KRS CHAPTER 120 – ELECTION CONTESTS

 

KRS CHAPTER – 120 ELECTION CONTESTS
KRS 120.005  thru KRS 120.360
Definitions
KRS 120.010 Repealed 1974.
Grounds
KRS 120.020 Repealed 1974.
KRS 120.040 Repealed 1974.
KRS 120.030 Repealed 1974.
KRS 120.050 Repealed 1974.
Primary Elections
KRS 120.060 Repealed 1962.
KRS 120.070 Repealed 1972.
KRS 120.071 Repealed 1974.
KRS 120.076 Repealed 1974.
KRS 120.110 Repealed 1974.
KRS 120.140 Repealed 1974.
KRS 120.120 Repealed 1974.
KRS 120.150 Repealed 1974.
KRS 120.130 Repealed 1974.
 
Regular Elections
KRS 120.160 Repealed 1974.
KRS 120.170 Repealed 1974.
KRS 120.180 Repealed 1974.
KRS 120.190 Repealed 1974.
KRS 120.200 Repealed 1974.
KRS 120.210 Repealed 1974.
Public Questions and Constitutional Matters
Miscellaneous Provisions
 
Updated 11/06/12 (2012)
 
Definitions
 
KRS 120.005 Definitions.
(1) A "ballot" or "official ballot" means the voting machine ballot label, ballot cards, paper ballots, an absentee ballot, a special ballot, or a supplemental paper ballot which has been authorized for the use of the voters in any primary, general or special election by the Secretary of State or the county clerk;
(2) "Ballot label" means the cards, papers, booklet, pages or other material on which appear the names of candidates and the questions to be voted on by means of ballot cards or voting machines;
(3) "Ballot card" means a tabulating card on which votes may be recorded by a voter by use of a voting punch device or by marking with a pen or special marking device;
(4) "Voting machine" or "machine" shall include lever machines and, as far as applicable, any electronic or electromechanical unit and supplies utilized or relied upon by a voter in casting and recording his vote in an election.
Effective: July 15, 1982
History: Created 1982 Ky. Acts ch. 360, sec. 12, effective July 15, 1982.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
Grounds
 
KRS 120.015 Corrupt practices as grounds for contest — Effect if successful candidate found guilty.
In any contest over the nomination or election of any state, county, city or district officer, it may be alleged in the pleadings of the contestant that the provisions of KRS 121.025, 121.045, 121.055 or 121.310, have been violated by the contestee or by others in his behalf with his knowledge, and it may likewise be alleged in the pleadings of the contestee that such provisions have been violated by the contestant or by others in his behalf with his knowledge. If it appears upon the trial of the contest that such provisions have been violated by the contestant or by others in his behalf with his knowledge, the contest action shall be dismissed and the contestant shall have no further right to maintain the same. If no such violation by the contestant, or by others in his behalf with his knowledge, appears, and it appears that such provisions have been violated by the contestee or by others in his behalf with his knowledge, the nomination or election of the contestee shall be declared void. In the case of primary elections, if any candidate who is a party to the contest proceedings has not violated the provisions of KRS 121.025, 121.045, 121.055 or 121.310, and all candidates who received more votes than he did are also parties and are found to have violated those provisions, such candidate shall be declared nominated.
History: Created 1974 Ky. Acts ch. 130, sec. 157.
 
ANNOTATION FOR THIS STATUTE:
 
Newsome v. Hall, 169 S.W.3d 66 (Ky.App. 07/22/2005)
 On appeal, Newsome alleges that the trial court erred in considering an election contest filed after the ten days allowed by KRS 120.055, that the contest was precluded by Hall’s own violations of the corrupt practices provisions set out in KRS 120.015, and that the illegal campaign contribution did not support the order of removal. Because we find that the contest under KRS 120.055 had to have been filed within ten days of the date of the election, we reverse.
 
Kentucky Registry of Election Finance v. Jordan, 583 S.W.2d 90 (Ky.App. 06/08/1979) 
The only provision for voiding the election in the early statutes was found in a section dealing with election contests. It provided that any party contesting an election could plead that the contestee had violated the provisions of the Corrupt Practice Act, and if such allegations were proved, the election should be declared void, providing the contestant had not himself violated the Act. These provisions are substantially carried over into KRS 120.015.
  
 
KRS 120.017 Administrative or clerical errors as grounds for contest — Action brought in Circuit Court — Recount — Appeal.
(1) It shall be the duty of precinct election officers at all primary, regular, or special elections to immediately report to the county clerk any administrative or clerical error discovered in the process of conducting the polling or tabulation of votes at any such election.
(2) Upon receipt by the county clerk of notice of error in conducting the polling or tabulation of votes pursuant to subsection (1) of this section, the county clerk shall file an action in the Circuit Court, within fifteen (15) days of the election, requesting a recount of ballots for the precinct reporting the administrative or clerical error. Simultaneously with the filing of such action, the county clerk shall make written notice by regular mail to all candidates appearing on the ballot of the precinct at issue that such action is being filed. In the case of an election for candidates for offices for the state at large or an election on a statewide public question, the action shall be filed in the Franklin Circuit Court; in the case of other elections, the action shall be filed in the Circuit Court of the county in which the precinct reporting the error is located.
(3) An action filed in the Circuit Court of proper jurisdiction pursuant to this section shall be heard summarily and without delay. Upon filing of the action, the circuit clerk shall immediately notify the Circuit Judge, and the judge shall at once enter an order directing custody of the voting machine, the ballots, boxes and all papers pertaining to the election from that precinct claiming error, to be transferred to the Circuit Court, and fix a day for the recount proceeding to begin.
(4) Candidates notified pursuant to subsection (3) of this section shall, upon proper motion, be made parties to the action.
(5) On the day fixed for the recount, the court shall proceed to recount the ballots if their integrity is satisfactorily shown and shall complete the recount as soon as practicable, and shall file and enter of record the results thereof.
(6) Any person made party to the action pursuant to subsection (4) of this section may appeal from the judgment to the Court of Appeals, in the same manner as provided in KRS 120.075.
(7) The county clerk shall certify the final recount results entered of record in any action filed pursuant to this section to the county board of elections and to the local governing body of each of two (2) dominant political parties. Final certification of election results shall then proceed according to KRS Chapters 117, 118, and 118A.
Effective: July 15, 1982
History: Created 1982 Ky. Acts ch. 295, sec. 1, effective July 15, 1982.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
Primary Elections
 
KRS 120.055 Procedure for contest of primary election.
Any candidate or slate of candidates for nomination to office at a primary election held under the provisions of KRS 118.015 to 118.035 and 118.105 to 118.255, or any candidate for nomination to a city office at a primary election for which the statutes do not otherwise provide for determining contest elections, for whom a number of votes was cast equal to not less than fifty percent (50%) of the votes cast for the successful candidate or slate of candidates for nomination to the office, may contest the right of the successful candidate or slate of candidates, and of any other candidate or slate of candidates for nomination to the office, to the nomination, by filing a petition in the Circuit Court within ten (10) days from the day of the primary election, stating the specific grounds relied upon for the contest, and causing a summons to be issued, returnable in seven (7) days. In the case of candidates or slates of candidates for offices for the state at large, the petition shall be filed in the Franklin Circuit Court; in the case of other candidates it shall be filed in the Circuit Court of the county in which the contestee resides. The summons may be personally served on the contestee in any county, or it may be served by leaving a copy at his home with a member of his family over sixteen (16) years of age, or by posting a copy on the door of his residence. The contestee shall file his answer within seven (7) days after service of summons. The answer may contain grounds of contest in favor of the contestee and against the contestant, but the grounds shall be specifically set out. Any candidate or slate of candidates who would have been qualified to bring a contest action under this section, who is a party to a recount proceeding brought under KRS 120.095, may, by filing an answer in the recount proceeding within the time allowed by this section for filing grounds of contest, set forth grounds of contest against the petitioner in the recount proceeding. No ground of contest by either party shall be filed or made more definite by amendment after the expiration of the time allowed by this section for filing the original pleading. The contestant may file a reply within five (5) days after answer is filed, which shall complete the pleading, and any affirmative matter in the reply shall be treated as controverted. Upon return of the summons, properly executed, to the office of the circuit clerk of the county in which the action is pending, the clerk shall immediately docket the cause and notify the presiding judge of the court that the contest has been instituted, and the judge shall proceed to a trial of the cause within five (5) days after the issue was joined. In judicial circuits having more than one (1) Circuit Judge, the judge who shall hear the cause shall be determined by lot.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 288, sec. 42, effective July 14, 1992. – Amended 1976 Ky. Acts ch. 62, sec. 87; and ch. 199, sec. 3. — Created 1974 Ky. Acts ch. 130, sec. 158.
 
