Kansas Attorney General Opinion 2014-004

January 22, 2014
ATTORNEY GENERAL OPINION NO. 2014- 04
The Honorable Lance Kinzer
State Representative, 30th District
State Capitol, Room 165-W
Topeka, KS 66612
Re: 	Elections—Voting 	Places 	and 	Materials 	Therefor—Voting 	Places,
Equipping 	and 	Supplying; 	Instructions, 	Books 	and 	Other 	Materials;
Question 	Submitted 	Election; 	Posting 	or 	Providing 	Explanatory
Statements
Synopsis: 	The governing body of a municipality, such as a city, county, or unified
school district, may develop a neutral or impartial explanatory statement
on 	a 	question 	it 	has 	submitted 	to 	the 	electorate. 	The 	explanatory
statement may be posted on the municipality's website and provided to
constituents at the office of the county election officer, until such time as
the office of the county election officer becomes a polling place. 	Whether
a city may provide for the posting at polling places and the distribution at
polling places or with advance voting ballots of explanatory statements
regarding 	a 	question 	that 	is 	submitted 	to 	the 	electorate 	cannot 	be
definitively determined. 	A county, a local board of education and other
municipalities lack authority to provide for the posting and distribution of
such a statement at polling places and with advance voting ballots. 	Cited
herein: 	K.S.A. 12-101; 12-1761; 12-1767; K.S.A. 2013 Supp. 19-101a;
K.S.A. 19-101c; 19-3419; 19-3422; 19-3423; 19-3424; 19-3507a; 19-3517;
19-3521a; 25-431; K.S.A. 2013 Supp. 25-433; K.S.A. 25-1121; 25-1122;
K.S.A. 2013 Supp. 25-1123; K.S.A. 25-2007; 25-2010; 25-2104; 25-2110;
25-2209; 25-2303; 25-2504; K.S.A. 2013 Supp. 2430; K.S.A. 25-2701; 25-
2703; K.S.A. 2013 Supp. 25-2706; K.S.A. 25-2801; 25-2810; 25-2902; 42-
721; K.S.A. 2013 Supp. 72-8205; K.S.A. 2013 Supp. 75-6102; 75-6705;
Kan. Const., Art. 6, § 5; Kan. Const., Art. 12, § 5; Kan. Const., Art. 14, § 1.
* 	* 	*

The Honorable Lance Kinzer
Page 2
Dear Representative Kinzer:
As chair of the 2012 Special Committee on Elections, 1 former Senator Terrie Huntington
requested our opinion regarding whether a municipality 2 may under current law develop
an explanatory statement for a question that is being submitted by the municipality to
the electorate. 	The Committee sought the opinion to determine whether legislation is
needed to alleviate voter confusion. 	The request was tabled while the Legislature
considered 2013 House Bill No. 2162. 3 You ask that the request be revived.
The City of Wichita submitted to its electors a question that sought approval of a charter
ordinance. 	While a proposition seeking amendment of the Kansas Constitution is
accompanied by "a brief nontechnical statement expressing the intent or purpose of the
proposition and the effect of a vote for or against the proposition," 4 neither Section 5 of
Article 12 of the Kansas Constitution, through which cities are granted home rule
authority, nor any statute provides for inclusion of a similar statement when a city
submits to its electors a question seeking adoption of a charter ordinance. 	Therefore,
following the requirements of that section of the Kansas Constitution, 5 the question
submitted to the electors of the City of Wichita stated:
Shall charter ordinance 216 entitled: 	"A charter ordinance amending and
repealing section 1 of charter ordinance No. 213, of the city of Wichita,
Kansas, which amended and repealed section 1 of charter ordinance No.
183 of the city of Wichita, which amended and repealed section 1 of
charter ordinance No. 174 of the city of Wichita, Kansas pertaining to the
application of revenues from the transient guest tax" take effect?
YES
NO
No 	further 	explanation 	or 	information 	was 	presented 	to 	voters 	at 	voting 	places.
Attachments to the Special Committee's request for an opinion indicate voters in
1 The Committee, now defunct, was charged with the responsibility of studying the advisability of ballot
language statements. See Minutes, 2012 Special Committee on Elections, October 16, 2012.
2 The applicable definition of “municipality” is provided in K.S.A. 2013 Supp. 75-6102, which defined
"municipality" as "any county, township, city, school district or other political or taxing subdivision of this
state, or any agency, authority, institution or other instrumentality thereof."
3 2013 House Bill No. 2162, as introduced, provided statutory authority for the distribution and posting at
polling places of ballot language statements regarding questions submitted by municipalities. 	The bill,
however, was extensively amended by conference committee. See 2013 Senate Journal 928 (May 17,
2013); 2013 House Journal 1013-14 (May 21, 2013). 	The adopted legislation, codified at K.S.A. 2013
Supp. 75-6705, deals with use of money appropriated by the Legislature.
4 Kan. Const., Art. 14, § 1.
5 "The proposition shall be: 'Shall charter ordinance No. _____, entitled (title of ordinance) take effect?'"
Kan. Const., Art. 12, § 5(c)(3).

