Request By:
Honorable Hamilton B. Simms
Attorney at Law
108 West Main Street
Springfield, Kentucky 40069
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 16 in which you quote an order of the Fiscal Court of Washington County implementing the electioneering statute, KRS 117.235 (3), which reads as follows:
"No person shall do any electioneering at the polling place on election day unless the fiscal court or legislative body of an urban-county government specifically authorizes by ordinance on a county wide basis electioneering and establishes the distance from the polling place where such electioneering may be permitted, but in no case shall electioneering be allowed within fifty feet of the polls."
In implementing the above statute concerning electioneering, the court, in its order, stated the following:
"Now, therefore, it is the desire of this Court not to exempt Washington County, so, henceforth, no person shall do any electioneering at the polling places in Washington County."
With respect to said order, you raise the following questions:
"(1) Whether it is the intention of the statute not to allow any electioneering in the county on Election Day.
"(2) In the event the Fiscal Court does not establish a certain number of feet from the polls, how far do the people electioneering have to stay away from the polls.
"(3) Is it permissible to electioneer in Washington County on Election Day if the people electioneering stay over fifty feet away from the polls."
The court, in simply restating the statute in its order to the effect that no person shall do any electioneering at the polling place in the county, has, we believe, misconstrued the intent of KRS 117.235 (3) which is to authorize the fiscal court to specifically establish a distance from the polling place beyond which electioneering may be permitted. We are enclosing a copy of OAG 74-773 from which we quote the following with reference to KRS 117.235 (3) and the problem presented.
"We might add that the electioneering statute quoted above [KRS 117.235] poses a serious question as to its validity because of vagueness with respect to the distance from the polls that electioneering may be permitted where the fiscal court or legislative body fails to enact appropriate legislation. This, of course, is a matter for the courts to decide, or more properly, a matter for the next legislature to clarify."
By failing to establish a specific distance from the polling place where electioneering may be permitted [as for example, 50, 100 or 200 feet] , the fiscal court order as well as the statute appears to make it impossible to determine this fact unless the intent is to bar electioneering throughout the county. Frankly, we do not believe that the legislature intended this, as such would not only be unreasonable but also unenforceable.