The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5338

June 16, 1978

ELECTIONS:

Signatures on nominating petitions for United States Senator

UNITED STATES SENATOR:

Number of signatures required upon nominating petitions

The number of signatures required on a petition to nominate a candidate for the office of United States Senator is equal to not less than 1% nor more than 4% of the number of votes cast by the party for Secretary of State at the last preceding November election in which a Secretary of State was elected. Thus, in 1978 the minimum number of signatures for candidates in the Democratic primary is 17,674, that figure being 1% of 1,767,344 which was the total number of votes cast for the Democratic Party's nominee for the office of Secretary of State at the 1974 general election.

Ms. Nancy Chase

Chairperson

Board of State Canvassers

208 N. Capital Avenue

4th Floor

Mutual Building

Lansing, Michigan 48918

You have requested my opinion interpreting the provisions of the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 6.1001 et seq, which establish the minimum requirements for having the name of a candidate placed upon the primary election ballot on August 8, 1978 in the contest for the nomination of the Democratic Party for the office of United States Senator to be voted on at the November 7, 1978 general election.

The issues arise in the specific context of a candidate who has filed petitions purporting to contain 3,077 valid signatures of registered and qualified electors.

By administrative interpretation the Secretary of State has determined that the minimum number of signatures for candidates in the Democratic primary is 17,674, being 1% of 1,767,344, the total number of votes cast for the Secretary of State himself as the Democratic Party's nominee for the office of Secretary of State at the 1974 general election. The candidate who has filed 3,077 signatures takes issue with this interpretation and asserts that the minimum number of signatures is only 2,000 and that his petition should be regarded as sufficient. He has submitted several written arguments in support of his position and you have submitted a copy of that presentation to me for consideration.

The relevant statute is 1954 PA 116, supra, Sec. 93, as last amended by 1976 PA 3, which reads as follows:

'To obtain the printing of the name of a person as a candidate for nomination by a political party for the office of United States senator under a particular party heading upon the official primary ballots, there shall be filed with the secretary of state, nominating petitions, signed by a number of qualified and registered electors residing within this state, equal to not less than 1% nor more than 4% of the number of votes cast by the party for secretary of state at the last preceding general November election. The petitions shall be signed by at least 100 qualified and registered electors in each of at least 20 counties of the state and not more than 25% of the minimum required number of signatures may be by qualified and registered voters of any 1 county. Nominating petitions shall be in the form as prescribed in section 544 of this act. The petitions shall be received by the secretary of state for filing in accordance with this act up to 4 p.m. of the ninth Tuesday preceding the August primary.'

Citing 1954 PA 116, supra, Sec. 3, which defines the 'general November election' as the election provided to be held in the state on the first Tuesday after the first Monday of November in every even numbered year, the candidate argues that the applicable 'last preceding general November election' within the meaning of the first sentence of Sec. 93 is the general election that took place in November, 1976. At that election, the office of Secretary of State did not appear on the ballot, such person having been elected to a four year term at the general election which occurred in November of 1974. Because the Democratic Party cast no votes for the office of Secretary of State at the 1976 election, the base is zero, 1% of the base is zero, and the minimum signature requirement set forth in the first sentence of Sec. 93 is zero. The only remaining requirement would be the second sentence of Sec. 93 which requires that the petition be signed by at least 100 qualified and registered electors in each of at least 20 counties of the state, a total of 2,000 signatures, not more than 25% of which may be by qualified and registered electors of any one county.

In addition to arguing that the literal language of Sec. 93 requires the above-stated result, the candidate points out that the counterpart section which controls the minimum signature requirements for nomination in the primary for the office of Governor, 1954 PA 116, supra, Sec. 53, as last amended by 1976 PA 3, explicitly states that the petitions must be signed by qualified and registered electors residing in the state equal to not less than 1% nor more than 4% of the number of votes cast by the party for Secretary of State 'at the last preceding November election in which a secretary of state was elected' (emphasis added). When Secs. 53 and 93 are read in juxtaposition, the absence of the explicit language which would relate the minimum signature requirement base back to the last election in which the office of Secretary of State was voted on, as opposed to the most recent general November election whether or not the office of Secretary of State was voted on, becomes significant. This argument is strengthened by the fact that both of those sections were most recently amended by the same amendatory act, 1976 PA 3, although such act did not amend that portion of either section which sets forth the minimum signature requirements.

The process of comparing and contrasting different sections of the same act to ascertain the meaning of one section is a valid and legitimate interpretative technique; see Viculin v Department of Education, 386 Mich 375; 192 NW2d 449 (1971). However, that process assumes that the particular subject has been addressed in a comprehensive manner at the same point in time.