The Honorable Lance Kinzer
Page 3
Hutchinson and Salina encountered similarly worded questions in elections seeking
approval of charter ordinances.
Proposed legislation that was enclosed with the opinion request would have granted
express statutory authority to the county election officer to request the preparation of an
explanatory statement that would not be placed on the ballot but instead would be
posted on the municipality's website, made available at the office of the county election
officer, and distributed to electors at polling places and with advance voting ballots. 6
You ask whether municipalities are currently authorized to take such actions to inform
their electorates in the absence of such legislation.
The Municipality's Website and the Office of the County Election Officer
In Attorney General Opinions No. 93-33 and 93-125, it was determined that public
officials of a municipality may educate and inform electors on matters to be voted on by
the electors of the municipality and expend public moneys for such purposes. 	The
authority to do so is not derived from specific statutory authorization, but arises from the
general authority of a municipality. 7 The information provided by the municipality may
not be in such form as to "persuade nor to convey favoritism, partisanship, partiality,
approval or disapproval . . . of any issue, worthy as it may be;"8 rather, it must be
presented in a semblance of neutrality. 	A neutral or impartial explanatory statement
regarding a question being voted on by the electors of a municipality would serve the
function of educating and informing the electorate. 	Means of providing access to such
neutral or explanatory statement would likely include posting it on the municipality’s
website and providing copies of it at the office of the county election officer. 	A
municipality, exercising its general authority, may post on the municipality's website and
make 	available 	at 	the 	office 	of 	the 	county 	election 	officer 	a 	neutral 	or 	impartial
explanatory statement regarding a question submitted to the electorate. 	If the office of
the county election officer becomes a polling place, other factors must be considered.
The Polling Places and Advance Voting Ballots
Whether an explanatory statement may be posted and distributed at polling places and
with advance voting ballots requires review of statutes governing the conduct of
elections. 	Historically, local units of government were responsible for conducting their
elections pursuant to state statutes. 	Over the years, such authority was transferred to
6 See fn. 3.
7 See Attorney General Opinion No. 93-33 ("Although the courts of Kansas have not expressly addressed
the authority of a school district to participate in or undertake campaigns, it appears the court has
recognized that a school district, as a public body, is under an obligation to educate the electorate
regarding an issue subject to election").
8 Attorney General Opinion No. 93-125, quoting Stern v. Kramarsky, 375 N.Y.S.2d 235, 239 (1975). See
also K.S.A. 2013 Supp. 25-2430 (“[E]xhibiting or distributing . . . signs, posters, stickers or other materials
that clearly . . . indicate support or opposition to a question submitted election within any polling place on
election day or advance voting site during the time period allowed by law for casting a ballot” constitutes
electioneering).

