Can a Kentucky county clerk reject a candidate's filing papers if they didn't also turn in the campaign treasurer form?

Plain-English summary

Right before the 2022 filing deadline, Kentucky's county clerks hit a procedural snag. To run for office, a candidate files nomination papers (the Notification and Declaration form). Separately, campaign-finance law requires the candidate to designate a campaign treasurer and, for small campaigns, to file a spending-intent statement. Historically both of those were handled with one paper form, the KREF 001. But after 2019 the Registry of Election Finance moved candidate filings to an online dashboard and started requiring electronic submission. Clerks worried that a candidate could show up at the deadline without having set up an online account and printed the KREF 001, and that they might have to reject the candidate's papers, threatening ballot access. The County Clerks Association asked the Attorney General what to do.

The opinion's answer: a clerk may not reject nomination papers just because the candidate has not also handed over the KREF 001. It gave several reasons. The statute on the clerk's review, KRS 118.165(3), tells the clerk to check the notification and declaration form for facial regularity and notify the candidate of errors; it says nothing about rejecting the form over a missing campaign-finance form. KRS 121.160(1) anticipates that the treasurer designation may not always happen at the same moment, and provides that until it does, the candidate is treated as their own treasurer. KRS 121.180(1)(a) requires the spending-intent form to be filed with the same office but does not require it at the same time as the nomination papers. And the KREF 001 is not a campaign-finance "report," so the electronic-reporting mandate does not force it online.

The opinion also flagged a separation-of-powers point: under KRS Chapter 13A, an agency cannot impose a forms requirement through internal notices instead of regulation. Until the Registry's electronic-only mandate is put into a regulation, the paper KREF 001 (last revised November 2017, incorporated by reference in 32 KAR 1:020) remains an official form a candidate may use. Candidates still ignore campaign-finance law at their own risk, but the missing form is not a basis for a clerk to deny the filing.

What this means for you

County clerks

Under this opinion, your review under KRS 118.165(3) is whether the notification and declaration form is regular on its face. You may not reject a candidate's nomination papers solely because the candidate has not also provided the KREF 001 campaign-treasurer/spending-intent form.

Political candidates and campaign treasurers

The opinion treats the campaign-finance form as something that can be filed separately from your nomination papers. It also notes you remain subject to campaign-finance law and penalties, so the form should be filed promptly even though its absence does not block your filing.

Election officials

The opinion reads KRS Chapter 13A to mean the Registry cannot require an online-only filing process through an internal notice rather than a regulation, so the paper KREF 001 incorporated in 32 KAR 1:020 stays available.

Common questions

Q: Can a clerk turn away my candidacy filing if I haven't filed the campaign treasurer form?
A: No, according to this opinion. The Attorney General concluded a clerk may not reject nomination papers simply because the KREF 001 was not filed at the same time.

Q: Do I still have to file the campaign treasurer and spending-intent form?
A: Yes. The opinion stresses candidates ignore campaign-finance law at their own risk and should file the Registry's forms promptly; it just says a missing form is not a basis to reject the nomination papers.

Q: Can I use the paper form instead of the online dashboard?
A: According to the opinion, yes, at least until the electronic-only requirement is put into a regulation. It reads KRS Chapter 13A to require forms mandates to be in regulation, and the paper KREF 001 remains incorporated by reference in 32 KAR 1:020.

Q: What does the clerk actually check on my filing?
A: The opinion points to KRS 118.165(3): the clerk examines the notification and declaration form to see whether it is regular on its face, and notifies the candidate by certified mail within 24 hours if there is an error.

Background and statutory framework

A candidate files nomination papers with the Secretary of State or county clerk (KRS 83A.045 and related statutes). KRS 121.160(1) requires designating a campaign treasurer "at the time and at the office with which they file," but provides that until then the candidate is listed as their own treasurer. KRS 121.180(1)(a) requires an exempt candidate's statement to be filed with the same office. KRS 121.180(16) mandates electronic reporting beginning with the 2020 primary, which led the Registry to adopt an online Candidate Dashboard. KRS 118.165(3) governs the clerk's facial-regularity review. The opinion read these provisions together, along with KRS 13A.110 and KRS 13A.130(1)(a) (which bar agencies from imposing forms requirements outside of regulation), to conclude the clerk cannot reject nomination papers for a missing KREF 001, which is incorporated by reference in 32 KAR 1:020.

