Kentucky’s election law still shuts independent voters out

There is a real­ly stu­pid statute on the Kentucky books.

Okay, to be per­fect­ly fair and pre­cise, there are prob­a­bly scores of real­ly stu­pid statutes still in effect in Kentucky law. But let’s con­cen­trate on just one for the time being.

KRS 117.045 out­lines and defines sev­er­al con­di­tions affect­ing precinct elec­tion officers.

Subsection (2) stip­u­lates that: the coun­ty exec­u­tive com­mit­tees of the two (2) polit­i­cal parties…may…designate in writ­ing to the coun­ty board of elec­tions a list of not less than four (4) names for each precinct [to serve as elec­tion officers].

See the problem?

The statute starts by lim­it­ing par­tic­i­pa­tion in the elec­tion to mem­bers of two polit­i­cal par­ties. Never mind that there may be a dozen or more polit­i­cal par­ties active in a coun­ty; only two are favored and con­sid­ered to be fit for duties as elec­tion officers.

Subsection (4)(c) states: If no mem­bers of one (1) of the two (2) polit­i­cal par­ties are avail­able or will­ing to serve as a judge, the coun­ty clerk shall select any [bold added] reg­is­tered vot­er with­in the coun­ty to serve as a judge at a vot­ing place.

And then, in sub­sec­tion (4)(f), there is an attempt to take the onus off of being a non-affil­i­at­ed vot­er: noth­ing in this sub­sec­tion shall pre­vent the selec­tion of any reg­is­tered and qual­i­fied vot­er who is not reg­is­tered with either of the two (2) polit­i­cal par­ties to serve as a precinct elec­tion offi­cer in a precinct in which the offi­cer resides or as oth­er­wise pro­vid­ed in this subsection.

Just when you think it’s not as bad as it seems, comes sub­sec­tion (5): If, after all rea­son­able efforts have been made, nei­ther the coun­ty board of elec­tions nor the coun­ty clerk are able to find two (2) qual­i­fied offi­cer for each precinct who are affil­i­at­ed with the two (2) polit­i­cal par­ties [bold added, again] hav­ing rep­re­sen­ta­tion on the State Board of Elections or any oth­er qual­i­fied and reg­is­tered vot­er with­in the coun­ty, the coun­ty board of elec­tions shall sub­mit a list of emer­gency elec­tion offi­cer appoint­ments to the State Board of Elections.

Great! If you are a mem­ber of any polit­i­cal par­ty oth­er than the two, you are only eli­gi­ble to serve as an elec­tion offi­cer in the case of an “emer­gency!”

Okay, just one more. Subsection (9)(a) seems to re-iter­ate the opin­ion that only two polit­i­cal par­ties can rea­son­ably pro­duce indi­vid­u­als qual­i­fied to serve as elec­tion offi­cers: An elec­tion offi­cer shall be a qual­i­fied vot­er of the precinct; except that, where no qual­i­fied over of the required [bold added again] polit­i­cal par­ty is avail­able with­in the precinct, the elec­tion offi­cer shall be a qual­i­fied vot­er of the county.

So, just to be clear, our state laws are writ­ten to favor indi­vid­u­als affil­i­at­ed with a polit­i­cal par­ty regard­ing their eli­gi­bil­i­ty to serve as elec­tion officers.

This is even more egre­gious than it was when it was writ­ten into law in 1974, because at that time, there were few vot­ers who were either non-affil­i­at­ed or affil­i­at­ed with a par­ty oth­er than Democrat or Republican. The num­ber of vot­ers des­ig­nat­ing them­selves as Independents half a cen­tu­ry ago must have been very small. Today, Independents are about 11% of Kentucky reg­is­tered vot­ers; yet, despite the fact that their num­bers could dra­mat­i­cal­ly affect the out­come of an elec­tion, they are con­sid­ered irrel­e­vant when it comes to select­ing elec­tion officers.

In 2014, I wrote to our then-cur­rent state rep­re­sen­ta­tive request­ing that this statute be amend­ed to pro­vide greater fair­ness in the selec­tion of elec­tion offi­cers. I received no response and, obvi­ous­ly, noth­ing has been done to alter the statute in the inter­ven­ing 12 years.

There is one addi­tion­al hor­rif­ic part of this statute. Subsection (8): The State Board of Elections may, after a hear­ing, direct the removal of any elec­tion offi­cer who the board finds would not fair­ly admin­is­ter the state elec­tion laws.

No clar­i­fi­ca­tion as to how the hear­ing would be con­duct­ed, no stip­u­la­tions as to what might con­sti­tute grounds for adju­di­cat­ing unfair admin­is­tra­tion, no indi­ca­tion as to who would be on the hear­ing board, no ref­er­ence to coun­sel, against self-recrim­i­na­tion, rights of evi­dence, right to be heard in defense, and on and on.

Sounds like the Star Chamber has reassert­ed itself.