Election Report
1998 Primary Election

May, 1998 Term

The Fayette County Grand Jury for the May, 1998 term met as required by law to accept reports required to be made to them under KRS 117.355, 117.365, and 119.305. On May 22, 1998, the Grand Jury convened and accepted written reports from the County Clerk and the Board of Elections of Fayette County. On the same day, the Grand Jury took testimony from Kitty Ware of the Voter Registration Division of the Fayette County Clerk's Office and reviewed additional material submitted by that office and by Fayette County Sheriff Harold Buchignani. Both the report of the County Board of Elections and the general report of the County Clerk indicate few major problems in the 1998 Primary Election.

There are serious potential problems, first mentioned by the December 1995 Grand Jury, resulting from the passage of the National Voter Registration Act of 1993, known as the "Motor Voter" law, and recent changes in Kentucky election laws. The November, 1995 election was the first general election under the provisions of both of the new laws.

OTHER REPORTS

In addition to the testimony of Deputy County Clerk Kitty Ware, the Grand Jury received a written report from the County Clerk and written reports from the Board of Elections and Sheriff Harold Buchignani. Ms. Ware brought with her a written report on voter assistance forms as well as copies of all the forms.

The Grand Jury has also had presented to it all Oath of Voter forms, the election day incident reports from the County Clerk's Office and the Board of Elections, and all precinct election sheriff's reports.

VOTE FRAUD

No reports of vote fraud were received. The Attorney General's Election Task Force has referred no reports of fraud in this county. However, the provisions of a new Kentucky law allow a person to arrive at the polls without identification, and vote upon completion of the Oath of Voter form. This creates an opportunity for fraudulent voting. Although the County Clerk's Office compared the signature on the Oath of Voter with the registration card (if one exists), they are not trained in handwriting analysis. Also, a person's signature may change over a period of years due to disability or passage of time.

The most serious danger is that the Oath of Voter can be used for both purposes: identification and registration. A person can walk into the polling place, without identification, and give a name, real or fictitious. When the name does not appear on the precinct list, he executes an Oath of Voter, and votes. In such a case, there is no registration card for signature comparison. Nothing prevents a fraudulent voter or imposter from doing this in as many different precincts as time will permit.

UNQUALIFIED VOTERS

In the past, persons have been indicted for deliberately voting in precincts other than the one in which they reside. The "Motor Voter" law now allows persons to vote in precincts where they currently claim to reside, upon the completion of an Oath of Voter form.

"Motor Voter" also provides that a person who is not listed as registered may vote upon the completion of an Oath of Voter form. The Oath of Voter forms contain this warning: "This Oath shall be returned to the County Clerk who shall deliver it to the Commonwealth's Attorney for investigation." Falsely completing such an oath is punishable as perjury, but it is virtually impossible to check on a person's claim to be registered, since public assistance offices, high schools, drivers' license offices, military recruiters and private citizens are now authorized to accept voter registrations. Thirty-six people voted who were not registered. Of those, twenty-four were either removed from the rolls by clerical error or had recently moved. For the remaining twelve who voted, there was no record that they had ever been registered. However, no provable case of vote fraud can be charged because of the chaos created in the voter registration system by the new laws. The Commonwealth cannot prove that these people were not registered by some agency or individual other than the County Clerk.

One complaint was referred about a convicted felon voting. Further investigation by the Lexington-Fayette Division of Police has been requested.

OTHER ALLEGATIONS

The Attorney General's Task Force did receive two complaints from Fayette County. One caller complained of the use of police officers in commercials for the Lexington Mayor. This has been determined not to be a violation of any provision of the election laws. (However, the Grand Jury has been advised that the Lexington-Fayette Division of Police have banned the practice by internal regulation).

Another complaint to the Attorney General involved a successful candidate for constable, who was alleged to live outside his district. The same complaint was made to the Commonwealth's Attorney's Office. The matter was scheduled for presentation to the Grand Jury, but the complainant decided not to pursue the matter after the candidate withdrew.

A complaint was received by the County Clerk from an unsuccessful candidate for mayor, that the Herald-Leader's election day editorial reiterating its previous endorsements was an illegal corporate in-kind contribution to the endorsed candidates. (Upon publication of the original editorials, the newspaper gave the unendorsed candidates free space to respond. No complaint has been made about the original endorsement). KRS 121.025 prohibits corporations from contributing, directly or indirectly, any money, service or other thing of value toward the nomination or election of any candidate. The Herald-Leader, a subsidiary of the Knight-Ridder Corporation, is prohibited by statute from contributing anything of value to a candidate. Presumably, this would include donated space, in the form of an unpaid endorsement. However, the First Amendment to the United States Constitution prohibits government interference with freedom of the press, and prosecution of those responsible for the editorial would be unconstitutional. This conclusion was reached by the Commonwealth's Attorney's Office after consultation with the Attorney General's Office.

SUMMARY

The Grand Jury notes no major problems with the 1998 Primary Election and commends the County Clerk, the Board of Elections, and all people who gave of their time on Election Day to serve as precinct officers. However, the testimony and records presented show a serious potential for vote fraud. The Kentucky General Assembly should require valid picture identification from all voters unless they are personally known to the precinct workers. If the provisions of the federal "Motor Voter" law are retained, at least any voter registration forms taken from the County Clerk's office should be sequentially numbered, and the offices which distribute them should be required to return a listing of persons registered to the County Clerk along with any unused forms. The Oath of Voter forms should also require the voter to state when and where the registration took place.

FOREPERSON, FAYETTE COUNTY GRAND JURY