The Honorable Lance Kinzer
Page 4
county clerks and county election commissioners. 9 Since 1968, it has been the sole
responsibility of the county election officer to conduct city, county and school district
elections. 10 In most areas of the state, the county clerk functions as the county election
officer.11 In 	counties 	having 	a 	population 	exceeding 	130,000, 	a 	county 	election
commissioner is appointed 12 and serves as the county election officer.13
State law confers upon the county election officer the authority to designate voting
places 14 and to appoint and supervise the election board judges and clerks for each
voting place. 15 The county election officer is required to "arrange for voting places to be
warmed, lighted, and furnished with proper supplies and conveniences" 16 and furnish at
every voting place: 	(a) printed instructions to voters; (b) a list of voters' rights and
responsibilities; (c) a sample ballot; (d) notification of the date of the election; and (e)
the polling place hours. 17 When printed paper ballots are used, each polling place is to
have posted thereon a notice stating that torn, defaced, or wrongfully marked ballots are
to be returned to the election board and exchanged for a new set of ballots. 18 If a
question is submitted to the electorate pursuant to the Mail Ballot Election Act, 19 the
county election officer is directed to "mail all official ballots with a return identification
envelope and instructions sufficient to describe the voting process to each elector
entitled to vote in the election. . . ."20 Advance voting ballots are likewise to include
printed instructions and ballot envelopes. 21 State law does not provide for the posting or
distribution of other materials or statements at the voting place or with advance voting
ballots. 	Therefore, a municipality lacks statutory authority to post and distribute at
polling 	places 	an 	explanatory 	statement 	regarding 	a 	question 	the 	municipality 	is
submitting to the electorate.
The absence of statutory authority to post and distribute an explanatory statement does
not necessarily end the inquiry. 	Three types of municipalities – cities, counties and
unified school districts – possess home rule authority.
9 See, e.g., L. 1947, Ch. 203, § 4, codified at K.S.A. 19-3422.
10 See L. 1968, Ch. 59; Ch. 274; 406.
11 K.S.A. 25-2007; 25-2104; 25-2504.
12 K.S.A. 19-3419.
13 K.S.A. 25-2007; 25-2104; 25-2504. See also K.S.A. 19-3422; 19-3423; 19-3424.
14 K.S.A. 25-2701; 25-2703.
15 K.S.A. 25-2801; 25-2810.
16 K.S.A. 25-2703.
17 K.S.A. 2013 Supp. 25-2706(c). 	The Secretary of State is responsible for specifying the form and
contents of instructions to voters, list of voters' rights and responsibilities, and instructions to election
boards. 	K.S.A. 2013 Supp. 25-2706(d).
18 K.S.A. 25-2902(c).
19 K.S.A. 25-431 et seq.
20 K.S.A. 2013 Supp. 25-433.
21 K.S.A. 2013 Supp. 25-1123. 	The Secretary of State determines the form of the printed instructions.
K.S.A. 25-1121.

The Honorable Lance Kinzer
Page 5
Cities
Section 5(b) of Article 12 of the Kansas Constitution states:
Cities 	are 	hereby 	empowered 	to 	determine 	their 	local 	affairs 	and
government including the levying of taxes, excises, fees, charges and
other exactions except when and as the levying of any tax, excise, fee,
charge or other exaction is limited or prohibited by enactment of the
legislature applicable uniformly to all cities of the same class: Provided,
That the legislature may establish not to exceed four classes of cities for
the purpose of imposing all such limitations or prohibitions. 	Cities shall
exercise such determination by ordinance passed by the governing body
with referendums only in such cases as prescribed by the legislature,
subject 	only 	to 	enactments 	of 	the 	legislature 	of 	statewide 	concern
applicable uniformly to all cities, to other enactments of the legislature
applicable 	uniformly 	to 	all 	cities, 	to 	enactments 	of 	the 	legislature
applicable uniformly to all cities of the same class limiting or prohibiting the
levying of any tax, excise, fee, charge or other exaction and to enactments
of the legislature prescribing limits of indebtedness. 22
"The Kansas Constitution gives broad home-rule powers to cities" 23 and such authority
is to be "liberally construed for the purpose of giving cities the largest measure of self-
government."24
The legislature may preempt the constitutional authority of cities only in
the manner prescribed by the Home Rule Amendment to the Kansas
Constitution, 	Article 	12, 	§ 	5. 	While 	the 	Home 	Rule 	Amendment
empowered cities to determine local affairs, the home rule power does not
authorize cities to act where the state legislature has precluded municipal
action by preempting the field with a uniformly applicable enactment. 	As
long as the legislature has not preempted a subject area with a uniformly
applicable enactment, cities may exercise their home rule power by: 	(1)
enacting 	a 	charter 	ordinance 	to 	exempt 	the 	city 	from 	a 	nonuniform
legislative enactment or (2) enacting an "ordinary" or noncharter ordinance
if there is no conflicting legislative enactment.25
For purposes of determining uniformity under the Home Rule Amendment, the court
reviews not only the individual state statute at issue, but rather considers whether the
entire enactment of which the statute is a part is uniformly applicable. 26 Even when
confronted with a uniformly applicable enactment, a city possesses the authority to
22 Kan. Const., Art. 12, § 5(b).
23 Ramcharan-Maharajh v. Gilliland, 48 Kan.App.2d 137, 140 (2012).
24 Kan. Const., Art. 12, § 5(d).
25 State v. Jenkins, 295 Kan. 431, 437 (2012) (internal quotation marks and citations omitted).
26 Farha v. City of Wichita, 284 Kan. 507, 518 (2007).

