Senate president: Kentucky governor's race could be decided by state legislature

UPDATE: Senate president says Bevin should concede election if recanvass doesn't alter vote totals

Kentucky Senate President Robert Stivers threw another wrench into the state's razor-thin gubernatorial outcome late Tuesday night, saying that the legislature could decide the race.

Stivers' comments came shortly after Gov. Matt Bevin refused to concede to Attorney General Andy Beshear, who led by roughly 5,100 votes when all the precincts were counted.

“There’s less than one-half of 1%, as I understand, separating the governor and the attorney general,” Stivers said. “We will follow the letter of the law and what various processes determine.”

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Stivers, R-Manchester, said based on his staff’s research, the decision could come before the Republican-controlled state legislature.

Under state law, Bevin has 30 days to formally contest the outcome once it is certified by the State Board of Elections. Candidates typically ask for a re-canvass of voting machines and a recount first.

The last contested governor's race was the 1899 election of Democrat William Goebel.

Stivers said he thought Bevin’s speech declining to concede to Beshear was “appropriate.” He said believes most of the votes that went to Libertarian John Hicks, who received about 2% of the total vote, would have gone to Bevin and made him the clear winner.

A candidate can file a formal election contest with the state legislature, but it must be filed within 30 days of the last action by the state board of elections. The state board is scheduled to certify the results of the race for governor on Nov. 21 this year.

Under this contest, the candidate challenging the results must specify the grounds for the action, such as a violation of campaign finance rules or specific problems when it comes to how ballots were cast.

Such an election contest is covered under Section 90 of the state constitution, which addresses a "contest of election for Governor or Lieutenant Governor."

Section 90 states: "Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law."

Sam Marcosson, a constitutional law professor at the University of Louisville Brandeis School of Law, told The Courier Journal that this language of the state Constitution suggests there must be procedure established by law for a review of a contested election to take place by the House and Senate.

“They can’t just make them up,” Marcosson said.

Further, he said, such a review would be extremely risky for lawmakers to undertake without clear reasons for a contested election.

“If the House and Senate were just to proceed on vague allegations without proof, that raises serious questions about disenfranchisement of the voters who voted for Attorney General Beshear,” Marcosson said. “It’s an extraordinary proposition to suggest that the General Assembly would take vague allegations of unspecified irregularities and call into question a gubernatorial election.”

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Reporter Morgan Watkins contributed to this story.

Reach Phillip M. Bailey at pbailey@courier-journal.com or 502-582-4475.

Reach reporter Joe Sonka at jsonka@courierjournal.com or 502-582-4472 and follow him on Twitter at @joesonka. Support strong local journalism by subscribing today: courierjournal.com/subscribe.

CORRECTION: An earlier version of this story gave the wrong date for when the state Board of Elections will certify election results.