Could Kentucky clerks print city election ballots before a late candidate filing period closed?

Plain-English summary

In 1993, Kentucky's Attorney General addressed a conflict between a deadline to print ballots 50 days before an election and a rule letting candidates in some small cities file as late as 30 days before it. The AG recommended printing on the earlier schedule to protect absentee voting and ballot preparation. If a city candidate filed afterward, the clerk could reprint the affected precinct ballots. For absentee voters who received ballots while filing was still open, the opinion recommended a notice explaining the possibility of an updated ballot and the choice to wait before voting.

The late filing rule applied only to qualifying nonpartisan city elections with no candidate at the ordinary filing deadline. The AG said clerks should first check whether a city had enacted the ordinance needed to hold such an election without a primary. Its proposed voter notice was specific to the 1993 election, including an October 4 date.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

County clerks and election boards

The AG saw the two deadlines as irreconcilable and favored printing by the 50-day mark. It expected a clerk to reprint ballots for precincts in an affected city if someone later filed. Before applying the 30-day filing rule, clerks were to determine whether the city had adopted an ordinance for nonpartisan elections without a primary.

Absentee voters

The opinion recommended disclosing the open filing period to voters receiving an absentee ballot, so they could choose whether to vote immediately or wait for a possible updated ballot. It warned in its proposed notice that a voter who used any part of the ballot could not later change that vote if more candidates appeared.

Small-city candidates

The extended filing opportunity discussed in the opinion applied only when no one had filed at the earlier deadline in a qualifying city election. The AG weighed that opportunity against absentee voters' access to ballots and favored the earlier printing deadline.

Common questions

Why were the Kentucky ballot printing and city filing deadlines in conflict?

The statutes discussed in 1993 required printing 50 days before the election but let candidates in certain small-city races file until 30 days before it. A clerk could therefore have to print before knowing all candidates.

What did the AG recommend if a candidate filed after ballots were printed?

The opinion said the clerk could reprint ballots for precincts in the affected city. It did not recommend delaying all ballot printing until the later filing deadline.

Did every small city have the later candidate filing deadline?

No. The opinion said it applied to fourth-through-sixth-class cities with nonpartisan elections without a primary, and only if nobody filed by the ordinary August deadline. Clerks were to check for the ordinance adopting that election structure.

Could an absentee voter wait for an updated ballot?

The AG recommended a notice that would let the voter return an unused ballot and request an updated one after the filing deadline. The proposed notice also said a voter could not change a vote after using any part of the first ballot.

Background and statutory framework

The Jefferson County Board of Elections asked how to prepare ballots when no candidate had filed for some city offices. KRS 117.085(4) supplied the 50-day printing rule, while the cited KRS 83A.045 provision offered an additional filing period in certain cities. The AG prioritized voters' opportunity to cast absentee ballots, considered the practical burden of many ballot styles, and offered a notice for voters while the candidate list could still change.

Citations and references

• KRS 117.085(4): ballot printing deadline discussed in the opinion.
• KRS 83A.045(2)(b)(6)(a): later filing provision as cited by the AG.
• KRS 83A.050: ordinance governing a city's nonpartisan election without a primary.
• KRS 118.212: later candidate changes affecting absentee ballots.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-062.htm

Original opinion text

OAG 93-62

September 10, 1993

Cathaleen L. Miller

Co-manager, Jefferson County Board of Elections

Urban County Government Center

Louisville, Kentucky 40204

Re: Conflict Between Ballot Printing Deadline And Filing Deadline

Dear Ms. Miller:

You have asked what action the county board of elections should take in preparing ballots for precincts in which there are city races for which no candidate has filed.

Your question is prompted by two statutes that are in patent and irreconcilable conflict. The first, KRS 117.085(4), requires the county clerk to have election ballots printed 50 days before the election. The second, KRS 83A.045(2)(b)(6)(a), allows candidates for city office in certain small cities to file for office up to 30 days before the election. This provision applies to cities of the fourth through sixth class in which 1) elections are conducted on a nonpartisan basis without a primary and 2) no person filed candidacy papers before the general filing deadline in August. The statute essentially offers a second chance to file in cities in which nobody expressed an interest in running for office.

