which statement shall be for the information of the officer involved, for the information of the council hereinafter provided, and for the information of the qualified electors of the state, state-district, county or municipality, as the case may be.

All removal petitions with reference to only supervisors, justice court judges and constables also must be signed by at least fifty-one percent (51%) of the qualified electors of the beat or district from which they were originally elected.

Upon the request of any qualified elector, it shall be the duty of the Attorney General, in the case of a statewide or state-district office, the county and district prosecuting attorney, in the case of a county office, or, the municipal prosecuting attorney, in the case of a municipal office, to advise the person as to the provisions of Sections 25-5-3 through 25-5-37 and how to comply with the same.

SECTION 3. Section 25-5-9, Mississippi Code of 1972, is amended as follows:

25-5-9. The removal petitions shall be in substantially the following forms:

(a) REMOVAL PETITION

(For Statewide and State-District Officers)

(WARNING.--It is a misdemeanor, punishable by fine and imprisonment, for any person to sign any removal petition with any name other than his own, or knowingly to sign his name more than once to the petition, or knowingly to sign the petition when he is not a qualified elector.)

Date: ____________________

TO THE GOVERNOR OF THE STATE OF MISSISSIPPI:

We, the undersigned qualified electors of the State of Mississippi or state-district ___________, State of Mississippi, respectfully demand that _________, holding the office of ________ in the state or state-district, be removed from office by the Governor (or if the Governor is being removed, the Lieutenant Governor) for the following reasons, to wit: (Setting out the reasons for removal in not more than two hundred words); that a special election, after lawful notice, be called to permit the qualified electors of the state or state-district to vote on the question of whether or not theofficer shall be removed;

That we each for himself say that: I am a qualified elector of the state or state-district, and my voting precinct is correctly written after my name, and that it was stated to me before the signing of the petition that after signing the same I would not be permitted to remove my name from the petition.

NAME VOTING PRECINCT

1. _______________________ _______________________

2. _______________________ _______________________

3. _______________________ _______________________

(b) REMOVAL PETITION

(For County Officers)

(WARNING.--It is a misdemeanor, punishable by fine and imprisonment, for any person to sign any removal petition with any name other than his own, or knowingly to sign his name more than once to the petition, or knowingly to sign the petition when he is not a qualified elector.)

Date: ____________________

TO THE GOVERNOR OF THE STATE OF MISSISSIPPI:

We, the undersigned qualified electors of _________ County, State of Mississippi, respectfully demand that __________, holding the office of ___________ in the county, be removed from office by the Governor for the following reasons, to wit: (Setting out the reasons for removal in not more than two hundred words); that a special election, after lawful notice, be called to permit the qualified electors of the county to vote on the question of whether or not the * * * officer shall be removed;

That we each for himself say that: I am a qualified elector of the county, and my voting precinct is correctly written after my name, and that it was stated to me before the signing of the petition that after signing the same I would not be permitted to remove my name from the petition.

NAME VOTING PRECINCT

1. _________________________ _________________________

2. _________________________ _________________________

3. _________________________ _________________________

(c) REMOVAL PETITION

(For Municipal Officers)

(WARNING.--It is a misdemeanor, punishable by fine and imprisonment, for any person to sign any removal petition with any name other than his own, or knowingly to sign his name more than once to the petition, or knowingly to sign the petition when he is not a qualified elector.)

Date: ____________________

TO THE GOVERNOR OF THE STATE OF MISSISSIPPI:

We, the undersigned qualified electors of the City of ___________, __________ County, State of Mississippi, respectfully demand that _____________, holding the office of __________ in the municipality, be removed from office by the Governor for the following reasons, to wit: (Setting out the reasons for removal in not more than two hundred words); that a special election, after lawful notice, be called to permit the qualified electors of the municipality to vote on the question of whether or not theofficer shall be removed;

That we each for himself say that: I am a qualified elector of the municipality, and my voting precinct is correctly written after my name, and that it was stated to me before the signing of the petition that after signing the same I would not be permitted to remove my name from the petition.

