Request By:
Honorable Joe Nagle
Attorney at Law
2201 1/2 Cumberland Avenue
Box 398
Middlesboro, Kentucky 40965
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 26 in which you relate the following facts and questions:
"As you are well aware, in April of 1977, Bell County, and particularly Pineville, suffered an extremely serious flood. As a result of this flood there was a large number of people driven from their homes. These people have found different types of housing to suit their temporary (and in some cases permanent) needs. A large number of them are living in mobile homes which have been furnished by HUD. These are set up in various ways, many of which are in a mobile home park. My questions are these:
1. Will these people be able to vote in their old precinct?
2. Does it make any difference if they own their land in the old voting precinct?
3. Does it make any difference if they moved to Tennessee?
4. Does intent have anything to do with it, and, if so, how do you ascertain any such intent?"
It is often difficult to determine one's legal residence since it is based upon fact and intention and, as a consequence, it is a question that is ultimately for the courts to decide. See Nunn v. Hamilton, 26 S.W.2d 536, 233 Ky. 663 (1930). As pointed out in the Nunn case and others, intention is the dominant factor in determining legal residence and when actual residence is established, coupled with the intention to make one's home at that address permanently, the person becomes a legal resident thereof, even though he lives elsewhere temporarily. For your information, we are enclosing a copy of OAG 75-469 citing a number of cases as well as the legislative guidelines in determining a voter's residence found under KRS 116.035. We might add that the Everman case cited in the opinion refers to many factual situations which may be of assistance to you.
Based on the limited facts presented, the individuals in question, regardless of where they have been required to move because of the flood, would retain, we believe, their voting rights in their old precinct, assuming, of course, they indicate an intention to return and retain some factual evidence to back up such intention. Ownership of property is not necessarily controlling as they may have rented the premises or a portion thereof from which they had to move.