Request By:
Sarah Ball Johnson, Executive Director
State Board of Elections
Opinion
Opinion By: GREGORY D. STUMBO, ATTORNEY GENERAL; Ryan M. Halloran, Assistant Attorney General
Opinion of the Attorney General
The State Board of Elections ("SBE") has requested the opinion of this office on the question of whether the Kentucky Constitution would have to be amended in order for the General Assembly to establish a law allowing "no-excuse absentee voting, also known as early voting, " for all Kentucky voters. Specifically, the SBE cites Sections 147 and 148 of the Kentucky Constitution for evaluation in an opinion. The SBE has declined the invitation of this office to express an opinion on the question or to define what "no excuse absentee voting" or "early voting" entails.
Prior Attorney Generals' Opinions have considered the constitutionality of absentee balloting. In OAG 94-59, the Attorney General opined that Kentucky law had long recognized students, including students who live outside of their county of residence but within the Commonwealth, as a class of voters who are eligible to vote by absentee ballot. OAG 94-59 also pointed out the "fundamental principle that election statutes should be construed liberally in favor of the citizens whose right to choose their public officers is challenged." In OAG 68-297 and OAG 69-210, the Attorney General opined that any legislation that would permit aged and infirmed or invalid voters, who must remain at home but within the county on election day, to vote by absentee ballot, would be unconstitutional. Both of these opinions have been superseded by federal law protecting the rights of disabled voters and by state law consistent with the federal mandates, specifically, KRS 117.075 and KRS 117.077.
A. Analysis of Early Voting Under Section 147.
The first constitutional question presented is whether no excuse early voting would violate Kentucky's constitutional requirement regarding voting by ballot. Section 147 of the Kentucky Constitution provides in relevant part:
In all elections by persons in a representative capacity, the voting shall be viva voce and made a matter of record; but all elections by the people shall be by secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter in private at the polls, and then and there deposited, or any person absent from the county of his legal residence, or from the state, may be permitted to vote in a manner provided by law. Counties so desiring may use voting machines, these machines to be installed at the expense of such counties. The word "elections" in this section includes the decision of questions submitted to the voters, as well as the choice of officers by them. The General Assembly shall pass all necessary laws to enforce this section, and shall provide that persons illiterate, blind, or in any way disabled may have their ballots marked or voted as herein required.
[Emphasis supplied.]
Kentucky's highest court has interpreted the legislative power granted by Section 147. In Hallahan v. Mittlebeelerk, 373 S.W.2d 726 (Ky. 1964), the Kentucky Court of Appeals considered whether a legislative enactment, permitting absentee voting for federal government employees, their spouses and dependents and for students, violated Section 147. The Court observed that the language in Section 147 was permissive in character and that "to vote by absentee ballot is a privilege extended by the Legislature and not an absolute right." Id. at 727. The court held that the phrase "any person" within Section 147 did not mean that the privilege of absentee voting must be extended to every qualified voter who is absent from their county of residence on Election Day. The Court concluded:
[T]he plain language of Section 147, insofar as it uses the words "any person," does not require the legislative discretion to be exercised in favor of all voters. As Section 147 contains no declarative limitation of legislative power on the subject of absentee voting we conclude that the Legislature may select the recipients of this privilege (consistent with other requirements of the Constitution)...[and] there is no prohibition under Section 147 against establishing classifications of absentee voters.
Finally, the Court held that provided the classifications established by the legislature were reasonable, which the Court concluded they were, the legislature should remain "unhampered in its discretion in dealing with practical exigencies." Id. at 728 (citing Jones v. Russell, 6 S.W.2d 460 (Ky. 1928)).
