Mississippi Advisory Opinions August 31, 1995: AGO 000010097 (August 31, 1995)

AGO 000010097.

Dear Senator Bean:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states in part:

"As a member of the Mississippi State Senate, I am requesting an official opinion from your office in connection with certain questions in connection with the submission to the electorate of proposed amendments to the Mississippi Constitution of 1890 brought by voter initiative pursuant to Section 23-17-1, et seq. (the 'Act'), Mississippi Code of 1972, as amended (the 'Code'). As you are aware, the Act contains detailed procedures to be used in connection with submittals of proposed amendments to the Secretary of State and the Attorney General, drafting of the ballot title and summary for any such amendment, procedures for appeal of the ballot title and summary as developed by the Attorney General, submittal to and consideration of the proposed amendment by the legislature, and publication of the proposed amendment by the Secretary of State, but leaves many questions unanswered. It appears that the Mississippi Election Code, Section 23-15-1 et seq. of the Code, may apply, but unfortunately it too fails to answer every applicable question. Since the Mississippi Election Code provides for criminal prosecution for certain violations, I believe it is imperative that these issues be addressed. Therefore, and because the other questions and issues raised herein are so important to the voter initiative process, I am requesting your opinion with respect to the following questions:"

You then present six (6) questions which we will restate and respond to in sequence.

Question 1: "What is the minimum allowable distance from a polling place for a proponent or opponent of a balloted measure to speak for or against a balloted measure or to post or distribute written materials in connection with the same? As heretofore codified, Section 23-15-895 of the Election Code prohibited a candidate for elective office or a representative thereof from 'post[ing] or distribut[ing] cards, posters or other campaign literature within one hundred fifty (150) feet of any entrance of the building wherein any election is being held.' As amended by Chapter 494, Section 1, Laws of 1994, Section 23-15-895 of the Code would proscribe 'any candidate for an elective office, or any representative of such candidate, or for any proponent or opponent of any constitutional amendment, local issue or other measure printed on the ballot to post or distribute cards, posters or other campaign literature within one hundred fifty (150) feet of any entrance of the building wherein any election is being held.' However, the amendments to Section 23-15-895 are only effective after the same have been effectuated under the Voting Rights Act of 1965, as amended. Have the amendments been so effectuated, and if not, what proscriptions apply to posting or distributing literature or materials relating to proposed constitutional amendments by voter initiative near polling places?"

Response: Chapter 494, Laws of 1994 amending Section 23-15-895 of the Code was "precleared" by the U.S. Department of Justice on June 23, 1994. Therefore, one may not post or distribute any campaign literature relating to a proposed constitutional amendment by voter initiative within one hundred fifty (150) feet of any entrance of any building wherein any election is being held.

Question 2: "May the proponents of a proposed amendment purchase space in a newspaper or other periodical for the purpose of publishing the entire text or the ballot title and summary of the same? I can find no statutory authority with respect to this issue."

Response: We find no statutory prohibition against such purchase.

Question 3: "May a newspaper or other periodical donate or offer such space at a reduced rate for publication of either the ballot title and summary or the entire text of the proposed amendment? Section 23-15-891 of the Code provides that no candidate, political committee or person assisting any candidate for elective office shall receive free or reduced-rate telephone, telegraph or common carrier services not made generally available to all other persons, but is silent as to newspapers and other periodicals. Likewise, the title to Section 23-15-897 of the Code reads as follows: 'Requirement of candidate's subscription of printed campaign material; observance of federal provisions with respect to radio and television times; payment for printed matter and broadcast times at usual rates.' However, the text of Section 23-15-897 contains no reference to a requirement that 'printed matter' be paid at 'usual rates'; the only reference in Section 23-15-897 to printed material is that the same must be subscribed by the candidate prior to use. Furthermore, would either of these statutes apply to balloted measures given that the express terms of each limit application to 'candidates for elective office' and their representatives?"

