Request By:
Honorable C. T. Anderson
Legal Counsel
State Board of Elections
Office of Secretary of State
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 28 in which you relate that the Secretary of State received from John B. Anderson, one of the candidates in the upcoming Republican Presidential Preference Primary in Kentucky, a letter, duly certified, requesting that his name be removed from the primary ballot. This letter of withdrawal was received on Monday, April 28, 1980. However, the Secretary of State had previously certified the names of all the presidential preference candidates to the various county clerks on April 21, 1980 in compliance with KRS 118.215.
The question is raised as to whether or not the referred to withdrawal request by Mr. Anderson was filed too late for the Secretary of State to order the removal of his name from the primary ballot.
Our response to the above question would be in the affirmative. Under Kentucky Law, KRS 118.212 provides when a candidate's name is not to be certified or printed on the ballot. This statute reads as follows:
"(1) If, before the time of certification provided in KRS 118.215, any candidate whose certificate or petition of nomination has been filed in the office of the secretary of state notifies the secretary of state in writing, signed and properly notarized that he will not accept the nomination, the secretary of state shall not certify his name.
"(2) If, before the ballots are printed, any candidate whose certificate or petition of nomination has been filed in the office of the county clerk notifies the clerk, in the manner described in subsection (1) of this section, that he will not accept the nomination, the clerk shall not cause his name to be printed on the ballot. "
Subsection (1) of the above statute would apply to Mr. Anderson's candidacy since his name is placed in nomination with the Secretary of State pursuant to KRS 118.580. The names of the candidates so nominated are required to be placed on the ballot or, more correctly speaking, certified to be placed on the ballot, under the terms of KRS 118.620 and KRS 118.215. The latter statute, which is the governing certification provision for the names of all candidates filing with the Secretary of State, including presidential preference primary candidates, requires this officer to make his certification not less than forty-five (45) days before the primary which will be held on May 27. The certification was duly made by the Secretary of State on April 21 which was actually beyond the required deadline of April 14. Mr. Anderson, on the other hand, did not officially notify the Secretary of State of his withdrawal until April 28 [date received], some seven (7) or eight (8) days following the official certifiaction.
KRS 118.212 [above quoted] requires any candidate who wishes not to have his name placed on the ballot to so notify the Secretary of State before certification. The facts clearly indicate that Mr. Anderson failed to meet the certification deadline, which is the withdrawal deadline and which is a mandatory requirement as pointed out in the case of Ruby v. Smothers, 270 Ky. 153, 109 S.W.2d 391 (1937). The Ruby case declared that the withdrawal of a candidacy for nomination may be filed at any time up until midnight of the last day to file or as in this case before certification. See also 25 Am.Jur., 2nd, Elections, § 134.
Since Mr. Anderson's withdrawal was not filed prior to the Secretary of State's certification, it cannot be legally accepted and the Secretary of State cannot order that his name be stricken from the presidential preference primary ballot.