Request By:
Mr. Charles Baesler, Jr.
Fayette County Clerk
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General
You will recall that on 8-21-79 this office issued an opinion, OAG 79-437, which in essence, stated a write-in vote would not be allowed in the general election for an Urban County Councilmen, subject to the exception where a vacancy occurs which creates a less number of nominees than there are offices to be filled.
This office has received a request to withdraw this opinion. In support of the request, an extensive and persuasive legal memorandum was filed. As in any opinion, this office will consider such a request. We have reviewed the original opinion request, OAG 79-437 and the authorities cited in the request to withdraw, and we have concluded that OAG 79-437 was in error, and is hereby withdrawn.
The question to be answered is:
"Will a write-in vote be allowed in the general election in a race for a council seat in the Urban County Government or any office in which a candidate files by petition."
Section 12.02 of the Urban County Charter provides that all candidates shall be nominated by a primary election. This Section of the Charter also provides that the procedures for petitioning, filing and certifying applicants for nomination shall be as prescribed by KRS 89.440 with certain exceptions under subsection (4) of said statute which are immaterial to this question.
Section 12.02 of the Charter only incorporates those provisions which contain the procedures for petitioning, filing and certifying applicants for nomination. In addition to these procedures, KRS 89.440 contains certain subsections which do not pertain to procedures and these are contained in subsections 1, 6, 8 and 9. Since these subsections do not pertain to the procedures described in § 12.02, they do not apply to Urban County Government elections. In fact, the subject matter contained in these subsections is provided for by specific provisions in the Charter.
The first paragraph of § 12.02 of the Charter also provides, "All candidates for offices specified in this Charter shall be nominated by a primary election. "
This provision relates only to primary elections and who may be "nominated" as opposed to who may be "elected" . In Dupin v. Sullivan, Ky., 355 S.W.2d 676 (1962), the Court of Appeals construed a statute with language similar to the first paragraph of § 12.02 and stated that provisions requiring a candidate to be nominated by petition implies no disqualification if he is not so nominated. Therefore, the language of § 12.02 should not be construed to prohibit write-in votes from being conted in the general election.
In OAG 79-437 it was stated that:
"KRS 89.440, as interpreted by the case of Hales v. Langford, Ky., 446 S.W.2d 647 (1969), prohibits "write-in" votes to be cast in the general election as this statute requires one to be nominated in the primary before he can be elected in November."
The reason that OAG 79-437 is being withdrawn is that the particular subsection interpreted in the Hales v. Langford case was subsection (1). As previously stated in this Opinion, subsection (1) is not applicable to Urban County elections since the Charter only incorporates the procedural provisions of KRS 89.440. Furthermore, an in-depth review of the Hales v. Langford decision reveals that if KRS 89.440(1) were applied to Urban County elections so as to preclude write-in votes from being cast, then such an application would be a violation of the Kentucky Constitution. The sole constitutional support for the holding in the Hales v. Langford case is Constitution § 160 which expressly grants the General Assembly the power to determine the qualification for officers of towns and cities. In Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), it was stated that "Since it (the Urban County Government) is not a city, the provisions of Section 160 are not applicable to it." Therefore, since § 160 is not applicable to Urban County Governments, the holding in Hales v. Langford, when applied to Urban County elections, is without any constitutional basis. In the absence of any constitutional authority, the General Assembly may not disqualify persons from being elected by a write-in vote. Constitution § 6; Dupin v. Sullivan, supra; Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 772 (1939); Broughton v. Pursifull, 245 Ky. 137, 53 S.W.2d 200 (1932).