Request By:
John W. Longmire, Chairman
Reform Party of Kentucky
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Christina L. Bradford, Assistant Attorney General
Opinion of the Attorney General
This is in response to the request by the Reform Party of Kentucky ("Reform Party") for an opinion on whether it is a "political party" entitled to utilize a presidential preference primary to determine how to distribute its delegate votes at its national convention for the year 2000, as provided in KRS 118.551 et seq. In our opinion, the answer is "no."
Chapter 118 of the Kentucky Revised Statutes governs the conduct of elections in Kentucky. In particular, KRS 118.551, et seq. provides for the conduct of presidential preference primaries. In order to accurately interpret the provisions regarding such primaries, the precise definition of "political party" must be scrutinized. KRS 118.015(1) states as follows:
A "political party" within the meaning of this chapter , is an affiliation or organization of electors representing a political policy and having a constituted authority for its government and regulation, and whose candidate received at least twenty percent (20%) of the total vote cast at the last preceding election at which presidential electors were voted for. [Emphasis added.]
A "political party" entitled to conduct a presidential preference primary must also meet the more narrow definition of "political party" in KRS 118.551:
As used in KRS 118.561 to 118.651, "political party" means each political party whose candidates received ten percent (10%) or more of the vote for Governor and Lieutenant Governor in the preceding election, or has a registration equal to ten percent (10%) or more of the total registered voters in the Commonwealth. [Emphasis added.]
Thus, to qualify as a "political party" entitled to conduct a presidential preference primary, as provided in KRS 118.551 et seq. , a group must meet the requirements contained in both KRS 118.015(1) and KRS 118.551. See, e.g., Layne v. Newberg , Ky., 841 S.W.2d (1992) (statute must be interpreted in accord with its plain language); see also Gallenstein v. U.S., 975 F.2d 286 (6<th> Cir. 1992) (statutes must be harmonized to coexist).
According to the Official Election Returns published by the Kentucky Secretary of State's Office, the Reform Party received 120,396 votes (or, 8.7%) of the 1,388,708 total votes cast in the last presidential general election, which was held in 1996. This is less than the 20% needed to meet the definition of "political party" in KRS 118.015(1). As the Reform Party is not a "political party" as defined by KRS 118.015(1), it cannot be a "political party" within the meaning of KRS 118.551. Because of this, the Reform Party is not entitled to utilize a presidential preference primary in the year 2000 within the provisions of KRS 118.551, et seq. , regardless of whether it garnered more than 10% of the vote for Governor and Lieutenant Governor in the 1999 general election or has registration equal to ten percent (10%) of the total registered voters in Kentucky.
Constitutional Analysis
The pertinent Kentucky election statutes regulate and limit the ability of a qualified state "political party" to utilize a presidential preference primary in determining how to distribute its authorized delegate votes at its national convention. We have found no Kentucky or federal authority that directly address the precise issue presented here. However, some guidance can be found from other U.S. Supreme Court jurisprudence on election law, which supports the conclusion that the Kentucky statutes are constitutional.
It is well settled that citizens have a First Amendment right to associate and form political parties in order to advance common political goals and ideas. As a result, political organizations are likewise granted constitutional protections, as well. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357-358 (01997). However, these constitutional rights do not prohibit states from regulating elections, ballots, and parties. Id. at 358; see also Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). A state has the ability, within constitutional limits, to substantially regulate "the time, place, and manner of holding primary and general elections, the registration and qualification of voters, and the selection and qualification of candidates. " Storer v. Brown, 415 U.S. 724, 730 (1974).
To determine whether a state's election law impermissibly violates the First Amendment freedom of association right, the "character and magnitude" of the burden on those rights, and the extent to which the interests of the State justify such a burden, must be scrutinized. See Timmons, 520 U.S. at 358, quoting Anderson, 460 U.S. at 789. The imposition of severe burdens on the right of freedom of association requires the application of strict scrutiny of the state's law. To withstand a strict scrutiny analysis, a state's regulations must be narrowly tailored to advance a compelling state interest. Timmons, 520 U.S. at 358. A lesser burden on such protected rights initiates a less exacting review, and merely requires that a state's reasonable, non-discriminatory restrictions advance important regulatory interests. Id. Although there is no "litmus-paper test" in determining whether a state's election laws are valid, the Supreme Court acknowledges that:
As a practical matter, there must be a substantialregulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.
Storer v. Brown, 415 U.S. 724, 730 (1974).