The Honorable Lance Kinzer
Page 6
supplement the enactment, provided the enactment does not include a clear statement
of preemption and the city's action does not conflict with the enactment.27
While current statutes that address the manner of supplying polling places and posting
of statements at polling places, as well as the manner for providing advance voting
ballots, are on their faces uniformly applicable, they have been included in enactments
that are not uniformly applicable. 28 Under normal circumstances, the statutes would
likely be deemed subject to city home rule, thereby allowing a city to provide for the
posting and distribution at polling places and through advance voting ballots explanatory
statements regarding a question that is being submitted to the electorate by the city.
However, because any attempt by a city to provide for the posting and distribution of
explanatory statements would direct the actions of officials over whom the city has no
authority and could impact other municipalities, the authority to exercise home rule is
clouded.
Any election regarding a charter ordinance is to be called by the governing body of the
city and "shall be conducted as elections for officers and by the officers handling such
elections." 29 Such an election is conducted by the county election officer, 30 the same
officer who is responsible for conducting elections for the state, county, school districts
and other municipalities located in the county. 	There is no limit on the number of
charter ordinances that may be presented at an election. 31 When the question is
submitted at an election held in conjunction with elections in which "every registered
voter in the county is authorized to vote at one election or another," the costs associated
with conducting the question submitted election are borne by the county. 32 If several
questions are submitted at one election, the posting and distribution of explanatory
statements 	could 	become 	onerous 	and 	affect 	the 	conduct 	of 	elections 	of 	other
27 See Farha, 284 Kan. at 517 ("[C]ities possess the authority to adopt ordinances of any type on subjects
not addressed by the legislature"); Garten Enterprises, Inc. v. Kansas City, 219 Kan. 620, 625 (1976)
("[T]he fact the state has enacted legislation on a subject does not necessarily deprive a city of the power
to deal with the same subject by ordinance; a field can be the subject of concurrent concern and
legislation. A municipality may legislate on the same subject so long as the municipal ordinance does not
conflict with the state law"); McCarthy v. City of Leawood, 257 Kan. 566, 570 (1995), quoting Claflin v.
Walsh, 212 Kan. 1, 7 (1993) ("Where the legislature has acted in some area a city's power to act in the
same area should be upheld unless the legislature has clearly preempted the field so as to preclude city
action. 	Unless there is actual conflict between a municipal ordinance and a statute, the city ordinance
should be permitted to stand").
28 See L. 2004, Ch. 25, §§ 4, 11 (amendment of K.S.A. 2003 Supp. 25-2706; included amendment of
K.S.A. 2003 Supp. 25-1122 which authorized designation by county election commissioner of satellite
advance voting sites in counties having a population exceeding 250,000); L. 1983, Ch. 125, §§ 1, 12
(enactment of Mail Ballot Election Act; included amendment of K.S.A. 25-2303 which provided for
appointment of city clerk of cities of first and second classes as deputy county election commissioner); L.
1968, Ch. 406, §§ 25, 54 (enactment of K.S.A. 25-2902; included amendment of K.S.A. 19-3422 which
transferred to the county election commissioner in counties having a population in excess of 100,000
authority to supervise and control elections).
29 Kan. Const., Art. 12, § 5(c)(3).
30 See K.S.A. 25-2110(g); 25-2110a(g).
31 Compare Kan. Const., Art. 12, § 5 and K.S.A. 12-101 et seq. with Kan. Const., Art. 14, § 1.
32 K.S.A. 25-2201.

The Honorable Lance Kinzer
Page 7
municipalities. 	An attempt by a city to provide for the posting and distribution of
explanatory statements could, under those circumstances, be viewed as going beyond
the 	city’s 	constitutional 	authority 	to 	determine 	its 	"local 	affairs 	and 	government.”
Further, the city would in some localities be directing the actions of an official who "shall
have full and complete power and authority over all elections in the county and shall see
that such elections are conducted according to law."33
"[T]he court should also be wary of ordinances which may not 'conflict'
with statutory law but which have a substantial impact on interests outside
the boundaries of the municipality. 	After all, these interests may not be
represented in city legislative deliberations, and municipal parochialism
should 	not, 	in 	the 	name 	of 	home 	rule, 	be 	allowed 	to 	trample 	over
adversaries unable to protect themselves."34
The courts have not been consistent in analyzing home rule authority.35 While we
believe that the Legislature has preempted the field regarding the conduct of elections,
thereby 	precluding 	a 	city’s 	ability 	to 	provide 	for 	the 	posting 	and 	distribution 	of
explanatory statements, such an outcome is not a certainty. Clarity from the Legislature
regarding the exercise of home rule authority by a city in such matters would alleviate
any concerns regarding such authority.
Counties
A board of county commissioners is authorized to "transact all county business and
perform all powers of local legislation and administration it deems appropriate," subject
to the limitations listed in subsections (a)(1) through (a)(39) of K.S.A. 2013 Supp. 19-
101a. 	Subsection (a)(6) of the statute provides that "[c]ounties shall be subject to all
acts of the legislature concerning elections, election commissioners and officers and
their duties as such officers and the election of county officers."36 While the statutory
home rule powers are to be "liberally construed for the purpose of giving to counties the
largest measure of self-government,"37 such construction is tempered by the restriction
in subsection (a)(6). 	"Counties may only hold binding elections in accordance with
statutory authority set out by the legislature."38 A county may not through home rule
effect changes in state statutes concerning elections and the duties of the county
election officer. 39 Therefore, a county does not have authority to post and distribute
explanatory statements at polling places and with advance voting ballots.
33 K.S.A. 19-3423.
34 Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L.
Rev. 631, 677 (1971-72). See also Attorney General Opinions No. 83-30; 81-112; 75-66.
35 See Heim, Home Rule: A Primer, Journal of the Kansas Bar Association (January 2005).
36 K.S.A. 2013 Supp. 19-101a(a)(6).
37 K.S.A. 19-101c.
38 Blevins v. Board of County Commr's of Douglas County, 251 Kan. 374, 382 (1992). 	The Kansas
Supreme Court recognized in Blevins that a county could through home rule conduct an advisory election.
Id. at 383. The ballot that was distributed to voters included an explanatory statement. Id. at 379.
39 Attorney General Opinion No. 75-66.

