Mississippi Advisory Opinions June 01, 1994: AGO 000009459 (June 1, 1994)

AGO 000009459.

Dear Senator Kirby:

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

"In order to clarify a question concerning the petitions of Initiative Number 2 entitled 'Shall the Size of the Mississippi Legislature be Reduced to 30 Senators and 60 Representatives', the following question needs a response. Can a Circuit Clerk refuse to certify a valid signature if the elector that signs the petition leaves blank his voting precinct and/or congressional district?"

Chapter 17, Title 23, Mississippi Code Annotated (Supp. 1993) is entitled "Amendments to Constitution by Voter Initiative".

Section 23-17-3 provides that a petition for a proposed initiative measure must be filed with the Secretary of State not less than ninety (90) days before the first day of the regular session of the Legislature at which it is to be submitted. Section 23-17-19 requires that the petition form to be signed by qualified electors contain the following statement:

"I have personally signed this petition, I am a qualified elector of the State of Mississippi in the city (or town), county and congressional district written after my name, my residence address is correctly stated and I have knowingly signed this petition only once."

Section 23-17-21 provides that before a petition may be filed with the Secretary of State, it must be certified by the circuit clerk of each county in which the petition was circulated. It further provides:

"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."

In response to your specific question, even though an individual signs the petition form containing the statement that the city, county, and congressional district of his residence is written after his name, there is no provision that the omission of such information invalidates that signature.

Generally, statutory provisions relating to voting which do not have mandatory provisions invalidating a ballot for failure to comply with those provisions are required to be viewed as directory and not mandatory. See Walker v. Smith, 213 Miss. 255, 56 So.2d 84 (1952). In our opinion the same rule would apply to determining the validity of a signature on an initiative petition.

Section 23-17-21 does clearly require the circuit clerks of the respective counties to certify the signatures of qualified electors and affirmatively state the total number of qualified electors who have signed the petition.

Therefore, we are of the opinion that if an individual whose signature appears on a proper petition for an initiative measure is in fact a qualified elector of the county where the petition has been circulated and that fact is verified by the circuit clerk, said clerk must count that signature as valid even though the elector's voting precinct and/or congressional district information was omitted.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY:

Phil Carter Assistant Attorney General