Request By:
Honorable John P. Blevins
Metcalfe County Attorney
Metcalfe County Courthouse Bldg.
Box 187
Edmonton, Kentucky 42129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 31 in which you seek an opinion concerning the following:
"This letter is to inform you of a situation which occurred in the May 24th Primary Election in Metcalfe County, Kentucky. There were 2 Democratic candidates for magistrate whose district was composed of 2 precincts. The voting machine worked in 1 precinct but failed to register the votes of 1 candidate in the other precinct. However, when you add the total amount of omitted votes to the amount received by the losing candidate the results are not changed. Must the Election Commissioners hold a special election or may they certify a winning candidate based or the information stated herein above."
In response to the above question we might say initially that there would exist grounds for a contest suit on behalf of the losing candidate for the office of magistrate to determine the validity of the election. Of course, such a suit must be filed in circuit court. On the other hand, the election commission is a ministerial body and has no authority to determine the validity of the election. The board must certify the candidate receiving the most votes unless he has, to their knowledge, violated the Corrupt Practices Act. See KRS 118.425 (2). Referring to the case of
Cheatham v. Williams, 212 Ky. 73, 278 S.W. 139 (1925), we find the court stating the following:
". . . Aside from the discretion exercised in determining for whom questioned ballots are to be counted, the cases are uniform in holding that the duties of the board are purely ministerial, and consist in correctly tabulating the returns as officially made and certified to it. It can hear no proof nor send for any persons or papers, but acts on the fact of the returns when they are made as the law requires.
Steele v. Meade, 98 Ky. 614, 33 S.W. 944, 17 Ky. Law. Rep. 1158; Houston v. Steele, supra;
Bach v. Spencer, 68 S.W. 442, 24 Ky. Law Rep. 354."
Under the circumstances, the election commission must certify the winner from the votes tabulated unless of course a contest suit has been filed, which must have been filed within fifteen (15) days following the primary under KRS 120.055. We also might add that under no circumstances could a special election be called following the primary election for the office in question even though the primary election is declared to be void by the court.