ANNOTATION FOR THIS STATUTE:
 
Newsome v. Hall, 169 S.W.3d 66 (Ky.App. 07/22/2005)
 On appeal, Newsome alleges that the trial court erred in considering an election contest filed after the ten days allowed by KRS 120.055, that the contest was precluded by Hall’s own violations of the corrupt practices provisions set out in KRS 120.015, and that the illegal campaign contribution did not support the order of removal. Because we find that the contest under KRS 120.055 had to have been filed within ten days of the date of the election, we reverse.
    The problem with the trial court’s analysis is that Hall’s petition was filed as an election contest under KRS 120.055. The courts of this Commonwealth have repeatedly held that the courts have no inherent authority to try election matters. That authority must be expressly given by the legislature. Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954 (1933); Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828 (1908); Stearns v. Davis, 707 S.W.2d 787 (Ky.App. 1985). KRS 120.055 permits an election contest to be filed in the circuit court but requires that the contest be filed within ten days. The statute even prohibits either party from adding new grounds for the contest or making a ground more specific after the time allowed for the original pleading has run. There is no provision allowing the court to apply any other time limitation no matter what the ground of the contest. KRS 413.120(12) has no application in an election contest.
    Accordingly, we hold that the petition filed by Mike Hall was filed beyond the ten-day period permitted by KRS 120.055 and was time-barred. Thus, the circuit court erred in denying the motion to dismiss, and the judgment of the Knott Circuit Court is reversed.
 
Coomer v. Tamme, 777 S.W.2d 607 (Ky.App. 09/22/1989) 
Tamme moved the circuit court to dismiss the election contest for failure to state a claim. Specifically, Tamme alleged that the petition did not identify for whom the illegal voters had cast their ballots and so was deficient under the case law interpreting KRS 120.055. The circuit court agreed and dismissed the contest.
We affirm the decision of the circuit court.
 
Thomas v. Lyons, 586 S.W.2d 711 (Ky. 09/11/1979)
 KRS 120.055 was later broadened (Ch. 199, Sec. 3, Acts of 1976) to include "any candidate for nomination to a city office at a primary election for which the statutes do not otherwise provide for determining contest elections" (sic), and Lyons contends that this, rather than KRS 118.176, was the proper remedy for Thomas in this case. For one rather fundamental reason we are unable to agree. KRS 122.055 is an election-contest statute, and Thompson was an election-contest case. Properly speaking an election cannot be "contested" before it is held. An "election contest" is a post-election proceeding. What we have in this case is not an election contest, but a pre-election proceeding challenging the right of a purported candidate to participate in a primary election. Neither KRS 120.055 nor the Thompson case is relevant.
  
Thompson v. Kenton County Board of Election Commission, 535 S.W.2d 68 (Ky.App. 09/19/1975)
   KRS 120.055 outlines the procedure that must be followed for the contest of a primary election. Parties permitted to contest such primary elections are said to be those candidates for the nomination to office at a primary election held under the provisions of KRS 118.015 to 118.035 and KRS 118.105 to 118.255. However, KRS 118.105(4) provides:
 
 
 
 
KRS 120.065 Evidence in primary contest — Trial — Judgment.
Each party to a contest instituted under KRS 120.055 shall be entitled, in the production of evidence to be used on the trial thereof, to all the remedies allowed in cases at law and in equity. In trying the contest the court shall hear and determine all questions of law and fact without the intervention of a jury, and may examine the witnesses orally or require or permit the parties to take the evidence by depositions. If the evidence is taken orally either party may require it to be taken by the official reporter for the court, to be taken and transcribed and paid for as evidence in other civil actions. The court may   require the contestant, or the person who has the burden of proof under the issue joined, to complete his proof in not less than fifteen (15) days after service of summons, and the contestee, or the person not having the burden, to complete his proof in not less than ten (10) days after filing an answer. Each party may be given one (1) day additional for producing evidence in rebuttal and no greater time shall be extended, unless the court is satisfied that the ends of justice demand it. The court shall, immediately after the evidence is concluded, consider the contest and determine it. If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be adjudged to have been fairly nominated, the court may adjudge that there has been no election, in which event the nomination shall be deemed vacant. The judgment of the court shall be filed in the office of the Circuit Court clerk.
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 133. — Created 1974 Ky. Acts ch. 130, sec. 159.
 
ANNOTATION FOR THIS STATUTE:
 
Ellis v. Meeks, 957 S.W.2d 213 (Ky. 09/04/1997)
  Every candidate who runs for office is entitled to an even playing field, especially at a time when the electorate’s confidence in the electoral process is increasingly diminished, as evidenced by the fewer number of voters who actually participate in the voting process. This Court cannot approve of or condone the conduct engaged in by Meeks at the polling stations in the 11th Ward. There was definitely not an even playing field in this case and if we were to leave this case as it currently stands, the confidence of the voters would not only diminish with respect to the electoral process, but also with the judicial process as a whole. Consequently, based upon our decision in Adams, supra, and the law set forth in KRS 120.065, we find that the Court of Appeals erred in upholding the trial court’s dismissal of appellant’s election contest action and, thus, reverse their decision, finding that Meeks’ conduct did violate both KRS 117.235 and KRS 121.055.
    For the aforementioned reasons we affirm the Court of Appeals on the procedural issue regarding the issuance of the summons. However, we reverse its decision with respect to the other issues, finding that Meeks did, in fact, violate the electioneering statute, KRS 117.235, and the Corrupt Practices Act, 121.055. Consequently, pursuant to KRS 120.065, the nomination of respondent, Reginald K. Meeks, as the Democratic candidate for 11th Ward Alderman for the city of Louisville, is voided and the nomination is deemed vacant.
 
Stearns v. Davis, 707 S.W.2d 787 (Ky.App. 12/27/1985) 
In civil cases, the time for the filing of a notice of appeal is governed by CR 73.02. Subparagraph (1)(e) of that rule provides that certain motions under Rules 50, 52, and 59 terminate the running of time for the filing of a notice of appeal and that the time begins to run in full from the date that such motions are ruled on. The statute governing the time for the taking of an appeal in an election contest does not contain any such provision. Indeed, the statutes governing the procedure in an election contest (KRS 120.065 and KRS 120.165) make no provision for such post-judgment motions.
 
Kirk v. Harmon, 557 S.W.2d 220 (Ky.App. 10/14/1977) 
The right to a recount or the right to contest an election and the procedure to be followed is purely statutory. Wilhoit v. Liles, 300 Ky. 564, 189 S.W.2d 851 (1945). KRS 120.065 provides that:
… If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be adjudged to have been fairly nominated, the court may adjudge that there has been no election, in which event the nomination shall be deemed vacant.
 
 
 
KRS 120.075 Appeal to Court of Appeals from judgment in primary contest.
(1) Any party may appeal to the Court of Appeals from a judgment entered under KRS 120.065. The appeal shall be in accordance with the Rules of Civil Procedure, except that the notice of appeal shall be filed and a supersedeas bond executed in the Circuit Court, and the record shall be filed in the Court of Appeals, within ten (10) days after the entry of the judgment, or within such other time as the Court of Appeals may, for cause shown, permit. The entire original record shall be filed and no designation of record shall be required.
(2) Upon the filing of the record, the clerk of the Court of Appeals shall immediately deliver it to the chief judge.
(3) The Court of Appeals in its discretion may issue its mandate forthwith after rendering its decision, but it shall be without prejudice to the right of the losing party to file a petition for rehearing or the power of the court to recall the mandate should the petition be sustained.
(4) If the judgment is reversed and the case remanded for trial or further action, the proceedings shall continue in the Circuit Court in like manner as when originally filed, beginning ten (10) days after the filing of the mandate with notice to the adverse party.
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 134. — Amended 1976 Ky. Acts ch. 62, sec. 88. — Created 1974 Ky. Acts ch. 130, sec. 160.
 
ANNOTATION FOR THIS STATUTE:
 
Stearns v. Davis, 707 S.W.2d 787 (Ky.App. 12/27/1985)      
    KRS 120.175 directs that appeals in general elections be prosecuted in the same manner as that provided in KRS 120.075 for appeals in the contest of a primary election. KRS 120.075 requires a person aggrieved by a circuit court judgment in an election contest to file a notice of appeal, execute a supersedeas bond, and file the record in the Court of Appeals, all within ten days of the entry of the judgment in the election contest.
   We specifically hold in these appeals that the filing of post-judgment motions in the circuit court does not stay the time for the taking of an appeal under KRS 120.075. This holding is consistent with the legislatively imposed mandate that election contests be disposed of as quickly as possible to preserve the integrity and finality of the electoral process.
   It is with considerable regret that we must turn away from this appeal and leave the issues presented unanswered. Considerable time and money has been invested in the preparation of the record in this appeal and in the presentation of briefs. However, the appellants’ failure to properly invoke the jurisdiction of this Court by the timely filing of a notice of appeal under KRS 120.075 prevents us from reaching the merits of the issues presented.
 
