Request By:
Mr. Claude Varney, Chairman
Pike County Board of Elections
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 10 in which you raise a question as to whether or not the County Board of Elections erred in certifying a nominee for the office of magistrate following the May primary where it now appears that said nominee may not have possessed the residential qualifications required by Section 100 of the Constitution.
You relate that the nominee became a resident of the magisterial district on April 9, 1976 and registered to vote in the district on September 16, 1976; however, immediately before becoming a resident of the district he was a resident and registered voter in Ohio, though prior to going to Ohio he was a resident of Pike County.
The county board of elections is a ministerial body and has no authority to determine the qualifications of a candidate or the validity of an 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 as follows:
". . . 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, therefore, the County Board of Elections had the duty to certify the nomination of the candidate in question based on the vote tabulation irrespective of whether or not he possessed the constitutional qualification as to residency.
In response to your second question concerning the interpretation of the requirements of Section 100 of the Constitution with respect to residency, we are enclosing a copy of OAG 72-809 in which we concluded that the two-year residency requirement does not necessarily mean that the two years must be consecutive, though, of course, the last year of residency must immediately precede the November election. Based on this opinion and assuming that the candidate in question resided in Pike County at least one year prior to his taking up legal residence in Ohio, his returning to Pike County and his taking up legal residence in the district on April 9, 1976 [which will have been more than one year prior to the election in November, 1977] would appear to comply with the residential requirement of Section 100 of the Constitution.