Request By:
Honorable H. Howell Brady, Jr.
General Counsel
Office of Secretary of State
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 13 in which you request our interpretation of the language relating to electioneering found in KRS 117.235(2) as amended in 1978. This statute and your questions are as follows:
"KRS 117.235(3), as amended by 1978 Senate Bill 245, is worded 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 a fifty foot perimeter of the voting machine. ' (Underlined portion indicates change made by Senate Bill 245.)
"The first series of questions is as follows. Does this statute envision abolition of electioneering in the entire county on election day, or does it simply prohibit electioneering at the polling place? If it simply prohibits electioneering at the polling place, does the statute, as amended, now define polling place as a 'fifty foot perimeter of the voting machine' ? If this is the case, then can electioneering take place beyond a fifty foot perimeter of the voting machine? "
A follow-up question is:
"If the effect of KRS 117.235(3), in toto, is to prohibit electioneering, as defined above, on a county-wide basis, how is such prohibition to be enforced? That such enforcement would be difficult or impossible for county election officials to accomplish would be an understatment, to say the least."
In response to your initial series of questions, we have previously taken the position in OAG 77-318 to the effect that, unless the fiscal court acts to fix a specific distance from the polling place, the distance beyond the 50-foot perimeter that electioneering would be permitted would be impossible to determine, unless the intent of the legislature was to bar electioneering throughout the county in the event the fiscal court fails to act. In the referred to opinion the fiscal court had simply restated the statute and had failed to indicate the distance from the polling place where electioneering would be permitted. As a consequence, in construing the statute, we had this to say in OAG 77-318:
"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."
The only change that the 1978 legislature made in KRS 117.235(3) was with respect to the minimum distance beyond which electioneering would be prohibited regardless of any action on behalf of the fiscal court, which by said amendment cannot be within a "fifty (50) foot perimeter of the voting machine. "
As a consequence, the position we have previously taken in OAG 77-318 continues to express the opinion of this office with respect to the construction of KRS 117.235(3) as amended by the 1978 General Assembly.