 
 
KRS 120.085 Certification of result of primary contest — Placement of name on ballots.
In the case of offices for which certificates of nomination are required to be filed with the Secretary of State, the result of the final judgment in the contest of a primary election shall be certified to the Secretary of State; in the case of offices for which certificates of nomination are required to be filed with the county clerk, the result shall be certified to the county clerk. The Secretary of State shall certify to the proper county clerks the names of the candidates awarded nominations as certified to him by the court, and the county clerk shall place upon the ballots for the regular election the names of the     candidates so certified to him by the Secretary of State and the names of the candidates awarded nominations as certified to him by the court, in place of the candidates whose nominations were successfully contested.
History: Created 1974 Ky. Acts ch. 130, sec. 161.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 120.095 Recount of primary election.
(1) Any candidate or slate of candidates voted for at a primary election held under KRS 118.015 to 118.035 and 118.105 to 118.255 may request a recount of the ballots by filing a petition with the same court that contest petitions are required to be filed with, within ten (10) days after the day of the primary election, or, if the candidate or slate of candidates is qualified to bring a contest proceeding under KRS 120.055, by including a request for a recount in his petition instituting the contest proceedings. Any candidate or slate of candidates that is a contestee in a contest proceeding under KRS 120.055 may request a recount in his answer filed in the contest proceeding, but in that case the answer shall be filed within five (5) days after the service of process on the petition. When a request for a recount is made, the State Board of Elections or the county board of elections, whichever would issue the certificate of nomination, shall be made a party defendant. The party requesting the recount shall execute a bond with approved surety for the costs of the recount, in an amount to be fixed by the Circuit Judge. Upon the bond being filed, the clerk shall immediately notify the Circuit Judge of the request and the filing of the bond, and the judge shall at once enter an order directing custody of the voting machines, the ballots, boxes, and all papers pertaining to the election to be transferred to the Circuit Court, and fix a day for the recount proceedings to begin. A copy of the order shall be served upon the parties or their counsel in the same manner as notices are required to be served, which shall be deemed sufficient notice of the proceeding. On the day fixed, the court shall proceed to recount the ballots if their integrity is satisfactorily shown and shall complete the recount as soon as practicable, and file and enter of record the results thereof, and direct the state board or county board, whichever would issue the certificate of nomination, to issue a certificate to the party entitled thereto as shown by the recount.
(2) Any party may appeal from the judgment to the Court of Appeals, in the same manner as provided in KRS 120.075, all of the provisions of which statute shall be applicable.
(3) If a proceeding for recount is asked and prosecuted in a contest proceeding, it shall not await the preparation or trial of the contest in the Circuit Court or in the Court of Appeals. The action of the courts shall be final, concluding the parties as to the question of a recount of the ballots, and certificates shall then be issued to the parties entitled thereto.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 288, sec. 43, effective July 14, 1992. – Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 135, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 162.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
Regular Elections
 
KRS 120.155 Contest of regular election of officers other than Governor, Lieutenant Governor, General Assembly member and certain city officers.
Any candidate for election to any state, county, district or city office (except the office of Governor, Lieutenant Governor, member of the General Assembly, and those city offices as to which there are other provisions made by law for determining contest elections), for whom a number of votes was cast equal to not less than twenty-five percent (25%) of the number of votes cast for the successful candidate for the office, may contest the election of the successful candidate, by filing a petition in the Circuit Court of the county where the contestee resides, unless the officer is one (1) elected by the voters of the whole state, in which case the petition shall be filed in the Franklin Circuit Court. The petition shall be filed and process issued within thirty (30) days after the day of election; it shall state the grounds of the contest relied on, and no other grounds shall afterwards be relied upon. The contestee shall file an answer within twenty (20) days after the service of summons upon him. The answer may consist of a denial of the averments of the petition and may also set up grounds of contest against the contestant; if grounds are so set up they shall be specifically pointed out and none other shall thereafter be relied upon by the party. Any candidate who would have been qualified to bring a contest action under this section, who is a party to a recount proceeding under KRS 120.185, may, by filing answer in the recount proceeding within the time allowed by this section for filing grounds of contest, set forth grounds of contest against the petitioner in the recount proceeding. A reply may be filed within ten (10) days after the answer is filed; its affirmative allegations shall be treated as controverted, and no subsequent pleading shall be allowed.
History: Created 1974 Ky. Acts ch. 130, sec. 163.
 
ANNOTATION FOR THIS STATUTE:
 
McClendon v. Hodges, 272 S.W.3d 188 (Ky., 2008)
     This appeal arises from a judgment of the Monroe Circuit Court which voided the November 2006 mayoral election for the City of Tompkinsville, Kentucky. While the Court of Appeals affirmed the Monroe Circuit Court’s finding of fraud, it reversed that portion of the judgment setting aside the election. This Court granted discretionary review. For the reasons set forth herein, we reverse the Court of Appeals and reinstate the judgment of the Monroe Circuit Court.
      At the outset, we note that this election contest was initiated by Hodges pursuant to KRS 120.155. As the circuit court tried this matter without a jury, we review the court’s findings of fact for clear error. RCr 52.01. That is, we examine whether the findings are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003). The trial court’s conclusions of law are reviewed de novo.
       In confining the effects of District Four’s fraudulent walk-in absentee voting to that district, we believe the Court of Appeals overemphasized the statutory mandate that a reviewing court inspect "the whole record." While KRS 120.165(4) directs the reviewing court to inspect the whole record, there is no requirement that "fraud, intimidation, bribery or violence" be evidenced throughout the entire record. Rather, the essence of this review is to determine whether any candidate "can be judged to have been fairly elected." Stated otherwise, our analysis is not necessarily focused on the breadth of the fraud itself, but its effect on the entire election.
     After an extended evidentiary hearing and well-reasoned findings, we believe the trial court got it right. In light of the unique circumstances of this case, particularly the very narrow margin of victory, we cannot declare a winner by removing all walk-in absentee votes cast in District Four. Such a remedy would necessarily void many valid ballots and would change the result of the entire election. For these reasons, the mayoral election for the City of Tompkinsville must be set aside. Though an inconvenience to the citizens of Tompkinsville, and unfortunately as a result of the reprehensible actions of a few, the electorate’s right to a fair, reliable and democratic voting process must prevail.
 
Clark v. Mason, 596 S.W.2d 16 (Ky.App. 05/25/1979)
  Mr. Mason filed his petition on November 17, 1977, requesting a recount and contesting the election pursuant to KRS 120.155. This statute sets out the procedure to follow in a contest of a regular election and provides that evidence in chief for the contestant must be completed within thirty days after service of summons. Although we have not been informed by either party of the date of actual service of process, we can assume, since the matter was not raised in the briefs and since the record before us does not contain a dated return of service of process, the summons was served shortly after the November 17 filing of the petition thus commencing the thirty-day period near to that date. The statute further states the court may grant a reasonable extension to this thirty-day period for cause shown.             
 
Wood v. Lucky Kenneth Kirby, 566 S.W.2d 751 (Ky. 05/02/1978)
 Election contests are controlled by KRS 120.155, 120.165 and 120.185. In the instant case, however, we are concerned with KRS 120.165(4), which provides as follows:
    "If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the circuit court, or the Court of Appeals, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify. If one (1) of the parties is adjudged by the court to be elected to the office, he shall, on production of a copy of the final judgment, be permitted to qualify or be commissioned."
    We are of the opinion that the mechanical failure in the tabulation of the votes was such as to color the election with fraud. We are further of the opinion that the proper tabulation of votes could not be done with a reasonable degree of certainty. Consequently, we hold the election void.
        The opinion of the Court of Appeals is reversed, and the judgment of the Muhlenberg Circuit Court is affirmed.
 