Citations and references

Statutes:
- KRS 118.165(3) (clerk's facial-regularity review)
- KRS 121.160(1) (campaign treasurer designation); KRS 121.180(1)(a) (exempt-candidate statement)
- KRS 121.180(16) (electronic reporting); KRS 83A.045 (filing nomination papers)
- KRS 13A.110; KRS 13A.130(1)(a) (forms must be in regulation); KRS 121.990(4) (penalties)

Regulations:
- 32 KAR 1:020 (incorporating the KREF 001 form)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2022-01.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
January 4, 2022
OAG 22-01
Subject: Whether a county clerk may reject a candidate's nomination papers if the candidate does not also file the Statement of Spending Intent and Appointment of Campaign Treasurer form.
Requested by: Jason Denny, Anderson County Clerk, President, Kentucky County Clerks Association
Written by: Carmine G. Iaccarino, General Counsel
Syllabus: A clerk may not reject a candidate's nomination papers if the candidate does not also provide his or her Statement of Spending Intent and Appointment of Campaign Treasurer form.

Opinion of the Attorney General

The filing deadline for 2022 elections is January 7, 2022. [The General Assembly may delay the filing deadline for 2022 elections.] See KRS 118.165; KRS 118A.060(2); KRS 83A.045. With that date fast approaching, and in the wake of legislative changes made by the 2019 General Assembly in its Regular Session, the Kentucky County Clerks Association asks whether a county clerk may reject a candidate's nomination papers, the form required to declare one's candidacy, without also receiving that candidate's Statement of Spending Intent and Appointment of Campaign Treasurer form. For the reasons below, a clerk may not reject a candidate's nomination papers simply because the candidate does not also immediately provide the Statement of Spending Intent and Appointment of Campaign Treasurer form. [This Office solicited input from the Kentucky County Clerks Association, the Secretary of State, the State Board of Elections, and the Kentucky Registry of Election Finance.]

First, some background. To seek office in Kentucky, a candidate must file his or her nomination papers with the Secretary of State or the county clerk. See, e.g., KRS 83A.045; KRS 118.125; KRS 118.165; KRS 118A.060(2). Kentucky's campaign finance laws also provide that a candidate must "designate a campaign treasurer to act as their agent at the time and at the office with which they file as a candidate or slate of candidates," KRS 121.160(1), and that an exempt candidate, slate, or political issues committee must file "a form prescribed and furnished by the registry stating that currently no contributions have been received and that contributions will not be accepted or expended in excess of three thousand dollars ($3,000) in any one (1) election," KRS 121.180(1)(a). Historically, the Kentucky Registry of Election Finance ("Registry") has required that candidates meet these separate statutory requirements through the filing of one paper form. That paper form, the "Statement of Spending Intent and Appointment of Campaign Treasurer," KREF 001, is incorporated by reference in the Registry's administrative regulations in 32 KAR 1:020, Section 3.

In 2019, however, things changed. In that year, the General Assembly required that, beginning "with the primary scheduled in calendar year 2020, and for each subsequent election scheduled thereafter, reports required to be submitted to the registry involving candidates, slates of candidates, committees, contributing organizations, and independent expenditures shall be reported electronically." KRS 121.180(16); see also KRS 121.120(6)(i) (stating the electronic filing requirement permissively). In the wake of those changes, the Registry moved to an online platform for candidate filings, its Candidate Dashboard, and thereafter required that all forms and reports be filed electronically.

According to the Kentucky County Clerks Association, these legislative changes and the fact that the Registry now requires one electronic form for a candidate to comply with two statutory requirements appears to create a practical problem: How may a candidate comply with the filing requirements stated in statute? And what is a clerk's role in enforcing compliance? The clerks worry that while the Registry requires electronic submission of its form, KRS 121.160(1) requires that a candidate also submit the form necessary to designate a treasurer "at the time and at the office with which" the candidate files his or her nomination papers. And the form required by KRS 121.180(1)(a) must be filed "with the same office with which a candidate or slate of candidates files nomination papers." The clerks "are especially worried that potential candidates will show up in clerks' offices at the filing deadline without an opportunity to create an account in the KREF electronic filing system, submit a KREF 001 electronically to KREF, and print out a copy of the KREF 001 to submit to the county clerk with the Notification and Declaration form." Thus, the clerks are concerned that these requirements may "threaten ballot access for an otherwise constitutionally eligible candidate."

