Request By:
Mr. Donald C. Hulette
Franklin County Clerk
Courthouse
P.O. Box 338
Frankfort, Kentucky 40602
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 29 in which you raise a question concerning the procedure for striking territory from the boundary of the city of Frankfort. More specifically you relate the following facts and questions:
"Enclosed please find a copy of the correspondence from the City of Frankfort proposing to reduce the boundaries of the city in accordance with KRS 81A.440.
"The area in question is a portion of Tierra Linda precinct which currently has approximately 750 registered voters. In checking the list of property owners submitted by the City of Frankfort, we find only four (4) of the property owners are registered voters in Tierra Linda precinct.
"I have two questions regarding KRS 81A.440. First, should the question be presented to all of the voters in Tierra Linda Precinct, or to only the four (4) registered voters in the area to be stricken. Second, is it permissible to have a ballot prepared and presented to the four (4) affected voters, much as an absentee ballot is presently mailed."
KRS 18A.440 as amended in 1984 controls the reduction of city boundary and requires any city desiring to strike territory from its boundary to submit the question of such reduction to the registered voters of the area to be stricken from the city at the next regular election. This means, of course, that the question of striking the indicated portion of Tierra Linda precinct must in our opinion, be placed on the November ballot to enable only those registered voters in the territory to be stricken to vote on the question. This also means that the registration list submitted to the Tierra Linda Precinct must be so coded as to indicate those voters in the area to be stricken that would be eligible to vote on the question, which you indicate are only four in number.
There is no authority for the county clerk to send out an absentee ballot to any voter unless and until he first receives from the voter an application for an absentee ballot following the voter's request for an application form as prescribed in KRS 117.085. Thus it would not be legal to simply send absentee ballots to the four qualified voters in this instance in order to avoid placing the question on the ballot. As a matter of fact, even if all the voters in question followed the required procedure for an absentee ballot whereby they indicate their intention to be absent on election day, we nevertheless believe that the question must be placed on the voting machine in said precinct for the simple reason that there is no authority to do otherwise. Also it is possible that an absentee voter may find that he will be present in the county on election day and desires to vote in person which he can do following the return of the absentee ballot to the clerk within the time prescribed in KRS 117.085(5).
Thus, in answer to your two questions we believe that the question of striking the territory from the precinct must be placed on the voting machine and only those registered voters in the area to be stricken are entitled to vote on the referendum.