Perkins v. Lynch, No. 2007-CA-000639-MR (Ky. App. 10/19/2007) (Ky. App., 2007)
 After appellant Larry Perkins won a seat on the Franklin County School Board by a single vote, his opponent, appellee Lloyd Lynch, filed a contest pursuant to KRS 120.155 on the basis that eight ballots in one precinct did not contain the name of either candidate. In support of his petition, Lynch filed the affidavit of the Franklin County Clerk establishing the ballot error, the fact that eight voters had been given the improper ballots, and that Perkins had won the election over Lynch by one vote. Perkins did not file any evidence with the trial court. The matter was then submitted on each party’s legal memorandum, and the court heard brief oral arguments by counsel. The trial court ultimately declared the election void.
  (1) A contest instituted under KRS 120.155 shall proceed as equity actions. Upon return of the summons properly executed to the office of the circuit clerk, he shall immediately docket the case and notify the presiding judge of the court that the contest has been filed. The judge shall proceed to a trial of the cause without delay. In courts having more than one (1) judge, the judge who shall try the case shall be determined by lot. The court shall complete the case as soon as practicable. The action shall have precedence over all other cases.
        In sum, because the opinion of the trial court is supported by the election contest statutes and case law concerning post judgment remedies, we affirm the judgment denying Perkins’ motion for CR 60.02 relief.
 
McClendon v. Hodges, No. 2007-SC-000559-DGE (Ky. 10/23/2008) (Ky., 2008)
   At the outset, we note that this election contest was initiated by Hodges pursuant to KRS 120.155. As the circuit court tried this matter without a jury, we review the court’s findings of fact for clear error. RCr 52.01. That is, we examine whether the findings are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The trial court’s conclusions of law are reviewed de novo.
After an extended evidentiary hearing and well-reasoned findings, we believe the trial court got it right. In light of the unique circumstances of this case, particularly the very narrow margin of victory, we cannot declare a winner by removing all walk-in absentee votes cast in District Four. Such a remedy would necessarily void many valid ballots and would change the result of the entire election. For these reasons, the mayoral election for the City of Tompkinsville must be set aside. Though an inconvenience to the citizens of Tompkinsville, and unfortunately as a result of the reprehensible actions of a few, the electorate’s right to a fair, reliable and democratic voting process must prevail.
        For the foregoing reasons, we reverse the Court of Appeals and reinstate the judgment of the Monroe Circuit Court.
 
Waters v. Skinner, 237 S.W.3d 551 (Ky. App., 2007)
    Skinner filed a contest of the election under KRS 120.155 alleging that the board of elections had failed to include in his vote total certain votes that had been cast using only his first name. Skinner further alleged that when those votes were added to his total, he had the most legal votes cast for the office.
        The special judge assigned to hear this matter in circuit court found the facts to be largely undisputed. When Skinner filed the papers necessary to qualify as a write-in candidate, the county clerk informed Skinner that votes cast using only his first name would be counted. This fit well with Skinner’s election strategy to have his supporters easily write "Gus" to cast a vote for him.
        At some point after her initial conversation with Skinner, the county clerk consulted with the Kentucky Board of Elections and was informed that a "first name only" write-in vote would not be valid. The clerk "discussed the issue" with the other members of the McCreary County Board of Elections which adopted the position of the Kentucky Board of Elections. It is not clear from the circuit court’s findings or from the record whether the county board actually met or took any formal action. The circuit court found that no written notification was provided to Skinner. There is no finding as to when the information was verbally conveyed to Skinner. Clearly, the information did not reach all of Skinner’s supporters.
    We agree that it would have been better if all voters had properly written "Gus Skinner" in casting their write-in votes. But in the context of this election, the intention of the voters writing "Gus" is clearly expressed, and their votes must be counted for Skinner.
        Because we have determined that Skinner must be credited with the 57 votes cast using his first name and the addition of those votes results in Skinner’s victory in the election, we do not reach the issues raised by Skinner concerning the validity of the requests for recanvass or the propriety of the procedure used in the recanvass. The motion of the McCreary County Board of Elections to strike those portions of Skinner’s brief is hereby DENIED AS MOOT.
        For the reasons stated, the decision of the McCreary Circuit Court is hereby AFFIRMED.
        The appellant’s motion for intermediate relief passed to this panel by this court order of March 2, 2007, is hereby DENIED AS MOOT.
        ALL CONCUR.
 
 
 
 
KRS 120.165 Procedure in contest of regular election — Trial — Judgment.
(1) A contest instituted under KRS 120.155 shall proceed as equity actions. Upon return of the summons properly executed to the office of the circuit clerk, he shall immediately docket the case and notify the presiding judge of the court that the contest has been filed. The judge shall proceed to a trial of the cause without delay. In courts having more than one (1) judge, the judge who shall try the case shall be determined by lot. The court shall complete the case as soon as practicable. The action shall have precedence over all other cases.
(2) The evidence in chief for the contestant shall be completed within thirty (30) days after service of summons; the evidence for the contestee shall be completed within twenty-five (25) days after filing of answer, and evidence for contestant in rebuttal shall be completed within seven (7) days after the contestee has concluded; provided that for cause the court may grant a reasonable extension of time to either party.
(3) All voting machines, ballots, stub books and other papers concerning which there is any ground for contest may be removed to the court in which the action is pending.
(4) If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the Circuit Court, or an appellate court, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify. If one of the parties is adjudged by the court to be elected to the office, he shall, on production of a copy of the final judgment, be permitted to qualify or be commissioned.
Effective: January 2, 1978
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 136, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 164.
 
ANNOTATION FOR THIS STATUTE:
 
McClendon v. Hodges, No. 2007-SC-000559-DGE (Ky. 10/23/2008) (Ky., 2008)
Pursuant to KRS 120.165, the question then becomes whether the fraud in District Four so permeated the entire election that a winner cannot fairly be determined. It is here that an examination of the walk-in absentee votes in District Four is necessary. A total of 143 walk-in absentee ballots were cast in that district and McClendon received 102 of these votes. However, from the testimony presented at trial, it is impossible to determine exactly which votes were fraudulent. Further, the trial court found simply that a "majority" of the walk-in absentee ballots were tainted, but did not state a specific number of votes. Thus, this Court cannot determine how many votes were tainted or for whom the fraudulent votes were cast.
   In confining the effects of District Four’s fraudulent walk-in absentee voting to that district, we believe the Court of Appeals overemphasized the statutory mandate that a reviewing court inspect "the whole record." While KRS 120.165(4) directs the reviewing court to inspect the whole record, there is no requirement that "fraud, intimidation, bribery or violence" be evidenced throughout the entire record. Rather, the essence of this review is to determine whether any candidate "can be judged to have been fairly elected." Stated otherwise, our analysis is not necessarily focused on the breadth of the fraud itself, but its effect on the entire election.
    After an extended evidentiary hearing and well-reasoned findings, we believe the trial court got it right. In light of the unique circumstances of this case, particularly the very narrow margin of victory, we cannot declare a winner by removing all walk-in absentee votes cast in District Four. Such a remedy would necessarily void many valid ballots and would change the result of the entire election. For these reasons, the mayoral election for the City of Tompkinsville must be set aside. Though an inconvenience to the citizens of Tompkinsville, and unfortunately as a result of the reprehensible actions of a few, the electorate’s right to a fair, reliable and democratic voting process must prevail.
        For the foregoing reasons, we reverse the Court of Appeals and reinstate the judgment of the Monroe Circuit Court.
 
Perkins v. Lynch, No. 2007-CA-000639-MR (Ky. App. 10/19/2007) (Ky. App., 2007)
      Perkins’ subsequent appeal to this Court under KRS 120.075 was dismissed by order entered March 6, 2007,………He then filed the instant CR 60.02 motion to set aside the order declaring the election void alleging that the trial court lost jurisdiction to decide the election contest when it failed to resolve the matter within 30 days as required by KRS 120.165(2). The trial court denied the motion on the basis of the following rationale:
  Relief from judgment under CR 60.02 is an extraordinary remedy which allows the trial court to vacate a judgment based on facts or circumstances which were not known by the party seeking relief or could not have been known by a party seeking relief through the exercise of reasonable diligence. Davis v. Home Indemnity Company, 659 S.W.2d 185, 188 (Ky. 1983)…………
      Perkins also challenges the trial court’s jurisdiction to require him to vacate the office after the election was declared void. Again, the statutes and case law support the decision of the trial court. KRS 120.165(4) by its own terms gives the trial court in an election contest the authority to declare that there has been no election, in which case "the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify." That the trial court has the concomitant authority to enforce its judgment by requiring the successful candidate to vacate the office involved has been confirmed in a long line of cases, including Scholl v. Bell, 125 Ky. 750, 102 S.W. 248 (1907); Francis v. Sturgill, supra; and Ellis v. Jasmin, 968 S.W.2d 669 (Ky. 1998).
    In sum, because the opinion of the trial court is supported by the election contest statutes and case law concerning postjudgment remedies, we affirm the judgment denying Perkins’ motion for CR 60.02 relief.
 
