Hon. Alison Lundergan Grimes
AGO OAG 18-011
No. OAG 18-011
Commonwealth of Kentucky Office of the Attorney General
August 16, 2018
Subject:
Whether elections officers may provide to voters the list
of certified write-in candidates.
Requested
by: Hon. Alison Lundergan Grimes Secretary of State and
Chief Election Official
Written
by: Marc G. Farris, Assistant Attorney General
Syllabus:
The statutory prohibition on electioneering does not prohibit
distributing the list of certified write-in candidates to
voters. Election officers may provide the list of certified
write-in candidates (or the information contained therein) to
a voter if doing so is responsive to the voter's request
for instruction as to how to cast a write-in vote.
Statutes
construed: KRS 117.235; KRS 117.265
OAGs
cited: OAG 92-73
OPINION
OF THE ATTORNEY GENERAL
You
have requested an opinion from this Office as to the
application of KRS 117.265(5), requiring that clerks provide
election officers with certified lists of write-in
candidates, and KRS 117.265(6), requiring election officers
to, "upon request," "instruct the voter on how
to cast a write-in vote." Specifically, you have asked
whether these statues require or permit election officers to
provide the list of certified write-in candidates to voters,
and whether distributing or posting the list of write-in
candidates would violate the prohibition on electioneering,
KRS 117.235(3)(c). As explained more fully below, we believe
that distributing or posting the list of candidates does not
constitute electioneering. We note that the General Assembly
has empowered the Board of Elections to remove any doubt as
to whether certain actions qualify as
"electioneering/' and that the Board may wish to do
so here. Finally, we believe election officers may provide
the list of write-in candidates to a voter if doing so is
responsive to the voter's request for instruction
concerning how to cast a write-in vote, but because that
statute requires instruction only "upon request/' it
does not require the posting of the list.
Write-In
Voting
We
begin by noting that write-in voting is an important part of
our democratic system. In 1939, our highest court indicated
that the right to vote and be voted for by write-in is
enshrined in the Kentucky Constitution. See Asher v.
Arnett, 132 S.W.2d 772, 775 (Ky. 1939) ("[T]he
voter has the unrestricted right to vote for any eligible
person he may choose to vote for by writing that person's
name upon the ballot in the blank space provided for that
purpose. . . . The right to thus vote and be voted for is a
constitutional right. . ..").
Under
current law, write-in candidates must file a declaration of
intent with the Secretary of State or county clerk, depending
on the office the candidate seeks, in order for write-in
votes for that candidate to be counted. KRS 117.265(2), (3).
Pursuant to KRS 117.265(5), lists of eligible write-in
candidates are then provided to precinct election officers:
"The county clerk shall provide to the precinct election
officers certified lists of those persons who have filed
declarations of intent as provided in subsections (2) and (3)
of this section. Only write-in votes cast for qualified
candidates shall be counted." The next statutory
subsection, KRS 117.265(6), provides that "[t]wo (2)
election officers of opposing parties shall upon the request
of any voter...
