House Bill 784

AN ACT TO AMEND SECTIONS 23-15-601, 23-15-605, 23-15-607, 23-15-611, 23-15-221 AND 23-15-857, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURE USED TO DETERMINE THE RESULTS OF AN ELECTION WHEN TWO CANDIDATES RECEIVE AN EQUAL NUMBER OF VOTES; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 23-15-601, Mississippi Code of 1972, is amended as follows:

23-15-601. (1) When the result of the election shall have been ascertained by the poll managers they, or one (1) of their number, or some fit person designated by them, shall, on the night of the election, deliver to the election commissioners, at the courthouse, a statement of the whole number of votes given for each person and for what office; and the election commissioners shall canvass the returns, ascertain and declare the result, and, within ten (10) days after the day of the election, shall deliver a certificate of the election to the person having the greatest number of votes for representative in the Legislature of districts composed of one (1) county or less, or other county office, board of supervisors, justice court judge and constable. If it appears that two (2) or more candidates for Representative of the county, or part of the county, or for any county office, board of supervisors, justice court judge or constable standing highest on the list, and not elected, have an equal number of votes, * * * a new election shall be held for the office, which shall occur no less than thirty-five (35) days after the date of the election that resulted in the equal votes, and a certificate of election shall be given accordingly. The foregoing provisions shall apply to Senators, if the county be a senatorial district.

(2) The election commissioners shall transmit to the Secretary of State, on such forms and by such methods as may be required by rules and regulations promulgated by the Secretary of State, a statement of the total number of votes cast in the county for each candidate for each office and the total number of votes cast for such candidates in each precinct in the district in which the candidate ran.

SECTION 2. Section 23-15-605, Mississippi Code of 1972, is amended as follows:

23-15-605. The Secretary of State, immediately after receiving the returns of an election, not longer than thirty (30) days after the election, shall sum up the whole number of votes given for each candidate other than candidates for state offices, legislative offices composed of one (1) county or less, county offices and county district offices, according to the statements of the votes certified to him or her and ascertain the person or persons having the largest number of votes for each office, and declare such person or persons to be duly elected; and thereupon all persons chosen to any office at the election shall be commissioned by the Governor; but if it appears that two (2) or more candidates for any district office where the district is composed of two (2) or more counties, standing highest on the list, and not elected, have an equal number of votes, the election shall be decided between the candidates having an equal number of votes by * * * a new election for the office, which shall occur no less than thirty-five (35) days after the date of the election that resulted in the equal votes.

SECTION 3. Section 23-15-607, Mississippi Code of 1972, is amended as follows:

23-15-607. (1) The election commissioners shall, within ten (10) days after an election for judges of the Supreme Court or Court of Appeals, transmit to the Secretary of State, to be filed in his or her office, a statement of the whole number of votes given in their county, and the whole number of votes given in each precinct in their county, for each candidate for the Office of Judge of the Supreme Court or Court of Appeals, and the Secretary of State shall immediately notify each member of the State Board of Election Commissioners in writing to assemble at his or her office on a day to be fixed by him or her, to be within ten (10) days after the receipt by him or her of such statement, and when assembled pursuant to such notice the State Board of Election Commissioners shall sum up the whole number of votes given for each candidate for judge of the Supreme Court or Court of Appeals according to the total number of votes in each county for each candidate as certified to the Secretary of State, ascertain the person or persons to be elected; and thereupon all persons chosen to such office at the election shall be commissioned by the Governor; but if it appears that two (2) or more candidates for judge of the Supreme Court or Court of Appeals standing highest on the list, and not elected, have an equal number of votes, the election shall be decided between the candidates having an equal number of votes by * * * a new election for the office, which shall occur no less than thirty-five (35) days after the date of the election that resulted in equal votes.

(2) The statements required by this section shall contain a certification, signed and dated by a majority of the election commissioners, which shall read as follows:

"We, the undersigned election commissioners, do hereby certify that this statement of the whole number of votes contain the official vote for the election reflected therein."

(3) The statements required by this section shall be transmitted to the Secretary of State on such forms and by such methods as may be required by rules and regulations promulgated by the Secretary of State.

