USE OF 'SPOT CHECK METHOD' IN CANVASSING AND COUNTING NAMES ON INITIATIVE PETITIONS

USE OF "SPOT CHECK METHOD" IN CANVASSING AND COUNTING NAMES ON INITIATIVE PETITIONS.

The Attorney General cannot give legal approval to the use of a "spot check method" by the Secretary of State in the canvassing and counting of names on legislative petitions.

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                                                                    July 28, 1950

His Excellency
Arthur B. Langlie
Governor of the State of Washington
Olympia, Washington                                                                                                     Cite as:  AGO 49-51 No. 311

Dear Governor Langlie:

            You have orally requested that we express our views upon the right of the Secretary of State to use the so called "spot check method" in canvassing and counting the names on initiative petitions.

            The conclusion reached may be summarized as follows:

            The Attorney General cannot give legal approval to the use of a "spot check method" by the Secretary of State in the canvassing and counting of names on legislative petitions.

                                                                     ANALYSIS

            The law applicable thereto is Amendment 7 of Article II, Section 1, of the Washington Constitution.  Also, the statutory enactments, which may be found at sections 5397 to 5248, both inclusive, Rem. Rev. Stat., and the amendments thereto which were made by chapter 144, Laws of 1933, and may be found in Rem. Rev. Stat. Supp.  We will undertake no detailed discussion of the several constitutional and statutory provisions.  There is no doubt that the Secretary of State is required to canvas and count the names on initiative petitions.  The only matter under discussion is as to the method to be followed by the Secretary of State in so doing.

            We know of no Supreme Court decision which is decisive of the matter under discussion.  The Attorney General's office, however, has issued two opinions, which will be hereafter mentioned.

            On June 20, 1914, the then Secretary of State, the Honorable I. M. Howell, asked the direct question to the then Attorney General, the Honorable W. V. Tanner, as follows:

            "Am I required to canvass all names submitted or shall I stop counting when I have counted the required 10% of the whole number of the electors who voted for Governor at the regular Gubernatorial election last proceedings?  * * *"

             [[Orig. Op. Page 2]]

            To which the then Attorney General replied as follows:

            We are of the opinion, however, that the law requires you to canvass the names of the legal voters upon all petitions which are sufficiently certified."

            It is to be noted that this opinion related to the first time that the Secretary of State was required to canvas initiative petitions.  This opinion was issued before the Permanent Registration Act, being chapter 1, Laws of 1933.

            On August 23, 1934, the then Secretary of State, the Honorable Ernest N. Hutchinson wrote the then Attorney General, the Honorable G. W. Hamilton, as follows:

            "Careful comparison of voters names on initiative petitions with voters identification cards, has positively established that two initiative measures, numbered 93 and 97 will fall very far short of the required 50,000 for placing on ballot.

            "No time is specified for my report of duplicate, fictitious and false signing, to county prosecutors.

            "The appropriation of the 1933 legislature is exhausted.

            "Until further appropriation is made, I must stop work on these insufficient propositions.

            "I request your acquiescence in this temporary hiatus."

            To which letter the then Attorney General replied in part as follows:

            "We have your letter of August 23rd in which you refer to the statement of August 23rd prepared by Miss Beth Morgan and in which you state that owing to the fact that your appropriation is exhausted, you must cease the canvassing and counting of the signatures on Initiative Petitions Nos. 93 and 97.

            "You ask us to acquiesce in what you term a 'temporary hiatus'.

            "* * * Section 5414 as amended, makes it your duty to count the names‑-not a part of the names or some  [[Orig. Op. Page 3]]of them, and while I appreciate the point which you make that if all submitted and unchecked names were found to be good, that both of the above entitled measures would fail, and that, therefore, the checking of the balances of unchecked names might be looked upon as an expensive and unnecessary proceeding, we are compelled to advise you that you should carry out the plain duty set forth in the statute and canvass and count all names attached to the petitions numbered above.  * * *"  (Underscoring ours for emphasis).

            We are advised by the Secretary of State's office that the "spot check method" has never been put into effect in the canvassing and counting of the signers of initiative petitions.  Some years ago, the matter was discussed and contemplated, but the plan was never put into use.

            We believe the two opinions of previous Attorneys General cited above to be controlling, and you are therefore advised that it is the opinion of this office that the use of any "spot check method" by the Secretary of State in the canvassing and counting of names on initiative petitions would be legally improper.

            Without going into detail, it is likewise our opinion that there is nothing that can be done at this time, by reason of the wording of existing law, to lessen the amount of advertising and the cost thereof in connection with the coming election and the duties of the Secretary of State pertaining thereto.

            Your inquiry and suggestions, both as to canvassing and to advertising, would obviously result in a considerable monetary saving to the state, not only now but in future elections as well, if such were legally permissible.  It is presently too late to ask the legislature to make the necessary modifications in the law, but this office, together with the office of the Secretary of State, will prepare suggested legislation to submit to the next session of the legislature that the same may be accomplished for the future.

Yours very truly,

SMITH TROY
Attorney General