Request By:
Mr. Robert E. Sanders
Kenton County Democratic
Executive Committee Advisory
Board Member
Robert E. Sanders & Associates
508 Greenup Street
Convington, Kentucky 41011-2590
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of September 11 in which you submit several questions relating to the preparation of the official voter registration form supplied by the Commonwealth and distributed to the county clerk's office. Such form has a space in which the registrant may designate his or her political party preference. It has come to the attention of the Executive Committee that one particular party, in conducting voter registration drives, has made a practice of filling in their party affiliation in the block on the registration form thereby giving the registrant no opportunity to designate his or her actual preference which could, of course, be different from the name inserted by the party conducting the registration effort. Under the circumstances you raise the following questions:
"1. May a political party, in conducting a voter registration campaign, lawfully predesignate the prospective voter's party affiliation by pre-stamping or otherwise completing the 'party affiliation' block with the name of the political party conducting the registration effort?
"2. Assuming the answer to the foregoing question ot be negative, is a citizen who has signed such a pre-designated registration card validly registered to vote?
"3. May such an individual be permitted to vote in elections? Conversely, if challenged, may such an individual be prohibited from voting unless and until he/she completes a valid registration form and files the form with the Courty Clerk? "
Our response to your initial question would obviously be in the negative to the extent that it would be improper to do so since the registration form required to be prepared by the State Board pursuant to KRS 116.155 and which contains among other things a place for party designation is to be filled in and signed by the person seeking to register for the purpose of voting. KRS 116.075(1) clearly states that at the time of registration the applicant shall fill in the form in duplicate and sign both copies which must be verified by the signer as previously indicated. We might add that any attempt to pre-designate a voter's party affiliation could possibly be considered interference with the registration process under the terms of KRS 116.045 carrying a fine and possible imprisonment. However, this question would be one for the courts to determine.
We will respond to your second and third questions at the same time. Even though the voter's registration form may be illegally filled in insofar as the party preference is concerned, when it is submitted to the clerk with the required information contained therein, the clerk would be required to accept it as a valid registration and the voter in question would be considered legally registered and entitled to vote. In this respect we wish to point out that party affiliation is of no consequence insofar as one's voting rights are concerned at the November election. See Green v. Slusher, 300 Ky. 715, 190 S.W.2d 29 (1945). Also under our Constitution a person is qualified to vote provided he meets the constitutional qualifications enumerated under Section 145 as modified by the Supreme Court of the United States and reflected in KRS 116.025 and the registration requirement found in KRS 116.045 which require such person to possess on the day of the next regular election the qualifications we previously mentioned in KRS 116.025. Such qualifications do not include party affiliation and as a matter of fact in the case of Montgomery v. Chelf, 118 Ky. 766, 82 S.W. 388 (1904) the court pointed out that the Kentucky Constitution does not deal with primaries and as a consequence a primary election is not an election within the meaning of the Constitution. We cite this case to reflect the fact that the improper placing of a party's designate on the person's registration form in the manner mentioned would not invalidate the registration form and the voter's right to vote in any election in this state under our Constitution. We also might point out that the voter could at the time he signs the registration form change the party designated by someone else before it is filed or at any time thereafter change his party affiliation during the time the books are open as authorized by KRS 116.045.
As you know, party affiliation as it may affect an election applies only to party primaries held in May that are creatures of the state legislature and not the Constitution and which require the voter as well as the candidate seeking party nomination to be affiliated with the party and to have been registered as a member of the party at the last November election. Thus a person whose party affiliation was designated on the registration card without his knowledge or consent could only vote and seek office in the succeeding party primary as a member of that party and would be disqualified as to the other party primary. This would be the only instance under which his right to vote or seek party nomination could be successfully challenged.