Barnard v. Stone

LAMBERT, Justice. This cause comes before the Court for review of the opinion and order of the Court of Appeals entered herein on September 10, 1996. According to said opinion and order, the final judgment of the Jefferson Circuit Court allowing movant, Donald L. Barnard, to appear on the November, 1996, general election ballot as an independent candidate for the United States House of Representatives from the Third Congressional District of Kentucky was set aside. Pending determination by the full Court, this Court’s Chief Justice stayed the opinion and order of the Court of Appeals and reinstated the judgment of the circuit court. As set forth in this Court’s order of October 18, 1996, the order of the Chief Justice has been vacated and the order of the Court of Appeals has been affirmed. The purpose of this opinion is to disclose the reasons for our decision. As found by the trial court, movant’s nominating petition contained the unquestionably valid signatures of 398 persons. It also bore the names of four other persons who authorized their names to be affixed to the petition but did not personally sign it. KRS 118.315(2) provides that a petition of nomination for a representative in Congress shall contain 400 petitioners and “shall be signed by the candidate and by registered voters from the district or jurisdiction from which the candidate seeks nomination.” Thus, if it is finally determined that movant’s nomination petition contained fewer than 400 valid signatories, he must be disqualified; but if his petition contains 400 or more such signatories, he is entitled to be on the ballot. In its final judgment, the trial court relied upon Prichard v. Kitchen, Ky., 242 S.W.2d 988 (1951), and Widick v. Pursifull, 299 Ky. 773, 187 S.W.2d 447 (1945), for the proposi [395] tion that upon nominating petitions, voters may authorize others to sign such petitions for them provided it is done at the direction and in the presence of the person authorizing his name to be signed. Our decision in Wid-ick was in a local option election and based upon a statute, KRS 242.020, which appears to have contemplated that a person’s name could be placed upon a petition without that person’s signature but with his authorization, as the statute provided a means for the person whose name appeared on the petition to go before the county court and have his name eliminated if it had been placed there without his authorization. Our decision in Prichard broadly states that “where a person’s name is signed for him at his direction and in his presence by another, the signature becomes his own and has the same effect as though written by the person himself.” Id., 242 S.W.2d at 990. Prichard was a will case, however, and the statute under construction was KRS 394.040 which provides that if the will is not holographic, “the subscription shall be made or the will acknowledged by him [the testator] in the presence of at least two (2) credible witnesses, who shall subscribe the will with their names in the presence of the testator, and in the presence of each other.” Thus, the broad language in Prichard must be considered with regard to the statute it construed and qualified to that extent. Another decision which stands generally for the proposition that one may authorize another to sign his name upon a nominating petition is Ledford v. Hubbard, 219 Ky. 9, 292 S.W. 845 (1927), a case which appears to have been rife with questionable practices, e.g. the disappearance of one whole page of signatures from a petition, the substitution of pages from one petition to another, and similar apparently dishonest practices. Holding that the petition under review lacked the necessary number of signatures, the Court stated that the formality required to make a signature to such a petition was the same as that which is required to make a signature to a deed or a contract or a will. In the ease at bar, the Court of Appeals reversed the trial court. That court looked to the prevailing version of KRS 118.315(2), as enacted in 1974 and most recently amended in 1992, and concluded that the language “shall be signed ... by registered voters” precluded a voter from authorizing another to sign for him or her. In addition to strict construction of the language, the court expressed concern for the possibility of fraud and abuse and its potential to affect the integrity of the electoral process. We have carefully considered the older cases cited herein and the more recent statute here under review. In our opinion, the statute is sufficiently explicit and unambiguous to require its literal application. Lynch v. Commonwealth, Ky., 902 S.W.2d 813 (1995). Moreover, when the language is coupled with the provision in KRS 118.315(2) which requires petitioners to disclose their residence, social security number or date of birth, and post office address, it is apparent that the statute clearly contemplates the existence of a means whereby the validity of signatures can be verified. With verification as a central purpose, it would be contradictory to permit one person to sign for another, thereby eliminating the ability to compare signatures on nominating petitions with signatures on voter registration forms. The interpretation urged by movant whereby a voter could authorize another to sign for him would undermine the integrity of the process. If extended to its logical conclusion, one could appear before a great assembly of persons and, on receiving their oral or gestured assent, sign the name of every person present to a nominating petition. The decisions of this Court require strict compliance with election statutes. In Thomas v. Lyons, Ky., 586 S.W.2d 711 (1979), we rejected a substantial compliance argument on grounds that such would amount to an unauthorized amendment of the statute. In Morris v. Jefferson County Clerk, Ky., 729 S.W.2d 444 (1987), we similarly rejected substantial compliance and invalidated the candidacy. Illustrative of public policy with respect to election laws is KRS 117.075, et. seq., statutes which deal with disabled and absentee voters. These statutes go to great lengths to assure the integrity of voting while, nevertheless, assuring the right of [396] qualified persons who may be disabled or have cognizable grounds for absentee voting to participate in elections. It would be absolutely contrary to the spirit of the foregoing statutes to allow surrogates to sign for voters on nominating petitions. At oral argument a question was raised as to whether a person who was disabled could authorize a surrogate to sign for him or her on a nominating petition. Upon inquiry it was established with certainty that no disability claim was raised in the trial court and therefore no preserved question appears here with respect to disability. It does appear that after the case reached the Court of Appeals, an affidavit was filed by movant whereby he stated that one person who directed his wife to sign the petition for him was “disabled to the point that his right hand shook so bad that he could not hold a clipboard while standing in order to sign my petition.” This affidavit was not before the trial court and, under our procedural rules, may not be considered on appeal. CR 46. Feltner v. Commonwealth, Ky., 240 S.W.2d 552 (1951). Even if this person’s possible disability had been timely raised and if his signature had been determined to be valid, movant would still fall short of the requisite 400 valid signatories. By virtue of KRS 118.176(3), the burden of proof as to lack of bonafides of a candidate is upon the challenger. Based upon the facts found by the trial court and our application of the law thereto, we have determined that the challenger met this burden by establishing that movant obtained only 398 valid signatories upon his nominating petition. As such, his attempted nomination has been invalidated and his name stricken from the ballot, or if such is determined to be impracticable, the provisions of KRS 118.212(5) shall be observed. For the foregoing reasons, consistent with our order entered herein on October 18, 1996, this cause is remanded to the Jefferson Circuit Court for entry of a conforming judgment. BAKER, GRAVES, LAMBERT and WINTERSHEIMER, JJ., concur. STEPHENS, C.J., dissents by separate opinion in which STUMBO, J., joins. KING, J., not sitting.