Could Kentucky election officials share staff support and resources with a nonprofit voter education group?

Plain-English summary

Secretary of State Bob Babbage asked whether his office and the State Board of Elections could give staff time, information, letters, and travel support to Democracy Incorporated of Kentucky, a nonprofit working on nonpartisan voter education and registration. The AG said they could cooperate on those programs. Although section 177 of Kentucky's Constitution prohibited state donations to corporations, the opinion applied a Kentucky court ruling that allowed public resources to serve a valid public purpose even when a private entity helped carry it out.

The AG treated increased voter education, registration, and participation as a valid public purpose. It pointed to statutes assigning election education duties to the board and allowing voluntary registration drives. The opinion also found no barrier to the nonprofit providing support to the agencies while they pursued those purposes together.

Currency note

This opinion was issued in 1992. 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.

Historical summary

State election officials

The AG said the board had authority to conduct voter education, registration, and participation programs. For the nonprofit program described, it viewed cooperation and staff support as serving those public purposes rather than the private corporation for its own sake.

Nonprofit voter education groups

The opinion said a nonprofit partner could also share support with state agencies engaged in those voter programs. Its answer depended on the agencies and nonprofit pursuing the public purposes identified in the opinion.

Common questions

Could Kentucky election agencies provide staff support to a nonprofit voter education program?

The AG said yes for the nonpartisan education, registration, and participation work described. It found those activities served a valid public purpose.

Did the constitutional ban on donations to corporations end the inquiry?

No. The opinion applied Hayes, which focused on the purpose served by public resources, even when a private corporation participated.

Could the nonprofit provide support back to the state agencies?

The AG said it found no barrier to cooperative sharing of support while both sides pursued the stated public purposes.

Background and statutory framework

The opinion read section 177 of the Kentucky Constitution through Hayes v. State Property and Buildings Commission, which distinguished a valid public purpose from the private status of the organization delivering it. The AG found that voter education, registration, and participation met that standard. KRS 116.045(4)(d), KRS 116.046, KRS 117.030, and KRS 117.235(6) supplied examples of the state's election education and registration work.

Citations and references

• Kentucky Constitution section 177: restriction on state donations and credit.
• Hayes v. State Property and Buildings Commission, Ky., 731 S.W.2d 797 (1987): public-purpose analysis.
• KRS 116.045(4)(d) and KRS 116.046: registration drives and voter education.
• KRS 117.030 and KRS 117.235(6): voter information and school mock-election programs.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG92-087.htm

Original opinion text

OAG 92-87

May 22, 1992

Bob Babbage

Secretary of State and Chairman of the State Board of Elections

Suite 150, State Capitol

Frankfort, Kentucky 40601-3493

Dear Mr. Babbage:

You have requested an opinion on the following matter:

The specific question is to what extent can a state agency, such as the Office of Secretary of State and/or the State Board of Elections, provide support (i.e. staff support, letters, information and staff travel) to assist a private foundation, specifically, Democracy Incorporated of Kentucky, with the development and implementation of programs such as increasing voter education, participation and registration.

You state that Democracy Incorporated is a nonprofit corporation established to implement nonpartisan programs to increase voter education, registration, and participation. The corporation is funded by contributions from individuals, companies, and other foundations.

Your question implicates section 177 of the state constitution, which provides:

The credit of the Commonwealth shall not be given, pledged or loaned to any individual, company, corporation or association, municipality, or political subdivision of the State; nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway.

Since section 177 prohibits the state from making a donation to any corporation, whether profit or nonprofit, a straightforward reading of the section would seem to prohibit the state from donating employee time and support to Democracy Incorporated. The Supreme Court of Kentucky, however, has interpreted section 177 to contain no barrier to such donation that furthers a valid public purpose. In Hayes v. State Property and Buildings Commission, Ky., 731 S.W.2d 797 (1987), the court said:

Section 177 of the Constitution wisely prohibits the giving of the credit of the Commonwealth or the making of a donation to any private corporation or individual. However, as long as the expenditure of public money has as its purpose, the effectuation of a valid public purpose, Section 177 is not offended even in situations where the conveyance occurs without consideration.

Id. at 799. The court went on to note, “The important point is whether the purpose is public and not whether the agency through which it is dispensed is public. The appropriation is not made for the agency or company but for the public purpose or object which is to be served.” Id. at 801.

We have no hesitation in concluding that increasing voter education, participation, and registration represent a valid public purpose. This conclusion may be gleaned from the following statutes:

• KRS 116.045(4)(d), which allows registration drives by voluntary interested groups;

• KRS 116.046, which establishes a system for registering high school students and which requires the state board of elections to implement programs of public education regarding elections, voting procedures, and election fraud;

• KRS 117.030, which requires the state board of elections to publish and broadcast announcements throughout the state regarding the importance of voting in a free and conscientious manner, procedures for registering to vote and voting, general election laws, and penalties for vote buying and selling; and

• KRS 117.235(6), which authorizes the state board of elections to establish a program that will instill in schoolchildren a respect for the democratic principles of voting by conducting a mock election.

We find ample authority for the state board of elections to conduct programs designed to increase voter education, registration, and participation. Whether these programs are conducted solely by the board or in conjunction with a nonprofit corporation is immaterial since the programs pursue a valid public purpose.

You also ask what type of support Democracy Incorporated may provide to the state agencies with which it participates. As long as the corporation and the agencies are engaged in pursuing the valid public purposes we have described above, we find no barrier to a cooperative sharing of support.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General