The holding in American Party of Texas v. White, 415 U.S. 767 (1974), is most closely on point with the issues presented by the Reform Party regarding the Kentucky statutes. There, the Supreme Court addressed the issue of states' rights to limit a minority party's ability to utilize a primary as a means of choosing its candidate. The Texas election laws provided that candidates whose parties received fewer than 2% of the total vote cast in the last general election could be nominated either through precinct, county, or state nominating conventions attended by a number of electors equaling at least 1% of the total votes cast for governor at the last preceding general election (e.g., in 1972, this 1% equaled 22,000 electors) ; or, alternatively, such candidates could be nominated by submitting a petition containing the signatures of electors equaling at least 1% of the total votes cast for governor in the last preceding general election (e.g., in 1972 this equaled 22,000 signatures) . Id. at 774, 776-778.
Based upon the applicable Texas laws, the American Party of Texas ("American Party") was not permitted to utilize a state sponsored primary to select candidates for general election. Rather, the American Party was required to nominate candidates by convention attended by 1% of qualified electors or by submitting a petition signed by 1% of the qualified electors. The American Party argued that the Texas statutes were unconstitutional and worked "invidious discriminations" against new and small political parties by placing impermissible burdens on the rights guaranteed by the First and Fourteenth Amendments. Id. at p. 780. Flatly rejecting this argument, the Court stated, in pertinent part, as follows:
Neither can we take seriously the suggestion made here that the State has invidiously discriminated against the smaller parties by insisting that their nominations be by convention, rather than by primary election. We have considered the arguments presented, but we are wholly unpersuaded by the record before [us] that the convention process is invidiously more burdensome than the primary election, followed by a runoff election where necessary, particularly where the major party, in addition to the elections, must also hold its precinct, county, and state conventions to adopt and promulgate party platforms and to conduct other business.
Id. at 781. The Court continued by noting that the American Party could not satisfy its burden by merely asserting that it must proceed by convention where the major parties may choose their candidates by primary election, stating that "the procedures are quite different, but the Equal Protection Clause does not necessarily forbid the one in preference to the other." Id. at 781-782. ( Cf. Storer, supra, at 733, where the Court noted that the route an independent candidate would be required to take in obtaining ballot position in the general election was "but a part of the candidate-nominating process, an alternative to being nominated in one of the direct party primaries." See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 218 (1986), where the Supreme Court noted that a state is under no requirement to have a primary system at all, and that a state's restriction of primaries to major parties is valid.)
The law in Kentucky is similar to the Texas law scrutinized by the Supreme Court in American Party of Texas, supra, in that Kentucky's "minor parties" cannot require the state to hold a presidential preference primary to assist them in choosing who to nominate to represent their party in the general election. However, "minor parties" are still able to nominate their presidential candidates for placement on the general election ballot through other means (e.g., convention) . As held by the Supreme Court in American Party of Texas, supra at 781-782, "The procedures are quite different, but the Equal Protection Clause does not necessarily forbid the one in preference to the other."
Analysis of KRS 118.551
The applicable Kentucky statutes, KRS 118.551, et seq. , limit the ability of a political organization to hold a presidential preference primary as a means of determining how that organization chooses to distribute its delegate votes at the organization's national convention. However, these statutes do not preclude a state political organization which is not entitled to use presidential preference primaries from utilizing other methods, such as caucuses or conventions, to determine how to cast its respective delegate votes at a national convention or otherwise choose a presidential candidate for the general election.
For example, KRS 118.305(i) and KRS 118.325(1) provide that a political organization which is not a "political party" as defined by KRS 118.015, but whose candidate received 2% of the vote at the last preceding presidential election, may nonetheless nominate by convention or its own primary (in accordance with its constitution and bylaws) its presidential candidate for the general election ballot. Further, independent candidates can obtain access to the general election ballot by submitting a petition of nomination containing the signatures of 5,000 electors qualified to vote for them. See KRS 118.315.
Conclusion
The Commonwealth has a recognized, legitimate interest in regulating the conduct of its elections, including primaries. Based upon the applicable statutes, we believe that the Reform Party of Kentucky is not presently entitled to conduct a state funded presidential preference primary. Further, the provisions of KRS 118.551, et seq. do not unduly restrict the ability of the Reform Party of Kentucky from nominating a candidate of its choice, in accordance with its constitution and bylaws, to be placed on the general election ballot for the 2000 presidential general election.