Request By:
Mr. Edward H. Berman
Kentucky Civil Liberties Union
3618 Lexington Road
Louisville, Kentucky 40207
Opinion
Opinion By: Robert F. Stephens, Attorney General; By William S. Riley, Assistant Attorney General
In your recent letter to the Attorney General the question is whether the procedure allowing taxpayers to contribute funds only to the Democratic or the Republican Party by a political party fund check-off on the 1976 Kentucky Individual Tax Return Form No. 740 constitutes a violation of the equal protection clause of the 14th Amendment to the Federal Constitution because of failure to provide the opportunity of donations to other parties.
The check-off provision referred to is provided for in KRS 141.071. (See Acts 1976, Chapter 264, Sections 1 and 2). The statute defines the term "political parties" as being those parties who met the requirements of KRS 118.015 on January 1 of the taxable year. KRS 118.015 as amended by the 1974 General Assembly (see Acts 1974, Chapter 130, Section 97) defines a "political party" as an affiliation or organization of electors representing a political policy and having a constituted authority for its government and regulation and which casts at least 20% of the total votes cast at the last preceding election at which presidential electors were voted for. The word "election" used in reference to a state, district, county, or city election includes the definitions of questions submitted to the qualified voters as well as the choice of officers by them.
The provision defining a political party as one having cast as least 20% of a total of votes in the last preceding election in which presidential electors were voted for was formerly found in KRS 119.010. That section was repealed by the 1974 General Assembly. (See Acts 1974, Chapter 130, Section 198). The validity of the 20% requirement has never been tested in the courts. It has always been accepted as a valid requirement under the law. In fact, in
Eagle v. Cox, 260 Ky., 58 103 S.W.2d 618 (.937), the court took judicial notice of the fact that a political organization did not cast 20% of the votes at the last presidential election.
It is our opinion that in order for a political party to be listed on the Individual Income Tax Form No. 740 and have a political party fund check-off, the provisions of KRS 141.071 must be complied with.