Request By:
Mr. E. B. Perkins
Clerk of Logan County Court
Russellville, Kentucky 42276
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 21 in which you seek an opinion concerning the following:
"#1 - Can, or should a candidate for county office call out the returns from the various precincts in the May 24th primary election at the count on election nite?
"#2 - When absentee ballots are received in the clerk's office should the inner brown envelope containing the ballot be removed from the outer envelope or should the postmarked envelope containing the inner envelope & ballot be put in the locked absentee box?
"#3 - What action if any could be taken to remove a person from the Executive Committee of Logan County said person has 3 more years to serve?
"4 - Can a person under the merit system in Ky. & working under the State Auditor's Office keep a tally sheet for the May primary on election nite this being a partisan race?"
Our response to your initial question would be in the negative. Referring to KRS 117.275 (4), we quote the following:
"(4) The proclamation of the result of the votes cast shall be announced distinctly and audibly by one of the judges of election, who shall read the name of the vote cast for each candidate and the vote for and against each question submitted. During such proclamation ample opportunity shall be given to any person lawfully present to compare the results so announced with the counter dials of the machine, and any necessary corrections shall then and there be made by the judges, after which the doors or other cover of the voting machine shall be closed and locked and the return sheet shall be signed by each of the judges of election. . . ." (Emphasis added).
You will note that the above statute authorizes only one of the judges of the election in each precinct to announce the results of the votes cast in that particular precinct. Under the circumstances, there is no authority for any candidate or his representative to call out the vote count at the polls.
In answer to your second question, we initially refer you to KRS 117.325 (2), which reads as follows:
"(2) The clerk shall deposit all of the returned ballots in a locked ballot box immediately upon receipt without opening the outer envelope. The ballot box shall be locked with three (3) locks. The keys to the box shall be retained by the three (3) members of the central absentee ballot counting board, if one is appointed, or by the members of the board of elections, and the box shall remain locked until the ballots are counted. "
As the above statute indicates, the clerk is required to deposit the returned absent ballots as he receives them with the outer envelope unopened.
As to the manner in which the absent ballots are counted, we next refer you to KRS 117.335 (3) and (5). Pursuant to these statutes, the county board of elections is required to open the ballot boxes containing the absent ballots and remove the unopened envelopes, one at a time. Each envelope is, of course, examined to ascertain whether the outer envelope is in proper order and has been signed by the absent voter. If the outer envelope is found to be in order and the vote is not rejected pursuant to a challenge as provided in the statute, the clerk must then open the outer envelope, remove the inner envelope and place it unopened in the ballot box which has been provided for this purpose. After all the inner envelopes have been deposited, the ballot box is then shaken so as to redistribute the ballots in the box. The board must then open the box, remove the absent ballots from the inner envelopes and proceed to count the absent ballots on a form provided by the state board. The clerk must retain the ballots and the outer envelopes for thirty (30) days after which they shall be burned by the county board of elections unless they are involved in a contest or recount proceeding instituted during the 30-day period.
In response to your third question concerning the removal of a member of the county executive committee, you should consult the party rules, and more particularly the State Democratic Party Headquarters located here in Frankfort. The latest Democratic Party rules available to us provide under Article 58 for the removal of members of the county executive committee in the following manner:
"If any Precinct or County Executive Committee member fails to support the nominees of the National or Kentucky Democratic Party, or disavows allegiance to either, his or her office shall become vacant after a hearing and declaration of such vacancy by three-fourths of the members of the County Executive Committee."
In response to your fourth questions and pursuant to our phone conversation, we do not believe that there would be any violation of the state merit system for a merit employe to keep the tally sheet for the county board of elections at the count following the May primary election. Such action on the part of the merit employe would not, in our opinion, constitute taking part in a politicial campaign on behalf of a particular candidate or party in violation of KRS 18.310 (4). It might be well, however, for the individual in question to contact the State Department of Personnel concerning this matter.