  
Mcclendon v. Hodges, No. 2007-CA-000488-MR (Ky. App. 7/20/2007) (Ky. App., 2007)
KRS 120.165(4) prescribes the remedy to be applied upon proof that the election has been tainted: …..
    (Emphasis added.) Accordingly, the court is directed to void an election when fraud, intimidation, bribery, or violence has so corrupted the election that the true outcome of the election cannot be fairly determined from the whole record.
    In sum, that portion of the judgment of the Monroe Circuit Court which found evidence of fraud in the walk-in absentee voting in Magisterial District 4 is affirmed. And, that portion of the judgment which voided the entire voting in the mayoral election held on November 7, 2006, is reversed and remanded to the Monroe Circuit Court. The winner of the Tompkinsville mayoral election shall be determined by deducting the walk-in absentee votes in District 4 from the total votes received by each mayoral candidate as previously certified in the November 7, 2006, election.
 
Stearns v. Davis, 707 S.W.2d 787 (Ky.App. 12/27/1985)
 In civil cases, the time for the filing of a notice of appeal is governed by CR 73.02. Subparagraph (1)(e) of that rule provides that certain motions under Rules 50, 52, and 59 terminate the running of time for the filing of a notice of appeal and that the time begins to run in full from the date that such motions are ruled on. The statute governing the time for the taking of an appeal in an election contest does not contain any such provision. Indeed, the statutes governing the procedure in an election contest (KRS 120.065 and KRS 120.165) make no provision for such post-judgment motions.
   
 Wood v. Lucky Kenneth Kirby, 566 S.W.2d 751 (Ky. 05/02/1978)
 Election contests are controlled by KRS 120.155, 120.165 and 120.185. In the instant case, however, we are concerned with KRS 120.165(4), which provides as follows:
"If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the circuit court, or the Court of Appeals, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify. If one (1) of the parties is adjudged by the court to be elected to the office, he shall, on production of a copy of the final judgment, be permitted to qualify or be commissioned."
       We are faced with the proposition of whether the conduct of the subject election was so irregular as to be tainted with fraud, thereby subject to challenge under KRS 120.165(4). First of all, we recognize that the Muhlenberg County Fiscal Court is charged with the responsibility of repairing and keeping in good mechanical condition the voting machines used in this election. Jefferson County Fiscal Court v. Queenan, 314 Ky. 271, 234 S.W.2d 949 (1950). Indeed, not only is the fiscal court responsible for repairing the voting machines and keeping them in good working order, but, as we stated in Rives v. Pettit, Ky., 513 S.W.2d 475 (1974), the candidates have the right to rely upon the assumption that the officers who prepared the machines and the officers who were required to inspect them have carried out their duties. 
    The Court of Appeals held that the only irregularity involved in this election contest was the malfunctioning of a voting machine, which did not constitute fraud within the provisions of KRS 120.165(4). Consequently, it held that the circuit court did not have jurisdiction. This court, on more than one occasion, has held to the contrary.
      The fraud contemplated by KRS 120.165(4) is not limited to conduct of or action by the candidates. It goes much further than that and includes what might be classified as constructive fraud. Constructive fraud arises through some breach of a legal duty which, irrespective of moral guilt, the law would pronounce fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.
  
Lucky Kenneth Kirby v. Wood, 558 S.W.2d 180 (Ky.App. 07/22/1977)
  The next question presented in this case concerns the jurisdiction of the trial court under KRS 120.165(4) to declare there had been no election due to the apparent failure of a voting machine.
This appears to be a case of first impression in Kentucky as the sole basis for the contests of the election is an allegedly defective voting machine. KRS 120.165(4) reads as follows:
       If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the circuit court, or the Court of Appeals, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify.
    The definitions of these proscribed acts indicate their nature as being mala in se or involving moral turpitude. Consequently, a malfunctioning machine does not come within the language of the statute; and statutory jurisdiction is not conferred on the Court. The fact that jurisdiction cannot be exercised by a court in an election case in the utter absence of statutory authority has been recently confirmed by the Court in Thompson v. Kenton County Board of Education Ky., 535 S.W.2d 68 (1975), where the Court of Appeals affirmed a lower court’s dismissal of an action on the ground that there was no statute permitting the contest.                                     
                                                                                                                                              
 
 
KRS 120.175 Appeal to Court of Appeals.
Any party may appeal to the Court of Appeals from a judgment entered under KRS 120.155, in the same manner as provided in KRS 120.075, all of the provisions of which statute shall be applicable.
History: Created 1974 Ky. Acts ch. 130, sec. 165.
 
ANNOTATION FOR THIS STATUTE:
 
Stearns v. Davis, 707 S.W.2d 787 (Ky.App. 12/27/1985)
 KRS 120.175 directs that appeals in general elections be prosecuted in the same manner as that provided in KRS 120.075 for appeals in the contest of a primary election. KRS 120.075 requires a person aggrieved by a circuit court judgment in an election contest to file a notice of appeal, execute a supersedeas bond, and file the record in the Court of Appeals, all within ten days of the entry of the judgment in the election contest.
        In neither of these consolidated appeals were the required steps taken within ten days of the judgment appealed from.
 
Waters v. Skinner, 237 S.W.3d 551 (Ky. App., 2007)
     Pursuant to KRS 120.175 and KRS 120.075, Randy Waters has brought this appeal from a decision of the McCreary Circuit Court in an election contest. The circuit court determined that votes cast using only the first name "Gus" should be counted for the appellee Gus Skinner. It had been stipulated that there were 57 such votes. When those votes were added to Skinner’s total, the circuit court ruled that he had received the highest total of valid votes cast in the election. The circuit court invalidated Waters’ apparent victory in the election and installed Skinner as the sheriff of McCreary County.
   Because we have determined that Skinner must be credited with the 57 votes cast using his first name and the addition of those votes results in Skinner’s victory in the election, we do not reach the issues raised by Skinner concerning the validity of the requests for recanvass or the propriety of the procedure used in the recanvass. The motion of the McCreary County Board of Elections to strike those portions of Skinner’s brief is hereby DENIED AS MOOT.
        For the reasons stated, the decision of the McCreary Circuit Court is hereby AFFIRMED.
 
 
Mcclendon v. Hodges, No. 2007-CA-000488-MR (Ky. App. 7/20/2007) (Ky. App., 2007)
   We initially observe that the judiciary is empowered by the legislature to review and decide election contests. Newsome v. Hall, 169 S.W.3d 66 (Ky. App. 2005). This election contest was instituted in the circuit court by Hodges pursuant to KRS 120.155 and an appeal to this Court was filed under the provisions of KRS 120.175. As the circuit court tried this matter without a jury, we review the court’s findings of fact under the clearly erroneous standard and the court’s rulings of law de novo. Black Motor Co. v. Greene, 385 S.W.2d 954 (Ky. 1964);  Cinelli v. Ward, 997 S.W.2d 474 (Ky. App. 1998). With these standards in mind, we shall now address McClendon’s allegations of error.
 
 
 
