A sweeping elections bill passed a House committee Thursday after the Kentucky County Clerks Association urged lawmakers to vote against the measure over fears the extensive changes would be too difficult for state and local officials to implement ahead of the swiftly approaching May primaries.
“This would result in significant changes to the Kentucky election law only weeks before the May primary and after some absentee ballots, probably quite a few, have already been submitted to the county clerk,” President of the Kentucky County Clerks Association Danetta Allen said. “This would create confusion for both the voter and the administrators alike.”
The bill would have state officials enter into new federal agreements for citizen verification, allow county officials to publicly upload scanned ballot images and let judicial candidates to identify themselves as a Republican or Democrat in nonpartisan races.
That’s a slice of the 44-page bill that passed a House committee Thursday where lawmakers voted along largely partisan lines to advance it. Several Republicans who voted “yes” expressed hopes there would be amendments on the House floor, while some Democrats said they found the bill unnecessary.
The elections omnibus House Bill 534 does more than touch on nonpartisan races. It ranges from requiring the use of federal citizenship verification systems to allowing county clerks to upload scanned ballot images.
“Obviously we want to not do anything that's going to be cumbersome to our county clerks out there. So I would love to see you clean this up before we get to the House floor,” said Republican Rep. Ryan Bivens of Hodgenville as he voted in favor, despite reservations.
Democratic Rep. Mary Lou Marzian of Louisville voted no, explaining Kentucky’s elections are safe and instances of fraud are too rare to warrant sweeping legislation. Proven cases of voter fraud are exceptionally rare.
“I think this sets up roadblocks. I think it's going to be really difficult for our county clerks, and we have no idea how much it's going to cost,” Marzian said.
Allen, who serves as Rockcastle’s County Clerk, said the requirements were too difficult to implement before the primary in May. Thanks to an emergency clause, if successfully passed, the bill would go into effect immediately once it’s signed by the governor or the Republican-dominated General Assembly overrides his veto. That would be in mid-April at the latest.
The bill would also change the makeup of the Kentucky Registry of Election Finance to remove the governor’s two appointments, replacing them with picks from leadership in the House and Senate. Under the bill, the auditor, attorney general and secretary of state would all maintain their appointment power to the body that oversees election finance laws and requirements for state and local offices. Gov. Andy Beshear and his lieutenant governor are the only Democrats among that group.
Johnson said he would be open to changing that provision — and many others — in floor amendments. Marzian asked him if he’d be willing to hold the bill in committee and make the changes there, but Johnson said he wanted to do it all on the House floor.
He said he would also consider pushing back the date the bill would go into effect and getting rid of a provision that allows counties to upload ballot images for public viewing.
“My goal was to have that as strictly a permissive opportunity for the counties to start learning about something that seems to be a concern,” Johnson said. “I'm just fine with taking that out.”
Johnson acknowledged the technology to upload ballot images and their accompanying vote record is still emerging. Allen said she took issue with the section because it could endanger the privacy of Kentucky voters and could even lead to fraud.
“Making ballot images publicly accessible could facilitate vote buying by allowing individuals to provide proof of how they voted, undermining election integrity,” Allen said. “For example, a voter could write in a certain name in the write in spot, or they could make a mark that they have agreed upon in a location on a paper ballot.”
Partisanship in judicial races
In a portion of the bill that garnered essentially no discussion before it was voted through committee, HB 534 creates pathways to introduce more partisanship into judicial races. Though there would still be no partisan primaries and no party ID would appear next to a judge’s name on the ballot, the legislation would allow judicial candidates to “publicly disclose” their party affiliation and talk about their “political values or viewpoints consistent” with that affiliation.
The legislation would also explicitly allow state and county political parties to endorse, support, or make contributions to help elect nonpartisan candidates. The bill states that “shall not affect the nonpartisan status of the office or the candidate.”
A party affiliation wouldn’t show up on the ballot, but nonpartisan judicial candidates would be allowed to express their views on partisan issues.
“One is simply allowing a candidate to say what he or she believes,” said GOP sponsor Rep. DJ Johnson from Owensboro. “The other is allowing a political party to support candidates. They can't come out and say that that person is a political member of their political party, but they can support that candidate if they choose to do so.”
While the bill may allow parties to endorse nonpartisan candidates, local parties and partisan politicians have already gotten themselves involved in judicial races, much to the chagrin of judicial watchdogs.
Beshear and his leadership PAC endorsed recently elected Justice Pamela Goodwine, while her opponent touted the endorsements of local Republican groups in the closing month of the campaign. That endorsement and other contributions have become the basis of an impeachment petition filed against Goodwine.
The Kentucky Judicial Campaign Conduct Committee previously expressed concern about open partisanship in a 2022 Supreme Court race and then again in 2024 about Beshear’s support for Goodwine, questioning whether it could “present an appearance of conflict, if not actual conflict, for any justice who was supported by the sitting governor.” The KJCCC did not immediately reply to a request for comment on this legislation.
Josh Douglas, law professor at the University of Kentucky, told Kentucky Public Radio that restrictions on judicial races run up against conflicting desires to keep the elections nonpartisan while balancing free speech. He said the bill would give judicial candidates more leeway to express their thoughts on partisan issues.
Douglas said a previous version of Kentucky’s Code of Judicial Conduct was struck down by the courts because it infringed on candidates’ rights too much.
“At the same time, the U.S. Supreme Court has said that states can limit judicial candidates in what they say more than political candidates,” Douglas said. “The question is, how far can the state go in limiting the judicial candidate speech, because it's of a different nature than political candidates.”
More citizenship verification
The State Board of Elections would also enter into agreements with the federal government under the bill to identify noncitizens who are registered to vote.
A previous version of the bill specifically required use of the Systematic Alien Verification for Entitlements Program, or SAVE, to identify noncitizens registered to vote. The recently revamped SAVE tool has been taken up by many Republican secretaries of state, but an investigation by ProPublica and The Texas Tribune found that the administration rushed the rollout and it has made persistent mistakes, especially when analyzing the status of naturalized citizens.
The SAVE program has also faced resistance from some states who are unwilling or wary about turning over their voter rolls to the federal government. Kentucky’s Republican Secretary of State Michael Adams told the Herald-Leader he had yet to give away the data over concerns about voter privacy, and has only provided public voter lists.
In a statement, Adam’s spokesperson Nick Storm said they hadn’t yet reviewed the latest version of the bill that came before the committee Thursday, but “it sounds like concerns are being addressed.”
“We appreciate the chairman saying he will work with stakeholders if concerns are not addressed in the substitute,” Storm said. “We’ll keep watching as the bill moves along through the process.”
Allen said she feared the requirements could put even more burden on clerks and those incorrectly marked as ineligible to vote. The bill lays out a process by which a person flagged by the system is mailed a notice and cannot cast a ballot until their citizenship is verified. That requires bringing either a birth certificate, passport, or certificate of naturalization to the county clerk or a polling location.
“We do feel that it will put eligible Kentucky voters at risk of becoming ineligible and incorrectly removed from the voter rolls,” Allen said. “This would require clerks to spend a significant amount of time and resources helping voters restore their registrations. It's time and resources that could otherwise be devoted to election administration.”
