Mississippi Advisory Opinions May 29, 2009: No. 2009-00204 (May 29, 2009)

Mississippi Attorney General Opinions

2009.

No. 2009-00204.

Dear Mr. Wilson:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Background

You cite a prior opinion of this office wherein we said that the signatures of qualified electors on an initiative petition must be geographically distributed equally among the five congressional districts as they existed in the year 2000. MS AG Op., Hosemann (January 9, 2009). You then present a series of questions dealing with the duties and authority of the Secretary of State in verifying and accepting such petitions which we will restate and answer in the order presented.

Issue One

May the Secretary of State modify the form of a petition mandated by Mississippi Code Annotated Section 23-17-19 (Revised 2007) to contain the criteria set out in Section 23-17-23?

Response

We are of the opinion that while the petition form must contain the specific language set forth in Section 23-17-19, additional information setting forth the grounds upon which the Secretary of State must refuse to file an initiative petition may be included as an addendum to said form.

Applicable Law and Discussion

Section 23-17-19 provides in part:

The Secretary of State shall design the form each sheet of which shall contain the following:

That statute then sets out the specific language that must appear on each page of the petition.

Section 23-17-23 sets forth the grounds upon which the Secretary of State must refuse to file an initiative petition.

We find no legal prohibition against the Secretary of State including the provisions of Section 23-17-23 for informational purposes to assist the sponsors and circulators of the petition.

Issue Two

Does the Secretary of State have an obligation to accept a petition for filing if there is a sufficient number of signatures or does he have an obligation to evaluate the sufficiency of other characteristics, such as the legitimacy or collection method of the signatures?

Response

Section 23-17-23 requires the Secretary of State to accept and file an initiative petition unless one or more of the grounds for refusal set forth therein exists. If none of the stated grounds for refusal are present and the total number of signatures for each congressional district as certified by the appropriate circuit clerks meet the minimum requirements, the Secretary of State must accept and file the petition. We find no obligation or authorization for the Secretary of State to refuse to accept and file such petition based on his independent verification of signatures.

As to the method of collecting signatures, an individual who was intentionally misled as to the substance or effect of the petition may file an affidavit with the Secretary of State to that effect and the Secretary of State must then remove that name from the petition.

Applicable Law and Discussion

Section 23-17-23 provides:

The Secretary of State shall refuse to file any initiative petition being submitted upon any of the following grounds:

(a) That the petition is not in the form required by Section 23-17-19;

(b) That the petition clearly bears insufficient signatures:

(c) That one or more signatures appearing on the petition were obtained in violation of Section 23-17-17(2), Section 23-17-57(2) or Section 23-17-57(3);

(d) That the time within which the petition may be filed has expired; or

(e) That the petition is not accompanied by the filing fee provided for in Section 23-17-21.

In case of such refusal, the Secretary of State shall endorse on the petition the word "submitted" and the date, and retain the petition pending appeal.

If none of the grounds for refusal exists, the Secretary of State shall accept and file the petition.

Section 23-17-21 provides in part:

Before a person may file a petition with the Secretary of State, the petition must be certified by the circuit clerk of each county in which the petition was circulated. The circuit clerk shall certify the signatures of qualified electors of that county and shall state the total number of qualified electors signing the petition in that county. The circuit clerk shall verify the name of each qualified elector signing on each petition. **** When the person proposing any initiative measure has secured upon the petition a number of signatures of qualified electors equal to or exceeding the minimum number required by Section 272(3) of the Mississippi Constitution of 1890 for the proposed measure, and such signatures have been certified by the circuit clerks of the various counties, he may submit the petition to the Secretary of State for filing. *****.

Section 23-17-60 provides:

Any person who alleges that his or her signature on an initiative petition was obtained as the result of fraud or coercion, or that the person was intentionally misled as to the substance or effect of the petition, may have his or her signature removed from the initiative petition upon filing an affidavit to such effect with the Secretary of State anytime before the Secretary of State has accepted and filed the petition under Section 23-17-23.

Issue Three

If the Secretary of State has an obligation to determine the sufficiency of signatures, apart from merely counting them, are there any standards that he must apply to determine sufficiency?

Response

Our response to Issue Two renders this question moot.

Issue Four

Is electronic signature collection compatible with Sections 1-3-75 and 23-17-19 and any other applicable law?

Response

We are of the opinion that electronic signature collection is not permitted by or compatible with the Initiative and Referendum statutes.

