Request By:
Hon. Elmer Cunnagin, Jr.
Laurel County Attorney
Fourth and Main Streets
P.O. Box 1070
London, Kentucky 40741-1070
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
You have presented questions to the Attorney General that result from the filing of a local option petition that bears evidence of alteration. Specifically, the date of signing following several signatures appears to have been changed from September 28 to October 28. Your first question is:
If the county judge believes that the 'date of signature' on the petition was changed after the signing, does that act invalidate the signature, or should the signature be counted?
KRS 242.020(1) requires that a local option petition be signed by "constitutionally qualified voters. " That phrase refers to a registered voter.
Howell v. Wilson, Ky., 371 S.W.2d 627 (1963). The Court of Appeals has held that the requirement that the petition show the date of signing merely enables an official to determine that the voter was registered on the day he signed, and the omission of the date of signing is not fatal if the county judge/executive can determine through other means that the voter was indeed qualified when he signed the petition.
Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884 (1936). If, as Skaggs holds, the date may be omitted entirely without disqualification of the voter's signature, it follows that a mere alteration to the date does not necessarily disqualify the petition or the signature. The date is of significance only if it shows whether or not the voter was actually registered at the time of signing.
The apparent alterations on the petition that has been filed with the Laurel County judge/executive suggest that the signers were not in fact registered until some time after they signed. The substitution of October for September is significant if the signers registered to vote between the original date of signing and the date shown on the petition. The county judge/executive can easily determine from the county clerk whether the affected signers were in fact registered as of the original date. If they were, then the names may be counted. If they were not, then the county judge/executive may make whatever investigation he believes necessary to determine whether the dates were actually changed by someone other than the signers. The county judge/executive has authority to "proceed ex parte to determine the sufficiency of the petition, and, if he deems it necessary, [to] satisfy himself that the signatures are genuine, that the signers are bona fide voters, and that the total names affixed to the petition constitute the required percentage of qualified voters. " Howell , above, at 630. Obviously, the signatures may not be counted if the judge/executive determines that the signers were not registered on the day they signed the petition.
Your remaining questions are:
Is it illegal for someone to change the 'date of signature' on a local option petition, after it is signed, and prior to being filed with the clerk, all without the consent of the signor?
If so, what course of actions should the county judge/executive take about that situation?
KRS 516.030 states that a person is guilty of forgery in the second degree, a Class D felony, "when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be or which is calculated to become . . . [a] public record or an instrument filed or required or authorized by law to be filed in or with a public office or public employee . . . ." If there is sufficient evidence of criminal intent then a conviction could be sustained under this statute.
If the county judge/executive believes that a violation of KRS 516.030 has occurred, he should present the matter to the county sheriff or state police for investigation.