Request By:
Honorable Sam W. Arnold, III
Harrison County Attorney
16 East Pike Street
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 28 in which you relate that three candidates ran for the office of constable in the recent primary in a specific district. The successful candidate filed his notification and declaration papers correctly in the district in which he resided. However, after the books had closed and prior to the primary, the candidate moved into another district. Nevertheless, his name appeared on the ballot in the district in which he formerly resided and he won the nomination. The candidate is aware that he has become disqualified because of the residency requirement. Under the circumstances you list the following questions:
"Is the office of constable for this district filled by the County Judge Executive's appointment pursuant to KRS 63.220; or, is the runnerup in the primary entitled to take office; or, may candidates file and run for the office of constable in the November general election?"
Since the candidate in question won the nomination and his qualifications were not tested prior to the primary, he is in effect the party nominee even though he is not qualified. If elected in November, he would of course be subject to removal by the Commonwealth Attorney as a usurper under KRS 415.040. On the other hand, if the party nominee resigns his nomination because of his disqualification, the party is authorized to fill the vacancy by selecting someone to represent the party on the November ballot under the terms of KRS 118.105(3).
If the winning candidate in question is also the incumbent, then he would be subject to removal from his present office by the Commonwealth Attorney as previously indicated. This would create a vacancy in the office which would be filled by the County Judge-Executive for the unexpired term ending in January of 1982 pursuant to KRS 63.220.
The question of the candidates' qualifications cannot be raised in a contest suit after the primary and no candidate can file for the office as an Independent since all candidates for a county office, regardless of whether they run for party nomination or as Independents, must file fifty-five (55) days before the primary election, which was April 1, 1981.