DATE RENDERED: 7/19/2007

Due to the timing of this case and the upcoming election in November, I have digested this in more detail than normal.  However, the bottom line from the COA decision is that although it found election illegalities and fraud at one precinct in the election for mayor of Tomkinsville, it would not invalidate the whole election but would not count those votes from the machines at the one precinct even though the candidate was not involved in those illegalities.  Note that this was a one-vote margin!

Beverly McClendon brings this appeal from a judgment in an election contest that voided the November 7, 2006, mayoral election for the city of Tompkinsville, Kentucky. COA affirmed in part, reversed in part, and remanded.

Jerry Hodges filed a “Petition for Recount Pursuant to KRS 120.185 and Petition of Election Contest” in the Monroe Circuit Court challenging the legality of the general election for the mayor of the city of Tompkinsville.

In the petition, Hodges initially named McClendon and the Monroe County Board of Elections (Board) as respondents. The Board conducted a recount of the mayoral election and the election results were verified.  Following the recount, the Board was dismissed as a party. Hodges specifically challenged the legality of the votes cast by walk-in absentee ballot in the West Tompkinsville and Courthouse Precincts, which are located within the city of Tompkinsville and comprise the Fourth Magisterial District (District 4).2

The record reveals that in the general election conducted on November 7, 2006, McClendon won the mayoral race by a single vote. McClendon’s total was 325 votes, one more than the 324 votes received by Hodges.3  Of this total vote, McClendon received 162 votes by walk-in absentee ballot and Hodges received 35. Of the 162 walkin absentee votes for McClendon, 102 were from District 4. And, of the 35 walk-in absentee votes for Hodges, 9 of those votes were from District 4.

After a nineday bench trial where more than one hundred witnesses testified, the circuit court found “there was no proof as to specific acts of misconduct by the Respondent Beverly McClendon.”  Rather, the circuit court found that the new electronic voting machines furnished by Harp Enterprises in 96 of Kentucky’s 120 counties was the cause of some concern and intimidation on the part of certain voters such that many individuals apparently obtained assistance in voting that were not authorized to obtain assistance pursuant to Kentucky Statute because they were not blind, they understood the English language, and they have no physical disability which affected their ability to cast a vote.

However, the newness of the voting machines did not create false addresses for certain voters, and there was evidence that the utilization of false addresses in District #4 regarding the walk-in absentees was rampant.

Based on the evidence heard, the circuit court invalidated the mayoral election and specifically concluded that the illegal acts regarding walk-in absentees in the 4th District have been so pervasive and numerous so as to leave no reasonable person any doubt as to whether or not the results obtained in that district were the will of the electorate; that due to the closeness of the election, all of the precincts can be called in to question, even though the proof in this action was limited to the walk-in absentees in District #4.

KRS 120.165(4) prescribes that if it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the Circuit Court, or an appellate court, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify. If one of the parties is adjudged by the court to be elected to the office, he shall, on production of a copy of the final judgment, be permitted to qualify or be commissioned.

Accordingly, the court is directed to void an election when fraud, intimidation, bribery, or violence has so corrupted the election that the true outcome of the election cannot be fairly determined from the whole record.

In the case sub judice, the circuit court found pervasive fraud only in the walk-in absentee ballots in District 4 and yet voided the mayoral election because it could not determine a true sense of the electorate. Having reviewed the entire videotape of the trial proceedings, we believe the circuit court’s finding of pervasive fraud in the walk-in absentee ballots in District 4 to be substantiated by the record but find no evidence to support a finding of pervasive fraud in the election as a whole.

Given that the illegally procured votes were directed to that race, there is no basis for concluding that similar conduct occurred in other precincts where the District 4 magistrate race was not even on the ballot.  Second, there was absolutely no evidence of any illegal or fraudulent conduct, even in District 4, on election day, November 7, 2006, when voters would have voted in their respective precincts as opposed to the county clerk’s office. All of the illegal voting about which the trial judge heard evidence involved walk-in absentee votes cast at the county clerk’s office in the days preceding the election.

Thus the trial court erred in concluding that there was pervasive fraud requiring the entire mayoral election to be set aside.   

On the basis of the facts before the trial court, we conclude that the walk-in absentee voting in District 4 must be discarded as permeated with illegality and fraud.

The trial court specifically found that although there was “no proof of specific acts of misconduct” by McClendon, his margin in the walk-in absentee voting did indicate that “he benefited from the manner in which the election was conducted.”  It is not essential to establish a nexus between proven misconduct and the candidate that benefited from the illegality.

In the oft-cited words of Chief Justice Palmore, “[w]hen all else is said and done, common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970).

Because the true sense of the electorate was not in doubt except for the walk-in absentee voting in District 4, there is no basis for setting aside the entire mayoral vote.

The COA requested the Attorney General and the Secretary of State take whatever action that they may deem to be warranted concerning the conduct of the walk-in absentee voting in the November 7, 2006 mayoral election, as well as to prevent such abuses in the conduct of future elections.

The winner of the Tompkinsville mayoral election shall be determined by deducting the walk-in absentee votes in District 4 from the total votes received by each mayoral candidate as previously certified in the November 7, 2006, election.

By Michael Stevens

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