The Resolution of Election Disputes: Legal Principles that Control Election Challenges 622 S.W.2d 686 622 S.W.2d 686 (Cite as: 622 S.W.2d 686) Page 3 it may be served by leaving a copy at his home with a member of his family over sixteen years of age, or by posting a copy on the door of his residence. The statute does not address who may serve a summons in an election case. [1] It would appear that since the contest was filed and summons issued within the time period required by the statute and since the contestee did receive actual service of the summons, the contestee cannot complain of any technical defect if indeed there was one. 2. Illegal Voting. [2] Callie Gillenwater. The circuit court concluded that the vote of Callie Gillenwater was illegally cast for Mrs. Jessie Pearl Curtis. It cannot be said that this finding was clearly erroneous, and therefore, it cannot be disturbed upon appeal. However, the circuit court was erroneous in adding the vote to Mrs. Jernigan's total *689 after deducting it from Mrs. Curtis' total. The illegality here was not that Mrs. Gillenwater's vote was cast for someone other than the candidate for whom she wished to vote, but rather was that the vote was openly cast. A vote that is illegally cast cannot be counted. See Sims v. Atwell, Ky., 556 S.W.2d 932 (1977). [3] G. C. Key and Joanne Key. The Keys testified that they received improper assistance at the Fountain Run precinct, such that their votes were improperly cast for Mrs. Curtis when they intended to vote for Mrs. Jernigan. There was contradictory testimony from the individual who allegedly assisted them and several election officers that the Keys were not assisted in any way at the polls. The lower court found that they were not assisted in any way. There was adequate evidence to support this finding. [4] Levi Waller and Vera Waller. Levi Waller and his wife, Vera Waller, voted at the Fountain Run precinct. In the complaint it was alleged that they were not residents of Monroe County and were therefore not entitled to vote at that precinct or in this race. The circuit court found that the Wallers were actual residents of Allen County and should not have been allowed to vote in the Monroe County race. The tax records appeared to have been particularly persuasive. They showed that Mr. Waller paid taxes on the residential part of his property in Allen County and qualified for 296 the homestead exemption in Allen County. There is no reason to disturb the finding that the Wallers are residents of Allen County rather than of Monroe County. The circuit court found, based on Mr. Waller's testimony, that he had voted for Mrs. Curtis. This vote was properly deducted from Mrs. Curtis' majority. The circuit court was unable to obtain the testimony of Mrs. Waller, in spite of repeated efforts, and the circuit court made no actual finding as to how she had voted. The circuit court did state that it was sure that if her testimony had been obtained, she would have testified that she voted for Mrs. Curtis. It may be that given her husband's reputation for bringing out the vote in the precinct, and the effort that was expended to avoid having her testify, the circuit judge could have made a finding that she had voted for Mrs. Curtis. However, little would be served by the making of such a finding at this point because of the earlier finding the court made regarding the votes cast by G. C. and Joanne Key. Deducting the votes of Callie Gillenwater and Levi Waller from Mrs. Curtis' total, leaves her with a total of 1,859 votes. This is still two more than the number of votes received by Mrs. Jernigan. Even if it were determined that Mrs. Waller had cast an illegal vote for Mrs. Curtis, this would still leave Mrs. Curtis with a majority of one vote. Therefore, the result of the election is not altered by the rulings on the illegal votes. 3. Precinct Irregularities. West Tompkinsville Precinct. It is the opinion of this panel of this Court that the circuit judge was extremely gentle in reflecting on the conduct of the election officers in these two precincts. The conduct of this election smacks of almost incredible misfeasance and in one case, at least, deliberate malfeasance. There were two significant errors alleged in the West Tompkinsville precinct. The first was that there was a discrepancy between the number of votes cast on the machine and the number of voters casting their ballots at the polling place. Second, it was alleged that open voting occurred in the precinct in that assistance was provided to various voters by © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.