NAME VOTING PRECINCT

1. _______________________ _______________________

2. _______________________ _______________________

3. _______________________ _______________________

SECTION 4. Section 25-5-13, Mississippi Code of 1972, is amended as follows:

25-5-13. Each and every petition, or separately circulated section thereof, containing signatures shall be verified on the last page thereof in substantially one of the following forms:

(a) STATE OF MISSISSIPPI

State-District ______________

I, _______________, a qualified elector of the state or state-district do now state under oath that every person who signed the foregoing petition signed his or her name thereto in my presence, and that before the signing of the petition the signator was told that after signing the same his or her name could not be removed from the petition; that I believe that each has stated his or her name and district correctly, and that so far as I know each signer is a qualified elector of the state or state-district, and I further certify that the date appearing on the foregoing petition is the correct date on which the first signature was affixed to the petition or any section thereof.

(Signature) _______________________

Sworn to and subscribed before me, this ______ day of ______, 20__.

_______________________

_______________________

(b) STATE OF MISSISSIPPI

County of ______________

I, ______________, a qualified elector of the county do now state under oath that every person who signed the foregoing petition signed his or her name thereto in my presence, and that before the signing of the petition the signator was told that after signing the same his or her name could not be removed from the petition; that I believe that each has stated his or her name and precinct correctly, and that so far as I know each signer is a qualified elector of this county, and I further certify that the date appearing on the foregoing petition is the correct date on which the first signature was affixed to the petition or any section thereof.

(Signature) _______________________

Sworn to and subscribed before me, this ______ day of ______, 20__.

_______________________

_______________________

(c) STATE OF MISSISSIPPI

City of ___________, County of ___________

I, ____________, a qualified elector of the municipality do now state under oath that every person who signed the foregoing petition signed his or her name thereto in my presence, and that before the signing of the petition the signator was told that after signing the same his or her name could not be removed from the petition; that I believe that each has stated his or her name and precinct correctly, and that so far as I know each signer is a qualified elector of this municipality, and I further certify that the date appearing on the foregoing petition is the correct date on which the first signature was affixed to the petition or any section thereof.

(Signature) _______________________

Sworn to and subscribed before me, this ______ day of ______, 20__.

_______________________

_______________________

SECTION 5. Section 25-5-15, Mississippi Code of 1972, is amended as follows:

25-5-15. Before the submission of the petitions to the Governor or Lieutenant Governor, if the Governor is the officer to be removed, to be filed by him, all sections of the same shall be consolidated and delivered to the Secretary of State, in the case of a statewide or state-district officer, * * * registrar of the county or municipality, as the case may be, in which the petition has been circulated. No signatures shall be thereafter added. The Secretary of State or * * * registrar shall compare the signatures of the persons appearing on the petition with the names of the qualified electors appearing on the poll books of the county or municipality, and shall attach to said petition, or to each section of the petition if the same has been circulated in sections, the following certificate:

STATE OF MISSISSIPPI

State-District ______________

County of _____________ (Municipality of ______________)

I, ____________, Secretary of State or * * * registrar in and for the county or municipality aforesaid, do hereby certify that I have compared the signatures on the preceding sheets of the removal petition attached hereto, and to the best of my knowledge and belief the * * * petition (or section of petition) contains the signatures of ____ qualified electors of the state, state-district, the county or municipality, as the case may be, and I have drawn a line in red ink through the names of those signators who appear by the records in my office not to be qualified electors, or who have died. I further certify that as of the date of the petitions there were _______ qualified electors in this state, state-district, county or municipality, as the case may be.

Given under my hand and seal of office, this the _______ day of _________________, 20__.

__________________________

Secretary of State, County

or Municipal Registrar

SECTION 6. Section 25-5-17, Mississippi Code of 1972, is amended as follows:

25-5-17. The certificate by the Secretary of State, county or municipal registrar shall be prima facie evidence of the facts stated therein and of the qualification of the electors whose signatures are thus certified. The Governor or the Lieutenant Governor, if the Governor is the officer to be removed, shall consider and count only those signatures on the petition as shall be so certified by the Secretary of State or registrar; * * * however, * * * any officer sought to be removed or any citizen of the state, state-district, county or municipality shall have the privilege of submitting evidence in writing, under oath, to the Governor as to the question of whether or not any signator to the petition was in fact a qualified elector at the time of the signing of the petition, or has since died. The decision of the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, as to whether or not any particular person was or was not a qualified elector at the time of the signing of the petition, or whether or not any particular person has since died, shall be final and shall not be subject to review. The status of the signator as to whether or not he or she was a qualified elector at the time of signing the petition shall be determined as of the date of the petition and not by any other date.