The conflict between these statutes creates enormous problems for county clerks and boards of elections. If you comply with the 50-day deadline, you incur the risk of having to reprint the ballots if a candidate later files for one of the city offices. In addition, the situation regarding the voting of absentee ballots is thrown into confusion. If you allow voters to cast absentee ballots as soon as the ballots are prepared, which is the standard procedure, then absentee voters will receive ballots that might not contain the names of all candidates to city office. Some voters would understandably be upset to learn that they missed the opportunity to vote for candidates who later lawfully filed for a city office.

On the other hand, if you comply with the second statute and withhold the printing of ballots until 30 days before the election, you will substantially shorten the time period during which absentee ballots are available. In all likelihood, an even greater number of voters would be upset to learn that their ability to vote by absentee ballot must be delayed because of the mere possibility that someone might file in a small city race.

The problem is considerably exacerbated by the fact that it is quite commonplace for no one to file for office in certain small cities. Therefore many counties could face the dilemma that has arisen in your county. We are aware that the printing of election ballots is a specialty service provided primarily by two Kentucky companies. If all affected counties were required to postpone the printing of ballots until October 4, it is doubtful that the printing for those counties would be completed quickly enough to allow a meaningful opportunity for voters to cast absentee ballots. Although it is impossible to predict how long it would take to print the ballots, we note that under normal circumstances the law allows 41 days from the filing deadline until the ballot printing deadline. KRS 118.215(1); KRS 117.085(5).

In resolving this dilemma county clerks should first ascertain whether the cities involved have actually enacted an ordinance adopting nonpartisan elections and waiving the primary. If a city has not adopted an ordinance, then its elections must be conducted on a partisan basis, and the 30-day filing deadline does not apply. KRS 83A.050.

For cities that have adopted the necessary ordinances, it is instructive to bear in mind the competing interests presented by the 50-day ballot printing deadline and the 30-day filing deadline. The 50-day ballot printing deadline operates to the advantage of voters who qualify to vote by absentee ballot, and of clerks who must prepare a complicated set of ballot layouts. Jefferson County, for example, requires the printing of 122 separate ballot styles. The 30-day filing deadline operates to the advantage of candidates for city office who have failed, for whatever reason, to file for office by the deadline that is imposed on every other candidate for public office in this state.

We believe that the relative equities presented clearly favor the printing of ballots according to the 50-day deadline. Any conflict between the rights of voters to cast ballots and the rights of a small group of candidates who have already missed one filing deadline should be resolved in favor of the voters. Therefore county clerks should proceed with the printing of ballots even though there is still time for some candidates to file for certain city offices. If a candidate later files for one of the city races, the clerk may reprint the ballots for the precincts within the affected city.

With regard to city voters who may receive an absentee ballot while the filing period is still open, we recommend that the situation be disclosed to them so that they may choose to withhold voting until all the candidates are known. This could be done by attaching the following notice when the absentee ballots are mailed:

Notice To Voters

Candidates for the office of _ in the city of ___ have been granted until October 4, 1993, to file for office. Therefore, it is possible that this ballot does not contain the name of every candidate for that office. You may use this ballot, or you may return it immediately to the county clerk and request that an updated ballot be sent to you after October 4. If you use any part of this ballot, you may not change your vote if the updated ballot lists additional candidates.

Our recommendation of this procedure is prompted by the observation that a person who votes an absentee ballot before election day never has complete assurance that his ballot will exactly duplicate the ballot placed before the voters at the polls. Candidates may die, withdraw, or become disqualified at any time up until the day of the election, and voters at the polls are given notice of these changes. KRS 118.212. In such cases, absentee voters who voted for those candidates simply lose their votes. That is an unavoidable consequence of allowing the casting of votes by absentee ballot before election day. The procedure that we have recommended minimizes the problem by providing notice to absentee voters so that they may, if they choose, postpone the casting of their ballots until the extended filing deadline has passed.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General