Request By:
Hon. Dan Cornette
Commonwealth Attorney
45th Judicial District
P.O. Box 141
Greenville, Kentucky 42345
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of July 27 in which you relate the following facts and questions:
"(1) At the general election to be held November 3, 1981, in this district, will a District Judge be elected for the full term which begins the first Monday of January, 1982?
And if the answer to Question (1) is yes,
(2) How should or will the office of District Judge be listed or described on the ballot of the voting machines in use in the district?
(3) How can aspiring candidates get their names on the ballot, if they may do so at all?"
In response to your initial question, the office of district judge for the 45th Judicial District must be listed on the November ballot since it is an election for the next regular four-year term for all district judgeships as provided in the transition section, Senate Bill 183, Section 2, Subsection 4 of the Judicial Code. In other words, the office to be filled must be listed on the November ballot for "write-in" voting irrespective of whether or not there are names of candidates for said office to be listed on the ballot.
The death of Judge Willis following his nomination created, of course, an automatic vacancy in the current office which he held, to be filled by appointment for the unexpired term ending in January 1982.
Though his death created an automatic vacancy, the fact that he was the only nominee for the November election initially creates a problem of seeing that his name does not go on the November ballot. As you know, the Secretary of State, who is required to certify the names of all nominees filing with her, is merely a ministerial officer and to prevent the certification of Judge Willis' name, we believe she must be officially notified in writing of the fact that Judge Willis is deceased, possibly by a member of his family so that she will not have to certify his name along with the other nominees for other offices as required by KRS 118.215.
However, the real question presented by you is whether or not any other aspiring candidate or candidates for this office can have their name placed on the November ballot under the circumstances. Our research on this question indicates this question must be answered in the negative. KRS 118A.060(1)(2) reads as follows:
(1) "Except as provided in KRS 118A.100 and 118A.110, no person's name shall appear on a ballot label or special ballot for an office of the Court of Justice without first having been nominated as provided in this section."
(2) "Each candidate for nomination shall file a petition for nomination with the secretary of state not less than fifty-five (55) days before the day fixed by law for holding the primary election. "
Pursuant to the above quoted subsections, no person's name can appear on either the primary or November ballot without having first been nominated which initially requires all candidates to file a petition with the Secretary of State not less than 55 days before a primary election. The only exception mentioned in this judicial election act is where a vacancy is created for an unexpired term less than 70 days before the election, under KRS 118.100. This statute, of course, would not apply in this instance since the coming November election is not one to fill a vacancy for an unexpired term as therein provided and required under Section 152 of the Constitution, but is, on the other hand, an election for a full four-year term.
We might also point out that where a vacancy of this type is created following the regular party primary, the legislature has authorized the major parties to make nominations to replace the party nominees on the November ballot under the terms of 118.105(3). This statute could not, however, be applied here since the nomination for judicial candidates is strictly nonpartisan and political parties, whether major, minor, or independent, are not involved.
Since the legislature has failed to consider the possibility of this type of vacancy occurring, we are forced to the conclusion that no one can have his name placed on the November ballot in place of that of Judge Willis and as a consequence the office will have to be filled by "write-in" votes, as we have held to be authorized in judicial elections pursuant to OAG 81-245, copy enclosed. This means, of course, that aspiring candidates can announce and campaign as "write-in" candidates for the office in question.
Based on the above conclusion, the November ballot will simply carry the name of the office under the heading of "judicial ballot. " The newspaper publication of the ballot should carry a notation to the effect that there are no named candidates on the ballot, however, voters may cast "write-in" votes in the appropriate place on the machine for anyone of their choice for the office in question.