Could Kentucky require voters to join a party 19 months before its primary?

Plain-English summary

In 1997, Kentucky's Attorney General concluded that a change to the state's election calendar had made KRS 116.055 unconstitutional as it then operated. The statute tied primary-election eligibility to party registration at the preceding general election. When a constitutional amendment eliminated a general election every fourth year, that reference reached back to an election roughly 19 months before some primaries, rather than roughly seven months.

The AG considered the shorter period permissible under a U.S. Supreme Court case allowing states to protect primaries from cross-party raiding. But the opinion concluded that the occasional 19-month period could not be justified when the shorter period served the state's purpose in other years. The AG stressed that an opinion could express that conclusion but could not declare the statute invalid; only a court had that power.

Currency note

This opinion was issued in 1997. 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

Voters and election officials

Under the statute the AG examined, a person voting in a party primary had to belong to that party at the preceding regular election. In most years, that meant a wait of about seven months. The calendar amendment removed the prior-year general election in every fourth cycle, leaving a roughly 19-month wait in those cycles. The AG described the result as an unintended restriction and urged legislative action.

Candidates and parties

A footnote identified a related problem in KRS 118.315(1), which restricted independent candidacies by reference to the last regular election. The AG assumed its analysis of that phrase in the voter statute would matter there too. The footnote was an observation about a similar provision, not a separate court ruling or an amendment to candidate rules.

Common questions

Did the AG say the ordinary seven-month party-registration period was unconstitutional?

No. The opinion said that shorter period, tied to the previous year's general election, was consistent with the anti-raiding purpose recognized in Rosario v Rockefeller.

Why did some Kentucky voters face a 19-month wait?

The statute still referred to the “preceding regular election,” but the amended calendar had no regular election in the year before every fourth primary. For the 1998 primary, the opinion gave the 1996 election as the reference point.

Did the AG's opinion itself strike down the registration rule?

No. The AG stated that only courts could declare a statute unconstitutional. The opinion expressed the AG's constitutional conclusion and called for the General Assembly to address the problem.

Did the opinion also decide independent-candidate eligibility?

It discussed a similar “last preceding regular election” phrase in the independent-candidate statute in a footnote and assumed that phrase had the same flaw. It did not adjudicate a particular candidate's eligibility.

Background and statutory framework

The Secretary of State asked how the new election calendar affected KRS 116.055. The AG compared the approximately seven-month wait upheld by analogy to Rosario v Rockefeller with the 19-month interval created in some Kentucky cycles. It relied on Kusper v Pontikes for the constitutional limit on prolonged restrictions on party-primary participation. The opinion also cited election-date and registration-book provisions to explain how the intervals arose.

Citations and references

• KRS 116.055: party registration at the preceding regular election.
• KRS 118.025(3) and KRS 116.045(2): election date and registration-book timing.
• KRS 118.315(1): independent-candidate provision discussed in the footnote.
• Rosario v Rockefeller, 410 US 752, 36 L Ed 2d 1, 93 S Ct 1245 (1973).
• Kusper v Pontikes, 414 US 51, 38 L Ed 2d 260, 94 S Ct 303 (1973).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG97-010.htm

Original opinion text

OAG 97-10

April 8, 1997

Subject: Constitutionality of statutes requiring a waiting period before voting in a party primary

Requested by: Secretary of State John Y. Brown III

Written by: Ross T. Carter

Syllabus: KRS 116.055 requires voters and candidates in party primaries to have been registered with the party at the preceding general election. As a result of the constitutional amendment eliminating general elections every four years, KRS 116.055 is now unconstitutional.

Statutes construed: KRS 116.055; KRS 118.125; KRS 118.315(1)

Opinion of the Attorney General

We have been asked by Secretary of State John Y. Brown III whether the recent constitutional amendment eliminating a general election every four years has affected the constitutionality of KRS 116.055, which requires those voting in a party primary to have been registered with the party at the time of the preceding general election. This opinion is rendered pursuant to KRS 15.025. We conclude that the amendment has rendered the statute unconstitutional.

1. The problem described

KRS 116.055 provides:

Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party at the time of the preceding regular election . . . .

Primaries are held on the first Tuesday after the fourth Monday in May. KRS 118.025(3). General elections are held on the first Tuesday after the first Monday in November. Ky Const 148. Registration books are closed four weeks before primary and general elections. KRS 116.045(2). Therefore, under KRS 116.055, a person voting in a primary must have been registered with the chosen party approximately seven months before the primary. We will refer to this seven-month interval as a blackout period during which a change in party affiliation will not enable a voter to participate in the primary of the party with which he is registered.

