Request By:
Miss Charlotte Mullins
Executive Director
State Board of Elections
Room 71, State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 12 in which you request an opinion concerning the proper legal course to be taken by the American Party to replace a recently deceased presidential elector so designated in its petition. More specifically you relate the following facts:
"The American Party is seeking ballot position for its duly nominated candidates for President and Vice President in the coming general election on November 6, 1984. The candidates are Delmar Dennis for President and Traves Brownlee for Vice President. They were nominated at the National Nominating Convention of the American Party in Charlotte, North Carolina, on December 2 - 3, 1983.
Since the printing and distribution of the petition on behalf of Messrs. Dennis and Brownlee, (see copy attached) one of the electors named on the petition, Mr. Herbert Curry of Lexington, has died suddenly and unexpectedly of a heart attack. We request your opinion as to the proper legal course which should be taken to replace Mr. Curry."
The American Party does not qualify as a major or minor political party but merely a political organization, and as a consequence filed a nominating petition containing at least 5,000 petitioners as required by KRS 118.315. In other words they were required and did file as an independent party. Following the filing of the petition, the referred to vacancy occurred in the party's designated list of presidential electors. This brings us to the question of whether the party organization through its state chairman can fill the vacancy by proper certification, or must a supplemental petition be filed to accomplish this.
KRS 118.105(2) provides that any political organization not constituting a political party as defined in KRS 118.015, may make its nomination as provided in KRS 118.325 and that statute provides under subsection 4 for the filling of vacancies in case of death, resignation or removal by the state chairman of the party committee unless a supplemental petition of nomination is filed. This provision deals generally with the filling of vacancies of whatever nature by political organizations not constituting a political party under KRS 118.015. Subsection 4, however, further provides with respect to vacancies involving presidential electors that:
"(4) In the case of electors of President and Vice President of the United States, a vacancy may be filled by the chairman of the state committee at any time before the meeting of the electors, whether the vacancy occurs before or after the election."
You will not the above quoted excerpt of KRS 118.325(4) specifically relates to the filling of vacancies involving presidential electors and simply provides that such vacancies may be filled by the chairman of the state committee. We believe that this language clearly authorizes the chairman of the state committee representing the American Party to fill the present vacancy in that party's list of presidential electors irrespective of the fact that the American Party does not constitute a major or minor party and, as a consequence is required to go the petition route in making its nomination of electors for president and vice president of the United States.
There are several cases involving vacancies in nominations for local offices made by petition pursuant to KRS 118.315 that uphold in effect the filling of such vacancies occurring after the filing deadline by a supplemental or amended petition pursuant to KRS 118.325(4). They obviously did not involve the manner of filling vacancies in nominations involving presidential electors specifically dealt with in the excerpt quoted above from subsection (4) which we believe is controlling in this instance. See
Green v. Slusher, 300 Ky. 75, 190 S.W.2d 29 (1945). See also
McDonald v. Revell, Ky. 475 S.W.2d 491 (1972).
Under the circumstances we are of the opinion that the American Party may fill the vacancy created by the death of one of its designated presidential electors by appropriate certification filed with the Secretary of State by the chairman of the party's state committee.