Kansas Attorney General Opinion 1992-049

ROBERT T. STEPHAN
ATTORNEY GENERAL
April 6, 1992
ATTORNEY GENERAL OPINION NO. 92- 49
The Honorable Bill Graves
Secretary of State
State Capitol, 2nd Floor
Topeka, Kansas 66612
Re: Elections--Independent and Other Nomination
Certificates; Terms of Office; Filling
Vacancies--Independent Nominations; Requirements;
Signators; Effect of Voting in Primary
Synopsis: K.S.A. 1991 Supp. 25-303(g) precludes an elector
who has signed a certificate of nomination for a
candidate for a public office from signing
certificates of nomination for additional
candidates for the same public office. The
provision does not prevent persons who have
participated in nominating candidates at the
primaries from signing an independent nomination
petition for candidates for the same office. Cited
herein: K.S.A. 25-301; K.S.A. 1991 Supp. 25-303;
K.S.A. 25-601.
Dear Secretary of State Graves:
You request our opinion regarding whether an elector who votes
in the presidential preference primary election to be held
April 7, 1992 is precluded from signing a petition seeking to
place the name of an individual on the general election ballot
as a candidate for president.

The names of only those individuals whose nominations have
been made and certified as provided by law may appear on the
official general ballot. K.S.A. 25-601. The nominations may
include party nominations, K.S.A. 25-301, and independent
nominations. K.S.A. 1991 Supp. 25-303. Independent
nominations of candidates for president may be made by
nomination petitions signed by not less than 5,000 qualified
voters. Id. Subsection (g) of K.S.A. 1991 Supp. 25-303
provides "no person shall join in nominating more than one
person for the same office, and if this is done, the name of
such petitioner shall not be counted on any certificate."
Restrictions similar to that set forth in K.S.A. 1991 Supp.
25-303(g) have been the subject of litigation in several
states. The provision which most closely resembles K.S.A.
1991 Supp. 25 - 303(g) was litigated in State v. Harmon, 127
P. 221 (Nev. 1912). The statute in question in Harmon
read in part: "No person shall join in nominating, under the
provisions of section 4 of this act, more than one nominee for
each office to be filled." The court determined that the
language used in the provision:
"[M]eans only that, when an elector has
signed a certificate of nomination of a
candidate for a public office representing
a certain party or principle, he is
disqualified from thereafter signing
another petition of nomination of another
candidate for the same office, and he may
also be prohibited from nominating the
same candidate for the same office, but as
representing some other party or
principle." Harmon, 127 P. at 222.
Similar conclusions have been reached in the following cases
regarding statutory restrictions on signing nomination
petitions: Jacobs v. Pyle, 219 N.W. 250 (S.D. 1928);
People v. Smith, 99 N.E. 568 (N.Y. 1912); O'Connor v.
Smithers, 99 P. 46 (Co. 1908); State v. Burdick, 46 P.
854 (Wyo. 1896).
Interpretation of a statute is a matter of law, and it is the
function of the court to interpret a statute to give it the
effect intended by the legislature. Brabander v. Western
Cooperative Electric, 248 Kan. 914, 917 (1991). The
fundamental rule of statutory construction is that the purpose
and intent of the legislature governs when the intent can be
ascertained from the statute. Id. at 916. In determining

legislative intent, the court is not limited to consideration
of the language used in the statute, but may properly look to
the historical background of the enactment, the circumstances
attending its passage, the purpose to be accomplished, and the
effect the statute may have under the various constructions
suggested. Workers Compensation Fund v. Silicone
Distributing, Inc., 248 Kan. 551, 556 (1991).
The restriction set forth in K.S.A. 1991 Supp. 25-303(g) has
been applicable since 1901. See L. 1901, ch. 177, § 3.
It has remained virtually unchanged since its enactment.
Although decisions of courts of other states regarding
interpretation of a statute, the provisions of which are
similar to a Kansas statute, are not binding on the Kansas
courts interpreting a Kansas statute, the cases provide a
strong indication of the legislature's understanding at the
time of enactment of the Kansas statute. K.S.A. 1991 Supp.
25-303(g) precludes an elector who has signed a certificate of
nomination for a candidate for a public office from signing
certificates of nomination for additional candidates for the
same public office. The provision does not prevent persons
who have participated in nominating candidates at the
primaries from signing an independent nomination petition for
candidates for the same office. 25 Am.Jur.2d Elections §
172 (1966). Due to the use of the Australian ballot, any
other interpretation would result in a statute the provisions
of which would be impossible to enforce.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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