Recount scheduled for Friday

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SALYERSVILLE - The recount of the democratic Magoffin County judge executive primary race is scheduled for Friday.

The recanvass held Thursday, May 29 morning changed no outcomes of the Magoffin County Primary, with Haden "H.B." Arnett still winning the democratic county judge executive race by three votes against incumbent Judge Executive Dr. Charles Hardin.

Arnett said, "I had all the confidence the election would stay the same. The good people spoke and it stayed the same. This win shows the people wanted a change."

Arnett commended the lawyers filing lawsuits to file for challengers, which he attributes the outcome of the election.

"I wouldn't be here today," Arnett said.

He also commended Judge Kim Childers for making her decision which allowed for a "fair election."

Shortly after the recanvass, Hardin filed a petition for a recount of the democrat county judge executive race, as well as motioned for an order directing all election materials remain in the custody of the Magoffin County Court Clerk. 

According to KRS 120.95[1], upon the filing of a recount petition, the election materials, including the "voting machine, the ballots, boxes, and all papers pertaining to the election to be transferred to the Circuit Court..."

In this particular case, however, the circuit court clerk is Tonya Ward, Arnett's daughter, as noted in the motion. Hardin asks the materials either remain in custody of the Magoffin County court clerk or transferred to the sheriff.

"This is as important to the Magoffin County Circuit Court Clerk as it is to the Petitioner in order to avoid any accusations - no matter how false - or impropriety by either party," the motion states.

Furthermore, the petition notes, "That the election results as reported by the Magoffin County Board of Elections was 1,919 votes for Charles 'Doc' Hardin and 1,911 votes for Haden 'H.B.' Arnett."

When the Independent contacted Hardin's attorney, Jacob Michul, with the law firm Hurt, Crosbie & May, PLLC, he stated, "The reference in the petition to 1,919 votes for Hardin and 1,911 votes for Arnett is a misprint.  The reference should have been to the reported numbers that you referenced (2,019 for Hardin and 2,022 for Arnett).  

On June 3, Judge Kim Childers, upon the motion from Dr. Charles Hardin, ordered that all election materials remain in the custody of the Magoffin County Court Clerk until further orders from the Court, as well as scheduled the recount proceedings for Friday, June 13, 2014 at 1p.m. in the Magoffin Circuit Courtroom in Salyersville.

Also entered into court records on Tuesday, June 3, Haden "H.B." Arnett's attorney, Luke Morgan with McBrayer, McGinnis, Leslie and Kirkland Law Firm, PLLC, along with Gordo n Long, submitted a motion to dismiss "the present action on the grounds the Petitioner has failed to state a cause of action against the Respondents."

The motion to dismiss noted that the petition referenced a Kentucky Revised Statute number that does not exist as authority to conduct a recount of democratic Magoffin County judge executive race, citing KRS 195.095, instead of KRS 120.095.

Also within the motion to dismiss, Arnett's attorneys mention that the petition misstates the true vote count in the Primary Election.

"Contrary to what the Petitioner states in this paragraph, the Respondent won the election by three votes: 2,021 to the Respondent, 2,019 for the Petitioner," Arnett's motion states. 

On both Election night and during the recanvass held last week, Arnett received 2,022 votes to Hardin's 2,019. Those totals were reiterated in Magoffin County Court Clerk Renee Arnett Shepherd's letter, entered as exhibit C in H.B. Arnett's motion to dismiss.

"In addition to these bases for dismissal of the Petition for failure to state a claim upon which relief can be granted, the Petition for a recount is moot. On May 2014, a recanvass of the Primary Election vote tally was conducted at the insistence of the Petitioner, which verified that the Respondent won the election 2,021 to 2,019. The Petitioner failed to allege any basis under which that recanvass should be disregarded," the motion to dismiss states.

Within H.B. Arnett's answer, also filed on June 3, to Hardin's petition for a recount, Arnett's attorneys deny the vote count totals listed in the petition. Further defenses listed include: the petition and claims alleged fail to state a cause of action against the Defendants and should be dismissed; the petition and claims alleged are "barred by the affirmative defenses of estoppel, laches, unclean hands, waiver and because they have been mooted by the prior recount conducted May 29, 2014."

Arnett requests an order dismissing the complaint against the defendants, with prejudice; their costs incurred, including reasonable attorney fees; and any and all other relief to which they may be entitled. 

The case is listed as Charles "Doc" Hardin versus Renee Arnett Shepherd, Magoffin County Court Clerk; Mike Prater, Susie Salyers, and Lisa Montgomery Cheek in their official capacities as members of the Magoffin County Board of Elections; Magoffin County Board of Elections; and Hayden "H.B." Arnett. 

The Independent will report the results of the recount as soon as possible at www.salyersvilleindependent.com, as well as in next week's paper.