Request By:
Ms. Dora N. Henry
Clerk, Estill County Court
Irvine, Kentucky 40336
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attroney General
This is in answer to your letter of October 28 in which you request an opinion concerning the following:
"If a person applies for an absentee ballot, receives the ballot, votes it and returns the ballot to the Clerk's Office by mail then died before election day should his ballot be rejected and not counted or should it be counted?
"Also, if an individual is elected to the office of Constable of a District or Magistrate of a District and then moves out of that district into another district in the county before his term of office is up does this disqualify him from serving out the rest of his term of office? "
In answer to your initial question, the general rule is that absentee ballots are considered as being cast on election day even though they are actually voted prior to that time. 26 Am.Jur. 2d 249. Referring to the case of Peacock v. Latham, 125 Fla. 793, 170 S. 475 (1936), the Court held that if a person, who had prepared an absent ballot and deposited it to be cast as the law directed, dies before election day, the ballot should not be counted. In so holding, the Court stated and we quote:
". . . The Constitution (article 18, § 9) provides that the general election shall be held on the first Tuesday after the first Monday in November and not at any other time. No ballots have been cast nor will be cast by absentee voters until that date arrives. The law has merely provided for the accommodation of those who will not be present at their respective election precincts on that day that they may prepare a ballot which will be cast for them on that day, but if a person preparing such a ballot and depositing it to be cast as the law directs should die before election day, the authority vested in the county judge to cast that ballot for such elector will cease to exist, and so also if, after preparing such a ballot to be cast in the general election, that proposed elector should be convicted of a felony, his right to suffrage will cease and his ballot cannot lawfully be cast. . . ." (Emphasis added.)
Also, since a voter who dies before the election obviously cannot vote on election day, such person would not at that time retain the qualifications for voting eligiblity required under § 145 of the Constitution and KRS 116.025 and would not remain a legally registered voter under KRS 116.045.
Under the circumstances, we believe that where a person applies for an absentee ballot and proceeds to vote and return the ballot to the clerk's office by mail as the statutes require but dies before election day, such ballot should be rejected by the board when it proceeds to review and count the absent votes under KRS 117.335, upon information submitted, pursuant to a written challenge or by the board's own information, to the effect that the absent voter was deceased.
In answer to your second question, a person holding the office of constable who, following his election and during his term, moves out of the district from which he is elected and establishes legal residence therein, becomes disqualified as to residency pursuant to § 100 of the Constitution. However, until he is removed as a usurper by the commonwealth's attorney, pursuant to Ch. 415 KRS, his official acts as constable would be valid as he would be considered a de facto officer as held in a number of cases, among them being Commonwealth ex rel Breckinridge v. Winstead, Ky., 430 S.W.2d 647 (1968).