SECTION 4. Section 23-15-611, Mississippi Code of 1972, is amended as follows:

23-15-611. (1) In municipal elections, poll managers shall, immediately upon the closing of the polls, count the ballots and ascertain the number of votes cast in each voting precinct for each of the candidates or ballot measures and make a return thereof to the municipal election commissioners. On the day following the election, the election commissioners shall canvass the returns so received from all voting precincts and shall, within six (6) days after the election, deliver to each person receiving the highest number of votes a certificate of election. If it shall appear that any two (2) or more of the candidates receiving the highest number of votes shall have received an equal number of votes, the election shall be decided by * * * a new election for the office, which shall occur no less than thirty-five (35) days after the date of the election that resulted in the equal votes.

(2) (a) Within six (6) days after any election, the municipal election commissioners shall transmit a statement to the Secretary of State certifying the name or names of the person or persons elected, and such person or persons shall be issued commissions by the Governor. The statement shall also include vote totals for each candidate for each office and vote totals for and against ballot measures, if any, including the vote totals for each candidate and ballot measure in each precinct in the municipality.

(b) The statements required by this subsection (2) shall contain a certification, signed and dated by a majority of the municipal election commissioners, which shall read as follows:

"We, the undersigned municipal election commissioners, do hereby certify that this statement contains the official vote for the election reflected therein."

(c) The statements required by this subsection (2) shall be transmitted to the Secretary of State on such forms and by such methods as may be required by rules and regulations promulgated by the Secretary of State.

(d) If the statement certifying the names of the persons elected is not transmitted to the Secretary of State as required by this subsection (2), the Secretary of State may issue a show cause order directing the municipal election commissioners to provide to the Secretary of State written response containing the reasons for their failure to transmit the statement. The municipal election commissioners shall file their response to the show cause order with the Secretary of State within five (5) working days after the issuance of the show cause order. If the statement certifying the names of the persons elected is not transmitted to the Secretary of State within five (5) working days after the issuance of the show cause order, the Secretary of State may petition a court of competent jurisdiction to compel the municipal election commissioners to comply with this subsection (2). If the statement certifying the names of the persons elected is received by the Secretary of State within five (5) days after the issuance of the show cause order, a response to the show cause order shall not be required.

SECTION 5. Section 23-15-221, Mississippi Code of 1972, is amended as follows:

23-15-221. (1) The governing authorities of municipalities having a population of less than twenty thousand (20,000) inhabitants according to the last federal decennial census shall appoint three (3) election commissioners; the governing authorities of municipalities having a population of twenty thousand (20,000) inhabitants or more and less than one hundred thousand (100,000) inhabitants according to the last federal decennial census shall appoint five (5) election commissioners; and the governing authorities of municipalities having a population of one hundred thousand (100,000) or more according to the last federal decennial census shall appoint seven (7) election commissioners. The municipal election commissioners, in conjunction with the municipal clerk, shall perform all the duties in respect to the municipal election prescribed by law to be performed by the county election commissioners where not otherwise provided. The election commissioners shall, in case there be but one (1) election precinct in the municipality, act as poll managers themselves.

(2) The city council or board of aldermen or other governing authority of any municipality desiring to avail itself of the provisions of the Mississippi Election Code regarding the duties of municipal election commissioners shall adopt an ordinance declaring its intention to enter into an agreement with the municipality's county to have the county election commissioners conduct municipal elections and other functions that are performed by municipal election commissioners for the benefit of the efficiency and conformity of elections, to be effective on and after a date fixed in the ordinance which must be at least thirty (30) days after the ordinance is adopted and on the first day of a month. If the municipality is located in more than one (1) county, the municipality shall choose which county it wants to conduct its elections and other duties of its municipal election commissioners and enter into an agreement with that county to have that county's election commissioners conduct the municipal elections and other functions that are performed by municipal election commissioners for the benefit of the efficiency and conformity of elections, to be effective on and after a date fixed in the ordinance which must be at least thirty (30) days after the ordinance is adopted and on the first day of a month. A certified copy of this ordinance shall be immediately forwarded to the Chair of the State Board of Election Commissioners. The municipal authorities shall have a copy of the ordinance published once a week for three (3) consecutive weeks in at least one (1) newspaper published in the municipality and having a general circulation therein. The first publication shall be not less than twenty-eight (28) days before the effective date fixed in the ordinance, and the last publication shall be made not less than seven (7) days before such date. If no newspaper is published in the municipality, then notice shall be given by publishing the ordinance for the required time in some newspaper published in the same or an adjoining county having a general circulation in the municipality. A copy of the ordinance shall also be posted at three (3) public places in the municipality for a period of at least twenty-one (21) days during the time of its publication in a newspaper. The publication of the ordinance may be made as provided in Section 21-17-19. Proof of publication must also be furnished to the Chair of the State Board of Election Commissioners.

