Request By:
Honorable Jim Dunn
State Representative
Co-Chairman, Joint Interim
Committee on Elections and
Constitutional Amendments
c/o Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 17 in which you present the following facts and question:
"The 1978 General Assembly passed HB 550 which amended KRS 116.125 by adding subsection (2) which reads as follows:
"If the name of any voter is purged from the county register as provided by subsection (1) at such time that the registration period is closed for a particular election, and if the voter contends that actual notice of the deletion of his name from the register was not received, such voter shall be allowed to vote as provided by KRS 117.245.
"As a sponsor of this bill, I know that the intent of this provision was to permit a person who had been erroneously purged to sign his name in accordance with KRS 117.245 and be permitted to vote without going before the county board-of-elections for a ruling. The Committee on Elections and Constitutional Amendments determined that KRS 117.245 provided adequate protection against illegal voting.
"The Jefferson County Board of Elections did not operate under this intent during the November 7, 1978 election.
"Your opinion is requested on whether the language of KRS 116.125(2) adequately covers the intent of providing a means for persons erroneously purged to vote without going before the county board of elections. If it does not, what changes are needed to assure this intent?"
In connection with your question we initially refer to KRS 117.245 and quote therefrom subsection (1) and a portion of subsection (2):
"(1) The fact that a person is registered constitutes only prima facie evidence of his right to vote and does not prevent the officers of any election from refusing to allow him to vote for cause.
"(2) When the officers of an election disagree as to the qualifications of a voter or if his right to vote is disputed by a challenger, the voter shall sign a written oath as to his qualifications before he is permitted to vote. . . ."
You will note that KRS 117.245(1) clearly refers to those persons who are registered, and we believe that this statute was designed, and has been so construed [prior to the '78 amendment to KRS 116.125], to permit only those persons whose names are listed on the registration list and records sent to the precinct, to vote following his execution of the oath as prescribed therein, where said voter has been challenged as to his legal right to vote at said precinct. In other words, the nonregistered voter would be required to appear before the county board on election day for permission to vote or, being refused the right, appeal to a circuit court.
As you know, KRS 116.125(2) deals with those voters who are no longer registered and whose names obviously do not appear on the records sent to the precinct. The statute does, of course, state that such voter qualifying under subsection (2) shall be allowed to vote as provided in KRS 117.245, but we have serious doubts that this simple reference to KRS 117.245 would necessarily remove the clear indication that KRS 117.245 applies only to those voters appearing at the polls whose names are listed on the registration records.
Of course, only the courts can decide this question, but we suggest that the next legislature clarify the matter by possibly amending KRS 116.125 to read somewhat as follows:
(2) If the name of any voter is purged from the county register as provided by subsection (1) of this section at such time that the registration period is closed for a particular election, and if the voter contends that actual notice of the deletion of his name from the register was not received, such voter shall be allowed to vote by executing the oath prescribed in [as provided by] KRS 117.245, even though his name does not appear on the precinct registration records.