By: Carrie Mattingly

How much evidence of corruption should a court require before setting aside the results of an election? Most would say that any corruption is too much. But in a recent case, Kentucky’s highest court balanced the threat of corruption against the threat of destabilizing election results, concluding that there simply was not enough evidence of corruption to justify vacating the office pending another election.

Republican candidate and challenger John Montgomery, lost to his Democratic opponent, incumbent Charles Hardin, by just twenty-eight votes in an election for Magoffin County judge executive in November 2014. Montgomery challenged the election under Kentucky Revised Statutes § 120.155, alleging violations of Kentucky election law. The trial court found that corruption occurred when (1) county workers, under Hardin’s supervision, placed gravel on private property shortly before the election in violation of Kentucky law and four voters either received or were promised cash payments; (2) election officers did not adhere to statutory procedures for identifying voters at the polls and for assisting voters; and (3) officers also failed to follow absentee ballot procedures relating to casting and counting of absentee ballots. The trial court set aside the results of the election and declared the office of judge executive vacant after determining that “none of the individual improprieties and irregularities, taken in isolation, were sufficient to overturn the election, but that based upon the totality of the circumstances, the election outcome was the result of ‘fraud and bribery’ to the extent that neither contestant could be judged to have been fairly elected.” The trial court relied on Kentucky precedent establishing that courts should rarely declare elections void but that the remedy is necessary when it is “impossible to fairly discern a winner.” On appeal, the Court of Appeals affirmed.

The Kentucky Supreme Court took issue in its opinion with many of the trial court’s factual findings. Most significantly, it concluded that the trial court’s finding that Hardin’s victory was “the result of fraud and bribery” such that neither candidate was elected fairly was clearly erroneous. The Court went further in rejecting the lower courts’ characterization of Kentucky election law on setting aside elections. According to the Court, Montgomery did not meet the “extraordinarily high standard” established by Kentucky law for setting aside elections.

The Court began its analysis by addressing three issues relating to absentee ballots. First, the lower courts had emphasized the fact that Montgomery received about 54% of the election day vote but only 31% of the absentee votes. But the Supreme Court cited case law holding that a statistical anomaly in absentee voting is not alone sufficient grounds to set aside an election. The Court also acknowledged that Montgomery raised reasonable suspicion as to the integrity of the absentee ballot process based on the additional fact that Magoffin County absentee voting was unusually high, both in comparison to past elections in the county and to surrounding counties in the same election. But the Court concluded that Montgomery failed to meet his burden of proving the illegality of the votes. Second, the Court disagreed with the trial court’s conclusion that the failure to record social security numbers on absentee ballot applications renders them invalid. The Court noted that the relevant Kentucky statute does not require that information. The Court did find it problematic that 354 ballots did not identify the place where the voter would be on election day, in violation of Kentucky law, but concluded that this requirement was directory (as opposed to mandatory), and thus failure to follow it could not nullify election results. Third, the Court determined that the trial court erred in concluding that in-house absentee voting conducted in the absence of a Republican electoral board member violated Kentucky election law, because the statute does not require that each board member be present at the in-house voting site.

The Court next turned its attention to the vote buying issues. The Court concluded that the trial court’s finding that one voter was given $25 to vote for Harlan, in violation of Kentucky law, was supported by substantial evidence. However, the trial court erred in finding that others sold their votes, because those findings were based only on conjecture and speculation. Further, with respect to Montgomery’s allegation that Hardin supporters received free gravel and repairs from the county just before the election, the Court concluded that the evidence established at most that gravel was placed and work was done at county expense on private property. There was no evidence that the gravel and work was payment exchanged for votes for Hardin. Thus, the one illegally bought vote was not enough to rig the election, so the results should not have been set aside.

Finally, the Court agreed with the lower courts’ determination that election officers’ failure to follow various statutory directives relating to voter identification and voter assistance was insufficient cause to invalidate votes cast in the precinct where the alleged misconduct took place.

In reversing and authorizing Hardin to assume the judge executive seat, the Court concluded, “The contestant failed to meet the burden of affirmatively proving fraud, intimidation, bribery, or violence in the conduct of the election such that the incumbent cannot be adjudged to have been unfairly elected.” The Kentucky Supreme Court’s decision in Hardin v. Montgomery should signal to future election contesters that they will need far more than irregularities and procedural violations to convince a court to set aside election results. This may be troubling for candidates in a state where slim vote margins are not so rare.

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