Follow the Election Law Society's Blog for Election Law Updates

By: Clifton Rogers

This electoral season has already been one of the most historic, interesting, and contentious in American history. More is sure to come. The UK Election Law Society will be posting articles and analysis about election law-related issues and topics in the coming weeks and months onto this blog.

Be sure also to follow our twitter: @UKYElectionLaw, and do not forget to tune in on November 8th for a live blog on election night returns and an analysis of issues that arise. 

Register or Update Your Registration Online

Image of a username and password log in for an online account

Fellow Kentuckians, our Commonwealth has party primaries coming up next month. It is time to update your voter information if you have not done so yet to ensure that you can vote and your information is accurate. In this primary election, Kentuckians have a new way of doing so. We have joined 30 other states in having online voter registration. The website is You can update all of your voter information including your address, party information, or you can register to vote for the first time. You will need your social security number and a valid drivers license or other state ID in order to change your information. The process is simple and takes no longer than 10 minutes.

Both parties will be holding primaries for all of Kentucky’s House districts. Both parties will also be having primaries for the senate seat currently held by Rand Paul. The Democrats will also be having a Presidential primary. The Republicans held a caucus for that in March, but it was only for selecting a presidential candidate. There will also be primaries for various state offices. It is important to update your information and to be sure you are in the correct district.  Go to the Kentucky Legislature’s website to determine who your representative is and what district you are in. The deadline to register is April 18th.

The primaries will be held on May 17th.

The Kentucky Law Journal Symposium: Judicial Regulation of Politics in an Election Year

An Elective Perspective: Judicial Regulation of Politics in an Election Year

Judicial Regulation of Politics in an Election Year

9:00 a.m.-5:30 p.m.
Friday, March 25, 2016
University of Kentucky College of Law Courtroom

The Kentucky Law Journal will host a symposium entitled “An Elective Perspective: Judicial Regulation of Politics in an Election Year” on Friday, March 25, 2016, at the University of Kentucky College of Law.

The all-day event will include five panels featuring discussions by legal scholars from around the country along with local attorneys. Topics include voter identification laws, gerrymandering, referendum initiatives, election litigation, campaign finance, the right to vote, election contests, and many other topics. The keynote address will be delivered by Kentucky Secretary of State Alison Lundergan Grimes. 

The event is free and open to the public, but registration is required. For more information and to register, visit the Kentucky Law Journal website

Please contact Danny Murphy, Assistant Dean of Administration and Community Engagement, if you have any questions at or (859) 257-5155.

This program has been accredited by the Kentucky Bar Association Commission on Legal Education for a total of 5.0 Hours of CLE Credit.  No ethics credits are provided by this program.

How Will Kentucky Resolve a Razor-Thin Election?

Kentucky Governor's Mansion

by Professor Joshua A. Douglas and Thomas E. Travis
updated for 2015 by Claire Nerenz

The returns are coming in, and it is looking like there could be a razor-thin margin between the top two gubernatorial candidates this year, and the down-ballot races also might be close.  What happens tomorrow if we don’t yet know the winner?

Kentucky has three levels of post-election procedures: a recanvass, a recount, and an election contest

Under Kentucky law, a candidate has a week from Election Day to file a request for recanvassing with the Secretary of State. If a recanvassing happens, the county election boards will recheck each machine and report the figure back to the county clerk. The law allows a representative from both campaigns to be present as the recanvassing occurs. Essentially, the recanvassing process simply checks each machine to make sure that the numbers reported to the State Board of Elections were not misreported or incorrectly added.  Ballots themselves are not recounted; instead, a recanvass is simply a way to double check that the machines tallied the votes correctly.

Recanvassing is unlikely impact the results. As a matter of recent history and anecdotal evidence, in the 2010 general election for U.S. Congress, then-challenger Republican Andy Barr gained only one additional vote after seeking a recanvass in an attempt to reverse his 649-vote deficit to incumbent Democratic Congressman Ben Chandler. In this year’s Republican gubernatorial primary election, the recanvass changed only 1 vote, not enough to erase Matt Bevin’s 83-vote lead.

Assuming the recanvassing does not yield enough votes to impact the results, the challenger faces a much more difficult decision. Per Kentucky law, there is no automatic recount process in Kentucky. Instead, a challenger must file a petition with the Franklin Circuit Court, by November 13, to seek a formal recount.  The challenger would have to front the cost of the recount.  A Kentucky Judge would manage the recount procedure.  That Judge would take possession of the voting machines and paper ballots and would conduct his or her own recount of the ballots.  As about 1/3 of Kentucky voters use an electronic voting machine with no paper trail, in a “recount” of these votes the Judge would simply check the count of the machine once again – making it more like a recanvass, at least for these ballots.  But for the other 2/3 of voters, the Judge can actually recount each ballot.  The judge’s decision on who won would be final, subject to possible appeal to the Kentucky Court of Appeals or even the Kentucky Supreme Court.