KRS 120.185 Recount of election of officers referred to in KRS 120.155.
(1) Any candidate who was voted for at a regular election for any of the offices to which KRS 120.155 applies may request a recount of the ballots by filing a petition so requesting, with the same court that petitions of contest are required to be filed with, within ten (10) days after the day of the election, or, if the candidate is qualified to institute a contest proceeding under KRS 120.155, by including a request for a recount in his petition instituting the contest proceedings, but in the latter case the petition shall be filed within ten (10) days after the day of the election. Any candidate who is a contestee in a contest proceeding under KRS 120.155 may request a recount in his answer filed in the contest proceeding, but only if the answer is filed within ten (10) days after the day of election. If a request for a recount is made, the State Board of Elections or the county board of elections, whichever would issue the certificate of election shall be made a party defendant. The party requesting the recount shall execute bond with approved surety for the costs of the recount, in an amount to be fixed by the Circuit Judge. Upon the bond being filed, the clerk shall immediately notify the Circuit Judge of the request and the filing of the bond, and the judge shall at once enter an order directing the voting machines, ballots, boxes, and all papers pertaining to the election to be transferred to the Circuit Court, and fix a day for the recount proceedings to begin. A copy of the order shall be served upon the parties or their counsel in the same manner as notices are required to be served, which shall be deemed sufficient notice of the proceeding. On the day fixed, the court shall proceed to recount the ballots if their integrity is satisfactorily shown and shall complete the recount as soon as practicable, and file and enter of record the results thereof, and direct the state board or county board, whichever would issue the certificate of election to issue the same to the party entitled thereto as shown by the recount.
(2) Any party may appeal from the judgment to the Court of Appeals, in the same manner as provided in KRS 120.075, all of the provisions of which statute shall be applicable.
(3) If a proceeding for recount is asked and prosecuted in a contest proceeding, it shall not await the preparation or trial of the contest in the Circuit Court or in the Court of Appeals. The action of the courts shall be final, concluding the parties as to the question of a recount of the ballots, and certificates shall then be issued to the parties entitled thereto.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 288, sec. 54, effective July 14, 1992. – Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 137, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 166.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
KRS 120.195 Contest of election of Governor, Lieutenant Governor, or General Assembly member.
(1) No application to contest the election of a Governor, Lieutenant Governor, or member of the General Assembly shall be heard unless written notice, signed by the party contesting, is given. The notice shall state the grounds of the contest, and none other shall afterwards be heard as coming from that party, but the contestee may make defense without giving counternotice.
(2) In the case of the Governor or Lieutenant Governor, the notice shall be given within thirty (30) days after the final action of the State Board of Elections. In the case of a member of the General Assembly, the notice shall be given within fifteen (15) days after the final action of the county board of elections or the State Board of Elections, whichever canvasses the returns.
(3) Immediately after the notice, either party may proceed to take proof by depositions, under the same rules and regulations that govern the taking of depositions in actions in equity, except that no commission shall be required for taking a deposition out of the state. The depositions shall be sealed up by the officer taking them, and directed to the clerk of the Senate or clerk of the House, as the case may require. The depositions properly taken shall be read as evidence before the board or branch of the General Assembly having jurisdiction of the case, and the board or branch may call for and hear other proof. The taking of depositions to be used before a board or branch of the General Assembly shall close ten (10) days before the next meeting of the General Assembly, or, if in session when the notice is given, when the taking is ordered to close.
(4) The costs of the proceeding shall be adjudged against the unsuccessful party, and a certificate thereof shall be given by the clerk of the Senate or the clerk of the House, as the case requires. A judgment for the costs may be obtained after five (5) days’ notice in a Circuit Court.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 288, sec. 55, effective July 14, 1992. – Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 138, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 167.
 
ANNOTATION FOR THIS STATUTE:
 
[U] Stephenson v. Woodward, No. 2005-SC-0096-TG (Ky. 03/17/2005)
  Nonetheless, Senator Williams and Stephenson invoke the authority of the General Assembly to judge the qualifications of its members pursuant to Section 38 of the Kentucky Constitution, which states that "[e]ach house of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law." KRS 120.195 and KRS 120.215 carry out the command of Section 38, and direct the procedures for contesting an election for a position in the General Assembly; the statutes do not include the judiciary in this process. Yet, again, neither this Court nor the courts below predicate our jurisdiction to hear this matter on KRS Chapter 120 or Section 38 of the Constitution. Rather, the General Assembly has specifically conferred jurisdiction upon the courts to adjudicate challenges questioning the qualifications of candidates through KRS 118.176.
 
 
 
KRS 120.205 Board for determining contest of election of Governor or Lieutenant Governor.
When the election of a Governor or Lieutenant Governor is contested, a board for determining the contest shall be formed and shall proceed in the following manner:
(1) On the third day after the organization of the General Assembly that meets next after the election, the Senate shall select three (3) of its members, and the House of Representatives shall select eight (8) of its members, and the eleven (11) so selected shall constitute a board to try the contest, seven (7) of whom shall constitute a quorum. In making the selection, the name of each member present shall be written on a separate piece of paper, every piece being as nearly similar to the other as possible. Each piece shall be rolled up so that the names thereon cannot be seen nor any particular piece ascertained or selected by feeling. The whole, so prepared, shall be placed by the clerk in a box on his table, and after it has been well shaken and the papers therein well intermixed the clerk shall draw out one (1) paper, which shall be opened and read aloud by the presiding officer, and so on until the required number is obtained. If any person so selected swears that he cannot, without great personal inconvenience, serve on the board, or that he feels an undue bias for or against either of the parties, he may be excused by the house from which he was chosen from serving on the board, and if it appears that a person so selected is related to either party, or is liable to any other proper objection on the score of his partiality, he shall be excused. Any deficiency in the proper number so created shall be supplied by another draw from the box. The members of the board so chosen shall be sworn by the Speaker of the House of Representatives to try the contested election, and give true judgment thereon according to the evidence unless dissolved before rendering judgment.
(2) The board shall, within twenty-four (24) hours after its selection, meet, appoint its chairman, and assign a day for hearing the contest, and may adjourn from day to day as its business requires. If any member of the board willfully fails to attend its sessions he shall be reported to the house to which he belongs, and that house shall thereupon, in its discretion, punish him by fine or imprisonment, or both.
(3) The board may send for persons, papers and records and issue attachments therefore signed by its chairman or clerk, and may issue commissions for taking proof.
(4) If it appears that the candidates receiving the highest number of votes given have received an equal number, the right to the office shall be determined by lot, under the direction of the board. If the person returned is found not to have been legally qualified to receive the office at the time of his election, and the first two (2) years of his term have not expired, a new election shall be ordered to fill the vacancy. If a person other than the one returned is found to have received the highest number of legal votes given, he shall be adjudged to be the person elected and entitled to the office.
(5) No decision shall be made but by the vote of six (6) members of the board. The decision of the board shall not be final nor conclusive, but shall be reported to the two (2) houses of the General Assembly, in joint session, for the further action of the General Assembly. The Speaker of the House shall preside at the joint session, and the General Assembly shall then determine the contest. If no decision of the board is given during the then session of the General Assembly, it shall be dissolved, unless by joint resolution of the two (2) houses it is empowered to continue longer.
(6) If a new election is required, it shall be immediately ordered by proclamation of the Speaker of the House, to take place on a day not less than thirty (30) days nor more than six (6) weeks thereafter.
(7) When a new election is ordered or the incumbent is adjudged not to be entitled to the office, his power shall immediately cease, and if the office is not adjudged to another it shall be deemed to be vacant.
History: Created 1974 Ky. Acts ch. 130, sec. 168.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
KRS 120.215 Board to determine contest of election of member of General Assembly.
When the election of a member of the General Assembly is contested, the branch to which he belongs shall, within three (3) days after its organization, and in the manner provided in KRS 120.205, select a board of not more than nine (9) nor less than five (5) of its members to determine the contest. Such board shall be governed by the same rules, have the same power, and be subject to the same penalties as a board to determine the contested election of Governor. It shall report its decision to the branch of the General Assembly by which it was appointed, for its further action.
History: Created 1974 Ky. Acts ch. 130, sec. 169.
 
ANNOTATION FOR THIS STATUTE:
 
[U] Stephenson v. Woodward, No. 2005-SC-0096-TG (Ky. 03/17/2005)
  Nonetheless, Senator Williams and Stephenson invoke the authority of the General Assembly to judge the qualifications of its members pursuant to Section 38 of the Kentucky Constitution, which states that "[e]ach house of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law." KRS 120.195 and KRS 120.215 carry out the command of Section 38, and direct the procedures for contesting an election for a position in the General Assembly; the statutes do not include the judiciary in this process. Yet, again, neither this Court nor the courts below predicate our jurisdiction to hear this matter on KRS Chapter 120 or Section 38 of the Constitution. Rather, the General Assembly has specifically conferred jurisdiction upon the courts to adjudicate challenges questioning the qualifications of candidates through KRS 118.176.
 
 
Public Questions and Constitutional Matters
 
KRS 120.250 Contest or recount of election on public question.
(1) Any elector who was qualified to and did vote on any public question, other than a constitutional amendment or a question of local option under KRS Chapter 242, submitted to the voters of any county, city or district for their approval or rejection may contest the election or demand a recount of the ballots by filing a petition, within thirty (30) days after the election, with the clerk of the Circuit Court of the county in which the election was held, which court shall have exclusive jurisdiction to hear and determine all matters in such cases. The petition shall be against the county, city or district in which the election was held, and shall set forth the grounds of contest or reason for requesting a recount. The grounds of contest may be the casting of illegal votes, the exclusion of legal votes, the unfair or illegal conduct of the election, tampering with the returns, the alteration of the certificates of the results, bribery, fraud, intimidation or corrupt practices, or any conduct or practice tending to frustrate, obstruct or interfere with the free expression of the will of the voters. A copy of the petition shall be posted at the courthouse door and at one or more public places in the county, city or district in which the election was held. Summons shall be served on the defendant as in equity actions.
(2) Upon the petition being filed, the circuit clerk shall forthwith order the county board of election commissioners and the county clerk of the county involved in the contest to preserve and hold the ballots cast at the election on the question subject to the order of the Circuit Court. The court shall, within five (5) days after the petition is filed, determine whether there are sufficient grounds stated to justify the contest, and shall thereupon require the contestants to give bond for costs, and fix a time for the defendant to answer, not exceeding twenty (20) days.
(3) If the county, city or district affected fails to defend the action, any elector may become a defendant by filing an answer or other proper pleading within thirty (30) days after the filing of the petition, and by giving security for the costs in an amount to be fixed by the court. Any elector may join and assist the defendant in resisting the action by filing an application to do so and by giving security for such proportion of the costs as may be adjudged against him.
Effective: January 2, 1978
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 139, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 170.
 
