Request By:
Mr. Robert M. White
Adair County Court Clerk
Columbia, Kentucky 42728
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 18 in which you raise a number of questions concerning the possible filing of a local option petition calling for a citywide election in the city of Columbia. Your first question is as follows:
"1. Is the petition first filed with the County Clerk or County Judge, and how are the number of signatures required on petition determined, and by whom."
Pursuant to KRS 242.020 (1) the local option petition must be filed with the county clerk and must be signed by a number of qualified and registered voters within the city equal to twenty-five per cent (25%) of the total votes cast in the city at the last preceding general election. Of course, the group sponsoring the local option election is responsible for filing the petition.
Your second question is as follows:
"2. How and by whom are names on the petition challenged or marked off if found not properly registered or signature is questionable."
When a local option petition is filed, it is the responsibility of the clerk, on behalf of the county judge who calls the election, to check the petition to see if the correct percentage of the qualified voters have signed as required by KRS 242.020. Following the filing of the petition it can, of course, be challenged in court by any qualified voter in opposition to the election.
Your third question is as follows:
"3. Where city precincts extend outside city limits, are other voters in these precincts permitted to sign petition, and vote in said election, who checks to verify residence of voters on the petition."
When the local option election is confined to the corporate limits of the city, only those qualified voters residing within the city are entitled to sign the petition as previously indicated. They are also the only voters who are entitled to vote in the election. The clerk, in sending out the registration lists to the split precincts, should indicate which voters live within or without the city so that the election officers can lockout the local option election for those voters who may appear but who are not entitled to vote in the city election by virtue of being nonresidents.
Your fourth question is as follows:
"4. Voters that move residence but fail to change their voting precinct, what effect does this have on their voting in the local option election and signing the petition."
When a voter moves to another precinct but fails to notify the clerk to change his registration, he is still prima facie eligible to vote in his old precinct until purged by the board pursuant to KRS 116.115. Such voter can, of course, be challenged at the polls, however, he may execute the voter's oath and proceed to vote under the terms of KRS 117.245. All such oaths must be returned to the clerk and delivered to the grand jury for investigation. As far as the signature on the petition is concerned, it likewise can be challenged before the election in circuit court by any qualified voter or group in opposition to the petition as previously indicated.
Your fifth question is as follows:
"5. Is there any provision after the petition has been filed, for persons to have their names removed from the petition."
In response to the above, we refer you to KRS 242.020 (3) which is self-explanatory and reads as follows:
"(3) No signer may withdraw his name or have it taken from the petition after the petition has been filed. If the name of any person has been placed on the petition for election without his authority, he may appear before the county judge/executive before the election is ordered and upon proof that his name was placed on the petition without his authority, his name may be eliminated by an order of the court. When his name has been eliminated, he shall not be counted as a petitioner."
Your sixth question is as follows:
"6. Is the time for holding the election determined from the date the petition is filed, or from the date the County Clerk certifies same."
KRS 242.030 (2) provides that the election shall be held not earlier than sixty (60) days nor later than ninety (90) days after the date the petition is filed with the county clerk. Thus, the time for holding the election is controlled by the date the petition is filed with the clerk.