PRESTON THROWS OUT JUDGE EXEC ELECTION

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SALYERSVILLE - A judge ruled to throw out the 2014 Magoffin County General Election results in the judge executive’s race, deeming that office vacant. 

The case began when John Montgomery, republican candidate for Magoffin County judge executive who lost by 28 votes to incumbent Dr. Charles Hardin, filed an election contest suit in December against Hardin and the Magoffin County Board of Elections.

On Friday, February 20, 2015, Circuit Judge John David Preston issued his findings of fact, conclusions of law and judgment. He highlighted what each witness had testified, as reviewed in previous issues of the Independent, citing, for instance, the election consultant who testified that Magoffin had an abnormally high number of absentee ballots, twice the absentee votes of Floyd County, but Floyd County had three times the population. Furthermore, he testified that his opinion was there was something going on to generate the large absentee voter turnout, and he noted how the absentees heavily influenced Hardin’s win. He noted testimony evidence insinuated at least four voters had cast ballots as a result of vote buying. 

Judge Preston concluded that the clerk violated an election law statute by receiving absentee ballot applications and issuing absentee ballots which did not state the location of the voter on election day, as well as the majority of absentee ballot applications did not include Social Security numbers, which is Kentucky State Board of Elections policy. 

Judge Preston further concluded that the Magoffin County Board of Elections violated election law statutes by allowing deputy clerk, Larry Shepherd, to assist voters in voting in-house absentee, and by allowing in-house absentee balloting to take place in the absence of the Republican election commissioner. He concluded that precinct officers violated the provision of the same statute by allowing voters to be assisted by only one election officer.

In the ruling, he cited that the Court concluded that the Corrupt Practices Act was violated in the buying of votes by persons unknown, stating that the evidence shows four voters had cast their ballots as the result of being paid to do so or expected to be paid for doing so. The Corrupt Practices Act was also listed as being violated by employees of the Magoffin County Fiscal Court, under the supervision of defendant Dr. Charles Hardin, in illegally placing gravel on private property.

Furthermore, Judge Preston concluded the Magoffin County Board of Elections violated a Kentucky statute that requires the absentee ballot application forms to be verified and signed by the voters. He stated the local Board of Elections violated provisions of election laws by failing to count the ballots one at a time and by distributing the ballots among various officials present.

In at least four precincts, Judge Preston concluded election officers had failed to sign the precinct voter roster and list the method of identification used, against election law statutes.

In his conclusions of law, Judge Preston stated the Magoffin County Board of Elections violated Kentucky law by allowing the Democrat election commissioner and a deputy clerk to assist voters in voting in-house absentee ballots.

Judge Preston stated in the ruling, “...Kentucky courts are reluctant to declare an election void, but that case law has long established that this remedy is necessary when it is impossible to fairly discern a winner. After careful consideration of all the evidence that the numerous instances of violation of election procedures, election regulations, election statutes, violation of the Corrupt Practices Act, and the narrow margin of victory, the conclusion is inescapable that the November 4, 2014, general election was the result of fraud and bribery, and the Court further concludes that neither contestant nor contestee can be judged to have been fairly elected.”

Since the law dictates that if a Court judges that there has been no election, neither contestant can be declared the winner, Judge Preston stated.

“It is now therefore ordered and adjudged that the results of the election of November 4, 2014, election for Magoffin County Judge Executive be set aside, and that the office of Magoffin County Judge Executive be deemed vacant.”

The court also ruled that the plaintiff shall recover his court costs from defendants and that this is a final and appealable order.

Montgomery told WYMT, “I am glad to see the first steps have been taken to clean this up. It’s gotten Doc Hardin out of the office, for one thing. And I believe it will show that the people have spoken and they will not tolerate this anymore.”

By law, Hardin and the Magoffin County Board of Elections have 10 days after entry of judgment to file an appeal, which will be Monday, March 2, 2015. 

Judge Preston issued an order on Tuesday, February 24, setting  supersedeas bond amounts for the each defendant, at $1,000 for the Magoffin County Board of Elections, and $80,000 for Hardin. 

“With respect to Defendant Charles Hardin, if he files a supersedeas bond, he will be entitled to remain in office as Magoffin County Judge Executive. The Court has learned that figure is $80,000 a year. By superseding the judgment, that also has the effect of precluding the possibility of the Plaintiff receiving that salary. In the event the Defendant is unsuccessful on this appeal, he would have received the salary of the County Judge Executive unlawfully.”

He stated in his order that the parties had advised the Court that this case, being an election contest, could probably be done within one year. The bond is to be posted in cash or is to be posted by Hardin as principal, with a recognized insurance company or bond company as surety, the order states.

Judge Preston also ordered that this judgment not be superseded unless both defendants post the required supersedeas bonds. 

The clerk must certify the record for the Court within 10 days of the filing notice of the notice of appeal, the order states.

Jim Deckard, an attorney for Hardin, told the Independent, “ We are disappointed with the ruling and will appeal.”

When a vacancy occurs in the office of county judge executive, the county clerk shall immediately notify the governor of the vacancy. Since the vacancy is pending an appeal, as far as the Kentucky State Board of Elections and Governor’s office is concerned, there is no vacancy to be filled at this time. If there were a vacancy, the governor would appoint someone to that position to serve until a special election could be held.