The Honorable Lance Kinzer
Page 8
Unified School Districts
The board of education of a unified school district, likewise, possesses statutory home
rule authority.
(1) 	The board may transact all school district business and adopt policies
that the board deems appropriate to perform its constitutional duty to
maintain, develop and operate local public schools.
(2) The power granted by this subsection shall not be construed to relieve
a board from compliance with state law.
The power granted by this subsection shall not be construed to relieve any
other unit of government of its duties and responsibilities which are
prescribed by law, nor to create any responsibility on the part of a school
district to assume the duties or responsibilities which are required of
another unit of government.40
Section 5 of Article 6 of the Kansas Constitution places upon a local board of education
the duty to maintain, develop and operate local public schools. 	"The local school
board's duties under § 5 of Article 6 are not self-executing but are dependent upon
statutory enactments of the legislature." 41 The board of education may supplement
state law when performing its duties of maintaining, developing and operating local
public schools. 42 The board may not, however, modify the duties and responsibilities of
other units of government. 	It remains the duty of the county election officer to conduct
school elections in accordance with state law. 	A local board of education may not
provide for the posting and distribution at polling places or with advance voting ballots of
explanatory statements regarding a question the board is submitting to the electorate.
Other Municipalities
Other municipalities that do not possess any form of home rule authority may, and at
times are required to, submit questions to the electorate, with such elections to be
conducted by the county election officer. 43 These municipalities lack authority to have
40 K.S.A. 2013 Supp. 72-8205(e).
41 Bd. of Educ. of Unified School District No. 443, Ford County v. Kansas State Bd. of Educ., 266 Kan. 75,
77, 82 (1998); Unified School District No. 380, Marshall County v. McMillen, 252 Kan. 451, 464 (1993).
42 Attorney General Opinion No. 2011-012.
43 See, e.g., K.S.A. 12-1761 (public building commission in cities having population of 175,000 to
200,000; issuance of revenue bonds); 12-1767 (public building commission; issuance of revenue bonds);
19-3507a (water supply and distribution district; construction or acquisition of supply and system;
issuance of revenue bonds); 19-3517 (water supply and distribution district; purchase of existing water
supply and distribution system); 19-3521a (water supply and distribution district; chlorination and
fluoridation of water supply); 42-721 (irrigation district; issuance of bonds); 80-1607 (township board;
issuance of full faith and credit bonds).

The Honorable Lance Kinzer
Page 9
explanatory statements posted at polling places and distributed to electors at polling
places or with advance voting ballots.
Summary
In review, the governing body of a municipality, such as a city, county, or unified school
district, may develop a neutral or impartial explanatory statement on a question it has
submitted 	to 	the 	electorate. 	The 	explanatory 	statement 	may 	be 	posted 	on 	the
municipality's website and provided to constituents at the office of the county election
officer, until such time as the office of the county election officer becomes a polling
place. 	Whether a city may provide for the posting at polling places and the distribution
at polling places or with advance voting ballots of explanatory statements regarding a
question that is submitted to the electorate cannot be definitively determined. A county,
a local board of education and other municipalities lack authority to provide for the
posting and distribution of such a statement at polling places and with advance voting
ballots.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb