Request By:
Bobby G. Phillips, Jr.
Simpson County Clerk
P.O. Box 268
Franklin, Kentucky 42135-0268
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
Your recent letter to the Attorney General requests an opinion based on this set of facts:
A group of citizens here in Simpson County wish to file a petition to hold a local option (wet/dry) election. The signature sheets that have been circulated contain the voters signature, address, and the date signed. Some representatives from this group wish to come to my office and using my voter files, write the voters social security number beside his/her name.
You ask whether this procedure "would do anything to invalidate the petition."
1. The clerk's duty regarding the petition.
Your question arises as a result of the perceived duty to make a determination regarding the validity of the petition. The perception of that duty stems in part from our opinion in OAG 80-466, in which we said, "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."
Our opinion in OAG 80-466 suggests that the clerk always has a duty to check the validity of the petition. In OAG 80-495 we gave a more thorough discussion of the duties of the county officials, and we pointed out that the clerk's only duty is to check the petition if requested by the county judge/executive. We stated:
The petition must be filed with the county clerk. However, it is the county judge/executive who is responsible for examining the petition on its face to determine whether the petition is correctly filed under the express terms of the statute. The county judge/executive can call on the clerk in assisting him in comparing the petition with the voters' registration data on file in the clerk's office. Where the county judge/executive has good reason to believe that a particular signature is not genuine, he may ask the person with that name to voluntarily come to the county judge/executive's office to give evidence about it, one way or the other. If it appears to the county judge/executive, after such evidence, that someone other than the so called petitioner signed his name without authority, the county judge/executive may eliminate such name by an order in his Executive Order Book, and such signature will not be counted as a petitioner.
We reaffirm our opinion in OAG 80-495 that the county judge/executive must determine the validity of the petition, and that the county clerk need only provide assistance upon request. We modify OAG 80-466 to the extent that it implies an absolute duty on the part of the clerk to check the petition.
2. The 1990 Amendment to KRS 242.020.
Before 1990, KRS 242.020(2) required that the local option petition state each petitioner's "address and the correct date upon which his name was signed." In 1990 the General Assembly amended the statute to include a requirement that the petition state the social security number or date of birth of each petitioner. As reported in the official edition of the statutes, published by The Michie Company, the statute reads:
The petition for election, in addition to the name of the voter, shall state also his residence address, Social Security number, or date of birth and the correct date upon which his name was signed.
The comma after the word "number" suggests that "or" refers to address, social security number, and date of birth; that is, the petition would be sufficient if it stated any one of the three items. Obviously such a construction would remove any question about the validity of the petition described in your letter, since the petition states the address of each signer. We do not accept this construction, however, because the comma after "number" appears to result from an error by the Reviser of Statutes. The enrolled version of the bill (SB 47) as set out in Acts 1990, c. 48, § 87, reads:
[EDITOR'S NOTE: TEXT WITHING THESE SYMBOLS [O> <O] IS OVERSTRUCK IN THE SOURCE.]
The petition for an election, in addition to the name of the voter, shall state also his residence [O> post office <O] address, Social Security number or date of birth and the correct date upon which his name was signed.
When a section of the Kentucky Revised Statutes conflicts with the act from which it is derived, the act controls. KRS 446.130. We construe the statute as amended in 1990 to require that the petition state the petitioner's address, and the date on which he signed, and either the petitioner's social security number or date of birth.
3. The validity of the petition in question.
We now consider whether the proponents of a petition may add the petitioners' social security numbers to the petition after it has been signed. The necessity of including more information than merely the name of the petitioner is obvious. The address allows the judge/executive or clerk to determine whether the petitioner resides in the territory for which the election will be held. The social security number or date of birth helps the clerk to determine whether the petitioner is a registered voter. The date of signing establishes whether the petitioner was qualified at the time he signed the petition. The provisions of KRS 242.020(2) thus allow the judge/executive or clerk to determine, from an examination of the petition, whether a sufficient number of qualified voters request the election. We conclude that a petition is valid if it contains sufficient information to make that determination, regardless of whether the petition strictly complies with the provisions of the statute.
Our conclusion derives from the opinion of the
Court of Appeals in Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 337 (1936). In that case a local option petition was presented that contained a sufficient number of signatures, but some of the signatures did not show the subscriber's address nor the date of signing. If those signatures were disallowed, the petition would not contain enough valid signatures to require an election. The Court of Appeals thoroughly examined the purpose underlying the various requirements regarding local option petitions, and concluded that the petition was valid. The court concluded that the address and date of signing merely assist the county judge (now judge/executive) in determining whether, in fact, a sufficient number of qualified voters have requested the election. If the judge could determine from the petition or from other evidence that a sufficient number of qualified signatures was presented, the judge must, the court held, order the election. Regarding the address, the court reasoned:
The statute does not say the subscriber himself shall write in his address or the date of signing, but merely that the petition shall state those things. If an erroneous address be given, it would be equivalent, for the purpose of the act, to no address. What difference would it make in accomplishing the purpose of the statute if the application gave a petitioner's wrong street address so long as he was a qualified voter in the territory affected?
Id. at 897. The court reached the following conclusion regarding the judge's duty to order the election when the petition does not show strict compliance with the statute:
If the electorate equal to at least 25 per cent. of a given territory shall ask in the manner prescribed by the statute for a local option election, the county judge is bound to order it. But he may refuse to do so until reasonably satisfied that the requisite number of legal voters have joined in the petition. If he is satisfied with the petition prima facie, or has knowledge, without hearing evidence, that the signatures and petitioners are what and whom they purport to be, and constitute the required per cent. of the voters, he is authorized to order the election. . . .
Therefore, the provisions of the statute that the post office address and date of signature of the petitioners shall be stated are interpreted as being directory, although their qualification as voters of the territory involved is, of course, mandatory because jurisdictional. The provisions ought to be observed in the interest of orderly procedure and to enable the county judge or any interested citizen to identify the petitioners conveniently.
Id. at 889. The court had earlier defined a directory provision as one that merely ought to be followed, and which if violated would not affect the merits of a case as long as the given end is in fact accomplished. Id. at 886.
We perceive no difference in purpose between the address and date requirements examined in Skaggs v. Fyffe and the social security number or date of birth requirement added by the 1990 General Assembly. The inclusion of these items on the petition merely facilitates the judge/executive's task of determining whether a sufficient number of voters request the election. Under the authority of Skaggs, we conclude that the complete omission of a social security number or date of birth would not necessarily invalidate a petition, as long as the county judge/executive can make the required determination.
If the petition could be valid despite the omission of social security numbers, it necessarily follows that an irregularity in the inclusion of the numbers, such as the proposal to add the numbers to the signed petition, would not necessarily invalidate the petition. If the county judge/executive is satisfied that a sufficient number of qualified voters have signed the petition, he should issue the order for an election.