Request By:
Honorable Arthur L. Schmidt
State Representative
Legislative Research Commission
State Capitol, Room 314
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 24 in which you raise the following question:
"Can a member of the Kentucky General Assembly, while he is still a member, also serve as a presidential elector?"
Our response to your question would be in the affirmative. A member of the Kentucky General Assembly is a state officer under our Constitution. At the same time a presidential elector has been held to be a state officer in many cases, among them being
Todd v. Johnson, 99 Ky. 548, 36 S.W. 987 (1896);
Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 92 (1948); and
Hancock v. Queenan, 294 S.W.2d 92 (1956).
The court in the case of
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928), declared that our Constitution does not prohibit a person from holding two state offices at the same time, unless there exists a common law incompatibility which would not appear to be the case in this instance.
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937). See also § 165 of the Constitution and KRS 61.080.
There is the additional possible conflict under Sections 27 and 28 of the Constitution pertaining to the separation of powers doctrine involving the three branches of government; however, we do not believe such a conflict would exist in this instance, particularly in view of the limited function of presidential elections which is solely to cast, certify and transmit the vote of the state for President and Vice-President of the United States. See
Todd v. Johnson, supra.
Under the circumstances, therefore, we believe that a member of the Kentucky General Assembly can at the same time serve as a presidential elector.