Request By:
Teresa Rushing
County Court Clerk
2nd Floor Courthouse
Murray, Kentucky 42071Honorable Michael L. Judy
General Counsel
Kentucky Press Association
332 Capital Avenue
Frankfort, Kentucky 40601Mr. Jim Paxton
Editor, The Paducah Sun
408 Kentucky Avenue
Paducah, Kentucky 42002
Opinion
Opinion By: Frederic J. Cowan, Attorney General; David H. Ashley, Assistant Attorney General
Each of you have requested an opinion concerning the interpretation of KRS 117.235(1), as it applies to the right of news media to have access to the polling place for the purpose of observing the election process and to take photographs, or television film. This particular section of the general election laws became effective in 1974, and is not a part of the recently enacted election fraud legislation.
KRS 117.235(1) provides as follows:
"(1) No person other than the election officers and challengers, shall be permitted within the voting room while the vote is being polled, except for the purpose of voting or except by the authority of the election officers to keep order and enforce the law."
It is our opinion that a strict and literal interpretation of KRS 117.235(1) prohibits all persons other than voters and election officials from being in the voting room during the election process. KRS 117.235(5) further provides:
"(5) The election sheriff, under the supervision of the precinct election judges, shall enforce the election laws and maintain law and order at the polls and within fifty (50) feet of any entrance to the building in which the voting machine is located if that entrance is unlocked and is used by the voters. Assistance may be requested of any law enforcement officer."
The literal interpretation of KRS 117.235 subsections (1) and (5), quite simply, provides that no one shall enter the polling place, and that those persons not authorized by election officials shall be prohibited from doing so by the election sheriff.
Under this interpretation, Ms. Rushing was entirely correct in stating that members of the news media were prohibited from the polling place for the purpose of taking still pictures and/or television film.
While we think a literal interpretation of KRS 117.235 (1) is facially correct, we at the same time recognize and believe that there are certain First Amendment rights guaranteed by the United States Constitution which must be given due consideration in the application of this statute. The United States Supreme Court has held that forms of expression may be limited if the limitation serves a sufficiently compelling interest and is sufficiently narrow.
Brown v. Hartlege, 456 U.S. 45, 71 L. Ed. 2d. 732, 102 S. Ct. 1523 (1982). The Supreme Court has further held, in the case of
Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d. 659, 96 S. Ct. 612, (1976), 424 U.S. 1, at p.25 that the interest of the government in fair and orderly elections is compelling and in such an instance legislative bodies may regulate narrowly. There must be struck a balance between the state's interest in the integrity of elections as against the First Amendment interest of the affected party,
Brown v. Hartlege, supra, 456 U.S. 45, at p.54.
We do not believe that a literal interpretation of KRS 117.235 (1) serves the interest of the state or of the public, and works as an abridgement of the right of the media to gather and disseminate news. While the state has a very real and sufficient interest in insuring the integrity of the electoral process, we do not find that the entrance of the news media into the polling place for the limited purpose of filming the voting process is such an intrusion as to disrupt peace, order and decorum at the polling place. This is not to say that the media should be allowed to conduct interviews with prospective voters, or those persons who have just voted, or to otherwise engage in such activities that would be disruptive to the normal, orderly, voting process. It is essential that voters exercise their franchise without distraction, interruption or harassment.
Clean-Up 84 v. Heinrich, 759 F2d. 1511, 1514 (11th
Cir. Clean-Up 84 v. Heinrich, 759 F2d. 1511, 1514 (11th Cir. 1985).
In conclusion, we quite simply find that a literal interpretation of KRS 117.235 (1) thwarts certain basic First Amendment rights of the media to gather and disseminate news. We emphasize, however, that this opinion deals only with the question of the right of the media to enter upon the polling place for the very limited purpose of filming or observing the electoral process for a limited time. We emphasize also that the right of bonafide members of the media to have access to the polling place must be counterbalanced by the voters' right to exercise their franchise without distraction, interruption or harassment.
Ms. Rushing has further requested an opinion as to the proper procedure to be followed pursuant to KRS 117.275 (6). The applicable provision of 117.275 (6) is as follows: . . . "The county board of elections shall authorize representatives of the news media to observe the taking of the tally of votes from the voting machine in each precinct in each primary, regular or special election. " This simply means that the county board of elections shall authorize such representatives of the news media as it deems advisable to observe the vote counting in each precinct. This implies an affirmative duty on each county board of elections to authorize, by appropriate action, duly noted in the board's minutes of those representatives of the media who have been authorized to observe the vote counting in the various precincts.
We trust this opinion is responsive to your request.