SECTION 7. Section 25-5-19, Mississippi Code of 1972, is amended as follows:

25-5-19. The Secretary of State or the county or municipal registrar shall not retain in his possession any * * * petition or any section thereof for a longer period than two (2) days for the first two hundred signatures (200) thereon and one (1) additional day for each two hundred (200) additional signatures or fraction thereof, and the time consumed in the examination of the petitions shall not be counted in determining the time between the signing and the filing of the petitions. At the expiration of the examination, the registrar shall forthwith file the same with the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, with his certificate attached, and shall obtain a written receipt for the same. The forms herein are not mandatory, but directory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and technical errors. If the Secretary of State or the registrar be unable to examine the petition, he shall so certify the fact to the state, county or municipal election commissioners, who shall in the same manner and time perform all the functions herein required of the Secretary of State or the registrar. In the event the Secretary of State or the county or municipal registrar is the officer whose removal is sought by the petition, then the petition shall be delivered to one (1) of the state election commissioners or one of the county or municipal election commissioners of the county or municipality in which the petition has been circulated, and the * * * commissioners * * * shall in the same manner and within the same time perform all functions herein required of the registrar. A fee of Five Cents (5) per signature shall be allowed for the * * * examination of the petitions, to be paid out of the general funds of the state, county or municipality upon due proof of the examination. The Secretary of State or any registrar or any board of state, county or municipal election commissioners or member thereof who willfully fails or refuses to perform the duty or duties herein required of him or them shall be subject to a civil penalty of One Thousand Dollars ($1,000.00), to be recovered in the Chancery Court of the First Judicial District of Hinds County or in the chancery court of the county by suit which may be filed by any qualified elector who signed the petition or any section thereof.

SECTION 8. Section 25-5-21, Mississippi Code of 1972, is amended as follows:

25-5-21. When the petitions shall have been filed with the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, within ten (10) days of the filing thereof the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, shall cause true copies thereof (photostatic copies being sufficient) to be personally delivered by some officer of the state, county or municipality, designated in writing by the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, to the officer sought to be removed, and shall in like manner and form cause to be personally served on the officer a notice to appear, if he desires, at a time to be fixed by the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, to show cause, if any he can, why the question of his removal should not be submitted to a vote of the qualified electors as hereinafter provided, which * * * notice shall be served upon the officer at least twenty (20) days before the date when his appearance is required. The place of hearing shall be the county courthouse of the county in which the officer resides.

SECTION 9. Section 25-5-23, Mississippi Code of 1972, is amended as follows:

25-5-23. At the time and place designated in the notice, the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, shall cause to be convened a removal council to be composed of three (3) chancery judges appointed by the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, none of whom shall reside in the district in which the officer under question resides, to hear and determine whether there is substantial basis for a removal election consistently with the provisions of Sections 25-5-3 through 25-5-37. The senior chancellor shall serve as the presiding judge of the council. The hearing herein provided may continue from day to day and be recessed from time to time, as in the discretion of the council may be ordered. The qualified electors of the state, state-district, county or municipality shall likewise be given notice by proclamation of the Governor or the Lieutenant Governor, if the Governor is the officer to be removed, of the time and place of the hearing. Any interested citizen or citizens may likewise appear at the time and place listed and make * * * representations to the council as, in the discretion of the council, may be material to the issues involved. The council shall promulgate rules for the hearings, which shall be in writing, but all representations shall be made under oath, to be administered by some member of the council. It shall not be necessary that a stenographic record be kept of the representations, either for or against removal, but the testimony taken shall be heard as nearly as practicable in compliance with the usually applicable rules of evidence. All decisions of the council on any question, preliminary or final, including the question of whether just cause for an election has been shown, shall be final and not subject to review.

The elective officer concerned shall be entitled to be represented by counsel of his choice at the hearing.

