Request By:
Mr. Bremer Ehrler
Chairman, Jefferson County
Board of Elections
Louisville Gardens
6th & Muhammad Ali Blvd.
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 27 in which you raise the following questions:
"In a case where an election officer would need to leave the polling place for a considerable length of time during the hours the polls are operating (for reasons such as illness or other unexpected causes), is there a provision for appointment of someone to act in his or her absence? If not, how would you recommend this situation be handled?"
KRS 117.045 controls the appointment of precinct election officers and the filling of vacancies, however, there is no provision for the appointment of someone to act in the temporary absence of an election officer on election day for whatever reason. There must be a vacancy created by resignation, refusal to act, or removal for cause in order for a substitution to be made except where an officer fails to attend the polling place for thirty (30) minutes after the time for commencing the election, or refuses to act, in which case the officer in attendance representing the political party of the absentee shall appoint a suitable person to act in his place for that particular election. If both representatives of the same political party are absent, then qualified voters who are present and affiliated with the party shall elect, viva voce, suitable persons to act in their places.
Thus, if during the election an election officer must leave for an unexpected cause, he should resign, thereby creating a vacancy which would permit the county board of elections to immediately fill the vacancy during the election. Assuming, however, this does not occur, then there would appear to be no alternative but for the remaining election officers to handle the voting procedure. Of course, in the rare event that the election officers of a particular precinct were depleted to the point of the remaining officers not being able to handle the voting process, we believe that it would necessarily require the county board to make substitutions in accordance with the original appointments as in the case of vacancies in spite of the fact that the law does not authorize such procedure. The necessity for this is obvious since the polls must be kept open for the voting public regardless of the absence of adequate statutory procedure.
We might point out that the conduct of an election by officers not appointed or qualified in the manner directed by statute, or by less than the required number of election officers, will not invalidate the election or the ballots cast therein. See Burchell v. Smith, Ky., 262 S.W.2d 365 (1953).