Request By:
Mr. Don Wiggins
2625 Richmond Road
Lexington, Kentucky 40509
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of June 20 in which you relate that a group of individuals including yourself are interested in filing as independents for various state-wide offices such as Governor, Lieutenant Governor and Secretary of State for the general election this coming November. Some of these individuals ran for nomination to these offices in the Republican primary and were defeated. Your basic question is whether or not these defeated candidates can file as independent candidates for the same offices for which they were defeated in the primary, and if not can they run for different offices than those for which they were defeated in the primary on an independent ticket such as "Citizens United."
KRS 118.345 clearly prohibits candidates defeated in the primary from having their names printed on the November ballot for the same office. However, they may file as an independent candidate for any other office, particularly in view of the change of the filing deadline by virtue of a 1982 amendment to KRS 118.365. This statute now permits independent candidates to file for any public office not less than 55 days before the general election whereas before in said amendment they were required to file 55 days before the primary.
Concerning the question of candidates filing as a group or ticket under an independent party designation, we initially refer you to KRS 118.315 which deals with independent nominations for regular elections. Under Subsection 2 of this statute, we quote the following excerpt:
"The petition shall designate a brief name or title of the party or principle that the candidate represents, together with any simple figure or device by which it is desired that he be designated on the voting machines. This does not apply to municipal and school board races."
We next refer you to KRS 118.215(1) concerning the Secretary of State's requirements with respect to certifying the various candidates filing with her for public office. Subsection (1) of this statute reads in part as follows:
". . . the secretary of state shall certify, to the county clerks of the respective counties entitled to participate in the nomination or election of the respective candidates, the name, place of residence and party of each candidate for each office, as specified in the nomination papers or certificates and petitions of nomination filed with him, and shall designate the device under which the candidate groups or lists of candidates of each party shall be printed, in the order in which they are to appear on the ballot . . ."
The above statute clearly authorizes independent candidates for all offices, other than municipal and school board, to select a brief name or title of the party he desires to represent as well as a simple figure or device that he desires to be designated under on the voting machines.
The question of candidates grouping together and running as a single ticket under an independent party designation has been reviewed by the court in a number of decisions, one of the principal ones being Queenan v. Mimms, Ky., 283 S.W.2d 380 (1955), from which we extract the following excerpt:
"It is a general rule that combinations of electors are entitled to nominate candidates by petition where they do not constitute a political party that is required by the statutes to make nominations in another way. It is so provided in our statutes. KRS 118.080 (now KRS 118.315). Separate petitions are not required for each candidate where several candidates will run for different offices and the petitioners are qualified to make nominations for each. So a single petition may embrace the name of one candidate of an independent party group for every office to be filled. Asher v. Johnson, 192 Ky. 575, 234 S.W. 18; Greene v. Slusher, 300 Ky. 715, 190 S.W.2d 29: 29 C.J.S., Elections, § 108." (Emphasis added.)
The above case involved a group of candidates filing under the "George Washington Party" and the court held, as the above quote indicates, that a single petition could be filed embracing the names of all the candidates for every office to be filled.
Another case considering this point was the companion case of Rudy v. Queenan, Ky., 283 S.W.2d 383 (1955) involving a group filing of seven candidates under the "Community Party" where they all filed a separate petition under said party but where the court declared they should be grouped together as a single party. Another case dealing with the question is Green v. Slusher, 300 Ky. 715, 190 S.W.2d 29 (1945) from which we quote the following:
"The right of more than one candidate to appear on the ballot as a group has long been recognized. Previous cases from Bell County declare the law to be applied to this case. In Creech v. Davis, 51 S.W. 428, 21 Ky. Law Rep. 325, this court held the County Clerk of Bell County should have placed nominees for several county offices together and under the title 'Citizens Party' and one device (an open book with the word 'Law' and 'Order' printed on the pages) and since the clerk was at fault in putting them in separate columns as well as certain bogus candidates, his election over his opponent on the Citizens Party was held void."
Next referring to the case of Browning v. Lovitt, 139 Ky. 480, 94 S.W. 661 (1906), we find a factual situation involving a case in Whitley County which at that point and time was largely Republican and, as a result of a growing dissatisfaction with the conduct of the affairs of the party organization, an independent ticket was formed to run for five county offices. The petition requested the clerk to have the names of all the candidates placed under the device selected by them and in a single column. The court declared it was the duty of the clerk to place said names in the same column as requested and under the device selected.
Where a number of candidates desire to run as an independent ticket with each candidate seeking a separate office, the number of signers required would be the same as that required of an individual candidate, which in the case of state-wide offices would be 5,000 signatures of registered voters under the requirements of KRS 118.315. This is based on the theory that each petitioner would have been entitled to sign the petition of each candidate had he filed individually. See Asher v. Johnson, 192 Ky. 575, 234 S.W. 18 (1921) and the cases cited above.
Under the circumstances, the defeated candidates in the Republican primary for state-wide offices can thus run as an independent group for offices for which they were not defeated by filing a single petition with a minimum of 5,000 signatures and may designate a party name such as "Citizens United," together with a symbol or device to represent said independent party.