[opinions/oagheade.htm]

OAG 93-8

February 1, 1993

William E. Folger

Lincoln County Clerk

County Courthouse

Stanford, Kentucky 40484

Dear Mr. Folger:

You have asked whether a candidate is eligible to run in the 1993 primary if he changed his party affiliation after the November 1992 election, and then switched back to his original party affiliation before filing to run in the primary.

The applicable statutes are KRS 118.125(1) and 116.055. Under KRS 118.125(1), "any person who is qualified under the provisions of KRS 116.055 to vote in any primary election for the candidates for nomination by the party at whose hands he seeks nomination" may run in the primary. Thus, assuming any other eligibility requirements are met, the candidate about whom you inquire may run in the primary if he is eligible under KRS 116.055 to vote in the primary.

We addressed a similar situation in OAG 85-42. We said:

Since the individual in question changed his party affiliation from Democrat to Republican subsequent to the 1984 November election, he is disqualified from becoming a candidate in the May primary for either party. He could, however, change his registration back to that of Democrat and be qualified to seek nomination as a member of that party.

The following discussion provides the basis for the conclusion we reached in OAG 85-42.

The applicable portion of KRS 116.055 reads:

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 aregistered 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, or, in the case of new registrations not involving a change of political affiliation made after the preceding regular election, have registered and remained registered as a member of that party.

When parsed, the quoted language yields the following rule:

To be eligible to vote in a primary election, a person must:

be a registered member of the party in whose primary election he seeks to vote

and

have been registered as a member of that party at the time of the preceding regular election

or

in the case of new registrations not involving a change in political affiliation made after the preceding regular election, have registered and remained registered as a member of that party.

As the diagram indicates, there are two ways in which a registered member of a party may be eligible to vote: by having been registered with the party at the time of the preceding regular election, or, if the person was not registered to vote in the preceding regular election, by registering and remaining registered with the party. There is nothing in the statute that says that a person who was registered with a party at the preceding regular election must have remained registered with that party; on the contrary, the phrase "have registered and remained registered" applies only to new registrants who are not making a "change in political affiliation."

In the unusual situation in which a voter changes party affiliation after the last regular election, and then changes back to the original affiliation before the subsequent primary, the voter is eligible to vote in the primary of his original party affiliation. (If, because of the change in party affiliation, the centralized voter registration list shows that the voter is ineligible to vote in the primary, the voter should be placed on the supplemental roster and be permitted to vote.) Therefore, because the person is eligible to vote in the primary of his original party affiliation, he may run as a candidate in that primary.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General