Request By:
Mr. John McCoy
Grant County Clerk
Courthouse
Williamstown, Kentucky 41097
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 19 in which you refer to a local option election that may be held in Grant County in the near future. With respect to this election you raise a number of questions, the first of which is as follows:
"1. If a petitioner signs the petition, who at the time the petitioner was not a registered voter and later comes into the County Clerk's Office and registers to vote, does this signature count as a valid signature on the petition."
In response to the above question, the general rule is that the qualifications of the petitioners are to be judged as of the day the petition is filed with the county court clerk.
Hall v. Reid, Ky., 305 S.W.2d 923 (1957) and 25 Am. Jur. 2d, Elections, Section 172.
Based on the Hall decision, it would appear that as long as the petitioner is registered to vote prior to the filing of the petition, his signature should be counted as a valid signature even though at the time he may have signed the petition he had not registered. The only argument against this conclusion is the fact that the statute, namely KRS 242.020(2), specifically requires the date to be indicated thereon on which the petitioner's name was signed which would in turn indicate that at that point in time he must have been qualified to sign the petition. However, we find no court decision involving this requirement under KRS 242.020 and therefore believe that we must follow the general rule we must follow the general rule as announced in the Hall case.
Your second question is as follows:
"2. If a petitioner signs a petition and their precinct or address is different than their voting record, does this signature count as a valid signature on the petition."
In response to the above question, KRS 242.020(2) does not require the petitioner to state his residence but does require him to state his post office address. However, concerning the residence and post office address of the petitioner, there are a number of cases holding in effect that such designation on the petitioner's petition is directory rather than mandatory to the extent that the county clerk may exercise his own discretion as to whether the designation is sufficient in order to identify the petitioner as a qualified voter in the voting area. See
Blackburn v. Welch, 138 Ky. 267, 127 S.W.2d 991 (1910) and
Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884 (1936).
In the Skaggs case the court declared that if a petition discloses the petitioners to be residents of the unit of government involved and have the right to vote in the election to be held it will be deemed prima facie sufficient. In other words, it boils down to whether or not the clerk can determine from your factual situation that the voter was in fact registered in the county irrespective of a difference between the address on the petition and that on his registration record.
Your third question is as follows:
"3. Is it the duty of the County Clerk to check the names and signatures on the petition against the names and signatures on the Voting List to make sure that all petitioners are qualified registered voters before the County Clerk notifies the County Judge/Executive of a petition on file."
In response to your third question, KRS 242.020 does provide that the wet-dry petition be filed with the county clerk. However, it is basically the responsibility of the county judge/executive to check the petition signatures himself or request the clerk to do so to determine whether they are qualified voters, following which the clerk notifies the county judge/executive as to his conclusion one way or the other. Obviously in this instance, the only way to check the names on the petition is to compare the signatures with the voter's registration card. However, minor discrepancies should be overlooked as we indicated in response to your second question. In other words, the clerk uses his discretion in the matter.
Your fourth question is as follows:
"4. Also, if signatures have to be compared, what is to be done with a signature of a petitioner that is not legible."
In response to the above question, if the signature on the petition is completely illegible, then obviously it must be disregarded. However, we believe the clerk should make every effort as well as the county judge/executive to match the signature on the petition with that of the registration card based on the address given.