ANNOTATION FOR THIS STATUTE:
 
City of Pikeville v. Pike County, No. 2008-CA-001056-MR (Ky. App. 3/20/2009) (Ky. App., 2009)
   The City, the Mayor, and the City Manager thereafter filed a "Petition Demanding Recount of Election Ballots and to Determine Legality of Votes; and Petition for Declaration of Rights," naming the County3 and the Cassadys as defendants. The petition sought relief pursuant to KRS 120.250, which governs contests and recounts of public elections, and KRS 418.040, the Declaratory Judgment Act. It was the position of the City that the Cassadys were ineligible to vote on the annexation question because they do not reside within the territory that the City proposed to be annexed. The County refused to take a position on the issue, but it requested the court to make a judicial determination concerning the legal issues raised by the petition so that the County and County Clerk would have a basis for future decisions.
        The Cassadys filed an answer and counterclaim and a motion to dismiss the petition pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f) for failure to state a claim upon which relief can be granted. They argued that the plaintiffs lacked standing to bring an action under KRS 120.250 and that declaratory relief was also unavailable because the election was not void. After conducting a hearing, the circuit court granted the Cassadys’ motion to dismiss.4 This appeal followed.
        The appellants contend that they were entitled to bring an action to contest the election pursuant to KRS 120.250(1). That statute provides in pertinent part as follows:…..
   It is undisputed that none of the appellants is an elector who was qualified to vote and did vote on the public question of the proposed annexation. The appellants have nonetheless argued that they should have been allowed to proceed because, they claim, on a previous occasion this Court gave tacit approval to the Attorney General to proceed with an action under KRS 120.280 (a parallel statute to KRS 120.250 concerning constitutional amendments) even though he was not an elector. See Chandler v. City of Winchester, 973 S.W.2d 78 (Ky. App. 1998). But in that case, as the Cassadys have pointed out, this Court determined that the Attorney General’s petition was barred by the 15-day limitations period contained in the statute and therefore never addressed the issue of his standing to bring the suit. Chandler, 973 S.W.2d at 82.
 
King v. Campbell County, 217 S.W.3d 862 (Ky. App., 2006)
    We note, furthermore, that election challenges based on the wording of a public question constitute election contests governed by KRS 120.250, which requires that such contests be brought within thirty days after the election. Forrester v. Terry, 357 S.W.2d 308 (Ky.1962) (applying prior law); Chandler v. City of Winchester, supra (applying KRS 120.280’s fifteen day limitation period for election contests challenging constitutional amendments). King’s challenge to the ballot question must also be dismissed, therefore, because it is untimely.
 
Chandler v. City of Winchester, 973 S.W.2d 78 (Ky.App. 07/24/1998)
   The Kentucky Supreme Court in the Robinson case held that a similar election contest statute (KRS 120.250) "relates to the type of case where the election is not void ab initio, but voidable (or contestable) on grounds specified in that Chapter." Id. at 203-04. The court then stated as follows:
        The distinction drawn is between a void election, and one merely voidable; between preconditions to a valid election, and an election with some latent insufficiency. An election is void where the conditions precedent to the holding of a valid election have not been met. In such case the election is not authorized by law.
 
Robinson v. Ehrler, 691 S.W.2d 200 (Ky. 05/23/1985)    
 Both KRS 120.260 and KRS 120.270 make it clear that KRS 120.250 is intended to deal with voting and counting of ballots. The final phrase of the description of the type of conduct covered by the thirty days provision in KRS 120.250, "or any conduct or practice tending to frustrate, obstruct, or interfere with the free expression of the will of the voters," is intended to amplify the list of election violations in the phrases preceeding it. It does not function as a divestiture of preexisting equitable jurisdiction over void elections. The rule of ejusdem generis applies. Such words are general words, not to be construed in their widest extent, but to be held as applying only to things of the same general kind or class as those specifically mentioned. Black’s Law Dictionary, 464 (rev. 5th ed. 1979). KRS Chapter 120, Election Contests, and more specifically KRS 120.250(1), is a grant of authority, not a limitation of preexisting authority.           
 
 
Dunn v. Marshall County Hospital District of County of Marshall, 543 S.W.2d 767 (Ky. 11/12/1976)
     Furthermore, this court is of the opinion that the appellants cannot now complain that the election was invalid. They could have challenged the election within 30 days after it was held. See KRS 122.140 (now KRS 120.250). Having failed to challenge the election within the required time, the appellants are now barred from contesting it.
 
 
 
KRS 120.260 Procedure for recount of election on public question.
If a recount of the ballots is requested in a proceeding instituted under KRS 120.250, and the court has determined that the petition presents sufficient grounds, the court shall immediately order the ballots of the precincts in which the recount is demanded sent to the courthouse of the county, in a manner designated in the order, and shall designate two (2) commissioners to assist in the recount. One (1) of the commissioners shall represent the contestant and one (1) the contestee. The attorneys representing the parties may be present at all hearings and at the recount of the ballots. The court shall pass on all disputes respecting ballots and shall ascertain the result of the election after counting all legal ballots.
Effective: January 2, 1978
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 140, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 171.
 
ANNOTATION FOR THIS STATUTE:
 
Robinson v. Ehrler, 691 S.W.2d 200 (Ky. 05/23/1985)
   Both KRS 120.260 and KRS 120.270 make it clear that KRS 120.250 is intended to deal with voting and counting of ballots. The final phrase of the description of the type of conduct covered by the thirty days provision in KRS 120.250, "or any conduct or practice tending to frustrate, obstruct, or interfere with the free expression of the will of the voters," is intended to amplify the list of election violations in the phrases preceeding it. It does not function as a divestiture of preexisting equitable jurisdiction over void elections. The rule of ejusdem generis applies. Such words are general words, not to be construed in their widest extent, but to be held as applying only to things of the same general kind or class as those specifically mentioned. Black’s Law Dictionary, 464 (rev. 5th ed. 1979). KRS Chapter 120, Election Contests, and more specifically KRS 120.250(1), is a grant of authority, not a limitation of preexisting authority.
    The fact that the election, now voided, was held, is not an impediment to holding another election, this time properly held, at which the voters can change Jefferson County government from commissioner to magistrate form if they so desire. If done, those responsible must then see to it that the election is done properly.
 
 
KRS 120.270 Judgment in contest or recount of election on public question — Costs –Appeal.
(1) If it appears in a proceeding instituted under KRS 120.250 that the result as certified is not correct, the correct result shall be ascertained and declared by the court and certified to the county board of election commissioners, and the judgment shall supersede the official returns. If it appears to the satisfaction of the court that the election, or the returns thereof, were materially affected by fraud, duress, bribery, intimidation or corrupt practices, the entire election and the returns thereof shall be declared void and ineffective for any purpose. Costs shall follow the judgment as in equity cases.
(2) An appeal to the Court of Appeals may be prosecuted by the unsuccessful party in the same manner as in other contested election cases. No appeal shall lie from the recount of the ballots, but any questioned ballots may be made a part of the record and the ruling thereon by the Circuit Court may be reviewed, revised or reversed by the Court of Appeals.
History: Created 1974 Ky. Acts ch. 130, sec. 172.
 
 
ANNOTATION FOR THIS STATUTE:
 
Robinson v. Ehrler, 691 S.W.2d 200 (Ky. 05/23/1985)
     Both KRS 120.260 and KRS 120.270 make it clear that KRS 120.250 is intended to deal with voting and counting of ballots. The final phrase of the description of the type of conduct covered by the thirty days provision in KRS 120.250, "or any conduct or practice tending to frustrate, obstruct, or interfere with the free expression of the will of the voters," is intended to amplify the list of election violations in the phrases preceeding it. It does not function as a divestiture of preexisting equitable jurisdiction over void elections. The rule of ejusdem generis applies. Such words are general words, not to be construed in their widest extent, but to be held as applying only to things of the same general kind or class as those specifically mentioned. Black’s Law Dictionary, 464 (rev. 5th ed. 1979). KRS Chapter 120, Election Contests, and more specifically KRS 120.250(1), is a grant of authority, not a limitation of preexisting authority.
        As is clear from both the title to KRS Chapter 120 and those cases permitting attack on the validity of elections which preexisted the statutory machinery for election contests in KRS Chapter 120, courts of equity have always had the inherent power to set aside a void election, just as in the case of a void judgment.
 