Then there’s an election contest. Once again, the challenger would have to request one by November 13, so he might do so in conjunction with his request for a recount.  An election contest is even more judicial in nature, as the challenger would have to specify the grounds for the action – such as some form of “corrupt practice” like a violation of state campaign finance rules or particular issues with the vote casting process. 

While a recanvass is completed quickly, a recount or election contest can last for several weeks.  Politically, then, the challenger has to make a decision about how long he wants to continue the fight. 

This election has been predicted to be extremely close and if it continues into extra innings the courts may be called upon to determine who actually won.

Are Extended Polling Hours good for Marijuana Advocates in Ohio?


By Chris Stewart

Ohio polls were scheduled to close at 7:30 statewide. However, in response to a last-minute motion filed by advocates for the passage of Ohio's controversial state constitutional amendment which would legalize marijuana, a Cincinnati judge heard arguments and ordered that polls open stay an extra ninety minutes.

The conflict concerned an electronic check in system used in Hamilton County, where Cincinnati is located. However, the additional time could give both opponents and supporters further opportunities to make their voices heard. The effect will not be immediately clear, as election results have also been put on hold until the Hamilton County polls have closed.

If the result of the initiative is close, this order could be fodder for a post-election challenged.  Stay tuned.


UK College of Law Alumni Well Represented in Election

UK College of Law Logo

by Clifton Rogers

The University of Kentucky College of Law is well represented in the political sphere and leadership of the state of Kentucky. Several of the candidates on the ballot today are alumni of the law school including: Ryan Quarles running to be the Commissioner of Agriculture, Allison Ball running to be the Treasurer, and Janet Stumbo running for the Kentucky Supreme Court. Ryan Quarles and Allison Ball both won their respective elections. 

The state’s current governor Steve Beshear is a graduate and four of the ten members of the Kentucky federal delegation graduated from the UK Law School. These are: Senate Majority Leader Mitch McConnell, Representatives Andy Barr, Harold Rogers, and Ed Whitfield. The UK College of Law continues its longstanding tradition of fostering public service.

A Link to the Past: Will Kentucky's Two Time Zones Affect the Election Results?

map of US time zones

As election results from Eastern Kentucky began to trickle in, the polls were still open in Western Kentucky. Kentucky straddles the line between the Eastern Time Zone and the Central Time Zone. One can only speculate what impact this early information might have had on potential voters planning to vote at the end of the day. Kentucky’s gubernatorial race between candidates Matt Bevin (R) and Jack Conway (D) is on the national center stage as voters prepare to fill the open governor seat vacated by Democrat Steve Beshear, who is unable to run for reelection due to term limits. By many accounts, the race is too close to call.

Florida also straddles the line between the Eastern and Central time zones. Many remember the 2000 presidential election, where Florida garnered national attention following a too-close-to-call race between George W. Bush and Al Gore. Of course, Florida faced a number of other difficulties in the close presidential race. CNN’s notorious early prediction, butterfly ballots, and voter suppression were all factors to which critics pointed in the fallout from the election. Time will tell whether Kentucky’s 2015 governor’s race will face similar scrutiny.

Of course, under the First Amendment, the government cannot stop the news stations from reporting the returns even though voting is still going on in the state.  So it is up to voters to still head to the polls even if early returns are known.  If this race is very close, the losing candidate might wonder if some voters did not go to the polls because they thought the races was already over.

Shapiro v. McManus: United States Supreme Court to Rule on Arcane Election Law Issue With Importance for Redistricting Cases

Map of voting districts in Baltimore, MD

By: Lorran Hart Ferguson

Election law continues to be an important topic in national news. Indeed, every year the U.S. Supreme Court decides a few election law cases.  This year is no exception. This term, the Supreme Court will decide Shapiro v. McManus and Evenwel v. Abbott. This post will discuss Shapiro.

Shapiro v. McManus, which the Court is hearing arguments in tomorrow, concerns a group of Maryland citizens who sued the Chair of the Maryland State Board of Elections and its Administrator, arguing that a 2011 redistricting plan was, in fact, a partisan gerrymander. A partisan gerrymander occurs when the line drawers manipulate an electoral district’s boundaries to favor a certain political party—typically the majority party in power who is drawing the lines.

