In Mississippi, do state legislators and other state district officers face a runoff election if no candidate gets a majority, or does that rule only apply to statewide officers?

Plain-English summary

Senator Kelvin Butler asked the AG a question that comes up every gubernatorial cycle: when § 23-15-193 talks about "the state officers" who must be "elected by a majority vote" with a runoff if no one gets a majority, does that include only the eight statewide offices, or every officer holding "an office in state government," including state legislators?

The AG said only the statewide offices. The reasoning is textual:

• Subsection (1) lists everyone elected at the general state election: Governor, Lt. Governor, Secretary of State, Auditor, Treasurer, AG, three PSC commissioners, three Transportation Commissioners, Insurance Commissioner, Agriculture Commissioner, Senators, House members, district attorneys, circuit and chancery court clerks, sheriffs, coroners, assessors, surveyors, supervisors, justice court judges, constables, and "all other officers to be elected by the people at the general state election." That is "all such officers."
• Subsection (1)'s last sentence says "[t]he state officers shall be elected in the manner prescribed in Section 140 of the Constitution." That phrase is a narrower reference, not to "all such officers."
• Section 140 of the Mississippi Constitution speaks of "the Governor of the state and all statewide elected officials," with a majority requirement and a runoff if no candidate receives a majority.
• Subsection (2) then provides the runoff procedure for "the state officers."
• Other election statutes (§§ 23-15-296, 23-15-333, 23-15-367, 23-15-605, 23-15-923) consistently distinguish "statewide" offices from "state district" offices and "legislative" offices.
• § 23-15-367(2) is especially explicit: it lists statewide offices in subsection (b), state district offices (Transportation Commissioner, PSC, DA) in subsection (c), and legislative offices (Senate, House) in subsection (d).

Result: the runoff requirement in § 23-15-193(2) applies to the eight Section 140 statewide offices. Senate and House races, district attorney races, and PSC and Transportation Commissioner races are decided by plurality.

What this means for you

Candidates for statewide office

The opinion holds that the eight Section 140 offices, Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, Auditor of Public Accounts, Commissioner of Agriculture and Commerce, and Commissioner of Insurance, are the "state officers" subject to § 23-15-193(2). A candidate for one of those offices is elected only by a majority; if no one gets a majority, § 23-15-193(2) sends the top two to a runoff three weeks after the general election.

Candidates for the Legislature, PSC, Transportation Commission, or district attorney

The opinion holds that the § 23-15-193(2) runoff "does not apply to state district officers or legislators." For those offices the statute does not impose a majority requirement, so a plurality decides the race at the general election.

Circuit clerks and election commissioners

The opinion reads "the state officers" in § 23-15-193 as the statewide offices in § 23-15-367(2)(b), distinct from the state district offices in (c) and the legislative offices in (d). On that reading the majority-and-runoff procedure of § 23-15-193(2) reaches only the (b) statewide offices.

Voters

For statewide offices, the opinion describes a majority requirement with a runoff three weeks later if no candidate clears a majority. For legislative and state district offices, it describes no such requirement under § 23-15-193(2).

Common questions

Q: Which offices are "statewide elected officials" under Section 140?
A: Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, Auditor of Public Accounts, Commissioner of Agriculture and Commerce, and Commissioner of Insurance. Eight offices.

Q: Why isn't a state senator considered a "state officer"?
A: They are state-level office holders in a colloquial sense, but the statutory phrase "the state officers" in § 23-15-193(2) is a term of art that refers back to Section 140 of the Constitution. State legislators are listed separately in election statutes (e.g., § 23-15-367(2)(d)) and are governed by their own procedures.

Q: What's the difference between "statewide" and "state district" offices?
A: Statewide offices are filled by votes from across the state (Governor, AG, etc.). State district offices are filled by votes within a defined district that is smaller than the state but larger than a county (PSC and Transportation Commission have three districts; DAs have multiple districts). Legislative offices (Senate and House) are filled by votes within their respective districts.