 
KRS 120.280 Contest on constitutional convention or amendment, or statewide public question.
(1) Any elector who was qualified to and did vote on any constitutional convention, constitutional amendment, or statewide public question submitted to the voters of the state for their ratification or rejection may contest the election or demand a recount of the ballots by filing a petition, not more than fifteen (15) days after the official canvass and the announcement of the vote for the state by the State Board of Elections, with the clerk of the Franklin Circuit Court, which court shall have exclusive jurisdiction to hear and determine all matters in such cases. The petition shall set forth the grounds of the contest. The contestant may file with the clerk of the Franklin Circuit Court and the Secretary of State a notice of his intention to contest the election before the announcement of the official count by the State Board of Elections and thereupon the Secretary of State shall forthwith notify all the county boards of elections in the counties involved in the contest to hold the ballots cast at the election on the question subject to the order of the Franklin Circuit Court. The notice shall be served by the Secretary of State by mailing a true and certified copy of the notice of contest, and the order to hold the ballots subject to the order of the court, by certified mail, return receipt requested, to the sheriffs of the counties in question, and the sheriffs shall forthwith acknowledge receipt thereof.
(2) The court shall, within five (5) days after the filing of the petition of contest, determine whether there are sufficient grounds stated to justify the contest, and shall thereupon require the contestants to give bonds for costs. All of the hearings relating to the contest shall be held in the courthouse of Franklin County.
(3) The clerk of the Franklin Circuit Court shall cause a notice of the contest to be published pursuant to KRS Chapter 424, setting out the substance or the grounds of contest alleged by the contestants.
(4) Any elector who participated in the election on the convention, amendment, or statewide public question may make himself a party as contestee in the action by filing his petition to be made a party not later than five (5) days after the contest is instituted, and by giving bond of the costs as required of the contestant. If no elector makes himself a party to the contest, the Commonwealth’s attorney for the Franklin Circuit Court shall attend the trial of the cause, and he may file motions and pleadings in the cause on behalf of the Commonwealth to insure a fair and honest determination of the contest.
(5) All laws relating to contested elections for state offices shall apply with equal force to contests of the character contemplated by this section, except as otherwise provided in this section and in KRS 120.290.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 288, sec. 56, effective July 14, 1992. – Amended 1980 Ky. Acts ch. 114, sec. 16, effective July 15, 1980. — Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 141, effective January 2, 1978. — Created 1974 Ky. Acts
ch. 130, sec. 173.
 
 
ANNOTATION FOR THIS STATUTE:
 
Chandler v. City of Winchester, 973 S.W.2d 78 (Ky.App. 07/24/1998)
     The first issue is whether the trial court erred in concluding that the attorney general’s claim regarding the sufficiency of the ballot question is barred by KRS 120.280(1), which provided in relevant part that "[a]ny elector who was qualified to and did vote on any … constitutional amendment … may contest the election or demand a recount of the ballots by filing a petition, not more than fifteen (15) days after the official canvass and the announcement of the vote for the state by the State Board of Elections…." The statewide election on the constitutional amendment involved in this case was held in November 1994. However, the attorney general did not file his allegation that the election was void until November 1996. Therefore, if the time limitation of KRS 120.280(1) is applicable to the case sub judice, then the attorney general’s attempt to have the 1994 election declared void is time-barred and of no effect.
     We conclude that the trial court was correct when it stated that it was not the responsibility of the attorney general to include the changes or consequences of the amendment, but only to state the basic substance of the amendment. The ballot question was not misleading or inconsistent, and it revealed the substance of the amendment. It therefore met the requirements of the constitution and the statute. See Funk at 476.
        The judgment of the Clark Circuit Court is affirmed.
 
City of Pikeville v. Pike County, No. 2008-CA-001056-MR (Ky. App. 3/20/2009) (Ky. App., 2009)
   It is undisputed that none of the appellants is an elector who was qualified to vote and did vote on the public question of the proposed annexation. The appellants have nonetheless argued that they should have been allowed to proceed because, they claim, on a previous occasion this Court gave tacit approval to the Attorney General to proceed with an action under KRS 120.280 (a parallel statute to KRS 120.250 concerning constitutional amendments) even though he was not an elector. See Chandler v. City of Winchester, 973 S.W.2d 78 (Ky. App. 1998). But in that case, as the Cassadys have pointed out, this Court determined that the Attorney General’s petition was barred by the 15-day limitations period contained in the statute and therefore never addressed the issue of his standing to bring the suit. Chandler, 973 S.W.2d at 82.
……the circuit court in this case properly dismissed the suit. Its order is therefore affirmed.
        ALL CONCUR.
 
King v. Campbell County, 217 S.W.3d 862 (Ky. App., 2006)
 We note, furthermore, that election challenges based on the wording of a public question constitute election contests governed by KRS 120.250, which requires that such contests be brought within thirty days after the election. Forrester v. Terry, 357 S.W.2d 308 (Ky.1962) (applying prior law); Chandler v. City of Winchester, supra (applying KRS 120.280′s fifteen day limitation period for election contests challenging constitutional amendments). King’s challenge to the ballot question must also be dismissed, therefore, because it is untimely.
 
 
KRS 120.290 Procedure for recount of election on constitutional convention or amendment, or statewide public question.
(1) If a contest instituted under KRS 120.280 involves the recount of ballots, and the court has determined that the petition of contest presents sufficient grounds, the court shall immediately order the ballots of the counties and precincts in which the recount is demanded sent to the courthouse at Frankfort, in a manner designated in the order. The court may appoint two (2) special commissioners to help make the recount, who shall receive three dollars ($3) per day and their actual traveling expenses, when approved by the Franklin Circuit Court. The attorneys representing the contestant and the Commonwealth’s attorney representing the contestee may be present at all hearings on the recount. The contestant and contestee shall each be entitled to appoint one (1) inspector, who shall be allowed to witness the recount.
(2) The result of the recount of ballots shall be reported to the court within three (3) days after it has been completed, together with all the disputed ballots and any ballots not counted. After inspecting and passing on the disputed and uncounted ballots, the court shall add such of them as are found to be legal to the number of legal ballots determined by the recount. If the court finds that any ballots were procured by fraud, duress, bribery, intimidation, or for valuable consideration, they shall be rejected as illegal and void. If there has been such error, fraud or other irregularity as to make it impossible to ascertain the correct result in any precinct, the ballots from that precinct shall be thrown out and considered void. The vote from a precinct shall not be counted if the contestants prove that there was bribery or intimidation of the electors in that precinct and the court finds that the contestants were in the minority in that precinct and were not in any way implicated in the bribery or fraud complained of.
Effective: January 2, 1978
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 142, effective January 2, 1978. — Created 1974 Ky. Acts ch. 130, sec. 174.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 120.300 Appeal from judgment in contest or recount on constitutional convention or amendment, or statewide public question.
An appeal to the Court of Appeals may be prosecuted by any party to a contest instituted under KRS 120.280 in the same manner as in other contested election cases.
History: Created 1974 Ky. Acts ch. 130, sec. 175.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
Miscellaneous Provisions
 
KRS 120.350 Compensation, powers and duties of witnesses and officers in election contest cases.
The compensation of witnesses and officers taking depositions, and their powers and duties, shall be the same in election contest cases as in actions in equity.
History: Created 1974 Ky. Acts ch. 130, sec. 176.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 120.360 Prohibition of agreement by candidate not to contest election.
It shall be unlawful for any candidate in any primary or general election to agree not to file a suit contesting the election, or to agree to dismiss or cease prosecuting such suit after it has been filed, in consideration of the payment or promise to pay to him, or to any other person, of any money, deputyship, clerkship, employment, or anything of value by such successful candidate or by any other person. Any person who violates this section shall be ineligible thereafter to hold, or become a candidate for nomination or election to, any public office in this state, or to have his name printed on any official ballot in a primary or general election. Any qualified voter may maintain an action to enjoin the printing of the name of a person upon the official ballots for any primary or general election, on the ground that such person has violated this section, and in such action the violation may be proved by parol evidence.
History: Created 1974 Ky. Acts ch. 130, sec. 177.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
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