A Bevin-Beshear recount? These are the possible next steps under Kentucky election law

Joe Sonka | Courier Journal

Show Caption Hide Caption Kentucky governor race 2019: Andy Beshear delivers acceptance speech Matt Bevin told Republicans that he was not conceding to Andy Beshear

To cap off one of the wildest finishes to a gubernatorial election in Kentucky history, Democratic candidate Andy Beshear declared victory to supporters Tuesday night, moments after Republican incumbent Matt Bevin told supporters that he will not concede the race.

"This is a close, close race," said Bevin, who trailed Beshear by 5,189 votes with 100% of precincts reporting across the state. "We are not conceding this race by any stretch."

Later that night, Kentucky Secretary of State Alison Lundergan Grimes told CNN her office had called the race for Beshear, as they do not believe the difference in the vote can be made up by Bevin.

As if matters couldn't get more complicated, Republican Senate President Robert Stivers then told reporters that a joint session of the Kentucky General Assembly may eventually decide the winner, citing a provision in the state constitution that hasn't been used in 120 years.

So... what now?

Will there be a recanvass, recount of Kentucky governor's race votes?

Bevin said he "wanted the process to be followed" under law before he made a concession, referring to unspecified "irregularities" that were "corroborated."

The first step in that process under Kentucky law, when it comes to election results that are contested, should be as familiar to Bevin as anyone else in the state, as he won a razor-thin victory in the Republican gubernatorial primary of 2015 by margin of just 83 votes over now Rep. James Comer.

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The first step under Kentucky law is a recanvass of the vote, which is a review of the vote totals by each county clerk — counting absentee votes and checking printouts to make sure the numbers they transmitted to the State Board of Elections were correct.

State law allows for a recanvassing if a county clerk or a county board of elections notices a discrepancy, or if a candidate makes a written request to the secretary of state.

Comer requested a recanvass of the vote totals in that 2015 race, but the results were unchanged. He declined to request the next possible step in the process under Kentucky law — a formal recount that includes a physical examination of the ballots.

There is no provision for an automatic recount under Kentucky law. A candidate must file a petition with the Franklin Circuit Court by the Tuesday following the election.

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If petitioned, the judge would take possession of the paper ballots and voting machines and conduct their own recount. After doing so, the judge would make the final decision on who won the race, but that would be subject to appeal to the Kentucky Court of Appeals or the Kentucky Supreme Court.

Joshua Douglas, a professor in the University of Kentucky Law School, told The Courier Journal that while Bevin would not be charged for the costs of a recanvass should he want one, he would have to pay for a recount.

Kentucky governor race 2019: Gov. Matt Bevin refuses to concede speech Matt Bevin was quick to congratulate republican victories and stated he will not concede while demanding a recount.

What it means to formally contest an election

The third step that a candidate could take is a formal election contest, which must also be filed by the Tuesday after the election. 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.

Last but not least, there is 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.”

Douglas, noting that he had “no idea” what irregularities Bevin referred to in his speech to supporters Tuesday night, said in the case of a legislative election contest, Bevin would have to call a special session of the General Assembly. Douglas said his session would involve a committee of 11 members, eight from the House and three from the Senate, which “would hear evidence and make a final determination. And that determination would be final.”

After that committee decision, no lawsuits could be filed over the decision, Douglas added.

When will the new Kentucky governor be sworn into office?

For now, Bevin hasn't specified what action he will take, and neither has Stivers or House Speaker David Osborne.

Until then, Kentuckians will wait with bated breath as they wonder who their governor will be for the next four years and how long it will that to determine that victor.

Whatever step is taken, they do have to act somewhat quickly. The Kentucky constitution requires that a governor be sworn into office on the fifth Tuesday after an election, which would be Dec. 10.

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.