Kentucky's existing absentee voting statutes, KRS 117.075 to 117.088, permit voters who are either disabled or who fall within several classes of absentee voters to vote by mail via paper absentee ballot. Specifically, KRS 117.085(1) restricts voters who are eligible to vote by paper absentee ballot to the following classifications:
1. Voters permitted to vote by paper absentee ballot pursuant to KRS 117.075 [disabled voters] or KRS 117.077 [voters with medical emergencies];
2. Residents of Kentucky who are members of the Armed Forces, dependents of members of the Armed Forces, and citizens residing overseas;
3. Students who temporarily reside outside the county of their residence and other voters who live outside the state but who are still eligible to vote in this state;
4. Persons who are incarcerated in jail who have been charged with a crime but have not been convicted of the crime;
5. Voters who change their place of residence to a different state while the registration books are closed in the new state of residence before an election of electors for President and Vice-President of the United States only; and
6. Persons who are prevented from voting in person at the polls on election day and from casting an absentee ballot in person in the county clerk's office on all days absentee voting is conducted prior to election day because their employment location requires them to be absent from the county all hours and all days absentee voting is conducted in the county clerk's office.
KRS 117.085(1)(a).
Current Kentucky law also permits absentee voting conducted in the county clerk's office or other place designated by the county board of elections for at least twelve (12) working days before an election. This type of absentee voting is more commonly referred to as early voting. KRS 117.085(c). Voters who qualify for early voting under Kentucky law include many of the voters permitted to vote by mail-in paper absentee ballot and the following additional categories: (1) voters who will be absent from the county on election day but who do not qualify "to vote by absentee ballot under paragraph (a)"; voters who will be hospitalized on election day; election officials, precinct officers and staff; pregnant women in their last trimester; and legally blind or visually impaired persons residing in a jurisdiction operating a pilot program for unassisted voting. KRS 117.085(d), (g), (i) & (j) and KRS 117.088(7).
Federal law is consistent with the Hallahan decision in holding that there is no constitutional right to vote by absentee ballot. O'Brien v. Skinner, 414 U.S. 524, 531 (1974) However, the United States Supreme Court recognized in O'Brien v. Skinner that when a state establishes a system of absentee voting, it must adopt a rational basis in deciding which classifications of voter will qualify to vote by absentee ballot. For example, in Skinner, the Court held that the refusal of New York State's election and correction officials to permit incarcerated prisoners serving sentences for misdemeanor offenses or awaiting trial to vote by absentee ballot unconstitutionally denied the prisoners' right to vote. Id. at 530. Federal statutes such as the Voting Rights Act ('VRA"), 42 U.S.C. § 1973, the Civil Rights of 1964, 42 U.S.C. § 1971, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., and the Help America Vote Act ("HAVA"), 42 U.S.C. § 15301, and rules promulgated thereunder, also protect the rights of protected classes of voters to cast their ballot, notwithstanding state law to the contrary.
In Haakenson v. Parkhouse, 312 F. Supp. 929 (D.C. Pa. 1970), a federal court evaluated a Pennsylvania early voting provision, P.L. 375, 25 Pa. Stat. Ann. § 3146.1 (Supp. 1970), providing that a "'qualified absentee elector' is any qualified elector 'who expects to be or is absent from the Commonwealth or county of his residence because his duties, occupation or business require him to be elsewhere.'" Id. at 931 (citing Pa. statutory language that substantially survives today at 25 Pa. Stat. Ann. § 2602(10)). Plaintiffs contended that the statute violated, among other things, a Pennsylvania constitutional provision permitting the legislature to allow absentee voting to qualified electors "who may, on the occurrence of any election, be absent from the State or county of their residence, because their duties, occupation or business require them to be elsewhere..." Pa. Const. Art. VII, § 14.
The court abstained from deciding whether P.L. 375 violated the Pennsylvania Constitution, stating: "we cannot say that the Pennsylvania courts will not decide that in a modern, mobile society in which many employers require their employees to take vacations, that vacations are not absences required by a person's occupation within the meaning of Article VII, Section 14 of the Pennsylvania Constitution." Id. at 934. The court commented on the plaintiffs' due process claim, stating,
[T]he force of the plaintiffs' argument that the act is 'confiscatory' turns on the validity vel non of the act under the Pennsylvania Constitution: if the act is valid then prospective challengers lose the most important basis for challenging an absentee voter, namely, that he doesn't have to be absent on election day, and they are therefore not required to spend as much money on prospective challenges.