Q: When is the runoff held?
A: § 23-15-193(2) requires the runoff three weeks after the general election if no candidate receives a majority for a statewide office.

Q: Does this affect primary elections?
A: § 23-15-193 itself addresses general elections. Primary elections (and primary runoffs) are governed by other statutes, including § 23-15-333. The general principle, that statewide offices have majority/runoff requirements while many other offices do not, runs through both general and primary procedures, but read each statute carefully.

Q: What happens in legislative races with three or more candidates?
A: Under the opinion's reading, the runoff in § 23-15-193(2) does not apply to legislative offices, so the candidate with the most votes wins even without a majority.

Background and statutory framework

§ 23-15-193 reads in part:

(1) At the election in 2023, and every four (4) years thereafter, there shall be elected a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, State Treasurer, Attorney General, three (3) public service commissioners, three (3) Mississippi Transportation Commissioners, Commissioner of Insurance, Commissioner of Agriculture and Commerce, Senators and members of the House of Representatives in the Legislature, district attorneys for the several districts, clerks of the circuit and chancery courts of the several counties, as well as sheriffs, coroners, assessors, surveyors and members of the boards of supervisors, justice court judges and constables, and all other officers to be elected by the people at the general state election. All such officers shall hold their offices for a term of four (4) years, and until their successors are elected and qualified. The state officers shall be elected in the manner prescribed in Section 140 of the Constitution.

(2) The state officers that receive a majority of votes cast for the office at the general election shall be elected. If no candidate receives a majority number of votes cast at the election, then the two (2) candidates who receive the highest number of votes cast shall have their names placed on the ballot for the runoff election to be held three (3) weeks later. The candidate who receives a majority of the votes cast in the runoff election shall be elected.

(Emphasis added.) Two distinct phrases: "all such officers" (everyone in the long list) and "the state officers" (a narrower group elected per Section 140).

Mississippi Constitution Section 140:

The Governor of the state and all statewide elected officials shall be elected by the people in a general election to be held on the first Tuesday after the first Monday of November 2023, and on the first Tuesday after the first Monday of November in every fourth year thereafter. The person receiving a majority of the number of votes cast in the election for these offices shall be declared elected. If no person receives a majority of the votes, then a runoff election shall be held under procedures prescribed by the Legislature in general law.

That is the source of the majority requirement and the runoff. It speaks only of "the Governor of the state and all statewide elected officials," not of all state office holders.

Election statutes consistently track this distinction. § 23-15-367(2) divides ballot ordering into:

• (b) statewide office: Governor, Lt. Gov., Secretary of State, AG, Treasurer, Auditor, Agriculture, Insurance.
• (c) state district offices: Mississippi Transportation Commissioner, Public Service Commissioner, District Attorney.
• (d) legislative offices: Senate and House.

§ 23-15-333(2) does the same for primary elections. §§ 23-15-296, 23-15-605, and 23-15-923 also use these distinctions.

The textual structure is consistent enough that the AG's narrow reading of "the state officers" is the only interpretation that makes the statute internally coherent.

Citations and references

Statutes:

• Miss. Code Ann. § 23-15-193 (general election of various state and local officers; runoff procedure for state officers)
• Miss. Code Ann. § 23-15-193(2) (runoff election if no candidate receives a majority)
• Miss. Code Ann. § 23-15-296, § 23-15-333, § 23-15-333(2), § 23-15-367, § 23-15-367(2), § 23-15-605, § 23-15-923 (election statutes that distinguish statewide, state district, and legislative offices)

Constitution:

• Miss. Const. § 140 (Governor and statewide elected officials elected by majority; runoff if no majority)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/11/K.Butler-November-2-2023-Runoff-Election-for-State-Officers.pdf

Original opinion text

November 2, 2023

The Honorable Kelvin E. Butler
Senator, District 38
Post Office Box 1018
Jackson, Mississippi 39215-1018

Re: Runoff Election for State Officers

Dear Senator Butler:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

As used in Section 23-15-193 of the Mississippi Code Annotated, does the term "the state officers," who are required to be elected by a majority vote, refer to only officers elected on a statewide basis or to all officers holding an office in state government such as State Senator or Representative?

