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


[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.