Mississippi Advisory Opinions December 04, 2014: AGO 2014-00456 (December 04, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Kimberly Turner

SUBJ: Elections - New Referendum

SBCD: 72-A

TEXT: Kimberly P. Turner, Esquire

Assistant Secretary of State, Elections Division

Post Office Box 136

Jackson, Mississippi 39205

Re: Initiative Petition

Dear Ms. Turner:

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

Your letter states in part:

The Secretary of State has received the petition for Initiative Measure #42 and expects to receive petitions for additional initiative measures which are presently in the signature-gathering stage. With regard to the Secretary of State's statutory obligation to refuse or accept the filing of any initiative petition, the Mississippi Code is silent as to the authority of the Secretary of State, if any, to add or subtract from the total number of signatures as certified by the circuit clerk of each county. We, therefore, request an official written opinion from the Attorney General in answer to the following questions.

Questions and Responses

You state that pursuant to Miss. Const. Art. 15, Section 273(12), every person who circulates an initiative petition shall print and sign his name on each page of an initiative petition, or on a separate page attached to each page, certifying that he was a resident of this state at the time of circulating the petition.

Question 1: May the Secretary of State subtract from the total number of signatures certified by the circuit clerk those signatures which appear on a page of the petition which is not signed by the person who circulated the petition?

Question 2: If no, must the Secretary of State reject the petition in its entirety based upon the failure of the same to comply with Miss. Const. Art. 15, Section 273(12)?

Response: In response to Question 1, we are of the opinion that the signature of the person who circulates the initiative petition certifying that he or she was a resident of the State of Mississippi at the time of circulating the petition is an indispensable requirement in order to "prevent signature fraud and to maintain the integrity of the initiative process" as stated in Section 273(12), Mississippi Constitution of 1890. In addition, this section requires the Secretary of State to refuse to accept for filing any page of a petition in which signatures were obtained by a person who was not a resident at the time that the petition was circulated.

Therefore, the Secretary of State is without authority to count signatures appearing on a page of the petition which is not signed by the person who circulated the petition.

Our response to Question 1 renders Question 2 moot.

You state that pursuant to Miss. Code Ann. Section 23-17-17, a person proposing an initiative measure must "print blank petitions upon single sheets of paper of good writing quality not less than eight and one-half (8/4) inches in width and not less than fourteen (14) inches in length."

Question 3: May the Secretary of State subtract from the total number of signatures certified by the circuit clerk those signatures which appear on a page of the petition which is not at least eight and one-half (8/4) inches in width and fourteen (14) inches in length?

Question 4: If no, must the Secretary of State reject the petition in its entirety pursuant to Miss. Code Ann. Section 23-17-23(a)?

Response: In response to question 3, while Section 23-17-17 states that a person proposing an initiative measure shall print blank petitions on paper not less than 8/4 inches wide and not less than 14 inches in length, the Mississippi Supreme Court has held that, concerning statutory provisions dealing with elections, if a particular provision does not expressly declare that a particular act is essential to the election's validity or that omission of the particular act will render the election void, the statute is considered directory rather than mandatory. Thompson v. Jones, 17 So.3d 524 (Miss. 2008); Rogers v. Holder, 636 So.2d 645 (Miss. 1997); Walker v. Smith, 56 So.2d 84 (Miss. 1952).

We are of the opinion that the statutory provision that requires that the blank petitions be printed on paper of certain measurements are directory as opposed to mandatory. The Secretary of State would not be required to subtract signatures certified by the respective circuit clerks based solely on the fact that the petition form was on paper that does not comply with the measurements set forth in Section 23-17-17. Therefore, the Secretary of State has the discretion to accept signatures certified by circuit clerks on paper that do not strictly comply with the size requirements of Section 23-17-17.

In response to Question 4, Section 23-17-23(a) requires the Secretary of State to refuse to file any initiative on the ground that the petition is not in the form required by Section 23-17-19. Section 23-17-19 requires the Secretary of State to design the petition form and sets forth certain language that is to be contained on such form. It does not address the measurements of the paper on which the form is to be printed.

Therefore, it is the opinion of this office that the submission of petition forms containing signatures that are on pages that are not in compliance with the measurement requirements of Section 23-17-17 is not a proper ground for the Secretary of State to refuse to file the initiative petition.