In the process of interpreting statutes, it is also necessary to avoid absurd results. The intention of the legislature should prevail and a reasonable construction must be given the statute over the literal sense of its terms in order to avoid absurd consequences. People v McFarlane, 389 Mich 557; 208 NW2d 504 (1973). The literal interpretation of Sec. 93 advanced by the candidate would result in an absurd situation. Where nominees for the office of United States Senator are to be selected at a primary election which occurs after the general election at which the Secretary of State was elected, the minimum signature requirement for nominating petitions would be a significant one--in the current context, 17,674. However, at the next primary election the signature requirement would be only 2,000 (or would be zero if the second sentence of Sec. 93 were regarded as a qualification upon the requirements of the first sentence rather than an independent requirement, a likely interpretation in view of the language in the second sentence which relates to 'the minimum required number of signatures').

The absurdity of such a construction is compounded by the fact that 1954 PA 116, supra, Sec. 133, as last amended by 1976 PA 3, setting forth the minimum signature requirements for nominating petitions for candidates for the office of Representative in Congress, and 1954 PA 116, supra, Sec. 163, as last amended by 1976 PA 3, setting forth the minimum signature requirements for nominating petitions for the offices of State Senator and State Representative, read in the same manner as the first sentence of Sec. 93 but do not contain any requirement comparable to the second sentence of Sec. 93. Thus, in years where the primary election occurs after an intervening general election at which the office of Secretary of State was not on the ballot, there would be no signature requirement whatever for the offices of Representative in Congress, State Representative and State Senator.

A second line of argument pursued by the candidate is that the situation is controlled by 1954 PA 116, supra, Sec. 15, added by 1970 PA 28, which provides:

'Whenever the number of signatures required on a nominating petition is based on a percentage of the vote for a party's candidate for secretary of state at the last preceding election and that party did not have a candidate for secretary of state at the last preceding election, the vote of the party's principal candidate at the last preceding election shall be used in lieu of the vote for secretary of state.'

It is the candidate's contention that this section provides that the base, in the situation where the office of Secretary of State was not on the ballot at the most recent general November election, is to be the vote of the party's principal candidate at the last preceding election; the section does not limit itself to the vote received by the party's principal candidate at the last 'general election', which would have been November, 1976, 1954 PA 116, supra, Sec. 5, as amended by 1963 2d Ex Sess PA 3, nor to the last 'general November election' which would have been the same election, Sec. 3. Rather, the most recent 'election' as that term is expansively defined in 1954 PA 116, supra, Sec. 2, as amended by 1968 PA 152, was a special election that occurred on May 4, 1978 in the 49th representative district to fill the vacancy in the term of office which occurred upon the resignation of State Representative Angel. The Democratic candidate's vote in that election, 1,769, would become the base and petitions having 18 signatures, being 1% of that base would be sufficient.

I am of the opinion that Sec. 15 has no applicability. That section was added by 1970 PA 28 and its terminology cannot necessarily be conformed to the language of the original codification.

Section 15 appears to be very explicitly addressed to the situation where the office of Secretary of State was voted on at the election in question but the particular party in whose primary the candidate seeks to run did not have a candidate for Secretary of State at that election. The statute describes itself as relating to the situation where 'that party did not have a candidate for Secretary of State,' leaving the implication that some other party may have had a candidate for Secretary of State. Had the legislature intended that section to apply where 'the office of Secretary of State was not voted on' at the last election, it would have explicitly so stated.

If we were to concur in this proposed interpretation of Sec. 15, we would be creating a situation where the standard could never be accurately ascertained. A candidate could circulate and file petitions, only to have a higher standard established by an intervening special election that occurred after the petitions were filed. In fact, under an extreme application of a Supreme Court decision, the mere occurrence of a new special election could invalidate every signature on a petition garnered before the special election occurred, Hamilton v Secretary of State, 221 Mich 541, 547; 191 NW 829 (1923).

In summary, I am of the opinion that the legislature has never clearly evidenced an intention that the base for determining the minimum number of signatures to appear on petitions to place a person's name on a partisan primary ballot for the office of United States Senator should be anything other than what the base always has been, i.e., the most recent vote cast for that party's nominee for the office of Secretary of State, or for the party's principal candidate at the same election if the party had no nominee for the office of Secretary of State. Consequently, for a person seeking a place on the Democratic primary ballot, the standard is the vote cast for that party's nominee for Secretary of State at the 1974 general November election, 1,767,344 votes, and the minimum number of signatures required is 1% of that figure, or 17,674 signatures.

Frank J. Kelley

Attorney General