Request By:
Ms. Hannah W. Marcum
Deputy County Court Clerk
of Estill County
Irvine, Kentucky 40336
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 10 in which you initially raise the question as to the number of blank absentee ballot application forms that may be requested by an individual.
There is no limit to the number of blank application forms that may be requested and given to individuals. As a matter of fact, the forms may be duplicated by any interested person.
You next refer to KRS 117.335 (3) authorizing candidates or their representatives to be present at the counting of the absentee ballots and raise the question as to whether this means that a candidate or one representative can be present, or can a candidate plus a representative be present. In addition, does it mean that only one representative per candidate can be present or can more than one representative be present.
KRS 117.335 (3) provides the following:
". . . Candidates or their representatives shall be permitted to present. . . ." (Emphasis added).
We believe that the use of the word "or" in the referred to quoted phrase means that either the candidate or his representative may be present, but not both. We also believe that only one representative of each candidate is entitled to be present. "Or" ordinarily means in the alternative. In re Martin's Estate, 155 N.W. 2d 401, 405, 261 Iowa 630. The word "or" in a statute is to be given its normal disjunctive meaning unless such construction renders provision in question repugnant to other provisions of statute. In re Rice, 165 F.2d 617, 619, 83 U.S.App.D.C. 26. Although "or" is not always used in the disjunctive, it is usually so considered and that is its commonly accepted meaning. State ex rel. Finigan v. Norfolk Live Stock Sales Co., 132 N.W. 2d 302, 304, 178 Neb. 87.
You next raise the question concerning the removal of a person who is not a representative or who is making a disturbance in the room in which the absent ballots are counted.
If there is any unauthorized person present or if a disturbance is occurring, the county board may call the county sheriff to remove such persons if they refuse to leave voluntarily upon the board's request.
You next present a number of examples of voted ballots and ask our advice as to whether or not they should be counted.
The general rule in counting ballots is for the board to make every effort to determine how the voter intended to vote and if it appears that the voter has made an honest effort to indicate his choice and it is reasonably probable that he intended to vote for a certain candidate, the ballot should be counted although the voter has not strictly complied with the statute. See Thompson v. Boling, 240 Ky. 340, 42 S.W.2d 321 (1931).
It is of course a question of judgment that is to be exercised by the board in counting absent ballots where the statute is not strictly complied with by the voter in marking his ballot. However, we believe that in Example One, the ballot should be counted for Sam Doe where the "x" is clearly marked even though the boxes of the other candidates have been blocked out. In Example Two we believe the vote should be counted for James Jones even though one box has been blocked out and marked "mistake". In Example Three we believe the vote should be counted for John Doe, as this is similar to Example Two except the word "mistake" was not indicated by the name of Bill Jones whose block was blocked out. Example Four is more difficult to determine, however, we believe that the vote for John Doe should be counted considering the explanation contained on the ballot plus the fact that the "x" mark was indicated by his name though his block as well as all the other blocks was blocked out. In any event, the question of the validity of these ballots could be tested in a contest suit that is timely filed.