Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 3/14/2002
Status: Precedential
Modified Date: 7/5/2016
The Honorable Ron Thornburgh Secretary of State Memorial Hall, First Floor 120 S.W. 10th Street Topeka, Kansas 66612
Dear Secretary of State Thornburgh:
You request our opinion regarding the manner in which certain ballots are to be canvassed. Specifically, you ask whether a ballot submitted at a polling place on election day is to be counted when the person who submitted the ballot died prior to the canvassing of the ballot. You also ask whether an advance voting ballot submitted by a person who died after marking the ballot, but prior to the time of canvassing the ballot, is to be included in the final count of ballots cast in the election.
Any person who is a citizen of the United States, has attained the age of 18 years, and who resides in the voting area in which the person seeks to vote is deemed a qualified elector1 and, upon meeting such person's duty to register to vote,2 is a registered elector entitled to vote in elections.3 A person may vote on election day by requesting a ballot at the proper polling place.4 The ballot may be in the form of a paper ballot,5 electronic or electromechanical voting ballot,6 or a voting machine ballot.7 If a paper ballot is used, the person may mark the ballot as instructed, then submit the ballot to an election judge who will clip the identifying numbers from the ballot and deposit it in a locked ballot box.8 If a voting machine is used, the ballot is automatically deposited when the person exits the machine. A ballot is cast when it is deposited formally or officially.9 The ballot of a person voting at a polling place on election day is cast when it is deposited in a locked ballot box or voting machine.
There are procedures for challenging the authority of a person's right to vote prior to such time as the person's ballot is cast on election day.10 In addition, the Legislature has provided procedures whereby a ballot that contains inappropriate marks or includes votes for disqualified candidates may be invalidated at the time of canvassing.11 However, there is no authority for challenging a person's qualifications to vote once the ballot is cast, i.e., deposited in a locked ballot box or voting machine, at a polling place on election day. Further, a ballot that has been deposited in a locked ballot box or voting machine is not individually identifiable.12 Therefore, a ballot that has been properly cast at a polling place on election day is to be counted regardless whether the person who cast the ballot may have died prior to canvassing of the ballot.
The State of Kansas has for most of its history conferred upon a segment of its electors the right to participate in elections by allowing them to vote by absentee ballots.13 The purpose for allowing voting in such a manner is not to modify the qualifications of electors, but rather is to allow greater participation in the electoral process by persons who possess the qualifications of electors, but are temporarily absent from their residence.14 Since 1974, the Kansas Constitution has conferred the right to vote through absentee ballots upon electors who are removed from the State in accordance with federal law and those electors who have moved from one residence in Kansas to another residence in Kansas during such time as is prescribed by law.15 For all other electors in Kansas, "[a]bsentee voting is a privilege. . ."16 granted through State statute.
In 1995, the Kansas Legislature enacted legislation that provided for advance voting, a concept that replaced absentee voting.17 By utilizing advance voting, any registered elector who completes the required application may vote prior to the actual scheduled date of an election.18 An elector may vote during the time up to 20 days prior to the scheduled election date.19 The advance voting ballot may be submitted through use of voting machines,20 optical scanning systems, electronic or electromechanical voting systems,21 or paper ballots.22
The county election officer of every county is obligated to establish a special election board.23 All advance voting ballots received by the county election officer prior to the closing of the polls on election day are to be delivered to the special election board.24 The board is charged with the duty of conducting the original canvass of the advance voting ballots.25
State statutes set out the manner in which advance voting ballots are to be handled and the procedure to be followed by the special election board when conducting the original canvass of advance voting ballots. Advance voting voters may during the period for advance voting deposit their marked advance voting ballots into locked ballot boxes that are located in the office of the county election officer or at satellite voting offices.26 Any advance voting ballots not deposited in a locked ballot box are to be placed in the advance voting ballot envelopes and delivered to the county election officer.27 The advance voting ballot envelopes are then forwarded to the special election board.28
"One of the judges [of the special election board] shall open each ballot envelope without defacing the form printed thereon and without mutilating the enclosed ballot or ballots. Such ballots shall then be disposed of as if the advance voting voters were present. One of the judges shall clip the numbers from the ballots and deposit them in the proper ballot boxes without unfolding them. Until the closing of the polls, at least 25 ballots shall remain uncounted in each ballot box."29
"In counties where voting machines are used, the special election board shall proceed by using voting machines to originally canvass, count and tally the advance voting ballots. . . ."30
Prior to such time as an advance voting ballot envelope is opened pursuant to K.S.A.
"Whenever it shall be made to appear to the judges of a special election board by sufficient proof that an advance voting voter has died, the envelope containing the advance voting ballot of such deceased voter shall not be opened. In all such cases, the judges shall endorse on the back of the envelope the word `provisional' and the reason for sustaining the challenge."33
The vote indicated on such an advance voting ballot is not to be included in the vote totals certified by the special election board.34 The ballot is forwarded to the board of county canvassers which has the authority to "finally determine the acceptance or rejection of each . . . provisional . . . ballot."35
In determining whether the advance voting ballot of a person who died prior to canvassing of the ballot should be accepted by the board of county canvassers, it is necessary to determine the intent of the Legislature.
"The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be."36
"There is a presumption that the legislature does not intend to enact useless or meaningless legislation."37 "A construction of a statute should be avoided which would render the application of a statute impracticable or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act."38
K.S.A.
Subsection (c) of K.S.A.
It must be determined whether the classification resulting from the statute violates the Equal Protection Clause of the United States Constitution42 and Section
"[T]he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution."46
"States have the power to require that voters be bona fide residents of the relevant political subdivision. An appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny."47
The classifications resulting from the challenge authorized under subsection (c) of K.S.A.
Persons who are deceased on election day are not qualified electors and do not enjoy a constitutional right to vote. Subsection (c) of K.S.A.
In review, a ballot that has been properly cast by depositing it in a locked ballot box or voting machine at a polling place on election day is to be counted regardless whether the person who marked and submitted the ballot may have died prior to canvassing of the ballot. An advance voting ballot that has been cast by depositing it in a locked ballot box or voting machine at the office of the county election officer or a satellite voting office during the period allowed for advance voting is to be counted regardless whether the person who marked and submitted the ballot may have died prior to the time the ballot is canvassed. If the board of county canvassers determines that an advance voting ballot marked as "provisional" by the special election board was submitted by a person who died after marking the advance voting ballot and prior to the canvassing of the ballot, the ballot should remain unopened and uncounted.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Richard D. Smith Assistant Attorney General
CJS:JLM:RDS:jm
Kansas Public Employees Retirement System v. Reimer & Koger ... , 262 Kan. 635 ( 1997 )
Cure v. Board of Hodgeman County Comm'rs , 263 Kan. 779 ( 1998 )
Carrington v. Rash , 85 S. Ct. 775 ( 1965 )
In Re the Marriage of Killman , 264 Kan. 33 ( 1998 )
Board of County Commissioners v. Bankoff Oil Co. , 265 Kan. 525 ( 1998 )
State Ex Rel. Stephan v. Kansas Racing Commission , 246 Kan. 708 ( 1990 )
Reynolds v. Sims , 84 S. Ct. 1362 ( 1964 )
Dunn v. Blumstein , 92 S. Ct. 995 ( 1972 )
Burdick v. Takushi , 112 S. Ct. 2059 ( 1992 )
Heller v. Doe Ex Rel. Doe , 113 S. Ct. 2637 ( 1993 )
Timmons v. Twin Cities Area New Party , 117 S. Ct. 1364 ( 1997 )
Buckley v. American Constitutional Law Foundation, Inc. , 119 S. Ct. 636 ( 1999 )