No Bevin-Beshear recount? These are the possible next steps under Kentucky election law

Joe Sonka | Courier Journal

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 by the Tuesday after an election, which would be Nov. 12. If a recanvass is requested, it would be conducted on Nov. 14.

Comer requested a recanvass of the vote totals in that 2015 race, but the results were unchanged. The race ended there.

There is no provision for an automatic recount under Kentucky law, as a candidate must file a petition with the Franklin Circuit Court within 10 days of the election.

Initially there was a question about whether Bevin could request a recount, which would include a physical examination of the ballots.

But in gubernatorial elections, state law does not allow candidates to ask for a recount, Grimes told The Courier Journal in an interview on Wednesday.

"Normally, if you’re talking about any other statewide race beyond governor and lieutenant governor, you would involve a recount, which involves the court," Grimes said. "But here, the law specifically excludes governor and lieutenant governor for recall procedures."

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What it means to formally contest an election

Another step that a candidate could take is a formal election contest with the state legislature, which 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.

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."

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Sam Marcosson, a constitutional law professor at the University of Louisville, told The Courier Journal that this language of the Kentucky 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.”

University of Kentucky Law School professor Joshua Douglas, noting that he had “no idea” what irregularities Bevin referred to in his speech 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."

State law says this committee would report a decision that could determine the winner of the race, after which both chambers of the General Assembly would vote on whether to approve that decision.

Douglas added that no lawsuits could be filed over the final decision of the General Assembly in this matter.

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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.

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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 had the incorrect date for when the election would be certified.