You state that pursuant to Miss. Code Ann. Section 23-17-17, each petition shall "have the full, true and correct copy of the proposed measure referred to therein printed on the reverse side or attached thereto."

Question 5: May the Secretary of State subtract from the total number of signatures certified by the circuit clerk those signatures which appear on a page of the petition which does not set forth the full, true and correct copy of the proposed measure in its entirety on the reverse side or attached thereto?

Question 6: If no, must the Secretary of State reject the petition in its entirety pursuant to Miss. Code Ann. Section 23-17-23(a) based upon the noncompliance of the form?

Response: In response to Question 5, we are of the opinion that a full, true and correct copy of the proposed measure is essential in order for the voters to be fully informed on the issue before them.

Therefore, signatures on pages that do not set forth the full, true, and correct copy of the proposed measure in its entirety on the reverse side or attached thereto should not be counted.

Our response to Question 5 renders Question 6 moot.

You state that by opinion to the Hon. Delbert Hosemann dated January 9, 2009, the Attorney General opined that "the geographic distribution requirement of Section 273 requires that not more than 20% of the total required number of initiative petition signatures must come from the last five-district congressional district plan which was in effect prior to the adoption of the current four-district plan." The opinion further recognized "the difficulties the circuit clerks and their staffs may encounter when attempting to verify the congressional district under a previous redistricting plan of large number of initiative signers."

Miss. Code Ann. Section 23-17-21 requires each circuit clerk to "verify the name of each qualified elector signing on each petition."

Question 7: Are the circuit clerks obligated to certify to the number of qualified electors who signed an initiative petition by congressional district?

Question 8: May the Secretary of State subtract from the total number of signatures certified by the circuit clerk those signatures which are not verified by congressional district?

Question 9: If the circuit clerk does not verify the number of signatures by congressional district, may the Secretary of State ascertain the congressional district of each qualified elector as verified by the circuit clerk by the use of and reference to other available sources of information, such as the Statewide Election Management System, and include those signatures as certified for purposes of determining the total required number?

Response: In response to Question 7, we find no constitutional or statutory requirement that the circuit clerks certify the number of qualified electors who signed an initiative petition by congressional district. Section 23-17-21 only requires that "(t)he 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."

In response to Question 8, it is our opinion that the failure of a circuit clerk to certify signatures by congressional district is not a sufficient reason to subtract such signatures from an initiative petition.

In response to Question 9, we are of the opinion that the Secretary of State may ascertain the congressional district of each qualified elector verified by the respective circuit clerks by the use of and reference to other available sources of information such as the Statewide Election Management System and that such signatures should be counted toward determining the legitimate number of signatures from each congressional district of the last five-district congressional plan that was in effect prior to the adoption of the current four-district plan.

Applicable Law

Mississippi Constitution Section 273 (12) provides:

The Legislature shall provide by law the manner in which initiative petitions shall be circulated, presented and certified. To prevent signature fraud and to maintain the integrity of the initiative process the state has a compelling interest in insuring that no person shall circulate an initiative petition or obtain signatures on an initiative petition unless the person is a resident of this state at the time of circulation. For the purposes of this subsection the term "resident" means a person who is domiciled in Mississippi as evidenced by an intent to maintain a principal dwelling place in Mississippi indefinitely and to return to Mississippi if temporarily absent, coupled with an act or acts consistent with that intent. Every person who circulates an initiative petition shall print and sign his name on each page of an initiative petition, or on a separate page attached to each page, certifying that he was a resident of this state at the time of circulating the petition. The Secretary of State shall refuse to accept for filing any page of an initiative petition upon which the signatures appearing thereon were obtained by a person who was not a resident of this state at the time of circulating the petition, and an initiative measure shall not be placed on the ballot if the Secretary of State determines that without such signatures the petition clearly bears an insufficient number of signatures. The provisions of this subsection (12) shall be applicable to all initiative measures that have not been placed on the ballot at the time this proposed amendment is ratified by the electorate. (Emphasis added)

Section 23-17-17 provides:

(1) The person proposing an initiative measure shall print blank petitions upon single sheets of paper of good writing quality not less than eight and one-half (8/4) inches in width and not less than fourteen (14) inches in length. Each sheet shall have a full, true and correct copy of the proposed measure referred to therein printed on the reverse side of the petition or attached thereto.

(2) Only a person who is a qualified elector of this state may circulate a petition or obtain signatures on a 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.....

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.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.