Request By:
Honorable James S. Secrest
Allen County Attorney
210 West Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 1 in which you raise a number of questions relating to the review and tabulation of absent ballots pursuant to KRS 117.335.
Your initial question relates to the right of the county clerk to act with respect to the review and tabulation of the absent votes under said statute where he is a candidate for reelection.
KRS 117.035 prohibits the county clerk from serving as a member of the board of elections while he is a candidate; however, the statute does not affect the clerk's rights to perform his other election duties even though he is a candidate. KRS 117.335 provides that beginning at 3:00 p.m. on election day the board may meet at the clerk's office to count the absent ballots and during the counting procedure the clerk is required to compare the signature on the outer envelope with the voter's signature on his registration card, etc. The word "clerk" as used in this statute refers of course to the county clerk and he performs the duties not as a member of the county board but solely as the county clerk. As a consequence, even though he is a candidate for public office, he must perform the duties required under this statute. In this respect we refer you to the case of Arnett v. Hensley, Ky., 425 S.W.2d 546 (1968), and OAG 69-152.
In your second question you refer to the fact that there are over 600 absent ballots being cast in the coming election. You desire to know whether the clerk can appoint extra deputies to assist him in this matter.
We believe that the clerk could designate one of his duly appoined deputies to carry out his duties with respect to KRS 117.335 if it becomes necessary to do so, since the deputy stands in the same position as the clerk with respect to the performance of his duties.
You next relate that it will be impossible for the board to commence the review of the ballots at 3:00 p.m. on election day since the original registration cards will still be at the various precincts. As a consequence, you raise the question whether this means that the counting of the absent ballots will have to be delayed until the registration cards are returned to the clerk's office from the various precincts.
All registration cards are filled out in duplicate and the clerk is required to send one of the cards to the state board at biweekly intervals pursuant to KRS 116.075. The information on the registration cards is then fed into the state computer and the cards themselves are promptly returned to the clerk so that he will have both the original and copy of the voter's registration record in his office prior to the election. One registration record for each voter is, of course, to be sent to the precinct on election day, so the clerk should have the other record in his office for the purpose of comparing the voter's signature on the record with the one on the absent ballot envelope beginning at 3:00 p.m. on election day. Of course KRS 117.335 does not require that the board begin counting the absent ballots at 3:00 p.m.