Request By:
Mr. Sam Moore
Martin County Clerk
Inez, Kentucky 41224
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 10, in which you raise the following questions:
"1. If a Candidate was defeated in the Primary Election can he run again as a "Write In" Candidate. If he is entitled to run again, is he limited to just running against an unopposed candidate.
2. Could a Candidate use just a portion of his name such as John Smith running as J. Smith or must he use the Whole name.
3. Could a Candidate use a rubber stamp or any other type of marker to write their name or any type of stencil besides the pen furnished in the voting machines. Thank you for your help in this matter, it will help clarify matters for our prospective write in candidates in Martin County."
The answer to your initial question concerning the right of a defeated candidate in the primary to run as a "write-in" candidate for the same office in November would be in the affirmative. KRS 118.345 prohibits a defeated candidate in the primary from having his name placed on the ballot in November for the same office for the nomination to which he was a candidate in the primary. However, the Court of Appeals has declared that a defeated candidate may run as a "write-in" candidate for the same office since his name is not listed on the ballot and he has the constitutional right to be voted for by the "write-in" method. See
Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 771 (1939). Also, he could of course file an independent petition for a city office following his defeat in the primary for an office other than that of city council or mayor since the filing deadline for these offices do not occur until September 9, which is 55 days before the general election. It is too late to file for any other office. See KRS 118.365(3), (4).
In response to your second question, we suggest that any candidate running as a "write-in" candidate use his full name for proper identification; however, "write-in" votes may be legally cast by the use of the candidate's initials and last name, assuming the candidate can be identified by the county board of elections when the votes are tallied. The Court, in the case of
Dupin v. Sullivan, Ky., 335 S.W.2d 676 (1962), indicated that where it is possible to identify the "write-in" candidate by his initial and last name or surname, or even where his surname alone is given, even though misspelled, the votes should be counted for the candidate.
Our response to your third question would be in the negative. The use of rubber stamps, pasters or other artificial means of identification by a voter in casting a "write-in" vote would be illegal and such votes should not be counted. See
Chappell v. Colson, 189 Ky. 102, 224 S.W. 666 (1920).
In equipping the voting machines to be sent to the precinct on election day, the county clerk is required to attach a pencil or pen to the voting machine for "write-in" purposes, as required by KRS 117.145(3). At the same time the legislature has enacted KRS 117.265 covering the "write-in" procedure to be followed by a voter. This statute reads as follows:
"(1) A voter may, at any general or special election, cast a write-in vote for any person whose name does not appear upon the ballot label as a candidate, by writing the name of his choice upon the appropriate device for the office being voted on provided on the voting machine as required by KRS 117.125. An absentee voter may write in a vote for any person whose name does not appear upon the special ballot, by writing the name of his choice under the office.
(2) Two (2) election officers of opposing parties shall upon the request of any voter instruct such voter on how to case a write-in vote."
We trust the above sufficiently answers your questions.