Tuesday, December 20, 2011

There's the Law. Then There's the GAB's Version of the Law

Esenberg, who is an attorney, not a JS editorial board member nor a schoolteacher, has a thought about GAB's duties under the actual (black-letter) law on recall petitions:

...Sec. 9.10 of the statutes governs recall and requires that "[w]ithin 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition." It is simply not the case that the GAB must ignore duplicate signatures of accept signatures that are facially invalid because the name or address is illegible or obviously phony. Indeed, the requirement that the petitions be "carefully examined" suggests that the agency may not do this.

Not surprisingly, then, I don't think that GAB Executive Director Kevin Kennedy has never said that the GAB can't strike duplicate or phony names, only that it won't or is unable to get the job done. This doesn't amount to a lack of legal authority, but a claim of a lack of legal obligation, i.e. that an assertion that the duty of "careful examination" of the petitions does not require that it do these things.
Whether he is right or not is one of the issues presented by litigation brought against the GAB last week. But the claim that the GAB does not have to root out duplicate signatures and other facially phony or illegible signatures is a different proposition than a claim that in may not do so.

In other words, it is impossible to reconcile the language of 9.10 with what GAB's Kennedy has implied.

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