Request By:
Mr. Johnny H. Sturgill
Partridge
Kentucky 40862
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 5 in which you present the following questions:
"(1) May a defeated candidate (in the Primary Election) run as a write-in candidate in the final election in November?
"(2) If I am eligible to run as a write-in candidate, may I use a rubber signature stamp for stamping my name in the block that would be used to write my name in?
"(3) If I can run, is there anything that should be put on the ballots before loading the machines (such as 'this space is for a write-in candidate' or perhaps what district I would be running in.)"
Our response to your initial question would be in the affirmative. KRS 118.345 prohibits a candidate that has been defeated in the primary from having his name listed on the November ballot for the same office for which he sought nomination; however, the Court of Appeals has declared that a candidate may run as a "write-in" candidate for the office for which he was defeated in the primary on the grounds that the voter has the constitutional right to cast his vote for anyone of his choice at the November election. See Mullins v. Jackson, 270 Ky. 149, 109 S.W.2d 387 (1937); and Rosenberg v. Queenan, 261 S.W.2d 617 (1953).
Our response to your second question would be in the negative. The Court of Appeals has held in a number of cases that "write-in" votes cast by the use of a rubber stamp bearing the name of the candidate are illegal. See Chappell v. Colson, 189 Ky. 102, 224 S.W. 666 (1920).
In response to your third question we refer you to the following statutes pertaining to the casting of "write-in" votes. These statutes are as follows:
KRS 117.145 (3):
"At least three (3) days before a special or regular election the county clerk shall equip the voting machines with the necessary supplies for the purpose of write-in votes. The county clerk shall also attach a pencil or pen to the voting machine for write-in purposes."
KRS 117.175:
"The county clerk shall, with the county attorney prepare a sufficient number of instruction cards containing a diagram showing the front of the voting machine as it will appear on the day of the election, instructions as to the proper method of voting by the use of the machine and instructions as to the proper method of casting a write-in vote. The cards shall be examined and approved by the county board of elections at the time the machines are examined and approved. The cards shall be delivered to each election clerk by the county clerk at the time that other election supplies are delivered and the election clerk shall post the card at the polling place."
KRS 117.265:
"(1) A voter may, at any general or special election, cast a write-in vote for any person whose name does not appear on the ballot label as a candidate, by writing the name of his choice upon the appropriate device for the office being voted on provided on the voting machine as required by KRS 117.125.
"(2) Two (2) election officers of opposing parties shall upon the request of any voter instruct such voter on how to cast a write-in vote."