Request By:
Ms. Lillian Elliott
Deputy Clerk
Pike County Courthouse
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 25 in which you request an opinion as to whether or not failure to affix the clerk's seal to an application form for an absentee ballot would be sufficient cause to refuse to send the voter an absentee ballot. In connection with your question, you relate through an oversight on the part of the clerk's office some of the application forms were sent to the requesting voter without a seal. In most cases, there is sufficient proof that these applications were filled out, except for the seal, by the deputy, and were actually sent to the requesting voter or given to the voter who stopped by the office. You further relate that prior to this date you have already mailed the absentee ballot based on the application filed. However, since there is sufficient time left before the election and before the deadline for filing absentee ballot applications, you have of this date sent out a letter and another application with the seal affixed and asked the voter to return this application properly filled out and signed. In light of the above information, your specific question is as follows:
"In your opinion, if we receive the second application properly completed and before the deadline for filing applications, do you feel that this error on our part would give just cause to have the absentee ballot not counted?"
The requirement that the clerk's seal be placed on each blank application form together with the voter's name is for the purpose of identification to the effect that the form originated from the clerk's office and was in response to the voter's request as prescribed by KRS 117.085. Where, however the seal was inadvertently left off the form and there was ample evidence that the form was in fact sent to the voter from the clerk's office and received from the voter properly filled out and signed, we believe that the statutory requirement of KRS 117.085 has been substantially complied with. Therefore, the application form sent and returned would be valid. Added weight to this conclusion is the fact that the voter has complied with the statutory requirements imposed on him in making application and returning same and should not be penalized for an error committed on the part of the clerk or one of his deputies. Referring to 26 Am. Jur. 2d, Elections, § 248, it is stated that applications for an absentee ballot must substantially conform to the statutory requirements as to form and content. However, as pointed out in § 252 a substantial compliance even with mandatory provisions is generally all that is required. We quote from the text in this section as follows:
". . . statutory directions for the issuance of an absentee ballot and for the receipt, casting, opening, canvassing, challenging, and safekeeping of such ballots have been held to be merely directory, and failure on the part of election officials to comply with such provisions will not invalidate the ballots cast, provided they were cast by voters who were, at the time, qualified to cast them, and such voters had at the time done all on their part that the law required them to do to make their voting effective, and provided the votes were legal in their inception and remained capable of being given proper effect as such."
Referring next to the case of Warren v. Rayburn, Ky., 267 S.W.2d 720 (1954), involving absentee voting procedures, we find the court taking the position that substantial compliance as a general rule is sufficient. The court quoted an excerpt from 29 C.J.S., Elections, § 210 as follows:
"Such statutes confer a privilege and not an absolute right. * * * There should be a substantial compliance with statutory regulations governing absentee voting, as in respect of the application, supporting affidavits, and mode of voting as an absentee; but minor irregularities or technical informalities in such matters are not fatal. " (Emphasis added.)
Under the circumstances, we are of the opinion that the initial application forms that did not carry the clerk's seal would, nevertheless, be considered valid irrespective of this fact in view of the substantial evidence to the effect that all other procedural requirements were complied with. As a consequence we do not believe that sending a second application carrying the clerk's seal was necessary. However, no harm has been done and upon its receipt it should be attached to the initially received official form. In any event the voter should be sent an absentee ballot which as you know must be returned to the clerk not later than 3:00 p.m. on election day.