Board of Registration Commissioners v. Hallahan

CULLEN, Commissioner.

By Chapters 188 and 320 of the Acts of the 1972 Regular Session, and by House Bill No. 5 enacted at the First Extraordinary Session of 1972, the Kentucky General Assembly made comprehensive changes in the election laws, including the laws relating to registration of voters. By virtue of specific designations of effective dates, the major revisions made by the three Acts will not become effective until December 1, 1972 (after the November general election). However, some of the provisions of Chapter 320 and of House Bill No. 5 became effective on June 16 and will be operative only until December 1.

Prior to the enactment of the 1972 legislation, KRS 117.620 provided that a voter could register by appearing in person at a designated office or branch office.¹ Among the various amendments made by Chapter 320 of the 1972 Acts was an amendment of KRS 117.620 to provide that a voter “may register by absentee application, or” by appearing at the designated office or branch office. Chapter S of the Acts of the Extraordinary Session also amended KRS 117.620 in some respects, but it made no change as to the above language. KRS 117.620 as amended will continue in force only until December 1, 1972, following which it will be superseded by KRS 128.040 (created by Chapter 188 of the 1972 Acts and amended by Chapter S of the Extraordinary Session), which provides for registration in person or by mail, following a general state-wide re-registration of all voters.

The representatives of both major party organizations in Jefferson County (and, it appears, elsewhere in the state), the Attorney-General, the Secretary of State, and the State Board of Election Commissioners all interpreted KRS 117.620 in its amended form as authorizing any voter to register simply by filling out the application form provided for in KRS 126.160 (as amended by Chapter 320 of the Acts of 1972) and causing it to be delivered to the appropriate registration office, without a personal appearance by the voter at the office. A large number of registrations were made in that manner during the recent summer. Believing that interpretation to be erroneous, the Board of Registration Commissioners of Louisville brought the instant action, alleging that the proper construction of KRS 117.620 is that the only persons entitled to register by “absentee application” are ⅜ those who are absent from their places of residence at the time of making application for registration and who will also be absent voters at the next election; in other words, that absentee registration is solely for absentee voters.

The circuit court rejected the registration board’s interpretation and entered judgment adopting the construction permitting any qualified voter to register by application without personally appearing at the registration office or branch office. The registration board has appealed.

The issue is solely one of interpretation of a statute that has application only as to a limited period of less than five months. We conceive that no useful purpose would be served by setting forth in this opinion a detailed history and analysis of the legislation involved. The question simply is: What did the legislature intend? We believe the answer can better be found in a practical evaluation of the circumstances than in an exercise in semantics. Baker v. White, 251 Ky. 691, 65 S.W.2d 1022; Grieb v. National Bank of Kentucky’s Receiver, 252 Ky. 753, 68 S.W.2d 21; Martin v. Louisville Motors, 276 Ky. 696, 125 S.W.2d 241; Green v. Moore, 281 Ky. 305, 135 S.W.2d 682; Hamilton v. International Union of Operating Engineers, Ky., 262 S.W.2d 695.

The primary circumstance was the existence of a compulsion to comply with the Voting Rights Act of 1965 (79 Stat. 437; 42 U.S.C. § 1973 et seq.) as amended in 1970 (Public Law 91-285; 84 Stat. 314), and with Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. The climate was one favoring liberalization of registration requirements. A complete revision of the election laws was adopted but its effective date was postponed until after the regular 1972 election, apparently because it was felt that a period of adjustment would be required before the new law was applied to an election, and because time was needed to put the new law into operation. For example, the new law provided for a complete re-registration of voters, which would take a substantial period of time to accomplish.

In the meantime, pending the taking effect of the comprehensive revision, the legislature at the regular 1972 session was concerned with accomplishing some liberalization for the 1972 presidential election to comply with the Voting Rights Act, and when Dunn v. Blumstein was decided the legislature was called into the extraordinary session to make further liberalizations to comply with that decision. In accomplishing these liberalizations there was no reason for the legislature to continue, pending the 1972 election, the requirement of registration by personal appearance at the registration office. Registration by application forwarded to the office could be permitted without any implementation problems or time-shortage obstacles. No evil has been suggested that could derive from so doing.

It is to be considered, therefore, that every inducement was towards facilitating the registration process and encouraging the registration of voters. So when the legislature, in Chapter 320 of the 1972 Acts, authorized any legal voter to register by absentee application, the indications are strong that the intent was to permit registration by forwarded application for any voter and not merely those persons who would be absent voters. The law previously had authorized “absent registrations” by absent voters in military service, without any mention of that authorization in KRS 117.620, so when the category of permissible absent voters was enlarged in 1972 there was no need to amend KRS 117.620 to mention it.

There appear to be only two possible reasons that could have prompted the legislature to amend KRS 117.620. One would be simply to call attention to laws under which an absent voter could register by mailed application; the other would be to grant a right of registration by forwarded application to all voters. The latter reason is so much more likely that we are convinced it was the reason by which the legislature acted.

The construction so placed on the amendment results in the qualifying of a large number of voters who registered by forwarded application in accordance with the construction made by practically all concerned public and party officers. The result is in the public interest, in which, of course, the legislature always is presumed to act. A contrary construction, disfranchising those voters, is not compelled to be reached. Election statutes should be construed liberally in favor of furthering the right of suffrage. 25 Am.Jur.2d, Elections, sec. 5, p. 695. This includes registration statutes, which will be construed to give the electors the fullest opportunity to vote consistent with reasonable precautions against fraud. 25 Am.Jur.2d, Elections, sec. 97, p. 785.

The judgment is affirmed.

STEINFELD, C. J., and MILLIKEN, NEIKIRK, and PALMORE, JJ., concur. REED, EDWARD P. HILL, Jr., and OSBORNE, JJ., dissent.

1 . Absentee registration by persons in military service was provided for, however, in KRS Chapter 126.