Having set forth these initial considerations, this Office provides the following guidance to clerks: A clerk may not reject a candidate's nomination papers simply because the candidate does not also immediately provide his or her Statement of Spending Intent and Appointment of Campaign Treasurer form. This is so for a few reasons, including:

First, KRS 118.165(3) provides that "[t]he county clerk shall examine the notification and declaration form of each candidate to determine whether it is regular on its face. If there is an error, the proper officer shall notify the candidate by certified mail within twenty-four (24) hours of filing." KRS 118.165(3) makes no reference to rejecting that form because of a candidate's failure to file a campaign finance form, the KREF 001.

Second, although KRS 121.160 contains a temporal requirement that a candidate also submit the form necessary to designate a treasurer "at the time and at the office with which they file" their nomination papers, KRS 121.160(1) (emphasis added), the statute states, and even anticipates, that such filing may not always occur at that time. According to KRS 121.160(1), "until this requirement is met the candidate or slate of candidates shall be listed as their own treasurer and accountable as such." In this way, KRS 121.160 provides no basis for a clerk to reject a candidate's nomination papers.

Third, while KRS 121.180(1)(a) requires that the form prescribed by the Registry be filed "with the same office with which a candidate or slate of candidates files nomination papers," that statute does not provide that such filing must be made at the time the candidate files his or her nomination papers. Compare KRS 121.180(1)(a) with KRS 121.160(1). Accordingly, the separate campaign finance provision in KRS 121.180(1)(a) does not provide a basis to reject a candidate's nomination papers or to impose additional requirements not otherwise stated in law.

Fourth, although the General Assembly has mandated that all campaign finance reporting be submitted electronically, KRS 121.180(16), the KREF 001 form is not a campaign finance report. Rather, according to the Registry's own regulation, it is a form or statement used to appoint a campaign treasurer and request a reporting exemption. 32 KAR 1:020, Section 1 and 2. While the Registry's Candidate Dashboard may provide candidates the option to file this form electronically, the Registry's governing regulation incorporates by reference the "Statement of Spending Intent and Appointment of Campaign Treasurer Form." 32 KAR 1:020, Section 3 (incorporating by reference KREF 001, last revised November 2017). If a candidate wishes to file this form at the time and at the office with which he or she files his or her nomination papers, neither a clerk nor the Registry may prohibit the use of that paper form. [If the Registry would require that all candidates use an online portal to meet certain reporting and filing requirements, KRS Chapter 13A requires that those requirements be stated in regulation. Here, until the mandates stated in the Registry's "Notice and Instructions to all Candidates" are reflected in regulation, the "Statement of Spending Intent and Appointment of Campaign Treasurer Form," KREF 001, last revised November 2017, is the official form that a candidate may use to comply with the requirements stated in KRS 121.160 and KRS 121.180. 32 KAR 1:020.] KRS 13A.110 ("Forms that are required to be submitted by a regulated entity shall be included in an administrative regulation."); KRS 13A.130(1)(a) ("An administrative body shall not by internal policy, memorandum, or other form of action: . . . (a) Modify a statute or administrative regulation"). [For ease in reference and given the fast approaching filing deadline, a copy of the form incorporated by reference in 32 KAR 1:020 is available at https://perma.cc/9X62-NQHH.]

A candidate ignores Kentucky's campaign finance laws at his or her own risk. See generally KRS 121.990 (providing penalties for the violation of the provisions of KRS Chapter 121). For that reason, a candidate should promptly file the Registry's forms in a manner that allows the Registry and each candidate to comply with the law. That said, a clerk may not reject a candidate's nomination papers simply because the candidate does not also provide his or her Statement of Spending Intent and Appointment of Campaign Treasurer form.

Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
General Counsel