AG’s ‘last-minute’ opinion on candidate residency requirements leaves election officials puzzled

Ambiguity in statute, AG opinion could lead to some disqualified candidates filing suit
Updated: Feb. 5, 2021 at 8:18 PM CST
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JACKSON, Miss. (WLBT) - A last-minute opinion by Mississippi’s attorney general could affect whether some candidates stay on the ballot in this year’s municipal elections, and some legal experts are concerned it could cause mistrust in the state’s electoral process.

“You can’t defend the timing, no matter what the circumstances,” said Mississippi Democratic Party Chairman Tyree Irving, citing an opinion from AG Lynn Fitch that changed candidate qualifications four days before the state’s qualifying deadline.

Fitch wrote that the two-year requirement for city and county candidates also applies to municipal wards as well.

The change caught Secretary of State Michael Watson by surprise.

“The timing of this opinion, issued just days before the qualifying deadline, is inexcusable,” Watson said in a statement to 3 On Your Side. “Our office is in the process of notifying as many municipal officials and candidates as possible of this last-minute change.”

He said the AG’s office basically reversed course on its position without warning.

“We’ve conducted hours of municipal election training, which includes a video produced by the AG’s Office indicating the two-year residency requirement did not apply to wards, and fielded hundreds of questions about the municipal residency requirement,” Watson said. “We are all extremely concerned about the impact this will have on candidates who have spent their time, money and other resources on campaigns that will come to a screeching halt due to this opinion.”

That opinion will likely only lead to more confusion among municipal election commissioners across the state, Irving said.

“Anytime that there is, you know, some action taken that can affect that will have the natural effect of diminishing the respect for our electoral process is just not good,” Irving said.

The statute cited in Fitch’s opinion also has a section which bypasses the two-year residency requirement if there’s a specific residency requirement somewhere else in state law.

Further complicating matters, Fitch’s opinion does not specifically refer to that exception in the statute.

There’s some disagreement among lawyers about what constitutes a “specific requirement” and when that two-year rule would apply, meaning election commissioners in some cities may not know whether to listen to Fitch’s opinion -- which is not legally binding -- or what’s actually in statute.

AG spokesperson Colby Jordan told 3 On Your Side late Friday that the Legislature’s language regarding that specific requirement is clear.

“If qualifications for an office include specific residency requirements, the two-year residency requirement does not apply,” Jordan said in an email to WLBT.

Matt Steffey, law professor at the Mississippi College School of Law, said the opinion should have been more clearly defined at the outset, especially when dealing with a section of state law that was already somewhat vague.

“I think this is a perfect illustration about why ambiguity in the law, governing something like this is undesirable for everyone, right? Because no one wants to take a definitive stand and later be told they’re wrong. Nobody wants to disqualify candidates that should be allowed to run or qualified people that are ultimately going to be found ineligible,” said Matt Steffey, law professor at the Mississippi College School of Law.

Irving said those commissioners that do follow the opinion, even if it’s later determined to be inaccurate, will not be liable if a candidate files suit afterward.

“It’s not a good look. It certainly isn’t a good look when there’s chaos around elections and it doesn’t promote a feeling of confidence and fairness,” Steffey said.

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