Opinion Number ( 2004 )

Dear Ms. Monroe:

The registrar of voters, Debra Ainsworth, certified the recall petition filed for the purpose of recalling Buddy Nugent, Mayor, Village of Grayson, Dist. 71, Parish of Caldwell and presented it to the governor on July 28, 2004. The certificate states:

I hereby certify that this recall petition contains 165 handwritten signatures. I hereby certify that this recall petition contains 157 handwritten signatures of qualified electors of the voting area within the parish who provided residence addresses, dated their signatures, and timely signed the petition. I hereby certify that the total number of electors of the voting area within the parish as of the date of the filing of the petition with the Secretary of State was 387.

LSA-R.S. 18:1300.3(C) requires the registrar to send the original recall petition to the governor immediately after certification. Section 1300.7 requires the governor to issue a proclamation, within fifteen days after the petition is presented to her, to order an election to be held for the purpose of voting on the question of recall of the officer if the required number ofregistered voters sign the petition for recall.

LSA-R.S. 18:1300.2(B) requires a recall petition to be "[s]igned by a number of the electors of the voting area as will in number equal not less than thirty-three and one-third percent of the number of the total electors of the voting area wherein and for which a recall election is petitioned; however, where fewer thanone thousand qualified electors reside within the voting area, thepetition shall be signed through the handwritten signatures by notless than forty percent of said electors." The registrar certified that the total number of voters registered in the voting area is 387 and therefore, in calculating forty percent of 387, a total of 154.8 valid signatures are required on the recall petition for the governor to issue a proclamation for a special election.

The registrar certified a total of 157 handwritten signatures of qualified electors of the voting area within the parish who provided residence addresses, dated their signatures, and timely signed the petition, which meets the required forty percent. Therefore, it is the opinion of this office that the certified signatures on the recall petition are sufficient in number for the governor to issue a proclamation ordering a special election on the question of recall for Buddy Nugent, Mayor, Village of Grayson, Dist. 71, Parish of Caldwell.

The recall election is to be held on the next available date in R.S. 18:402(F), and if held on a primary election date, the proclamation shall be issued by the governor on or before the last day for candidates to qualify in the election.¹ The next available election date is November 2, 2004, which is a state general election date².

We note that the Second Circuit Court of Appeal, which includes Caldwell Parish, recently held that a copy of the recall petition, once certified, shall be retained in the office of the registrar and the public officer whose recall is sought may review the copy and contest its certification. "As provided in La.R.S.18:1405(F), an action contesting certification of a recall petition shall be instituted within 15 days after the governor has issued a proclamation ordering the recall election " Young v.Sanders, 38,412 (La.App. 2 Cir. 4/7/04), 870 So. 2d 1126, 1130. The court found that the burden of verification of the signatures lies with the public officer whose recall is sought, by challenging the names on the recall petition in court when there is suspicion about the validity of the signatures.

Trusting that this opinion is sufficient, we remain

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

____________________________

ANGIE ROGERS LAPLACE Assistant Attorney General

CCF, JR./ARL:mjb

Enclosures

arl/opinions/2004/04-0241

cc: Hon. Buddy Nugent

Registrar, Debra Ainsworth

Hon. W. Fox McKeithen

¹ R.S. 18:1300.7

² A federal primary election date for Congressional offices.