Kentucky Advisory Opinions September 10, 1993: OAG 93-062 (September 10, 1993)

OAG 93-062.

You have asked what action the county board of elections should take in preparing ballots for precincts in which there are city races for which no candidate has filed.

Your question is prompted by two statutes that are in patent and irreconcilable conflict. The first, KRS 117.085(4), requires the county clerk to have election ballots printed 50 days before the election. The second, KRS 83A.045(2)(b)(6)(a), allows candidates for city office in certain small cities to file for office up to 30 days before the election. This provision applies to cities of the fourth through sixth class in which 1) elections are conducted on a nonpartisan basis without a primary and 2) no person filed candidacy papers before the general filing deadline in August. The statute essentially offers a second chance to file in cities in which nobody expressed an interest in running for office.

The conflict between these statutes creates enormous problems for county clerks and boards of elections. If you comply with the 50-day deadline, you incur the risk of having to reprint the ballots if a candidate later files for one of the city offices. In addition, the situation regarding the voting of absentee ballots is thrown into confusion. If you allow voters to cast absentee ballots as soon as the ballots are prepared, which is the standard procedure, then absentee voters will receive ballots that might not contain the names of all candidates to city office. Some voters would understandably be upset to learn that they missed the opportunity to vote for candidates who later lawfully filed for a city office.

On the other hand, if you comply with the second statute and withhold the printing of ballots until 30 days before the election, you will substantially shorten the time period during which absentee ballots are available. In all likelihood, an even greater number of voters would be upset to learn that their ability to vote by absentee ballot must be delayed because of the mere possibility that someone might file in a small city race.

The problem is considerably exacerbated by the fact that it is quite commonplace for no one to file for office in certain small cities. Therefore many counties could face the dilemma that has arisen in your county. We are aware that the printing of election ballots is a specialty service provided primarily by two Kentucky companies. If all affected counties were required to postpone the printing of ballots until October 4, it is doubtful that the printing for those counties would be completed quickly enough to allow a meaningful opportunity for voters to cast absentee ballots. Although it is impossible to predict how long it would take to print the ballots, we note that under normal circumstances the law allows 41 days from the filing deadline until the ballot printing deadline. KRS 118.215(1); KRS 117.085(5).

In resolving this dilemma county clerks should first ascertain whether the cities involved have actually enacted an ordinance adopting nonpartisan elections and waiving the primary. If a city has not adopted an ordinance, then its elections must be conducted on a partisan basis, and the 30-day filing deadline does not apply. KRS 83A.050.

For cities that have adopted the necessary ordinances, it is instructive to bear in mind the competing interests presented by the 50-day ballot printing deadline and the 30-day filing deadline. The 50-day ballot printing deadline operates to the advantage of voters who qualify to vote by absentee ballot, and of clerks who must prepare a complicated set of ballot layouts. Jefferson County, for example, requires the printing of 122 separate ballot styles. The 30-day filing deadline operates to the advantage of candidates for city office who have failed, for whatever reason, to file for office by the deadline that is imposed on every other candidate for public office in this state.

We believe that the relative equities presented clearly favor the printing of ballots according to the 50-day deadline. Any conflict between the rights of voters to cast ballots and the rights of a small group of candidates who have already missed one filing deadline should be resolved in favor of the voters. Therefore county clerks should proceed with the printing of ballots even though there is still time for some candidates to file for certain city offices. If a candidate later files for one of the city races, the clerk may reprint the ballots for the precincts within the affected city.

With regard to city voters who may receive an absentee ballot while the filing period is still open, we recommend that the situation be disclosed to them so that they may choose to withhold voting until all the candidates are known. This could be done by attaching the following notice when the absentee ballots are mailed:

Notice To Voters

Candidates for the office of _____ in the city of _____ have been granted until October 4, 1993, to file for office. Therefore, it is possible that this ballot does not contain the name of every candidate for that office. You may use this ballot, or you may return it immediately to the county clerk and request that an updated ballot be sent to you after October 4. If you use any part of this ballot, you may not change your vote if the updated ballot lists additional candidates.

Our recommendation of this procedure is prompted by the observation that a person who votes an absentee ballot before election day never has complete assurance that his ballot will exactly duplicate the ballot placed before the voters at the polls. Candidates may die, withdraw, or become disqualified at any time up until the day of the election, and voters at the polls are given notice of these changes. KRS 118.212. In such cases, absentee voters who voted for those candidates simply lose their votes. That is an unavoidable consequence of allowing the casting of votes by absentee ballot before election day. The procedure that we have recommended minimizes the problem by providing notice to absentee voters so that they may, if they choose, postpone the casting of their ballots until the extended filing deadline has passed.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General