Do Kentucky's polling-place rules for tax-funded buildings apply to early no-excuse absentee voting sites?

Plain-English summary

After the pandemic, Kentucky made early in-person voting permanent. In 2022 the General Assembly passed House Bill 564, letting voters cast no-excuse, in-person absentee ballots in the days before election day. That raised a practical question for county clerks: an older statute, KRS 117.065(2), lets county election boards use tax-funded buildings (typically schools) as "voting places" for free. Does that same power let boards commandeer those public buildings for the new early-voting days too? The Kentucky County Clerks Association asked the Attorney General.

The answer was no. The opinion treated this as a question of statutory interpretation. KRS 117.065 was written decades ago, under the traditional system where people voted in person on election day at their assigned precinct. The statute talks about "the voting place for each precinct" and what to do if a polling place has to change on "election day." Reading those words in context, the opinion concluded "voting places" in KRS 117.065 means election-day precinct polling locations, nothing more.

The newer law, House Bill 564, did not amend or even mention KRS 117.065. Instead it created a separate statute, KRS 117.076, with its own rules about where early no-excuse absentee voting happens: inside the county clerk's office, or at another location the county board designates and the State Board of Elections approves. Because the legislature set up those locations separately and did not borrow the school-building power for early voting, the opinion held that KRS 117.065's authority to use tax-funded buildings does not extend to the early no-excuse absentee voting days.

What this means for you

County clerks and county election boards

Under this opinion, the power in KRS 117.065(2) to use tax-funded public buildings as voting places applies only to election-day precinct polling. It does not authorize boards to use those buildings for the early, no-excuse, in-person absentee voting days, which are governed separately by KRS 117.076.

School administrators

The opinion reads the school-building polling power as tied to election day. It does not extend the obligation to make schools available to the additional days of early no-excuse absentee voting.

Election officials and local government attorneys

For officials planning early-voting logistics, the opinion locates the authority for early-voting sites in KRS 117.076 (the clerk's office, or a board-designated location approved by the State Board of Elections), not in the older KRS 117.065.

Common questions

Q: Can a Kentucky county election board use a school for early no-excuse absentee voting under KRS 117.065?
A: No, according to this opinion. The Attorney General read KRS 117.065's "voting places" to cover only election-day precinct polling, not the early no-excuse absentee voting days.

Q: Where does the law say early no-excuse absentee voting takes place?
A: The opinion points to KRS 117.076, which provides that in-person early voting occurs in a location within the county clerk's office, or another location designated by the county board and approved by the State Board of Elections.

Q: Why didn't the older statute cover early voting?
A: The opinion explains that KRS 117.065 was enacted long before early no-excuse absentee voting existed, and that House Bill 564 created a separate statute (KRS 117.076) rather than amending or referencing KRS 117.065.

Background and statutory framework

KRS 117.065(1) requires the county board of elections to establish "the voting place for each precinct," and KRS 117.065(2) authorizes the board to designate tax-funded buildings as voting places at no cost, a power historically used for schools on election day. In 2022, House Bill 564 (2022 Ky. Acts ch. 87, § 2) created KRS 117.076, permanently authorizing in-person no-excuse absentee voting. KRS 117.076(4) directs that in-person early voting be conducted in a location within the county clerk's office where ballots are cast secretly, with another location permitted if designated by the county board and approved by the State Board of Elections. Applying the rule that a statute is construed to accomplish its purpose and read as a whole (Chilton v. Gividen; Jefferson Cnty. Bd. of Ed. v. Fell; Lewis v. Jackson Energy Co-op. Corp.), the opinion concluded the older statute's authority does not reach the new early-voting locations.

Citations and references

Statutes:
- KRS 117.065(1), (2) (precinct voting places; tax-funded buildings)
- KRS 117.076; KRS 117.076(1), (4) (no-excuse absentee voting locations)
- KRS 117.055 (election precincts)
- 2022 Ky. Acts ch. 87, § 2 (House Bill 564)

Cases:
- Chilton v. Gividen, 246 S.W.2d 133 (Ky. 1952)
- Jefferson Cnty. Bd. of Ed. v. Fell, 391 S.W.3d 713 (Ky. 2012)
- Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87 (Ky. 2005)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2023-10.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 19, 2023
OAG 23-10
Subject: Whether the term "voting places" as used in KRS §117.065(2) includes the locations designated for in-person no-excuse absentee voting under KRS §117.076.
Requested by: Stephanie G. Shumacher, President of Kentucky County Clerks Association
Written by: Jeremy J. Sylvester, Assistant Attorney General
Syllabus: "Voting places" as referred to in KRS §117.065(2) does not include locations for in-person no-excuse absentee voting as allowed under KRS §117.076.

