Request By:
Mr. Charles W. Morehead
Clerk, Warren County Court
Bowling Green, Kentucky 42101
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 31 in which you present the following facts and question:
"On behalf of the Warren County Board of Elections, I am requesting your opinion in regard to the following situation.
"The City of Bowling Green has annexed approximately 2,505 acres and requested the County Board of Elections to include the area in the city for voting. However, the property owners have filed an appeal to the Court of Appeals of Kentucky, and no judgment has been rendered.
"The City has advised the Board that the property owners in the annexed area will be assessed for City Tax for the year of 1979, and the City was of the opinion that this would be taxation without representation, if not taken in for purpose of voting.
"Question:
"'May the County Board of Elections create a new voting precinct composed of this area for the purpose of holding the May Primary, at which time there will be the Mayor and City Commissioners nominated for the city of Bowling Green?'"
Before responding to your basic question, we are enclosing a copy of OAG 77-285 which cites the case of Taustine v. Fleigh, Ky., 374 S.W.2d 508 (1964), where the court concluded that once a verdict and judgment has been obtained in the circuit court upholding annexation, the city can proceed to annex the territory in spite of the fact that the judgment may be appealed to the Supreme Court.
As also indicated in the opinion, when a city annexes territory, those persons who are registered voters in the annexed territory automatically become qualified voters in the city at the time the annexation becomes effective.
As a consequence, in spite of the appeal referred to in your letter, and assuming that the city proceeded to annex the territory in question, those registered voters in the annexed area would automatically be entitled to vote in the special city primary for the mayor and the city commissioners. Along this line, we also might cite KRS 61.015 concerning the residential qualifications for running for office within the city where annexation has taken place. This statute reads as follows:
"No person shall be disqualified from election or appointment to any public office or position of employment, for which the law requires a term of prior residence in a district or city, solely because of alterations in city or district boundaries; and he shall be deemed to meet such residence requirements if he has resided during the period required by law in the geographic area encompassed by the boundaries of the city or district from which he is elected or appointed."
Concerning the right of the county board of elections to create a new voting precinct in the area annexed, we refer you to KRS 117.055(1). Under this statute the county board may alter the precinct boundaries, or, in this case, create a new precinct at any time not later than fifty-five (55) days prior to the coming primary or general election. Of course, in considering the alteration of precinct boundaries, the number of registered voters involved must be considered though the board is not restricted as it has been in the past to a precinct not exceed 700 registered voters. Also, though election precincts generally are to be confined to the political territory having the least area within the county's boundaries, which would be your magisterial districts, city boundaries are excepted from this limitation as indicated in the referred to statute.
Thus, under the circumstances, we believe that the county board, in its discretion, may create a new voting precinct composed of the annexed territory where it deems necessary to do so, so long as it is done not less than 55 days before the coming May primary, which would be not later than April 4, 1979.