Kentucky Advisory Opinions September 01, 1994: OAG 94-059 (September 1, 1994)

OAG 94-059.

The following question has been presented:

Whether a student who lives in a Kentucky county and attends school in another Kentucky county is eligible to receive a paper absentee ballot.

KRS 117.085, as amended by Senate Bill 281, restricts the categories of voters who are eligible to vote by paper absentee ballot. Subsection (1) provides that except for certain disabled voters, voters with medical emergencies and those voters who are incarcerated in jail but have not yet been convicted, no paper absentee ballots may be mailed to a voter who resides within the county in which he is registered.

Additionally, subsection (1)(a) provides:

The following voters may apply to cast their votes by paper absentee ballot at any time not later than the close of business hours seven (7) days before the election:

1. Voters permitted to vote by paper absentee ballot pursuant to KRS 117.075 or KRS 117.077;

2. Residents of Kentucky who are members of the Armed Forces, dependents of members of the Armed Forces, and citizens residing overseas;

3. Students and other voters who live outside the state but who are still eligible to vote in this state; and

4. Persons who are incarcerated in jail who have been charged with a crime but have not been convicted of the crime.

The language of KRS 117.085(1)(a)(3) specifically identifies "students" as a category of voters eligible to receive paper absentee ballots. While the phrase "and other voters who live outside the state but who are still eligible to vote in this state" in subsection (1)(a)(3) might be viewed as limiting the category of students to only those students who live outside the state, we conclude that the statute specifically identifies "students" because "students" is a separate and distinct group of eligible absentee voters. If the term "students" only meant to describe a category of voters who live outside the state, there would be no need to separately identify the group. Additionally, since no paper ballots can be mailed to voters who live within the county in which they are registered, only students who live outside the county will be permitted to vote by paper absentee ballot. Accordingly, we conclude that KRSÊ117.085 permits students who live outside the county in which they are registered to vote by paper absentee ballot.

Our conclusion that KRS 117.085 allows students who live outside the county in which they are registered to vote by paper absentee ballot is consistent with the legislative intent. The cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect. United Services Automobile Association v. State Farm Mutual Automobile Insurance Co. , Ky.App., 784 S.W.2d 786 (1990). While SB 281, the "voter fraud bill," sought to reduce the incidence of voter fraud by restricting the categories of voters who are eligible to vote by paper absentee ballot, it was never the General Assembly's intent to restrict the absentee voting rights of students.

The Kentucky General Assembly has long recognized students as a class of voters who are eligible to vote by absentee ballot. See , e.g. , Hallahan v. Mittlebeeler , Ky., 373 S.W.2d 726 (1962). We do not believe the 1994 General Assembly intended to restrict the longstanding practice of recognizing students as a separate class of voters who are eligible to vote by absentee ballot. It is a fundamental principle that election statutes should be construed liberally in favor of the citizens whose right to chose their public officers is challenged. Queenan v. Mims , Ky., 283 S.W.2d 380 (1955). Accordingly, it is our opinion that KRS 117.085 permits all students who live outside the county in which they are registered to vote by paper absentee ballot. We reach that conclusion based on the language of KRS 117.085 and the legislative history of SB 281.

CHRIS GORMAN

ATTORNEY GENERAL

Ross T. Carter

Assistant Attorney General