A Frankfort judge has ordered the Kentucky State Board of Elections to place Jefferson County ninth district judicial candidate Karen Faulkner on the November ballot, and in the process clarified precedents for how judicial elections in the commonwealth deal with the death of a winning candidate.
In a 12-page opinion entered Monday, Judge Phillip J. Shepherd ordered the state board to permit Faulkner, a Louisville attorney who originally finished the May 22 primary in third place, onto the general election ballot alongside her opponent, second-place primary finisher Tanisha Hickerson.
The winner in that race, Daniel “Danny” Alvarez, died on May 23 — the day after winning the primary — a tragedy that unleashed a legal conundrum over which of the top-three candidates would appear before voters in the fall election.
“For the sake of future election officials,” Shepherd wrote, “the effect of the death of a primary candidate in a judicial election can be stated as follows: from the moment that the [Secretary of State] certifies the names of the judicial primary candidates until the moment that the Secretary issues certificates of nomination to the two judicial primary candidates who received the highest number of votes, the death of a candidate legally nullifies any votes cast for him or her in the primary.”
According to state law, nonpartisan judicial primaries select the top two vote-getters to appear on the November ballot. But following Alvarez’s death — and a failed recanvassing bid by Faulkner — the state concluded that only Hickerson would appear on that ballot; as the only living candidate to receive the required amount of votes, Hickerson would have become the de facto and only ninth district candidate.
Faulkner successfully sued for a temporary restraining order against the state, preventing the board from issuing certificates of election to Alvarez and Hickerson until the matter was resolved.
In a statement, Faulkner said Shepherd’s latest order will give voters “a meaningful choice.”
“The court’s ruling is a great victory for the voters of Jefferson County, who will now have a meaningful choice between qualified candidates in this fall’s general election,” Faulkner said. “I look forward to continuing my campaign and making the case to those voters about how my extensive experience as a public defender and private practitioner have prepared me to serve the public in this important role.”
Shepherd’s final order requires both Hickerson and Faulkner to appear on the ballot, but prevents Alvarez’s votes from being recorded.
“The court understands the impulse to award Daniel Alvarez a certificate of nomination in recognition of his admirable career,” Shepherd wrote in his opinion. “Yet the controlling statutes dictate that the legal effect of his tragic death is the nullification of the primary votes cast for him.”
“It would be both ironic, and contrary to statute, if the effect of his death was to ensure the election without opposition of a candidate who he defeated in the primary, and to deprive the citizens who voted for him in the primary the opportunity to have a voice in who will be elected to this judgeship,” he continued.
The order also denied a motion to dismiss the suit filed by Hickerson, as well as denied an attempt to dissolve the restraining order filed by the state board.
It is unclear whether Hickerson or the state will appeal their cases.
Hickerson declined to comment when contacted via social media, and instead deferred to her attorney, Donald Miller. Questions left with Miller’s staff were not immediately returned. And a request for comment from Bradford Queen, a spokesman for the Kentucky Secretary of State’s office, was not immediately returned, as well.