After the case was filed, the defendants moved to dismiss the lawsuit under Federal Rule of Civil Procedure 12(b)(6), a defense which asserts that the plaintiff failed to state a valid legal claim. The case, which was reviewed by one district judge, was dismissed, with the judge holding that the complaint did not sufficiently assert the presence of misconduct in the line-drawing process. The court analyzed the complaint under a standard set forth in two recent Supreme Court cases, Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal which in essence require a claim to be “plausible” to survive this preliminary stage of litigation The Fourth Circuit Court of Appeals affirmed the lower court’s ruling.

Yet the resolution of this case involves a key procedural question for redistricting disputes: who is actually supposed to decide the case?  The Three Judge Court Act, passed by Congress in 1910, requires that cases concerning the apportionment of congressional districts or any statewide legislative body be reviewed by a panel of three judges (two district court judges and one appellate judge, sitting together as a panel), unless the claims are “unsubstantial.” But here, the single district judge did not send the case to a three-judge court because it found the claims to lack merit.

In an appeal of that ruling, the Court will determine if one U.S. District Court judge may decide that a claim governed by the Three-Judge Court Act does not have to be referred to a panel of three district judges. Thus, the Shapiro case presents two issues: first, whether one judge may review the sufficiency of a claim governed by the Three-Judge Court Act before referring that claim to a panel of three judges, and second, what pleading standards must be applied when reviewing said claims.

The plaintiffs who are challenging the map argue that the single judge incorrectly dismissed the case both because it did not have the power to do so and because their claim of partisan gerrymandering is not “insubstantial.”  They also dispute the Court’s use of the Twombly and Iqbal standards mentioned above to judge the sufficiency of the complaint.

The state officials, by contrast, assert that there is nothing in the text of the Three-Judge Court Act which prevents a single district judge from dismissing a case because of a failure to state a claim under the applicable standard. Professor Howard M. Wasserman of the FIU College of Law, writing for the SCOTUSblog (a blog about the Supreme Court of the United States) sums up the state officials’ argument that the statute “empowers the single judge to determine that three judges are not required, but it does not prescribe or limit the reasons the judge might reach that conclusion.” That is, the state officials argue that the single judge may use his or her discretion to dismiss a case before sending it to a three-judge court.

In an amicus brief supporting the plaintiffs filed with the Court, (a brief filed with the Court’s permission by someone who is not a party to the action but who has a strong interest in the subject matter) two election law scholars, UK Law Professor Joshua A. Douglas and University of Cincinnati Law Professor Michael E. Solimine, assert that instead of reviewing the pleadings under the standard set-forth in Rule 12(b)(6) and the Twombly and Iqbal cases, the single judge instead was required to review the claims to determine if they were “obviously frivolous,” and if they were not “obviously frivolous,” then they should have been referred to the three-judge panel. They also assert that failing to refer these cases to a three-judge panel does not comply with the policy goals Congress sought to achieve with the Three-Judge Court Act.

These questions, which will determine the correct procedure for lower federal courts to follow in future cases arising under the Three-Judge Court Act, are important because they will determine the viability of many redistricting claims moving forward.  This is for two main reasons: first, three judges might be better in helping to reduce any actual or perceived ideological bias in cases involving politics.  Second, the decision of a three-judge district court is directly appealable to the U.S. Supreme Court, while a decision of a single judge must go through the court of appeals, and review at the Supreme Court is only discretionary – meaning that the Court may never hear the case.  This Maryland case is a good example: if the Court reverses and sends the case back for a three-judge district court, then that panel’s decision on the merits of the partisan gerrymandering claim will be directly appealable to the U.S. Supreme Court. But if the Court rules that a single judge may dismiss the case initially, then the Court will never have a chance to rule on the merits of this partisan gerrymandering dispute.

Ultimately, then, the seemingly-arcane procedural issues in this case matter a lot in determining how courts will police redistricting for years to come.

Analysis: Did Matt Bevin's mass email to Kentucky teachers break the law?

You've Got Mail: Image of inbox with 1 new email

By Chris Stewart

Last week Republican gubernatorial candidate Matt Bevin sent thousands of emails to Kentucky teachers, to their public school accounts, to tout his candidacy. Last Thursday, the Kentucky Democratic Party claimed that Bevin had violated Kentucky election laws by sending these emails. The emails discussed Mr. Bevin's positions on the controversial Kentucky Teacher's Retirement System, told teachers they would have a new source of income if Mr. Bevin is elected, and asked the teachers for their support on Election Day.