Opinion of the Attorney General

The Covid-19 pandemic forced election officials, both in Kentucky and throughout the nation, to implement emergency voting procedures to preserve citizen's right to vote while attempting to minimize large crowds at the polls. In Kentucky, the Secretary of State and Governor implemented a plan that gave citizens the option to cast their votes early on several days before the traditional election day. Even though the pandemic waned, in 2022, the General Assembly enacted a law to permanently allow voters to cast no-excuse in-person absentee ballots. 2022 Ky. Acts ch. 87, §2 (House Bill 564). The Kentucky County Clerk's Association (KCCA) now asks this Office whether the "voting places" mentioned in KRS §117.065(2) includes the location at which the citizens cast their in-person no-excuse absentee ballots. For the following reasons, it is the opinion of this Office that KRS §117.065 only governs precinct poll locations designated for in-person voting on election day.

This question involves a matter of statutory construction. No court has opined on the interplay between KRS §117.065 and the recently enacted House Bill 564. However, "a statute will be construed so as to accomplish the purpose for which it was enacted." Chilton v. Gividen, 246 S.W.2d 133, 135 (Ky. 1952). Moreover, a statute's interpretation must be harmonized with its various subsections and even other relevant statutes governing voting. See Jefferson Cnty. Bd. of Ed. v. Fell, 391 S.W.3d 713, 719 (Ky. 2012) ("The particular word, sentence or subsection under review must also be viewed in context rather than in a vacuum; other relevant parts of the legislative act must be considered in determining the legislative intent."); Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005) ("The statute must be read as a whole and in context with other parts of the law."). With these cannons of construction in mind, the Office has examined the statutes at issue.

KRS §117.065 provides that "[t]he county board of elections shall, not later than September 20 of each year, establish the voting place for each precinct." KRS §117.065(1). KRS §117.065(2) grants authority to "the county board of election to designate as voting places, without cost of the board, buildings constructed in whole or in part with tax revenues." This provision has typically been used to set aside school facilities as polling places on traditional election days. See e.g., OAG 76-614 (noting that local school boards must "bow to the spirt and intent of KRS §117.065(2)" by making a portion of schools available as a polling place on election day). The KCCA posits that the term "voting places" should be read broadly to include locations designated for the casting of early in person no-excuse absentee ballots.

The General Assembly did not contemplate the novel concept of early in-person no-excuse absentee voting when it enacted KRS §117.065 decades ago. KRS §117.065 was enacted under the traditional voting scheme, whereby qualified citizens voted in-person on election day at the location designated for their precinct. See KRS §117.055 (noting that the county board must divide the county into election precincts such that each precinct contains approximately the same number of voters). KRS §117.065 uses the phrase "voting place for each precinct." KRS §117.065(1). Moreover, the statute addresses what to do if a change becomes necessary on "election day" by stating that "notice shall be posted at the former voting place." Id. It is clear that the General Assembly intended for the term "voting places" to refer to election day poll locations designated for each precinct in a county.

The General Assembly never expressed an intent that KRS §117.065 now applies to the recent innovation of in-person no-excuse absentee ballots. In fact, House Bill 564 did not amend or refer to KRS §117.065, or otherwise imply that in-person absentee ballots would be cast at a precinct location designated under that statute. 2022 Ky. Acts ch. 87, §2 (creating KRS §117.076). Rather, the General Assembly expressed the opposite intent by creating a new section of KRS Chapter 117 with its own provisions concerning where voters are to cast their in-person no-excuse absentee ballots. KRS §117.076. Specially, "in-person voting shall be conducted in a location within the county clerk's office where ballots shall be cast secretly." KRS §117.076(4). The statute also states that "[i]n-person absentee voting may occur in another location within the county if the location is designated by the county board of elections and approved by the State Board of Elections." Id. Thus, voters within a county are not directed to the precinct poll locations designated for election day voting. Every registered voter in a county, regardless of precinct, may vote at the designated in-person no-excuse absentee ballot location.

Long before the concept of early in-person absentee voting existed, the General Assembly granted county election boards the authority to use public facilities, to include public schools, as polling places under KRS §117.065. This statute could have contemplated only votes being cast in-person at designated precinct voting locations on election days. In granting this power, the General Assembly acknowledged that certain public facilities could not be used for their intended purpose on election days so that qualified citizens could exercise their right to vote. The General Assembly, however, did not express an intent for county election boards to also have the power to use public facilities on the three additional days required for in-person no-excuse absentee voting recently established under KRS §117.076(1). In fact, the General Assembly expressed a contrary intent by itself designating the locations where these absentee ballots should be cast. When reading these relevant statutory provisions together and in proper historical context, it is the Office's opinion that the General Assembly did not intend to provide county election boards the authority to use public facilities for no excuse in-person absentee balloting.

For these reasons, it is the Office's opinion that the "voting places" as used in KRS §117.065 refers to the places designated for precincts on election day. It does not apply to the locations designated by KRS §117.076 for early no-excuse in-person absentee voting.

Daniel Cameron
ATTORNEY GENERAL
Jeremy J. Sylvester
Assistant Attorney General