In 1992 voters ratified an amendment to the state constitution that changed the years in which elections are held. The effect of the amendment and its schedule of transitional provisions is to eliminate regular elections in 1997 and every four years thereafter. The General Assembly has not amended KRS 116.055 to reflect the new election schedule. As a result, every four years the blackout period is nineteen months rather than seven months. For example, a person intending to vote in a party primary in 1998 must have been registered with that party since October 1996; the “preceding regular election” to which KRS 116.055 refers is the 1996 election because there is no election in 1997.

There is no doubt that a literal application of KRS 116.055 leads to this anomalous situation. No amount of interpretation, however imaginative, can yield a different result. The question before us is whether constitutional principles forbid a state from enforcing a blackout period of nineteen months.

2. Constitutional analysis

As with any question regarding the constitutionality of a statute, we approach this one with some reluctance because the Attorney General has no power to declare a statute unconstitutional; only courts can do that. Although we believe that KRS 116.055 is unconstitutional, we have no power to declare it so. As long as KRS 116.055 exists in its current form there will be a cloud over the voter registration process in Kentucky.

Our analysis begins with the observation that KRS 116.055, as it operated in years before 1997, is not unconstitutional. Blackout periods are common in the United States as a way to prevent raiding, a term that describes an attempt by one party's supporters to vote in and disrupt the primary of a rival party. New York's blackout period, which like Kentucky's began with the close of registration books a month before the November general election, was upheld by the United States Supreme Court in Rosario v Rockefeller, 410 US 752, 36 L Ed 2d 1, 93 S Ct 1245 (1973). The Court held that prevention of raiding is a legitimate state objective, and, therefore, a state may require “an insulating general election between enrollment and the next party primary. The resulting time limitation for enrollment is thus tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary.” 410 US at 762.

For years prior to 1997, Kentucky's statute operated exactly like New York's. Although the Court in Rosario v Rockefeller did not clarify whether its analysis was done under the first amendment or the equal protection clause of the fourteenth amendment, and did not produce a clear statement of the standard that it used, because of the similarity of the statutes we see no constitutional problem with Kentucky's blackout period extending back to the previous year's general election.

For elections after 1996, Kentucky's statute produces a very peculiar result. In three years out of four, the blackout period is seven months; in the fourth year it is nineteen months. In addition to raising the question whether a nineteen-month blackout period is simply too long to be constitutionally justifiable, the situation in Kentucky raises the question whether a nineteen-month blackout period is justifiable when a seven-month period is deemed sufficient for two out of every three primaries.

The uncertainties left in Rosario v Rockefeller were answered by the Supreme Court in Kusper v Pontikes, 414 US 51, 38 L Ed 2d 260, 94 S Ct 303 (1973). In striking down an Illinois statute that created a 23-month blackout period—and that consequently required a voter changing party affiliation to refrain from voting in one primary—the Court clarified that state restrictions on participation in party primaries implicates both the first and fourteenth amendments. Substantial encroachments on the associational freedoms guaranteed by the first amendment cannot be justified by a mere showing of legitimate state interest; rather, a state must show that its regulation is precisely drawn to remedy the perceived danger. “If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.”414 US at 59.

The constitutional standard does not invoke mere normal scrutiny, in which a state can justify its action by showing that its law furthers a legitimate state interest; rather the standard invokes strict scrutiny, in which a state must show that other less restrictive laws would not suffice. Manifestly, Kentucky's nineteen-month blackout period cannot meet this standard when a less restrictive seven-month period is in effect for two primaries out of three. Indeed, it is our understanding that the Kentucky anomaly is a mere oversight; that is, nobody intended to create a nineteen-month blackout period.

It is, therefore, our opinion that KRS 116.055, although constitutional in years past, is now unconstitutional under the standard set out in Kusper v Pontikes. [1]

3. Conclusion

The failure to update statutes for the new election cycle has produced problems for election officials, uncertainties for voters, and restrictions and opportunities for candidates. The situation cannot be remedied by this opinion nor by court action. The situation requires action by the General Assembly.

Albert B. Chandler III

Attorney General

Ross T. Carter

Manager of the Opinions Branch

Footnotes

[1] Although our discussion has centered on KRS 116.055, another statute, KRS 118.315(1), contains a similar provision. It says in part, “No person who is a registered member of a political party shall be eligible to election as an independent candidate, nor shall any person be eligible to election as an independent candidate who was a registered member of a political party at the time of the last preceding regular election.” This statute, known as a “sore loser” statute, prevents a disgruntled loser in a party primary from running in November as an independent. If the reference to the “last preceding regular election” is invalid—and we assume that it is, given our analysis of KRS 116.055—then there is nothing to prevent “sore losers” from filing as independents in the general election.