Response: The provisions of Sections 23-15-891 and -897 are applicable to activities which are for the purpose of influencing voters for or against a particular candidate and, in our opinion, are not applicable to activities which are for the purpose of influencing voters for or against balloted measures. Finding no other statutory prohibition, we are of the opinion that a newspaper or periodical is not prohibited from donating or offering space at reduced rate for publication of the ballot title and summary or the entire text of a proposed constitutional amendment by the initiative process.

Question 4: "May the circuit clerks charge a fee for verification of signatures on petitions in support of an initiative measure and thereafter certifying the petitions prior to delivery to the Secretary of State as required by Section 23-17-21 of the Act? If the answer is in the affirmative, what fees may the circuit clerk charge, and who is responsible for payment of such fees? Section 23-17-21 of the Act provides that the signatures on each petition must be verified by the circuit clerk of the county where such petition was circulated prior to certification and submission to the Secretary of State. Section 23-17-21 of the Act further provides that the Secretary of State shall collect a filing fee of $500.00 'to pay part of the administrative and publication costs.' Are fees payable to each of the circuit clerks, in any, payable by the Secretary of State out of the $500.00 filing fee, or must the proponent of the measure pay these costs? Neither the Act, the Election Code, nor Section 25-7-15 of the Code (specifying circuit clerk fees generally) makes any provision for these fees."

Response: We find no authority for a circuit clerk to charge a fee for verification of signatures on petitions. We are of the opinion that this is a duty of the circuit clerk for which he is compensated as county registrar pursuant to Mississippi Code Annotated, Section 23-15-225 (Revised 1990).

Question 5: "When signing a petition under the Act how closely must a person's name correspond to that shown on the roll of registered voters? That is, would the use of an initial in the petition while the person's full name is shown on the registered voter roll invalidate that person's name from the petition? What about shorter versions of Christian names, when accompanied by an accurate address? What authority or discretion do circuit clerks have in determining that names appearing on petitions do not correspond to a name appearing on registered voter rolls? Has any guidelines been issued, by your office or others, to assist circuit clerks in reviewing and verifying signatures on petitions? I can find no statutory authority on this question, but would believe that since each person signing a petition in connection with a voter initiative must provide his or her address in addition to his or her signature, some variation will be tolerated as long as the name can be identified and corresponds to the address shown on the registered voter rolls."

Response: We are of the opinion that a person's signature on a petition is not to be invalidated based solely on the fact that the signed name is not identical to the way his name appears on the voter registration records. If it can be determined that a signature on a petition is the signature of a registered voter it should be counted. We direct your attention to Mississippi Code Annotated, Section 1-3-76 (Supp. 1995) which requires the certifying official to post a list of the names that have been disqualified from a petition and the reason for the disqualification and further provides a procedure for one whose name has been disqualified to appear before said official within ten (10) days of such posting and present evidence of his qualification accompanied by a notarized affidavit stating the reason that his signature is qualified. The certifying official must reconsider the disqualification and may allow the signature in question to be counted if such action appears justified.

Question 6: "Have any official guidelines been published concerning either permissible or mandatory actions by volunteers seeking petition signatures in support of a proposed ballot measure? Section 23-17-21 provides no guidance other than that each petition must be in the form provided by the Secretary of State and must have the full text of the proposed measure printed on the reverse."

Response: We are not aware of any guidelines that have been published regarding the actions of volunteers seeking signatures in support of a proposed ballot measure. During and following the August 8, 1995 Primaries we did receive several complaints from election officials and citizens concerning the actions of such volunteers at the polling places. The most common complaint was that the volunteers were within thirty (30) feet of the room where voting was taking place and, in some instances, inside the room where voting was taking place seeking signatures. We also had complaints that volunteers who were more than thirty (30) feet away from the voting were impeding the progress of voters to the polls, all in violation of Sections 23-15-241 and -245. Please see the enclosed copy of our opinion to Senator W. L. Rayborn, dated July 18, 1995 regarding the collection of signatures at polling places.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By: Phil Carter Special Assistant Attorney General

PC:sm Enclosure