Could Kentucky's Reform Party use a state presidential preference primary in 2000?

Plain-English summary

The Reform Party of Kentucky asked whether it could use a presidential preference primary to allocate its convention delegates for the 2000 election. The Attorney General concluded that it could not. At the time, a party had to satisfy the general election-law definition based on at least 20 percent of the preceding presidential vote as well as the separate presidential-primary definition. The opinion said the Reform Party received 8.7 percent of the Kentucky presidential vote in 1996, so it failed the first requirement regardless of whether it met the other definition's gubernatorial-vote or registration test.

The opinion also considered constitutional objections. It said the state could regulate its election system without giving every political organization a state-run primary. It pointed to other statutory nomination routes, including a convention or a party's own primary for an organization that qualified under those provisions. Its conclusion concerned the Reform Party's eligibility for the state presidential preference primary in 2000, not a general ban on that party nominating a candidate.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the Kentucky Reform Party use the state's presidential preference primary in 2000? A: The Attorney General said no. Its 1996 presidential candidate's 8.7 percent vote share did not meet the then-required 20 percent threshold in KRS 118.015(1).

Q: Would meeting the separate 10 percent test have changed the result?
A: No. The opinion read the general political-party definition and the presidential-primary definition as cumulative. Failure of the first test ended the Reform Party's claim even if it satisfied the second.

Q: Did the opinion say the Reform Party could not nominate a presidential candidate at all? A: No. It distinguished access to a state-funded preference primary from other ways to select delegates or nominate a candidate, such as caucuses, conventions, or a qualifying party's own primary.

Q: Why did the opinion consider the primary restriction constitutional?
A: It cited federal election cases recognizing that states may structure election procedures and that different nomination routes for smaller parties do not necessarily violate equal protection.

Background and statutory framework

The opinion read KRS 118.015(1)'s general party definition together with KRS 118.551's narrower presidential-primary definition. It used official 1996 returns to find the Reform Party below the general threshold. It then compared Kentucky's arrangement with federal cases on election regulation and minor-party nomination methods, emphasizing that the loss of one state-administered route did not end all nomination options.

Citations and references

Statutes: KRS 118.015(1); KRS 118.551; KRS 118.325(1).

Case: American Party of Texas v. White, 415 U.S. 767 (1974).

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_12ad8643-7043-4d08-9485-89b398bac62d/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_12ad8643-7043-4d08-9485-89b398bac62d

Original opinion text

OAG 00-1
January 11, 2000
Subject:

KRS 118.551 Definition of “political party”

Requested by:

John W. Longmire, Chairman
Reform Party of Kentucky

Written by:

Christina L. Bradford, Assistant Attorney General

Syllabus:

The Reform Party of Kentucky currently is not entitled to conduct a presidential preference primary pursuant to the provisions of KRS 118.551, et seq.

Statutes construed:
KRS 118.015, KRS 118.305, KRS 118.325, KRS
118.551, et seq.

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 pre-

OAG 00-1
Page 2

cise 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 (6th 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

OAG 00-1
Page 3

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.

OAG 00-1
Page 4

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, nondiscriminatory 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:
[A]s a practical matter, there must be a substantial regulation 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

OAG 00-1
Page 5

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 “[t]he 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.)

OAG 00-1
Page 6

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 781782, “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 prefer-

OAG 00-1
Page 7

ence 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.

Albert B. Chandler III
Attorney General

Christina L. Bradford
Assistant Attorney General