Request By:
Honorable James M. Frazer
Attorney at Law
140 Michigan Avenue
P.O. Box 686
Monticello, Kentucky 42633
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 27 in which you initially raise a number of questions concerning KRS 117.255 governing assistance to disabled voters. Your questions are as follows:
"Two questions are raised at this point:
"(1) Does the word 'disabled' as used in the third sentence of the statute apply to physically disabled voters, blind voters and illiterate voters, or does the statute apply only to disabled voters and/or blind voters?
"(2) Does the words' . . . who is not an election officer . . ." preclude a single election officer assisting the disabled voters, the statute meaning only persons that are not election officers, or does the statute merely enlarge the persons who may assist?"
We have construed the referred to statute as permitting any voter, who, by reason of illiteracy, blindness or other physical disability, to receive assistance by a person other than the judges of the election where, of course, he as well as the person assisting him executes the required oath. We believe that the legislature intended for the word "disabled" to include illiterate voters referred to in subsection (2) though the language of the statute is admittedly ambiguous in this respect. According to Webster's International Dictionary, the word "disabled" includes lack of physical, intellectual or emotional capacity, which we believe includes the inability to read English.
In response to your second question, we believe the phrase "who is not an election officer" was simply inserted to permit the disabled voter to choose someone other than the judges of election and was not intended to prohibit him from selecting on his own initiative one of the election officers to assist him who, in turn, however must execute the oath as any other individual that the voter might select.
You next refer to the following provision in the referred to statute which reads:
". . . No voter shall be assisted under this subsection unless the judges and the sheriff of election are satisfied of the truth of the facts stated in the oath. . . ."
You raise the following four questions relating to this provision:
"(1) Does the statute require that all the three persons must be satisfied, or does this mean that a majority of the three may make the determination?
"(2) Under what circumstances may the judges and the sheriff of election refuse to permit a voter to receive assistance?
"(3) Does the requirement of satisfaction apply to any type of assistance, either by the judges of election or by a private individual?
"(4) Can the person under disability applying to vote bring the person who he will designate to assist him in the polls at the time he seeks assistance, or must the person wait outside the polls until summoned by the election officer? "
Our response to your initial question would be in the affirmative as the statute seems to clearly require that the two judges and the sheriff must be satisfied of the truth of the oath. There is no indication that a mere majority of the three officers would be sufficient. As you know there are four election officers to begin with.
Our response to your second question would be in the affirmative. If such occurs, the voter has the option of going before the county board of elections on appeal, which is in session on election day for the purpose of hearing registration questions as required under KRS 117.035 (4). Generally speaking, however, the election officers should honor the voter's oath when executed since it is to be turned over to the commonwealth attorney for possible prosecution of the voter for perjury.
Our response to your third question would be in the affirmative as the statute makes no distinction with respect to the type of assistance rendered the voter, that by the judges or a person of his choice.
Our response to your fourth question would be in the negative unless the voter is blind or physically disabled to the point that he needs assistance in going to the voting room to execute the oath since no one is supposed to be in the voting room besides the election officers, challengers and the voter seeking to cast his vote.
Your final question pertains to KRS 117.305 which authorizes a recanvass of the voting machine. With respect to this statute, you raise the following question:
". . . My specific question is whether absentee ballots are required to be recounted pursuant to a request for recanvass under K.R.S. 117.305, or whether a person must intitute procedures under the recount statutes in order to secure a recount or recanvass of the absentee ballots? "
Our response to this question would be in the negative. KRS 117.305 refers solely to voting machines wherein the legislature has made provision for a candidate to make a written request for a recanvass of said machines to determine the accuracy of the initial tabulation of the votes following the closing of the polls. In order to utilize this procedure, the candidate must make written request to the county board of elections within ninety-six (96) hours following the closing of the polls. In other words, KRS 117.305 is a special procedure that may be utilized by any candidate for the purpose of obtaining a recheck of the machines without cost to him and without the necessity of petitioning the court for a recount of the votes pursuant to KRS 120.095, 120.185 or 120.290. Thus, KRS 117.305 is clearly limited to the recanvass of the votes recorded on the voting machines and any request for a recanvass made pursuant to this statute must be limited to this extent and should not include a recount of the absent ballots.