Request By:
Mr. Luther C. Little
Jackson County Court Clerk
McKee, Kentucky 40447
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 5 on behalf of the county board of elections in which you raise the following questions:
"If a person comes into the County Court Clerks Office and requests to register as a candidate to run for a County Office in the Primary and there are other people saying the person lives in another county. What procedures should the Clerk and the Election Commissioners follow? Can he register and what methods would a citizen or another candidate do to keep him off the Ballot. "
When a candidate presents his notification and declaration paper for the primary to the county clerk, it must be accepted by the county clerk if the filing paper is regular on its face and if the two electors signing same are found to be registered voters of the party which the candidate represents. In other words, the clerk cannot go behind the filing papers to determine whether or not the candidate is qualified. In this respect you will note KRS 118.265 (2), which reads as follows:
"The secretary of state or the county clerk shall examine the notification and declaration form of each candidate. The proper officer shall notify the candidate by registered mail within twenty-four hours of filing that his papers have been certified. If there is an error the officer shall notify the candidate by registered mail within twenty-four hours of filing. Upon receipt of such notice, the candidate shall correct such error not later than seventy-two hours after the filing deadline." (Emphasis added).
We next refer to KRS 118.125 (4), which reads as follows:
"The notification and declaration and the accompanying affidavits may be on the same or separate sheets, but shall be filed together. When so filed with the proper officer, and certified according to KRS 118.165, the officer shall have the candidate's name printed on the ballot according to the provisions of this chapter."
The Supreme Court of Kentucky has held in a number of cases that when a candidate's filing papers are substantially correct in form and in the manner prescribed by the statutes, it is not within the providence of the clerk to go behind the paper to determine whether it was rightfully done or to question the qualifications of the candidate. See
Wilkins v. Duffy, 114 Ky. 111, 70 S.W. 668 (1902);
Commonwealth v. Combs, 120 Ky. 368, 27 K.L.R. 751 (1905); and
Back v. Keith, Ky., 324 S.W.2d 393 (1959).
As indicated above, the clerk must accept the notification and declaration papers of a candidate if they are regular on their face, however, any qualified voter entitled to vote for the candidate or any opposing candidate, may challenge the qualifications of the candidate by filing a motion in circuit court pursuant to KRS 118.176. If the court action is successful, then the candidate's name will be stricken from the list of candidates to be placed on the primary ballot.