Applicable Law and Discussion

The Initiative and Referendum provisions (Sections 23-17-1 through 23-17-61) were adopted in 1993. The Uniform Electronic Transactions Act (UETA) (Sections 75-12-1 through 75-12-39) authorizing the use of electronic signatures under certain conditions was adopted in 2001.

Section 75-12-15 (b) provides:

If a law other than this chapter requires a record (i) to be posted or displayed in a certain manner, (ii) to be sent, communicated, or transmitted by a specified method, or (iii) to contain information that is formatted in a certain manner, the following rules apply:

(1) The record must be posted or displayed in the manner specified in the other law.

(2) Except as otherwise provided in subsection (d) (2), the record must be sent, communicated, or transmitted by the method specified in the other law.

(3) The record must contain the information formatted in the manner specified in the other law.

The Initiative and Referendum provisions clearly specifies how the "record" in question must be formatted. Section 23-17-17 requires that a sponsor of an initiative measure "shall print blank petitions upon single sheets of paper of good writing quality not less than eight and one-half (8

Section 23-17-19 also refers to the printed "sheet"(s) of the petition. Clearly the statutes do not permit nor contemplate the use of anything other than printed, paper petitions. See also Section 273 of the Mississippi Constitution (Every person circulating a petition "shall print and sign his name on each page ... or on a separate page attached to each page", etc.).

Section 23-17-21 requires that the signatures on the petition be certified by the circuit clerk of each county in which the petition was circulated. This clearly contemplates that the petition be submitted to the respective clerks in the format required by Sections 23-17-17 and 23-17-19 and Section 273 of the Mississippi Constitution.

Furthermore, Section 1-3-75 provides:

All petitions presented to any governing body of the State of Mississippi, or any of its subdivisions, or municipalities thereof, must be signed personally by each petitioner; otherwise, said signature shall not be counted as a valid signature of such petition.

Section 1-3-76 provides in part:

When any petition is filed by qualified electors of a county or municipality requesting a vote on matter affecting all or any portion of a county or municipality, the certifying official shall post a list of all names disqualified from the petition and the reason for disqualification at the courthouse or city hall, as the case may be. ***.

If there is a question as to whether an individual "personally" signed an initiative petition and that signature was done electronically by the use of a computer "mouse", it would be impossible for a circuit clerk as the certifying and verifying official to compare the signature on the petition with a qualified elector's signature on his or her voter registration form and determine if such signatures constitute a reasonable match.

All of the above are clear indications that electronic signatures are incompatible with the initiative process.

Issue Five

Does the Secretary of State have the authority to investigate the legitimacy of a petition, its signatures, or the signature collection process?

Specifically, you state that Section 23-15-23 (c) requires the Secretary of State to reject a petition if signatures were collected by circulators who are not qualified electors of Mississippi, if petitioners were compensated for their signatures, or if circulators were paid based upon the number of signatures collected and ask if this implicitly or explicitly gives the Secretary of State the authority to conduct investigations or gather evidence?

Response

The Secretary of State may assist and cooperate with law enforcement agencies and prosecutors, but has no authority to make an independent determination that a criminal statute has been violated.

Applicable Law and Discussion

The requirement that a circulator be a qualified elector and the compensation prohibition for petition circulators have been struck down by the federal courts. See Buckley v. American Constitutional Law Foundation, 119 S. Ct. 636 (1999); Leadership Council v. Clark, 984 F. Supp. 470 (SD Miss. 1997); Meyer v. Grant, 108 S. Ct. 1886 (1988); Limit v. Maleng, 874 F. Supp. 1138 (W.D. Wash. 1994).

One of the grounds that requires the Secretary of State to refuse to file an initiative petition is that one or more signatures appearing on the petition were obtained in violation of Section 23-17-57 (2) which provides:

It is unlawful for a person to give or offer any consideration to an elector to induce the elector to sign or not sign a petition for a measure.

Section 23-17-61 provides:

Any violation of Sections 23-17-49 through 23-17-59 is punishable by imprisonment in the county jail for not more than one (1) year, or by a fine not to exceed One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.

Only if an individual is convicted of giving or offering any consideration to an elector to sign or not sign a particular initiative petition in violation of Section 23-17-57(2), would the Secretary of State would be authorized to refuse to file the petition in question.

Although the Secretary of State may certainly assist and cooperate with law enforcement agencies and prosecutors, we find no authority for the Secretary of State to make an independent determination that a criminal statute has been violated.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General