Call to Order and Roll Call
The2nd meeting of the Task Force on Elections, Constitutional Amendments, and Intergovernmental Affairs of the Interim Joint Committee on State Government was held on Tuesday, July 26, 2011, at 1:00 PM, in Room 171 of the Capitol Annex. Senator Damon Thayer, Chair, called the meeting to order, and the secretary called the roll.
Members:Senator Damon Thayer, Co-Chair; Representative Darryl T. Owens, Co-Chair; Senators Jimmy Higdon, John Schickel, and Johnny Ray Turner; Representatives Larry Clark, James R. Comer Jr., Joseph M. Fischer, Derrick Graham, Mike Harmon, Melvin B. Henley, Mary Lou Marzian, and John Will Stacy.
Guests: Elaine Walker, Secretary of State; Sarah Ball Johnson, Executive Director, and Mary Ellen Allen, General Council, State Board of Elections; Kenny Brown, Boone County Clerk; Senator Jimmy Higdon; Michael Lewis, Chairman, and William Bowe, Communications Director, Independent Kentucky.
Approval of Minutes
The minutes of the June 28, 2011 meeting were approved without objection, upon motion by Senator Schickel and second by Representative Clark.
Primary Voting for Registered Independents (11RS SB 41)
Senator Higdon began the meeting agenda with a discussion on primary voting for registered independents. Senator Higdon stated that the issue was considered in the 2011 Regular Session as SB 41, and he noted that SB 41 passed the Senate but failed in the House Elections, Constitutional Amendments, and Intergovernmental Affairs Committee by one vote. Senator Higdon said that he continued to pursue the issue because there are a large number of independent voters in Kentucky and that these voters have a desire to participate in the primary process. He noted that thirty-two (32) states have some version of an open primary and three (3) states have primary systems similar to the version proposed in SB 41, which would have allowed an independent to choose one party primary to participate in on the primary date. He further stated that he welcomed the opportunity to present the issue again and that he wanted ideas from the Task Force members to improve SB 41 in hopes that it could pass both chambers in the coming session. Copies of SB 41 were passed out in the meeting to the Task Force members.
Senator Higdon then introduced Michael Lewis, Chairman, and William Bowe, Communications Director, of Independent Kentucky. Mr. Lewis began by noting that primaries in Kentucky are a taxpayer funded system, but that a large segment of the taxpaying population – registered independents – do not get to participate in that system. He also pointed to the low 10.34 percent turnout in the May 2011 primary as evidence that Kentucky could stand to be more inclusive in its primaries. Mr. Bowe then testified that Independent Kentucky is not out to harm the major parties or the election process. Rather, Mr. Bowe said that the goal is a more representative government, and he noted that studies show that inclusiveness staves off extremism and makes both parties more representative of the public.
Several members of the Task Force posed questions on SB 41 and voiced their opinions and concerns. Some of the members’ concerns about SB 41 centered on the fact that primaries are nominating processes for a political party, and that opening the primary to those voters that have chosen to not adhere to a party’s ideology could lead to the selection of a candidate that does not represent the party positions.
Voter Registration of “Homeless” Citizens
Secretary of State Elaine Walker and staff of the State Board of Elections discussed the voter registration procedure for a Kentucky citizen that does not have a permanent, traditional dwelling. Secretary Walker testified that the current “homeless” registration procedure has remained consistent since at least 1995, and possibly the mid 1980s, and has applied through the terms of past Secretaries of State Bob Babbage, John Y. Brown, III, Trey Grayson, and now her office. She stated that the term “residence” is at the center of the issue, but that the term is not defined and the procedure for determining a voter’s residence in KRS 116.035 does not require a traditional dwelling. Secretary Walker also noted that several courts have held that the Equal Protection Clause of the United States Constitution requires states to offer the same right to vote to a homeless citizen as to a citizen with a traditional dwelling, and that the National Voter Registration Act allows a registrant to draw a map of the location of their non-traditional official “residence” if it does not have a street address.
Secretary Walker also addressed the concerns of an increased likelihood of voter fraud by stating that it is not borne out by evidence and that existing law addresses fraud and erroneous registration or identification. She also noted anecdotally that she has travelled the state and has not found any problems with homeless registration – with one example being that there were no problems with the ninety-three (93) homeless residents who were registered to vote in Louisville last year, and only two actually went to the polls. She told the committee that registering voters in Kentucky is a priority for her office and all election officials, and that there has been a slight increase in homeless registrations recently due to social service agencies informing these citizens of their right to vote.
Secretary Walker said she is committed to protecting the rights of every citizen, including the homeless, to register and to vote in local and state elections. She noted that on Kentucky’s registration forms, the homeless can claim park benches, bridges, or some other non-traditional habitation to which they intend to return as their residence for the purposes of voting. In response to a question from Representative Harmon, Secretary Walker said that the goal is to place every registered voter in the correct precinct, and a homeless or transient voter is no different than a voter with a traditional dwelling in that county clerks should attempt to place them in the precinct in which they indicate their “residence” is located. If no specific location is given but the registrant indicates they are homeless, Secretary Walker said the procedure calls for the clerk to attempt to get more information from the registrant, and if more information is not available, to assign the voter to the precinct in which the county clerk’s office is located.
Kenny Brown, Boone County Clerk, then testified as to his concerns about the policy stated in a June 30, 2011, memo from the State Board of Elections that outlined the homeless voter registration policy. Mr. Brown stated that he was concerned that the policy could lead to voter fraud and that the policy could cause a county clerk to inadvertently break the law. Mr. Brown noted that he does not have a problem with homeless voters in his county or generally, but that he specifically took issue with the last line of the memo that states: “If the application has Homeless, Place to Place, In My Car, or has no residential address listed; place the voter in the precinct containing the county clerk’s office.” Mr. Brown testified that this line of the policy potentially puts a burden on county clerks to break the law by placing voters in the precinct of the county clerk’s office when the voter does not actually reside in that precinct. He also stated that he was concerned that elections could be influenced by outside groups or persons who might not be truly homeless, but who would know how to work the process by writing “homeless” on the registration card and then avoiding a good faith effort by his office to determine in what precinct to place the voter – all in an effort to pack a particular precinct and influence an election.
Several members of the Task Force posed questions and voiced their opinions and concerns about the homeless voter registration policy. Some of the members’ concerns were focused on the potential for fraud if a person or group sought to exploit the state’s policy for registering homeless voters. Other members noted that Kentucky should be encouraging more voter participation rather than raising bars to registration, especially considering recent low turnouts, and they questioned whether the issue was even a problem, given the absence of evidence indicating mass homeless registration or fraud.
The memo from the State Board of Elections to the County Clerks dated June 30, 2011, a letter from Kenny Brown to the State Board of Elections dated July 5, 2011, and Kentucky and federal registration forms were distributed to the members, copies of which may be found in the Legislative Research Commission library.
Business concluded, and the meeting adjourned at 3:00 p.m.