Request By:
Mr. Charles Baesler, Jr.
Fayette County Clerk
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your recent letter in which you raise the following question:
"Will a write in vote be allowed in the general election in the race for a council seat in the urban county government or any office in which a candidate files by petition."
The answer to your question would be in the negative except under certain conditions hereinafter explained. The urban county charter provides, pursuant to Sections 12.01 and 12.02, that all candidates for urban county office shall be nominated by a primary election held on the first Tuesday after the fourth Monday in May of each election year as prescribed by KRS 89.440 with certain exceptions under subsection (4) of said statute which are immaterial to this question.
KRS 89.440, as interpreted by the case of Hales v. Langford, Ky., 446 S.W.2d 647 (1969), prohibits "write-in" votes to be cast in the general election as this statute requires one to be nominated in the primary before he can be elected in November. There is, however, one exception to this rule as modified by a subsequent amendment to KRS 89.440 found under subsection (10) relating to a vacancy occurring in the nomination of an unopposed candidate wherein such vacancy shall be filled by placing the name of the office on the ballot to be voted for by "write-in" votes. However, even here, when such a vacancy occurs and it does not create a less number of nominees than there are offices to be filled, such vacancy shall not be filled at all.