Request By:
Mr. David E. Boeyink
Editorial Page Editor
Messenger-Inquirer
P.O. Box 1480
Owensboro, Kentucky 42301
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 24 in which you raise the following question with respect to the casting of "write-in" votes at an election involving the city manager form of government:
"Will a write-in vote be allowed in the general election for municipal offices such as mayor and city commissioner?"
In response to your question reference is initially made to the express provisions of KRS 89.440(1), which states in part as follows:
"No person shall be elected to the office of mayor or commissioner without first being nominated in the manner prescribed by this section except when vacancies occur as hereinafter provided. . . ." (Emphasis added).
"Write-in" votes have been authorized by the 1978 legislature pursuant to subsection (10) of KRS 89.440 which permits such votes to be cast where a sufficient number of vacancies in the nomination resulting from the primary occur that leave a less number of nominees than there are offices to be filled. The 1978 amendment was of course enacted subsequent to the court's decision in the case of Hales v. Langford, Ky., 446 S.W.2d 647 (1969), which concerns the right to cast "write-in" votes in the general election under the city manager form of government. The court pointed out that the legislature was legally empowered under § 160 of the Constitution to subject candidates for municipal offices to the qualification that they must first be nominated in the special city primary before they can hold office, and therefore, pursuant to KRS 89.440(1), no "write-in" votes could be cast in the November election. Of course, as we pointed out above, the legislature has subsequently amended KRS 89.440 to permit the casting of "write-in" votes under the limited conditions expressed in subsection (10).
The Hales case also mentioned that the provisions of Ch. 118 KRS, governing elections generally, do not apply to cities operating under the city manager form of government except to the extent that the laws relating to such forms of government do not provide a method of electing an officer under those forms of government. Subsequent to the Hales case the legislature recodified the election laws into a number of different chapters, including Ch. 117 KRS which authorizes the casting of "write-in" votes on voting machines generally [KRS 117.125]. See also KRS 117.145 and 117.265. These provisions were inserted to clarify "write-in" procedures for elections generally. The fact nevertheless remains that the general election laws, including the ones authorizing "write-in" voting, would still not apply to elections under KRS 89.440 and in light of the Hales decision except where the legislature has permitted same as it has done in the 1978 amendment to KRS 89.440.
Now with respect to the urban county government situation also mentioned in the editorial you have submitted, the original opinion written by this office holding that "write-in" votes could not be cast in the urban county election, was withdrawn [OAG 79-488] on the grounds that subsection (1) of KRS 89.440, requiring that the candidates be nominated in order to be elected, was not applicable to urban county elections since the urban county charter only incorporated the procedural provisions of KRS 89.440 and, as a consequence, the decision in the Hales case was not applicable. Also, the opinion declared that § 160 of the Constitution was not applicable to the urban county elections [as held in Holsclaw v. Stephens, Ky., 507 S.W.2d 472 (1974)] because said government was not a municipal corporation under the control of § 160 of the Constitution and the legislative right thereunder to forbid "write-in" voting.
Under the circumstances therefore, "write-in" votes are not authorized in elections under the city manager-commission form of government conducted pursuant to KRS 89.440 and pursuant to which the city of Owensboro operates, with the exception concerning the filling of vacancies which has been referred to previously.