Vote-fraud evidence not enough to strip Magoffin judge-executive of office, high court says; Louisa lawyer Adams ‘very pleased’ with ruling
There was not adequate evidence to support earlier election-fraud rulings that would have forced Magoffin County Judge-Executive Charles “Doc” Hardin out of office, the state Supreme Court ruled Thursday.
The decision will allow Hardin to keep the office he won in a disputed November 2014 contest, the latest of several in the county marked by allegations of vote fraud.
Circuit Judge John David Preston had declared the judge-executive’s office vacant in a February 2015 decision, ruling there were so many election improprieties that there was no way to determine whether Hardin or challenger John Montgomery fairly won.
Hardin, a Democrat, defeated Montgomery by 28 votes to win a third consecutive term.
A three-judge panel of the state Court of Appeals upheld Preston’s ruling.
However, the Supreme Court overturned those rulings in Thursday’s decision.
The high court said that Montgomery did not present sufficient evidence to justify throwing out the vote tally in the judge-executive’s race.
Eldred “Bud” Adams of Louisa, was the lead attorney on behalf of Hardin and was joined in the defense by James L. Deckard of Hurt, Deckard and May LLC. Adams was elated with the court’s decision this morning.“We are very pleased with the high court’s ruling,” Adams said. “It is the point we have been maintaining all along.”
Adams said Hardin has been a progressive force in Magoffin County politics and he can now get on with the job at hand.
Lower courts erred in ruling, the Supreme Court said in its unanimous decision.
State court decisions dating back more than a century have established an “extraordinarily high bar” for setting aside an election, based on the reasoning that the will of voters should not be set aside lightly, the decision said.
“One contesting an election has a heavy burden and the public has a right to demand substantial proof. Tolerating a lesser standard allows mere speculation and suspicion of political wrongdoing to become a presumption of electoral corruption,” the court said in the opinion, written by Justice Daniel Venters.
The decision could be seen as somewhat at odds with a recent federal court case in which three allies of Hardin’s were convicted on vote-fraud charges. (See court’s addendum on that point below)
However, there were important differences, including stronger evidence of wrongdoing in the federal case.
Prosecutors in the federal criminal trial presented evidence from more than half a dozen people who confirmed they sold their votes for $50.
In addition, a one-time time ally of Hardin’s, Scotty L. McCarty, pleaded guilty and testified against others charged in the criminal case.
McCarty said Hardin had taken part in vote fraud for years with Magistrate Gary “Rooster” Risner and Larry Shepherd, a deputy clerk in the office of his wife, county Clerk Renee Arnett Shepherd.
Among other things, McCarty said Hardin put in $30,000 to buy votes in 2010, when he was up for re-election.
Hardin’s challenger, Montgomery, presented little evidence on some allegations of wrongdoing in his election challenge, the Supreme Court said.
For instance, a handwriting analyst who testified for Montgomery said the signatures of 83 voters did not match on different forms they’d signed, such as the application for an absentee ballot and the ballot itself.
The implication was that 83 votes were cast by imposters who forged voters’ names.
However, only two of the 83 testified, and both verified their signatures on the voting roster and had reasons to explain apparent differences in how they’d signed documents.
In the case of one witness, for instance, Montgomery’s analyst had compared documents signed 30 years apart.
The Supreme Court decision noted justices were aware of the federal criminal convictions, but said evidence from that case was not provided for consideration in the state election challenge.
“We cannot consider evidence that may have been available to federal prosecutors but was not presented in this action,” the Supreme Court said.
Jurors convicted Risner, his ex-wife Tami Jo Risner and Larry Shepherd of conspiring to buy votes.
Hardin was not charged in the case and has steadfastly denied being involved in vote buying.
By Bill Estep
Here is the conclusion of the Ky. Supreme Court
Public confidence in free and fair elections is vital to the body politic of every community in this state and this nation. While corruption in the casting and counting of votes, as was alleged in this case, certainly undermines the integrity of election results, it is not the only threat that we must guard against. Equally corrosive to the public’s trust in fair elections is the destabilization of election results that would occur if we cast aside election results for trivial reasons or unsubstantiated accusations.
We avoid both threats and preserve public confidence in elections by imposing a rigid statutory framework to regulate voting and the counting of votes before the results are determined, and by maintaining a judicial policy that demands persuasive evidence of corruption to challenge the integrity of election results after the votes are counted. A broad spectrum of election irregularities in this case aroused reasonable suspicions that warranted an investigation to determine the facts. But the accumulated evidence failed to establish improprieties sufficient to impact the overall validity of the results. 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. Consequently, we are bound to sustain the results as certified by the Board of elections. We therefore reverse the opinion of the Court of Appeals, and remand this case to the Magoffin Circuit Court with directions to dismiss the election contest petition, to enter an order authorizing Charles Hardin, M.D., to assume the seat of Magoffin County judge executive to which he was elected, and for such other proceedings as necessary to implement the mandate of this decision. All sitting. All concur.
COUNSEL FOR CHARLES HARDIN, M.D.:
Eldred E. Adams Jr Adams & Adams
James Lee Deckard Hurt, Deckard 86 May, PLLC
The court specified that this opinion stands despite the conviction of three Magoffin Co. citizens of vote fraud in the same case.
The court wrote in a sidebar:
“…We are aware of the recent proceedings in the United States District Court for the Eastern District of Kentucky in which a jury returned verdicts convicting Magistrate Gary Risner, Tami Jo Risner, and Larry Shepherd, husband of Appellant Renee Arnett-Shepherd, of vote buying in connection with the 2014 election cycle, including the Magoffin County Judge Executive race which is the subject of this opinion. See Montgomery Brief, Appendix I (copy of the federal district court Indictment). Our analysis is properly limited to the evidence in the record before us. We cannot consider evidence that may have been available to federal prosecutors but was not presented in this action. The recent criminal convictions have no bearing upon the issues we address.