Opn. No. ( 1978 )

Murray Blimes, Esq. Town Attorney, Crawford

We acknowledge receipt of your letter stating that on October 30, 1978 your town board adopted a local law which is subject to a referendum on petition under the provisions of Municipal Home Rule Law § 24.

Municipal Home Rule Law § 24 subdivision 1 par a provides, in part, as follows:

"§ 24 Local laws subject to referendum on petition

"1. a. A local law * * * subject to referendum on petition * * * shall not take effect until at least forty-five days after its adoption; nor until approved by * * * vote * * * of the qualified electors * * * voting on a proposition for its approval if within forty-five days after its adoption there be filed with the clerk a petition protesting against such local law, signed * * * by qualified electors of such local government registered to vote therein at the last preceding general election, in number equal to at least ten percentum of the total number of votes cast for governor at the last gubernatorial election in such local government. * * *" (Emphasis supplied.)

A "general election" is required to be held annually by Election Law § 8-100 subdivision 1 par c on the first Tuesday following the first Monday in November. In 1978 it was held on November 7 which was also a gubernatorial election. The term of office of the governor being four years, the last preceding gubernatorial election prior to 1978 was held in 1974. However, the last preceding general election before the general election on November 7, 1978, was held in 1977.

You inquire concerning the year or years the persons signing a petition for a referendum must be qualified electors; you also inquire whether the requirement for signatures by a minimum of ten percent of the total number of votes cast for governor at the last gubernatorial election would be the gubernatorial election of 1974 or 1978; and finally, you ask whether the date of adoption of the local law, the date of filing the petition for the referendum or the date of the referendum is the determining factor as to the minimum number of qualified electors who must sign the petition.

The statute quoted above provides for the filing of a petition within 45 days of the adoption of the local law. October 30, when your local law was adopted, was the 303rd day of the year. Therefore, the petition may be filed at any time after the adoption of the local law and up to the 348th day of the year, which is December 14. The date of adoption of the local law was before the 1978 gubernatorial election, the date for filing a petition for a referendum could be before or after the election and the date for the referendum will be after that election.

In our opinion, the requirement for signatures on a petition in number equal to at least ten percentum of the total number of votes cast for governor in the town "at the last gubernatorial election" refers to the last election held for governor before the date of the actual filing of the petition for the referendum; neither the date of adoption of the local law, the date upon which the time to file the petition expires, nor the date upon which the time to file the petition expires, nor the date upon which the referendum will be held is the determinative date. If a petition signed by a sufficient number of qualified electors demanding the referendum was filed on or before November 7, 1978, the number of votes cast for governor in your town in the 1974 general election determines the number necessary; if the filing of the petition is on or after November 8, 1978, the minimum number of votes cast for governor in your town in the general election in 1978 determines the number necessary.

The Election Law § 5-602 requires that each year, after the last day of local registration (which this year, in your county, was October 14) and prior to the 6th day before the general election, each county board of elections must publish a complete list of registered voters for each election district in the county and the list must indicate the registrants whose names did not appear on the previous year's list of registered voters. This list will be the source for determining the identity of registered voters.

In our opinion, if the petition was filed on or before November 7, 1978, a "qualified elector" to sign that petition was an individual registered to vote at the general election in 1978 and who was also registered to vote at the general election held in your town in 1977, but if the petition was filed on or after November 8, 1978, the date of a gubernatorial election, a "qualified elector" for the purpose of signing the petition will be any person who was qualified to vote in your town in the 1978 general election. In each case, of course, the signer's registration must still be in effect when the signature is or was obtained.