ELECTIONS: Review of whole record of election in setting aside for fraudulent activity: MCCLENDON V HODGES (SC 10/23/2008)

BEVERLY
MCCLENDON V. JERRY H. HODGES
ELECTIONS:  Review of whole record of election in setting aside for
fraudulent activity

2007-SC-000559-DGE.pdf
PUBLISHED: REVERSING AND REINSTATING
OPINION BY CUNNINGHAM; ABRAMSON NOT SITTING
FROM MONROE COUNTY
DATE RENDERED: 10/23/2008

This appeal arose from alleged election irregularities.  Based on the evidence of fraud in District Four, the trial court concluded that the results obtained in that district did not reflect the true will of the electorate. Though the tainted votes were limited to District Four, the trial court found that the result of the entire mayoral election was seriously called into question due to the narrow margin of victory. Accordingly, the Monroe Circuit Court set aside the election .

Pursuant to KRS 120 .165, the question then becomes whether the fraud in District Four so permeated the entire election that a winner cannot fairly be determined. 
In reversing the trial court, the Court of Appeals focused on the statutory directive that an election must only be declared void upon "inspection of the whole record ."
KRS 120 .165(4) . Because the fraudulent activity was limited to District Four's walk-in absentee voting, the Court of Appeals reasoned that the "whole record" did not evidence fraud.

In confining the effects of District Four's fraudulent walk-in absentee voting to that district,
the Supreme Court  believed the Court of Appeals overemphasized the statutory mandate that a reviewing court inspect "the whole record." While KRS 120.165(4) directs the reviewing court to inspect the whole record, there is no requirement that "fraud, intimidation, bribery or violence" be evidenced throughout the entire record .

Rather, the essence of this review is to determine whether any candidate "can be judged to have been fairly elected ." Stated otherwise,
the analysis is not necessarily focused on the breadth of the fraud itself, but its effect on the entire election.

The evidence did not establish how many of the walk-in absentee ballots in District Four were fraudulent or for whom they were cast. 
Thus, SC could not fairly identify which votes should be disregarded to declare a winner. 
To do so would be speculative .

Though Kentucky courts are reluctant to declare an election void, our case law has long established that this extreme remedy is nonetheless necessary when it is impossible to fairly discern a winner. "

Even when evidence of fraud is limited to only a portion of the electorate or to specific precincts, it may nonetheless be necessary to set aside the entire election.

For these reasons, the mayoral election for the City of Tompkinsville must be set aside . Though an inconvenience to the citizens of Tompkinsville, and unfortunately as a result of the reprehensible actions of a few, the electorate's right to a fair, reliable and democratic voting process must prevail.

Digest by Michael Stevens

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