Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Court House
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of January 13 in which you initially raise the following questions:
"1.) Since there has been so much controversy recently concerning the use of titles and nicknames on the ballot and since I expect many candiates to be filing with this office in 1981. I would like to know just what can and what cannot be printed on ballots where the candidate wishes to have something shown in addition to his or her name. Specific examples I am concerned about are titles such as Dr., Rev., Reverend, Coach, M.D. and nicknames such as Shorty, Slim, Fibber, etc. I assume that nicknames which are derived from the given name - William (Bill), Michael (Mike), Robert (Bob) etc. would naturally be acceptable.
"2.) If, in your opinion, some of the items referred to in Number One could not go on the ballot, should the Notification and Declaration Form be accepted and the candidate informed that the title or nickname will not appear on the ballot or should the filing papers be refused until corrected?"
In response to the above question, we are enclosing copies of OAG 80-203, 75-302 and 61-289. You will note from these opinions that for many years we have taken the position that only the candidate's actual name is supposed to be listed. However, the county clerk or secretary of state who acts only in a ministerial capacity in accepting and certifying the names of the various candidates must certify such names to be placed on the ballot as they appear on the nominating papers with the exception of superficial phrases such as "I am a Democrat" which incidently was not permitted to be on the ballot as a result of an action in the United States District Court in the case of Ray "I am a Democrat" Adkins v. Kentucky State Board of Elections. As a consequence, even though we believe that titles and nicknames, such as you have enumerated, are not a part of the candidate's real name, you will have to certify them along with the individual's name as they appear on his filing papers. Of course, such nicknames as "Bill", "Mike" and "Bob" would, we believe, be acceptable in any event. We might point out House Bill 355 introduced at the last session of the legislature which passed the House but failed in the Senate, prohibited the use of any titles, characterization or descriptions of a candidate other than his legal name. It would thus appear that until specific legislation as this is enacted, the secretary of state and county clerk have no alternative but to certify and place the names of candidates on the ballot which include "titles" and certain "nicknames" , but not superficial phrases. On the other hand, a test suit might be feasible to settle the question, possibly by an opposing candidate pursuant to KRS 118.176.
Your series of questions pertaining to Senate Bill 26 as it relates to the changes required in governments of the sixth class are as follows:
"A. Should offices in Sixth Class Cities appear on the ballot as Mayor and Commissioners only?
"B. If so, and some one would try to file as Trustee, should the papers be refused?
"C. Two of our Sixth Class Cities have passed ordinances allowing their Marhsall to be elected rather than appointed. In cases such as these, would this still be an elected office?"
In response to your initial ouestion under this series we refer you to OAG 80-439 [copy attached] which cites the requirement of KRS 83A.020 to the effect that sixth class cities must convert to the commission form of government consisting of four (4) commissioners and a mayor. This change should, as pointed out, be made at the 1981 general election.
Our response to your second question would be in the affirmative. Filing papers for membership on a board of trustees should be refused so that the candidate can file for the office of commissioner.
In response to your third question, if, before the effective date of Senate Bill 26 (which was July 15, 1980), the referred to cities had established the office of marshal as an elective office under KRS 95.790 (repealed by Senate Bill 26), the office could continue to be an elective office until abolished by ordinance under the terms of KRS 83A.080 (3) which provides in effect that each elected city office existing upon the adoption of the act shall continue until abolished by ordinance, except the offices of mayor and legislative body members which may not be abolished.
On the other hand, if the office of marshal was not made an elective office prior to the effective date of the act, it cannot be made elective under the terms of subsection (4) of KRS 83A.030 which provides that no city may create any elective office.
You also raise the following questions pertaining to the tabulation of "write-in" votes:
"You and Mrs. Ryan have also had some discussion on your opinion of how write in votes should be tabulated. I would like a written opinion on this matter for the Board of Elections.
Example #1: No candidates filed for a certain office so all votes must be written in. Votes which could possibly be construed as being for the same person are as follows: James Nieman17Neiman4J. Neiman1Nieman41Jim Nieman2J. Niem1
Also, in this city, there are two Nieman's registered, James C. and James E. Let's say that in this particular case, a Mr. James C. Nieman was presently holding office in that city and had actively campaigned for that office.
Example #2: The facts here are the same as those stated in example #1 except that a Mr. Nieman had not held office and the Board had no evidence that he had been campaigning?
In your opinion, how would the votes be tallied in each of the above examples?"
In response to the above we enclose a copy of OAG 79-497 in which we cite the case of Dupin v. Sullivan wherein the court indicates that where it is possible to identify the "write-in" candidate by his initials, his initial and last or surname, or even his surname alone, though misspelled, the vote should be counted for the candidate.
With respect to the illustrations in your example where no candidates of said name have filed, our response depend upon whether or not there was a person of that name that actively campaigned as a "write-in" candidate. If such was the case, we believe that all of the illustrations should be counted for such candidate, however, if more than one person campaigned by the same name, then none should be counted. If there were more than one with the same name but different first names that began with a name other than starting with the letter "J", then all would be counted except where only the last name was written in.
With respect to the illustration of two candidates with the same first and last name but different initials, we believe because one was actively campaigning for the office and the other was not, that all the illustrations should be counted for the person actively campaigning since no middle initials are shown.
With respect to Example 2, we do not believe the fact that the individual who was actively campaigning for the office but who had not held office, would prevent the names from being counted, as we have previously indicated would be the case for the actively campaigning individual as opposed to the individual by the same name who was not campaigning.
We might add that the counting of "write-in" votes cast in the manner you have indicated is one of judgment that the local board must make, keeping in mind the principles laid down in the Dupin case cited above.