Court of Appeals rules on judge executive race

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Reports are in that the Court of Appeals ruled in favor of Magoffin County Judge Executive Dr. Charles Hardin, who had appealed the recount proceedings of the judge executive's race. Hardin lost by three votes Primary Election night to H.B. Arnett, however, when the votes were recounted in court he was ahead 3 votes. The judge said she could not certify the results due to discrepancies in vote counts, however, the Court of Appeals three-judge panel ruled for Hardin today. The Independent will release more information as it becomes available.


Commonwealth of Kentucky Court of Appeals

Opinion and Order Reversing and Remanding


This is an appeal and cross-appeal from a final judgment of the Magoffin Circuit Court in a primary election recount proceeding under KRS 120.095 to determine the Democratic nominee for the office of County Judge Executive of Magoffin County, Kentucky. After conducting a recount as provided in the statute, the circuit court entered findings of fact and conclusions of law holding that it was unable to direct the board of elections to certify a candidate for the office due to the county clerk's inability "to explain the discrepancy in the total votes cast between Election Day and the recount." Candidate Charles Hardin appeals and candidate Haden Arnett cross-appeals from that determination. We reverse and remand with directions to enter judgment in conformity with the recount.

Prior to addressing the merits of this appeal and cross-appeal, two preliminary motions must be addressed. Arnett has filed a motion to file an amended brief to correct a typographical error. The motion is hereby GRANTED and the tendered brief is ORDERED FILED on the date of entry of this order. Arnett also moves to supplement the record with the record in Magoffin Circuit Court action 14-CI-00152. The motion to supplement is DENIED. As noted in the response to that motion, the time for certifying the record is strictly limited by the explicit language of KRS 120.075 and there is no indication that the circuit court considered this outside material in reaching its decision in the recount proceeding.

Turning now to the merits, as stated in the judgment on appeal, the election results reported on May 20, 2014, primary election day, were as follows:

Charles "Doc" Hardin 2,019

Haden "H.B." Arnett 2,022

At Hardin's written request, a recanvass was conducted on May 29, 2014, which produced the same numerical results for the candidates as on election night. Thereafter, Hardin filed a timely request for a recount pursuant to KRS 120.095 and the circuit court conducted the recount proceeding on June 13, 2014.

In its findings, the circuit court stated that at the conclusion of the recount, the results from the voting machines for the various precincts and the absentee voting machine were consistent with the original and recanvass totals for the office. The court then entered the following finding with respect to the paper absentee ballots:

                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 the ballot boxes with a set of bolt cutter. 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 83 votes for Haden "H.B." Arnett, 178 votes for Charles "Doc" Hardin, for a total of 271 votes with 4 undervotes (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.

The circuit court cites this finding as the basis for its conclusion that it could not direct the board of elections to certify a certificate of nomination in that primary race.

In his direct appeal, Hardin argues that the circuit court erred in refusing to enter the results of the recount as required by KRS 120.095 and in refusing to direct the board of elections to issue him a certification of nomination as the "party entitled thereto as show by the recount." In support of this contention, Hardin cites the finding of the circuit court that Renee Arnett-Shepherd, the Magoffin County Clerk, testified under oath that "the machines and ballots had been in her custody and control since the election and confirmed their integrity in accordance with KRS 120.095...." Hardin argues that when the integrity of the ballots are not in question, KRS 120.095 removes any discretion from the circuit court as to the results of the recount. We agree.

                KRS 120.095 provides in pertinent part:

                On the day fixed, the court shall proceed to recount the ballots if their integrity is satisfactorily shown and shall complete the recount as soon as practicable, and file and enter of record the results thereof, and direct the state board or county board, whichever would issue the certificate of nomination, to issue a certificate to the party entitled thereto as shown by the recount.


(Emphasis added.) As Hardin argues, the trial court entered a specific order concerning the integrity of the ballots and proceeded with the recount. Implicit in the finding is the fact that the circuit court must have been proceeded with the recount. In addition, there is no indication that Arnett questioned the integrity of the ballots prior to the recount or that he requested a more specific finding regarding the integrity of the ballots as required by CR 52.04.

We find the statutory language to be clear in requiring the circuit court to enter the results of the recount and to direct the board of elections "to issue a certificate to the party entitled thereto as shown by the recount." (Emphasis added.) The circuit court need not determine why there was a discrepancy between the results announced election night and the day of the recount because the statute plainly dictates that the result of the recount is determinative of the outcome. The circuit court fully complied with the statute up to the point that it determined it could not reach a conclusion as to which party was entitled to the certificate of nomination. That conclusion is clearly at odds with the mandatory nature of KRS 120.95 which requires that the results of the recount dictate the candidate entitled to be certified. Thus, we are persuaded that the circuit court erred as a matter of law in refusing to direct the board of elections to issue a certificate of nomination to Hardin and that the judgment based upon that conclusion must be reversed. On remand, the circuit court shall enter judgment directing the board of election to issue a certificate to Hardin, the party entitled as shown by the recount.

In his cross-appeal, Arnett argues that, given the discrepancy between the vote totals for the absentee ballots on election night and the recount, the circuit court should be required to void all of the undervotes and accept the tallies from election night and the recanvass. We disagree.

Arnett appears to conflate a recount proceeding under KRS 120.075 with a primary election contest under KRS 120.055. In Hogg v. Howard, 242 S.W.2d 626 (Kr. 1951), Kentucky's highest court explained the differences and purposes of the two statutory election remedies:

                The defeated candidate who believes that certain ballots should not have been counted by reason of some irregularity in the conduct of the election has an adequate and complete remedy through a contest suit, in which he may ask for a recount on the ground of fraud or mistake. We can find no evidence of any legislative intent that election irregularities be permitted to be litigated in a simple recount proceeding.

                The whole background of the recount law indicates the intention of the legislature to provide a simple, speedy means of determining the accuracy of the work of the canvassing board. The recount law as originally enacted, Chapters 50 and 51 of the Acts of 1930, required that the recount proceeding be instituted before the election commissioners issued the certificate of election. It referred to the proceedings as proceedings for an 'immediate' recount. The law now requires that the recount be completes 'as soon as practicable.' KRS122.060 and 122.100. No provision is made in the recount law for pleadings by which an issue may be raised as to irregularities in the conduct of the election.

242 S.W.2d at 629 (emphasis added.)


Furthermore, the Court in Hogg emphasized that in conducting a recount, the circuit court is constrained by what appears on the face of the ballot:

                It is now the opinion of this Court that the circuit court, in conducting a recount under KRS 120.060 or 122.100, has no greater powers with respect to determining what ballots shall be counted that has the board of election commissioners, and that the court may not hear parol testimony as to the legality of a ballot. The court, in determining whether a ballot is to be counted, is to be governed by what appears on the face of the ballot, the stub book, and the other election records.


Id. (emphasis added.) It is therefore clear that the trial court did not err in refusing to void the challenged absentee ballots as a recount is not the appropriate forum in which to lodge such a request.

Finally, to the extent that Arnett appears to argue that Hardin's failure to voice a challenge to the absentee ballots in the recanvass proceeding precludes him from proceeding with the recount, we are persuaded that the plain language of the recanvass statute, KRS 177.305, unequivocally dispels that contention:

                Nothing in this section shall prohibit an individual from requesting, in addition to a recanvass, a recount as authorized by KRS Chapter 120.


Accordingly, the judgment of the Magoffin Circuit Court is reversed and the case remanded for entry of a judgment directing the board of elections to issue a certificate in accordance with the results of the recount proceeding.

Chief Judge, Court of Appeals

Entered July 24, 2014