Request By:
Honorable Robert M. Kirtley
Daviess County Attorney
205 W. Second Street
Owensboro, Kentucky 42301
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 26 concerning the changing of a precinct boundary by the Daviess County Board of Elections. You relate the following facts and questions:
"Owensboro Country Club, Inc. owns land and improvements in Daviess County, Kentucky. The Club's land lies within two county voting precincts which are known as the Fields precinct and the South Town precinct. The bulk of the Club's improvements are on land within the South Town precinct.
"According to the information furnished me by counsel for the Club, Daviess County has three magisterial districts. These were established by order of the Daviess County Court dated August 16, 1920, and recorded in Order Book 27, page 95, Daviess County, Kentucky, Court Clerk's Office. (See Exhibit 1 attached hereto and made a part hereof.) In 1973, three reapportionment commissioners appointed pursuant to House Bill 512, a reapportionment act of 1972, established new district boundaries for the purpose of electing county commissioners. The South Town and Fields precincts are both wholly within what is known as magisterial district No. 3 insofar as magisterial districts are concerned and the central district insofar as county commissioners' districts are concerned.
"The boundary between South Town and Fields precincts presently bisects the Club's property in a north-south direction. Changing the boundary so that the Club is entirely within the Fields' precinct will not affect the precinct location of any voter. Such a change in the precinct line will not require the crossing of a magisterial line, a commissioners district line, or a legislative boundary.
"On October 9, 1979, a petition was filed in the Daviess County Court Clerk's office requesting a wet-dry local option election in the South Town precinct. On October 29, 1979, the Daviess County Judge-Executive ordered that the election be held on December 15, 1979. The South Town precinct is currently 'wet' as in the Fields precinct.
"Against the foregoing factual background, the Club requests your opinion on the following questions:
"(1) May the Daviess County Board of Elections (established pursuant to KRS 117.055) relocate the precinct line currently bisecting the Club's property so that the Club is entirely within Fields precinct where such relocation will not involve crossing magisterial, county, commission, or legislative boundary lines and where the proposed line change will not cause a precinct change for any voter?
"(2) Assuming that the Daviess County Board of Elections may make the aforementioned boundary change, what is the effective date of such a change?
"(3) Will the Club remain wet so long as all of its property is effectively placed within the Fields precinct prior to the date set for the aforementioned local option election? "
Our response to your initial question would be in the affirmative. KRS 117.055 provides, in effect, that each election precinct shall be composed of contiguous and, as nearly as practicable, compact areas having clearly definable boundaries and wholly contained within any larger district which would initially be your magisterial district boundary lines. In other words, no precinct boundary line can cross a magisterial boundary line which is the political territory having the less area within the county's boundaries with the exception of your municipal boundaries. The statute further provides that no election precinct shall be divided or the boundaries changed later than fifty-five (55) days prior to any primary or general election and, once a change has been made by the county board of elections, it must file a map listing the affected precinct boundaries with the state board of elections. In addition the statute provides that the county board of elections shall review precinct boundaries as often as necessary for the purpose of revising them.
Under the terms of the above referred to statute, it is clear that the Daviess County Board is authorized to change precinct boundaries any time it deems it necessary, provided it is not done within less than fifty-five (55) days prior to any primary election, and provided the change does not bisect a political boundary such as a magisterial district, county commissioner's district or legislative district boundary. This would be the case under the factual situation you have presented with respect to changing the precinct line that currently bisects the club's property, so that all of the club property can be contained within the same precinct boundary without crossing a political territory boundary line.
In response to your second question, we initially refer you to KRS 117.035 (3) and (4) concerning the membership and meetings of the board. Under these sections the board must meet at least once a month and may meet more frequently if necessary. Records must be kept of all proceedings in the office of the county court, however, there is no publication requirement of any such actions taken by the board before they become effective. Consequently, we believe that the board can call a meeting at any time that it deems necessary to make the proposed boundary change. After making the change and upon recording same in its records, such change would, we believe, become effective. Of course, any change in a precinct boundary must be shown on a map and subsequently filed with the state board of elections. However, we believe that the change would become effective even before the map showing the change is filed with the state board.
Our response to your third question would be in the affirmative on the grounds that a change in a precinct boundary would, in essence, be similar to a change in a city's boundary by virtue of annexation which does not disturb the status of the wet territory (in this instance) unless it is subsequently changed by a vote of the people in the Fields precinct for example. Rich-Hills Catering Co. v. Slattery, Ky., 448 S.W.2d 379 (1970).