(3) If a city council or board of aldermen or other governing authority of any municipality adopts an ordinance to abolish municipal election commissioners in the municipality's county and authorize county election commissioners to conduct the municipal election commissioners' duties, the county election commissioners shall conduct all of the duties of the municipal election commissioners including, but not limited to:

(a) Canvass the results of bond elections in a municipality;

(b) Canvass the returns of special and general elections for mayor and councilmen and within five (5) days after any special or general election, deliver to each person receiving the highest number of votes a certificate of election;

(c) Certify to the Secretary of State the name or names of the person or persons elected at special and general elections within ten (10) days after any special or general election;

(d) Revise the primary pollbooks for municipalities at the time and in the manner and in accordance with the laws now fixed and in force for revising pollbooks, except they shall not remove from the pollbook any person who is qualified to participate in primary elections;

(e) Print the pollbooks that are to be used in municipal elections;

(f) Print and distribute the "official ballots";

(g) Perform the duties of poll managers in the event there is only one (1) election precinct in the municipality;

(h) Perform any of the duties required of the municipal executive committee pursuant to Section 23-15-239 if the municipal executive committee has entered into a written agreement with the municipal clerk or the municipal or county election commission that gives such authorization;

(i) Determine whether each party candidate in the municipal general election is a qualified elector of the municipality, and of the ward if the office sought is a ward office, whether each candidate either meets all other qualifications to hold the office he or she is seeking or presents absolute proof that he or she will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he or she could be elected to office, and whether any candidate has been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992;

(j) Declare each candidate elected without opposition, if the candidate meets all the qualifications to hold the office as determined pursuant to a review by the commission in accordance with the provisions of paragraph (i) of this subsection (3);

(k) Canvass the returns for municipal elections received from all voting precincts and within ten (10) days after the election, deliver to each person receiving the highest number of votes a certificate of election. If it shall appear that any two (2) or more of the candidates receiving the highest number of votes shall have received an equal number of votes, the election shall be decided by * * * a new election for the office, which shall occur no less than thirty-five (35) days after the date of the election that resulted in the equal votes;

(l) Transmit the statement provided in Section 23-15-611 to the Secretary of State certifying the name or names of the person or persons elected at municipal elections, and such person or persons shall be issued commissions by the Governor;

(m) Receiving the filed document by any person desiring to contest the qualifications of another person who has qualified pursuant to the provisions of Section 23-15-361 as a candidate for municipal office elected on the date designated by law for regular municipal elections that specifically sets forth the grounds of the challenge no later than thirty-one (31) days after the date of the first primary election set forth in Section 23-15-309; and

(n) Perform all other duties with respect to the municipal election prescribed by law.

(4) If the city council or board of aldermen or other governing authority of any municipality does not desire to avail itself of the provisions of the Mississippi Election Code regarding the duties of municipal election commissioners, then nothing in this section shall be construed in any way to affect, alter or modify the existence of those municipal election commissioners now operating under the laws relating to municipal election commissioners provided in the Mississippi Code of 1972. Those municipalities shall continue to enjoy the form of election commissions and the conduct of the respective elections that are now enjoyed by them, and each shall possess all rights, powers, privileges and immunities granted and conferred under the laws relating to municipal election commissioners provided in the Mississippi Code of 1972.

