Court of Appeals to review recount

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SALYERSVILLE - A decision may be close as the recount files are set for review through the Kentucky Court of Appeals.

While the recount of the Magoffin County democratic judge executive race was held in court on June 13, Judge Kim Childers said the Court was unable to make a ruling on the results due to discrepancies, thus forwarded both parties to the Court of Appeals. 

Judge Childers filed a document on Thursday, June 19, stating that on Election night and in the recanvass, the election results as reported by the Magoffin County Board of Elections indicated 2,019 votes for Charles "Doc" Hardin and 2,022 votes for Haden "H.B." Arnett. 

Within the findings of facts and conclusions , Childers reiterated what happened during the recount, held in court on June 13, stating the results from the voting machines of the various precincts, as well as the absentee voting machine, were all consistent with the original and recanvass totals for the judge executive primary race. 

She wrote the following of the absentee ballot count:

"That the two locked boxes containing the paper absentee ballots were counted next. That Susie Salyer and Lisa Montgomery, members of the Magoffin County Board of Elections, unlocked the boxes. A deputy sheriff then cut the remaining locks off of the ballot boxes with a set of bolt cutters. By agreement of the parties, the County Clerk fed the absentee ballots into the scanner counting while simultaneously calling off the name of the candidate whose name appeared marked on the ballot. A few ballots were rejected because the name of the candidate was not adequately marked so that it could be read by the scanner, but none of those related to the County Judge/Executive's race. The Court then completed marking the ballot for the appropriate candidate so that it could be read; it was then fed into the scanner and counted. Both the manual tabulation and scanner showed 93 votes for Haden "H.B." Arnett, 178 votes for Charles "Doc" Hardin, for a total of 271 votes with 4 under votes (a ballot was not marked for either candidate) and one vote not counted by the scanner despite being run through the scanner. The initial tabulation on election night differed in that it showed 94 votes for Haden "H.B." Arnett and 173 votes for Charles "Doc" Hardin with 9 under votes. The County Court Clerk was unable to explain the discrepancy in the total votes cast between Election Day and the recount."

Within Childers' conclusions of law and judgment, she stated the Court cannot direct the Magoffin County Board of Elections to issue a certificate of nomination due to the difference in the absentee vote count between the initial count on election night and the statutory recount conducted by the Court. 

On Monday, June 23, attorneys James Deckard and Eldred Adams, representing Hardin, filed a notice of appeal to the Kentucky Court of Appeals from the findings of fact, conclusions of law, and judgment. 

The Court of Appeals ordered on July 2 that both parties are to submit briefs explaining their case within 10 days of the order. All other materials involving the recount proceedings have already been sent to the Court of Appeals, including video of the hearing. Upon receipt of the briefs or the expiration of the of the time given, the appeal will be submitted to a three-judge panel for resolution, according to Court of Appeals' records. 

The Court of Appeals consists of 14 judges, two elected from the seven appellate court districts. Judges are divided into panels of three to review and decide cases, with the majority determining the decision. Only the record of the original court trial is reviewed, with attorneys presenting the legal issues to the court for a decision.