Request By:
Honorable John David Preston
Attorney at Law
82 Main Street
Paintsville, Kentucky 41240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 24 in which you request an opinion concerning the following:
". . . If a candidate for public office fails to file reports required by KRS 121.180, and his nomination for office is subsequently declared void, pursuant to the penalties prescribed in KRS 121.990, is that candidate eligible for nomination by his party as the candidate for the general election, when his nomination was declared void? "
Our response to your question would be in the negative in view of the provisions of KRS 118.345 (2), which reads as follows:
"No person who was a candidate for nomination for any office in a primary election and who, before the succeeding regular election, is declared by the judgment of any court of competent jurisdiction to have violated, in the primary election, any provisions of KRS Chapter 121, or to be responsible for such violation by others, shall have his name placed on voting machines for any office to be voted for in the succeeding election. "
Under subsection (1), which prohibits a candidate who has been defeated in the primary from having his name placed on the ballot in November, there is an exception to the effect that if a vacancy occurs in the party nomination for which he was a candidate in the primary, his name may be placed on the November ballot as a candidate of that party if he has been duly made such party nominee after the vacancy occurs as provided in KRS 118.105. However, no such exception appears under subsection (2) where a candidate has violated the provisions of the Corrupt Practices Act.
Subsection (2) of KRS 118.345 was initially enacted in 1934 and prior to its enactment there were several cases declaring that a candidate who had been found guilty of violating the Corrupt Practices Act in the primary could have his name placed in nomination by the party where the nomination was declared void. See
Lovely v. Cockrell, 237 Ky. 547, 35 S.W.2d 891 (1931); and
Halteman v. Grogan, 233 Ky. 51, 24 S.W.2d 921 (1930). The basis of these decisions was simply that there was no provision under the statutes in effect at that time that would prohibit a person from having his name placed on the November ballot even though his nomination was voided for having violated the Corrupt Practices Act. We do find the case of
Petrey v. City of Hazard, 346 S.W.2d 534 (1961), which indirectly cites the Lovely case in declaring that four city commissioners, whose election was voided for violating the Corrupt Practices Act prior to said election in November, 1955, could be appointed by the Governor to fill vacancies on the commission created by virtue of such violation. This decision was, however, based upon the right to hold office and not one's right to have his name on the ballot as prohibited by KRS 118.345 (2).
Under the circumstances, it appears that if the candidate's party nomination at the primary is subsequently declared void by virtue of his violation of a section of the Corrupt Practices Act, either in a contested election or pursuant to an action under the terms of KRS 121.990 (10) where a vacancy is declared to exist, such candidate cannot be nominated by the party to fill such vacancy and thereby have his name placed on the November ballot in view of KRS 118.345 (2).
The prohibition found under KRS 118.345 would not of course affect the defeated candidate's right to run as a "writein" candidate.