Request By:
Mr. Charles W. Morehead
Clerk, Warren County Court
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 9 in which you raise the following questions concerning the filing of independent candidates for nomination in the primary election:
1. We have a person who wants to file for Justice of the Peace and we advised him that he could not file for the primary as an independent candidate pursuant to KRS 118.015, since the last preceding Presidential election did not have an independent party.
2. Also, if a candidate has filed and one of the electors who signed the affidavit has changed his party since the November election, could his name be placed on the ballot?
In response to your initial question, you correctly advised the candidate for justice of peace that he could not file as an independent for the May primary election. Only qualifying members of the two major parties can utilize the May party primary under the terms of KRS 118.015, 118.105 and 118.125. Under these provisions only those parties qualifying as major parties, meaning a party who received at least twenty per cent (20%) of the total votes cast at the last preceding election at which presidential electors were voted for, are entitled to participate in the May primary election.
You will also note under KRS 118.125 that in order for a candidate to run in the May primary he must be affiliated with one of the major parties and must have been so affiliated as of the last November election in order to be qualified as a voter and thereby qualified to run as a candidate for nomination.
All independent candidates must file an independent petition pursuant to the terms of KRS 118.315 which would require a minimum of twenty (20) petitioners signing, his petition.
In response to your second question, reference is initially made to KRS 118.125 (3) which provides that the candidate's notification and declaration paper must contain an affidavit of two (2) reputable electors who are members of the party to which the candidate belongs. The statute further provides that the notification and declaration form shall be as prescribed by the State Board of Elections. This form, together with the statute, requires the two (2) electors to state under oath that they are members of the party to which the candidate belongs and are qualified voters of the party at the coming primary election.
The fact that one of the electors executing the affidavit changed his party affiliation subsequent to the last November election disqualifies him as a qualified elector for the primary election since he must not only have been affiliated with the candidate's party at the last November election but must remain so affiliated. KRS 116.055. As a consequence, he would not be qualified to sign the notification and declaration paper and the candidate in question should withdraw his filing papers and execute one that complies with the statutory requirement since his papers are defective and should not be accepted by you. You must notify him to this effect under the terms of KRS 118.165 (2). See OAG 77-178. Under KRS 118.165 provision is made that upon receipt of such notice, the candidate shall correct such error not later than seventy-two (72) hours after the filing deadline; otherwise, his name shall not be placed on the ballot.