But was this illegal? The Kentucky Democratic Party alleges that Bevin's mass email violated several Kentucky election laws. The basic claim is this: Mr. Bevin illegally asked state employees for a contribution of money or services, or he engaged in “vote buying” by telling the teachers they would have a new source of income if they vote for him. In short, it appears that Bevin’s actions did not formally violate Kentucky election law.

First, by asking the teachers to support him by voting for him, the Kentucky Democratic Party alleges that Mr. Bevin violated KRS 121.150.

This statute prohibits candidates from soliciting "a contribution of money or services" from a public employee. However, the prohibition applies only when the candidate contacts people as a result of their jobs as public employees. In other words, if a person is a public employee and receives a brochure at home asking him or her to contribute money to a political candidate, there is no violation, so long as the brochure was sent out to the population in general and did not target public employees. Bevin's email certainly targets teachers. However, if Bevin did not also ask the teachers for a "contribution of money or services," he likely did not violate this law.

The next question, then, is whether asking individuals for their vote equals a request for a service. Just using the literal definition of the word “service” doesn't offer a clear answer. Some definitions concern employment, and others refer to simply providing some benefit. It is more helpful to look at the definition of the word in terms of Kentucky election law.

“Service” is excluded from the more common request for a campaign “contribution.” The Kentucky election laws define "contribution" exclusively in terms of exchanges involving concrete monetary values. As part of this definition, the law specifically excludes "services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate." In other words, people can volunteer as much time as they want on behalf of a candidate without worrying about the formalities of campaign finance law. But voting is probably not a “service” like volunteering for a campaign, so a simple request for a vote would not seem to fall within the law’s prohibition of requesting a “service” from a public employee.

To recap, here is what we know so far: first, Bevin did contact state employees; second, he did not ask for a contribution; and third, if he had asked teachers to make phone calls, hand out leaflets, or engage in some other volunteer service for his campaign, he would have probably broken the law.

The Kentucky Democratic Party has also accused Mr. Bevin of violating Kentucky's vote buying statute. This law makes it a felony to offer an “expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate or public question.”  The law’s broad language includes any kind of payment. The allegation is that Mr. Bevin's statement that teachers will have a new source of income from their pensions is enough to constitute vote buying. Yet it seems unlikely that the vote buying statute is intended to cover campaign promises. If this were true, the classic promise of "a chicken in every pot" would also constitute vote buying. Not only does this not seem to fit the statute, but it would very likely implicate free speech concerns.

Our analysis leads us to believe that, while Mr. Bevin's mass email could be on the edge of violating Kentucky election law, it likely did not actually cross the line. But, what does the public think? Does a request for a vote constitute a request for a service? Does a general promise of future income violate the vote buying law? Was Bevin wrong in using public teacher email addresses?  We welcome your comments below.

Kentucky Law Journal Symposium to Focus on Election Law

Spotlights on Election Law: spotlights on the word "vote" and a ballot

By Mark Roth 

The Kentucky Law Journal is proud to announce that this year's Symposium ​will cover Election Law. As Kentucky and our nation are in the midst of various elections, this symposium will be particularly interesting. The Kentucky Law Journal has brought together academic leaders in the field of Election Law, as well as local practitioners in order to discuss the important issues in this field. These special guest speakers include:

Edward Foley, Professor of Law | The Ohio State University
Dan Tokaji, Professor of Law | The Ohio State University
Michael Gilbert, Professor of Law | University of Virginia
Franita Tolson, Professor of Law | Florida State University
Michael Pitts, Professor of Law | Indiana University-Purdue University Indianapolis
Ellen Katz, Professor of Law | University of Michigan
Jocelyn Benson, Professor of Law | Wayne State University
Michael Solimine, Professor of Law | University of Cincinnati
Luis Fuentes-Rohwer, Professor of Law | Indiana University
Atiba Ellis, Professor of Law | West Virginia University
Mark Summers, Professor of History | University of Kentucky
Tracy Campbell, Professor of History | University of Kentucky
Eric Lycan, Dinsmore & Shohl, LLP, Lexington, KY
Scott White, Morgan & Pottinger Attorneys, Lexington, KY
Jennifer Moore, Grossman & Moore, PLLC, Louisville, KY
The Honorable Trey Grayson, Former Kentucky Secretary of State

The Symposium will consist of four panels with four speakers in each panel.  The Election Law Symposium will be held January 22nd, 2016 at the College of Law in Lexington, Kentucky. Please stay tuned for updates on this exciting event over the coming months. We look forward to seeing you in January!