McCarney v. Meier

VANDE WALLE, Justice,

concurring specially.

I concur in the disposition of this matter by the majority opinion. The requirement of adding an address to the signature can have but limited purpose — to assist the Secretary of State in ascertaining whether or not that person actually signed the petition and whether or not the signer is an elector of the State of North Dakota. There is no doubt in my mind that if the population of the cities in North Dakota continues to increase and the population of the rural areas continues to decrease, the need for street addresses in the cities to assist the Secretary of State in his task will become more significant. It is no mystery that it is easier to determine the residence of a person in rural North Dakota — where most people know one another — than it is in the more densely populated cities where it is not uncommon to find several persons with the same forename and surname in the telephone or city directory. I find nothing reprehensible in requiring street addresses in the larger cities but not requiring them in the smaller cities in which street addresses are not commonly used or may not even exist. Requiring the signer of the petition to add his own street address thereto may help to ensure the correctness of the address; however, because the purpose of the requirement of a street address is only to assist the Secretary of State in determining whether or not the signer actually signed the petition and whether or not the signer is an elector of the State, I do not believe the signature should be rejected if, as in this case, the street address was added during the period of correction by some person other than the signer of the petition. If the party adding the street address places the wrong address on the petition and if the Secretary of State cannot locate the signer of the petition, it may be cause for rejecting that signature, but I do not believe the fact that the street address is added by someone other than the signer is a valid reason of itself for rejecting the signature. I would therefore hold the requirement that the signer write in his street address to be directory rather than mandatory, and would not reject the signature because some other person added the street address.

In his response to the Petition for Review, the Secretary of State raised several additional issues regarding the circulation of the petitions — which he now contends may make the petitions invalid. These in- . elude such matters as the petitions not be*788ing circulated by named “circulators”; the signature of the circulator of the petition being notarized prior to circulation; persons signing petitions outside the presence of any circulator at all; and altered dates of acknowledgments by circulators. Section 3 of Section 1 of Article 105 of the Amendments to the North Dakota Constitution requires:

“The petition shall be circulated only by electors. They shall swear thereon that the electors who have signed the petition did so in their presence. ...”

The allegations of the Secretary of State, if true, may have considerably more significance than the issue with which we are here concerned. The requirement of having the elector sign the petition in the presence of the circulator and of having the circulator swear that the electors who have signed the petition did so in the presence of the circu-lator may be significantly more important in preventing fraud than the requirement of street addresses. In addition, the falsification of an acknowledgment either by the person acknowledging his signature or by the notary public taking the acknowledgment is not a matter to be treated lightly. There was no attempt to deny the fact that someone other than the signers of the petition added certain addresses to the petition during the period of correction. Whether the additional allegations of the Secretary of State contained in his return would be denied or admitted by the parties involved is not known to us.

However, in his letter of August 24,1979, to McCarney, the Secretary of State raised these allegations by stating:

“While not being determinative of the insufficiency of the petition, other matters have been brought to my attention by electors through means of affidavit and other information that raise the question of the validity of certain signatures for reasons other than insufficient post office address. . . . ” [Emphasis supplied.]

We do not know whether the allegations are founded in fact or whether, if they were founded in fact, the Secretary of State would have declared the petitions insufficient for those reasons. Because the facts and the Secretary of State’s determination based thereon are lacking in the record before us, these allegations are not a proper matter for the present proceeding.

For these reasons, I concur with the majority opinion in the disposition of this matter.