Request By:
Mr. Ray Slone
Boyd County Clerk
P.O. Box 523
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 19 concerning a local option election to be held on March 10, 1979. In connection with said election, you raise the following question:
". . . However, the question being asked is, if the individuals reside in the county and own property in the city of Ashland, may they change their voting precinct to that of the city so that they may vote in this special election. Then after the election change the precinct back to that of the county? These are individuals who own business establishments in the city and are wanting to use that as their voting residence."
Where an individual legally resides in the county where he is registered to vote but owns property in the city, he cannot change his registration to the city precinct in which his property is located.
Legal residence for voting purposes is based on intent and factual evidence as held in a number of cases, among them being Nunn v. Hamilton, 233 Ky. 663, 26 S.W.2d 526 (1930). Also, pursuant to KRS 116.035, the legislature has enacted certain guidelines guidelines in determining a voter's residence. The guidelines read as follows:
"(1) A voter's residence shall be deemed to be at the place where his habitation is, and to which, when absent, he has the intention of returning;
"(2) A voter shall not lose his residence by absence for temporary purposes merely; nor shall he obtain a residence by being in a county or precinct for such temporary purposes, without the intention of making that county or precinct his home;
"(3) A voter shall lose his residence by removal to another state or county with intention to make his permanent residence there, or by removal to and residence in another state, with intention to reside there an indefinite time, or by voting there, even though he may have had the intention to return to this state at some future period;
"(4) The place where the family of a married man resides shall generally be considered his residence, unless the family so resides for a temporary purpose. If his family is permanently in one (1) place, and he transacts his business in another, the former shall be his residence."
You will note under subsection (4) quoted above that the place where the family of a married man resides shall generally the place where the family of a married man reisdes shall generally be considered his residence, unless the family so resides for a temporary purpose.
We also refer to the case of Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58 (1946), wherein the Court of Appeals expressed the following legal requirements for establishing an individual's right to register and vote in a particular location:
". . . Residence for the purpose of voting means a place of fixed domicile, and carries with it the element of permanence; there must be the act of abiding, couples with the intention of remaining and making the place one's home to the exclusion of other places. Intention may not be proved by mere declarations.
The declarations are to be judged by the conduct of the party, and where there is a discrepancy they yield to the conclusion to be drawn from his acts . . ."
Under the circumstances, no individual can change his voting precinct to one other than the one in which he actually resides, and the fact that he may own property elsewhere is of no significance in determining legal residence as pointed out in KRS 116.035(4).
Your second question reads as follows:
"Also, will the young people who are registered as seventeen year olds, but who will be eighteen by the November General Election be eligible to vote in this Special Election? "
Our response to your second question would be in the negative. Every person must have reached the age of eighteen (18) before he is eligible to vote in any special or general election. The only exception being the May primary, which is made an exception by the legislature simply because it is not an election within the meaning of the Kentucky Constitution, but, on the other hand, is merely a party nominating procedure. See KRS 116.055.
Referring to § 145 of the Constitution you will find that any person of the age of 18 who is otherwise qualified as to residence and registration is entitled to vote in any election. KRS 116.025(1), concerning those eligible to vote, provides that every person, who possesses on the day of election the qualifications set forth in § 145 of the Constitution, exclusive of the durational residency requirements, may vote for all officers to be elected by the people and on all public questions submitted for determination at that election in the precinct in which he is qualified to vote.
As a consequence, registered voters who will not attain the age of 18 by the date of the local option election cannot vote therein.