Request By:
Honorable Harold Stumbo
District Judge
31st Judicial District
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of June 30, in which you relate that you were the only person to file for district judge in the 31st Judicial District, thereby being automatically nominated. You now raise the question as to whether or not a candidate's name can be written in at the November election for the office that you seek. It is your contention that the statutes relating to judicial elections do not permit "write-in" voting in the November election.
KRS 118A.060(1) reads as follows:
"(1) Except as provided in KRS 118A.100 and 118A.110, no person's name shall appear on a ballot label or special ballot for an office of the Court of Justice without first having been nominated as provided in this section." (Emphasis added.)
The above section of the statute clearly prohibits a person from having his name placed on the ballot without having first been nominated in the primary pursuant to the terms of said statute. This section, however, does not in our opinion prohibit a voter from writing in a name of a person of his choice at the November election, or a so-called "write-in" candidate from campaigning to have his name written in on the voting machine. By way of sustaining this conclusion, we refer you initially to the provisions of KRS 89.440, repealed by the 1980 legislature and reenacted as KRS 83A.170. This statute contains the following language:
"(1) No person shall be elected to the office of mayor or commissioner without first being nominated in a manner prescribed by this section. . . ." (Emphasis added.)
The Court of Appeals, in construing this provision of the statute in the case of Hales v. Langford, Ky., 446 S.W.2d 647 (1969), declared in effect that the legislature, by stating that no person shall be elected unless first nominated, prohibited "write-in" voting in the November election, but only on the premise that the Constitution, Section 160, gave the legislature the power to do so. KRS 118A.060 to the contrary simply says that no person's name shall appear on the ballot label or a special ballot without first having been nominated, as provided by law. In other words, it does not declare that a person must be nominated for a judicial office in order to be elected to said office for to do so would create a serious constitutional question as the Hales case indicates. Consequently, this statute would not in our opinion prohibit a voter from writing in the name of the candidate of his choice. See Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 777 (1939).
We also call your attention to KRS 118A.010(2) which provides in effect that all provisions of the general election laws that are not inconsistent with Chapter 118A shall be applicable to judicial elections. With this in mind, we refer you to KRS 117.265, relating to "write-in" votes, which provides in effect that a voter may at any general or special election cast a "write-in" vote for any person whose name does not appear on the ballot label as a candidate by writing the name of his choice upon the appropriate device for the office being voted on provided on the voting machine, as required by KRS 117.125.
Under the circumstances and as indicated above, we are of the opinion that "write-in" votes may be cast in the November judicial election for an individual who has not been nominated in the judicial primary, as provided in KRS 118A.060.