SECTION 10. Section 25-5-25, Mississippi Code of 1972, is amended as follows:

25-5-25. The council shall keep minutes of its final judgments, and the disposition of each petition shall be recorded therein. If it be the judgment of the council that sufficient cause has not been shown to justify the removal of the officer, then the petition shall be dismissed and no new petition shall be filed or entertained for a period of one (1) year from the date of the order dismissing the petition.

If, however, the council shall be of the opinion that sufficient cause has been shown to justify the removal of the officer, then notice to the qualified electors of the state or state-district, county or municipality involved shall be given, in accordance with the general election laws of the State of Mississippi in the matter of filling vacancies in state, state-district, county or municipal offices, that an election shall be held in the county or municipality to determine the question of whether or not the state, state-district, county or municipal official shall be removed from office.

SECTION 11. Section 25-5-27, Mississippi Code of 1972, is amended as follows:

25-5-27. The officer named in the removal petition shall continue to perform the duties of his office until the results of the special removal election shall be officially proclaimed. If, however, the officer named in the petition for removal shall offer his resignation before the issuance of the proclamation for the holding of special removal election, it shall be accepted, shall take effect on the date it is offered, and the vacancy shall be filled as provided by law for the filling of any vacancy in an elective state, state-district, county or municipal office. The officer who either resigns or is removed shall not be eligible to fill the vacancy caused by his removal or resignation, or serve as deputy in the office from which he resigns or is removed.

SECTION 12. Section 25-5-33, Mississippi Code of 1972, is amended as follows:

25-5-33. The election commissioners of the state, state-district, county or municipality, or a quorum thereof, shall meet at the office of the Secretary of State or the county or municipal registrar at 9:00 a.m. of the day following the special removal election, and shall then proceed to canvass, tabulate, and certify the results of the election as now provided by the general election laws of the State of Mississippi. The certificate of the results, showing the total votes cast for the removal of the officer, the total votes cast against the removal of the officer, and the total number of qualified electors in the county, supervisors district or municipality in which the election was held, shall be forwarded to the Governor or the Lieutenant Governor, if the Governor is the officer to be removed. If a majority of all qualified electors of the county, supervisors district or municipality in which the election shall have been held shall not have voted in the election, either for or against the removal, or if a majority of the qualified electors voting in the election shall oppose removal, the officer shall not be removed and shall not thereafter during his term of office be subject to another removal election. If a majority of all qualified electors of the state, state-district, county, supervisors district or municipality in which the election is held have voted either for or against removal, and if a majority of the qualified electors voting in the election shall vote for the removal of the officer, then the Governor shall issue his proclamation declaring the office vacant, removing the officer, and appointing a suitable person to fill the vacancy until the same can be filled in a special election to be held not more than sixty (60) days after the * * * proclamation of the Governor. No officer shall be subject to a removal petition until he shall have served at least one (1) year of his term.

SECTION 13. Section 25-5-37, Mississippi Code of 1972, is amended as follows:

25-5-37. (1) Any person who signs any removal petition with any name other than his own, or who knowingly signs his name more than once to the petition, or who knowingly signs the petition when he is not a qualified elector shall be guilty of a felony and, upon conviction, may be punished as such for a term in the penitentiary not to exceed five (5) years.

(2) Any person who knowingly executes any affidavit required by Sections 25-5-3 through 25-3-37 knowing the same to be false, or who issues any certificate required by the same knowing it to be false, or who makes any statement of any kind required by such sections to be under oath, either in writing or orally, knowing the same to be false shall be guilty of perjury and, upon conviction, may be punished by imprisonment in the State Penitentiary for a term not to exceed ten (10) years.

(3) It shall be a felony for any officer sought to be removed under the provisions of the aforesaid sections to attempt by force, threats, bribery, or intimidation to hinder or interfere with the free circulation or signing of any removal petition and, upon conviction thereof, he shall be punished by imprisonment in the State Penitentiary for not less than one (1) year nor more than five (5) years.

(4) Any person in the possession of a removal petition who either willfully suppresses, neglects, or fails to cause same to be filed with the Secretary of State or the county or municipal registrar shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail not to exceed six (6) months or by fine not to exceed Five Hundred Dollars ($500.00), or by both such fine and imprisonment.

SECTION 14. 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 15. 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.