Subsequent to the federal decision, a declaratory judgment action was filed in Pennsylvania state court and reached the Supreme Court of Pennsylvania on appeal. Kauffman v. Osser, 271 A.2d 236 (Pa. 1970). The Supreme Court of Pennsylvania affirmed the lower court's, holding that the plaintiffs did not possess the necessary standing to attack the statute on constitutional grounds. Regarding the plaintiffs' claimed interest that as electors their votes would be diluted if no-excuse early votes were accepted by absentee, the Court stated:
We have examined with great care appellants' claim to standing and to a justiciable interest to maintain this action. In our opinion, the interest of appellants is not peculiar to them, is not direct, and is too remote and too speculative to afford them, either in their individual capacities or in their claimed class representative capacity, a standing to attack these statutory provisions. Basic in appellants' position is the assumption that those who obtain absentee ballots, by virtue of statutory provisions which they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and thus will cause a dilution of appellants' votes. This assumption, unsupported factually, is unwarranted and cannot afford a sound basis to maintain this action...the interest which appellants claim is nowise peculiar to them but rather is an interest common to that of all other qualified electors. In the absence of any showing of a legal standing or justiciable interest to maintain this action, we cannot permit their challenge to the validity of this statute.
Id. at 239-240. B. Analysis of Early Voting Under Section 148.
The second provision the SBE asks this office to analyze is Section 148 of the Kentucky Constitution, which provides that "[a]ll regular elections of State, county, city, town, urban-county, or district officers shall be held on the first Tuesday after the first Monday in November." Section 148 also prescribes the hours during which the election shall be conducted, but provides that "the General Assembly may change said hours."
Federal appellate courts for the Fifth, Sixth and Ninth Circuits that have evaluated state early voting laws have upheld them as not in violation of federal laws that provide a single election day. See Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773 (5th Cir. 2000) (Texas early voting statutes did not conflict with federal election statutes establishing a single election day, therefore no federal preemption existed); Millsaps v. Thompson, 259 F.3d 535 (6th Cir. 2001) (Tennessee's early voting statutes were not preempted by federal election law); and Voting Integrity Project, Inc. v. Keisling (9th Cir. 2001) (Oregon's vote-by-mail statute was consistent with federal election day statute.) Analyzing at length the legislative history of federal statutes establishing "the Tuesday next after the first Monday in November" as federal election day, the federal courts have opined that multi-day voting was rejected by Congressional representatives during the 1844 debates. See Keisling, 259 F.3d at 1172-1175. However, following a United States Supreme Court decision, Foster v. Love, 522 U.S. 67 (1997), the federal courts have defined "election" for the purposes of the federal election day statute as "the combined actions of voters and officials meant to make a final selection of any officeholder. " Keisling, 259 F.3d at 1175. Using this definition the federal courts have reconciled state early voting statutes with federal law, provided the voting process is not consummated before federal election day. Id. at 1176.
Conversely, in Lamone v. Capozzi, 912 A.2d 674 (Md. Ct. App. 2006), the Maryland Court of Appeals held that Maryland's early voting statute violated state constitutional provisions designating a single day as the date of the general election. Id. at 691. The Maryland Supreme Court rejected the argument that the foregoing federal cases resolved the issue. Id. The Court agreed that under Foster the definition of election was "the combined actions of voters and officials meant to make a final selection of an officeholder. " Id. However, the Court held that under the Maryland Constitution it was clear that, other than absentee voting, ballot casting must begin and end on the same day. Id. at 692. As pointed out above, the Kentucky courts have made no such distinction and leave it to the Legislature to select those categories of citizens who are auithorized to vote by absentee ballot. Hallahan, 373 S.W.2d at 728.
Accordingly, it is our opinion that legislation providing for early voting in order to comply with federal law, a final court decision binding the Commonwealth, or rights recognized in the Bill of Rights of the Kentucky Constitution (Sections 1 to 26) would not require an amendment to the Kentucky Constitution. This opinion is based on a general view of the law we have cited and not from a description of what "no excuse absentee voting" or "early voting" entails.