Brief Response

The term "the state officers" as used in Section 23-15-193 includes only the statewide elected offices of Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, Auditor of Public Accounts, Commissioner of Agriculture and Commerce and Commissioner of Insurance as referenced in Section 140 of the Mississippi Constitution. The requirement in Section 23-15-193(2) of a runoff election if no state officer candidate receives a majority of the votes does not apply to state district officers or legislators.

Applicable Law and Discussion

Section 23-15-193 provides for the general election of several listed officers at the state and county level as well as the procedure for holding the runoff election for state officers referenced in Section 140 of the Constitution:

(1) At the election in 2023, and every four (4) years thereafter, there shall be elected a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, State Treasurer, Attorney General, three (3) public service commissioners, three (3) Mississippi Transportation Commissioners, Commissioner of Insurance, Commissioner of Agriculture and Commerce, Senators and members of the House of Representatives in the Legislature, district attorneys for the several districts, clerks of the circuit and chancery courts of the several counties, as well as sheriffs, coroners, assessors, surveyors and members of the boards of supervisors, justice court judges and constables, and all other officers to be elected by the people at the general state election. All such officers shall hold their offices for a term of four (4) years, and until their successors are elected and qualified. The state officers shall be elected in the manner prescribed in Section 140 of the Constitution.

(2) The state officers that receive a majority of votes cast for the office at the general election shall be elected. If no candidate receives a majority number of votes cast at the election, then the two (2) candidates who receive the highest number of votes cast shall have their names placed on the ballot for the runoff election to be held three (3) weeks later. The candidate who receives a majority of the votes cast in the runoff election shall be elected.

Miss. Code Ann. § 23-15-193 (emphasis added). Notably, there is a distinction made in the text of the statute between the larger group of "[a]ll such officers" in the first emphasized sentence, which refers to all the officers listed in subsection (1), and "the state officers" in the second emphasized sentence who must be elected in accordance with Section 140 of the Constitution. Section 140 of the Mississippi Constitution provides:

The Governor of the state and all statewide elected officials shall be elected by the people in a general election to be held on the first Tuesday after the first Monday of November 2023, and on the first Tuesday after the first Monday of November in every fourth year thereafter. The person receiving a majority of the number of votes cast in the election for these offices shall be declared elected. If no person receives a majority of the votes, then a runoff election shall be held under procedures prescribed by the Legislature in general law.

(emphasis added). The term "the state officers" as used in Section 23-15-193 refers to a specific set of office holders, namely the statewide elected officials in the referenced Section 140 of the Mississippi Constitution.

Although, as you state in your request, state legislators hold an office in state government, state legislators are often distinguished from statewide offices such as Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, State Treasurer, and Attorney General in Mississippi election statutes. See Miss. Code Ann. §§ 23-15-296, 23-15-333, 23-15-367, 23-15-605, and 23-15-923 (all listing legislative offices separately from statewide or state district offices). Further, Section 23-15-367(2) provides the order for the various offices printed on the general election ballot and divides the offices into separate categories, including:

(b) Candidates for the following statewide office: Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, Auditor of Public Accounts, Commissioner of Agriculture and Commerce, Commissioner of Insurance;

(c) Candidates for the following state district offices: Mississippi Transportation Commissioner, Public Service Commissioner, District Attorney;

(d) Candidates for the following legislative offices: Senate and House of Representatives[.]

Miss. Code Ann. § 23-15-367(2); see also Miss. Code Ann. § 23-15-333(2) (listing the same categories for the primary election).

It is the opinion of this office that the term "the state officers" in Section 23-15-193 refers only to the "statewide elected officials" as provided in Section 140 of the Mississippi Constitution and listed in Section 23-15-367(2). Thus, Section 23-15-193(2), which outlines the procedure for holding a general runoff election, applies only to statewide elected officials and not legislators or state district officers.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General