SECTION 6. Section 23-15-857, Mississippi Code of 1972, is amended as follows:

23-15-857. (1) When there is a vacancy in an elective office in a city, town or village, the unexpired term of which shall not exceed six (6) months, the same shall be filled by appointment by the governing authority or remainder of the governing authority of the city, town or village. The municipal clerk shall certify the appointment to the Secretary of State and the appointed person or persons shall be commissioned by the Governor.

(2) When there is a vacancy in an elective office in a city, town or village, the unexpired term of which shall exceed six (6) months, the governing authority or remainder of the governing authority of the city, town or village shall make and enter on the minutes an order for an election to be held in the city, town or village to fill the vacancy and fix a date upon which the election shall be held. The order shall be made and entered upon the minutes at the next regular meeting of the governing authority after the vacancy occurs, or at a special meeting to be held not later than ten (10) days after the vacancy occurs, Saturdays, Sundays and legal holidays excluded, whichever shall occur first. The election shall be held on a date not less than thirty (30) days nor more than forty-five (45) days after the date upon which the order is adopted.

Notice of the election shall be given by the municipal clerk by notice published in a newspaper published in the municipality. The notice shall be published once each week for three (3) successive weeks preceding the date of the election. The first notice shall be published at least thirty (30) days before the date of the election. Notice shall also be given by posting a copy of the notice at three (3) public places in the municipality not less than twenty-one (21) days before the date of the election. One (1) of the notices shall be posted at the city, town or village hall. In the event that there is no newspaper published in the municipality, such notice shall be published as provided for above in a newspaper that has a general circulation within the municipality and by posting as provided for above. Additionally, the governing authority may publish the notice in that newspaper for as many additional times as may be deemed necessary by the governing authority.

Each candidate shall qualify by petition filed with the municipal clerk by 5:00 p.m. at least twenty (20) days before the date of the election. If the twentieth day to file the petition before the election falls on a Sunday or legal holiday, the petition filed on the business day immediately following the Sunday or legal holiday shall be accepted. The petition shall be signed by not less than the following number of qualified electors:

(a) For an office of a city, town, village or municipal district having a population of one thousand (1,000) or more, not less than fifty (50) qualified electors.

(b) For an office of a city, town, village or municipal district having a population of less than one thousand (1,000), not less than fifteen (15) qualified electors.

No qualifying fee shall be required of any candidate, and the election shall be held as far as practicable in the same manner as municipal general elections.

The candidate receiving a majority of the votes cast in the election shall be elected. If no candidate receives a majority vote at the election, the two (2) candidates receiving the highest number of votes shall have their names placed on the ballot for the election to be held three (3) weeks thereafter. The candidate receiving a majority of the votes cast in the election shall be elected. However, if no candidate receives a majority and there is a tie in the election of those receiving the next highest vote, those receiving the next highest vote and the candidate receiving the highest vote shall have their names placed on the ballot for the election to be held three (3) weeks thereafter, and whoever receives the most votes cast in the election shall be elected.

Should the election held three (3) weeks thereafter result in a tie vote, the prevailing candidate shall be decided by * * * a new election for the office, which shall occur no less than thirty-five (35) days after the date of the election that resulted in equal votes.

The clerk of the election commission shall then give a certificate of election to the person elected, and return to the Secretary of State a copy of the order of holding the election and runoff election results, certified by the clerk of the governing authority. The person elected shall be commissioned by the Governor.

However, if nineteen (19) days before the date of the election only one (1) person shall have qualified as a candidate, the governing authority, or remainder of the governing authority, shall dispense with the election and appoint that one (1) candidate in lieu of an election. In the event no person shall have qualified by 5:00 p.m. at least twenty (20) days before the date of the election, the governing authority or remainder of the governing authority shall dispense with the election and fill the vacancy by appointment. The clerk of the governing authority shall certify the appointment to the Secretary of State, and the appointed person shall be commissioned by the Governor.

SECTION 7. This act shall take effect and be in force from and after July 1, 2019.