Incumbent Magoffin judge-executive won disputed May primary, Court of Appeals says

bestep@herald-leader.comJuly 24, 2014 

The incumbent Magoffin County judge-executive should be declared the winner of the disputed May primary, a three-judge panel of the state Court of Appeals ruled Thursday.

A circuit judge had refused to certify a winner in the contest after the results of a recount differed with the results from Election Day.

However, the appeals panel told Circuit Judge Kimberley Childers to direct that the local election board certify Judge-Executive Charles "Doc" Hardin as the winner of the Democratic nomination for the office.

The ruling "means in no uncertain terms that Doc Hardin is the nominee, and that the primary election is finally over," said one of his attorneys, James L. Deckard.

Hardin's opponent, H.B. Arnett, could appeal the ruling to the state Supreme Court.

Arnett said he would talk with his attorneys about whether to appeal. If it doesn't appear he could prevail, he won't appeal, Arnett said.

Deckard said an appeal wouldn't change the result.

Arnett, a former county clerk, opposed Hardin in the Democratic primary in his bid for another term.

The race was contentious even before the tally on Election Night, May 20, which showed Arnett winning with a total of 2,022 votes to 2,019 for Hardin.

The results stayed the same in a recanvass.

In the June 13 recount Hardin requested, however, Arnett lost one vote and Hardin picked up five. That left Hardin ahead by three votes, 2,024 to 2,021.

A recount is more detailed than a recanvass, involving hand-counting the paper absentee ballots.

There were nine ballots in the initial count that included votes in other races, but not in the Hardin-Arnett race, Arnett's attorney, Gordon Long, told the Herald-leader last month.

Arnett and Long have said they think someone added votes for Hardin to some of those ballots after the initial count.

Supporters of Arnett said that after the Election Night count, people stayed very late in the county clerk's office. And Arnett said members of the county election board opposed him.

"They didn't give me a chance to win," Arnett said Thursday.

However, Magoffin County Clerk Renee Arnett-Shepherd told the Herald-Leader the contents of the absentee-ballot box were the same on May 20 as during the recount.

Hardin contended there was no fraud, but rather an error in counting that was ultimately discovered in the recount.

In a court motion, his attorneys discounted talk of fraud as "loose innuendo."

Childers, the judge, refused to certify the results after the June 13 recount because Arnett-Shepherd could not explain the discrepancy in the two tallies.

However, Hardin argued that Arnett-Shepherd affirmed the integrity of the absentee ballots during the recounts, and that Childers accepted that and continued with the count.

And in cases where the integrity of the ballots is not disputed, a judge has no discretion on whether to accept the results of a recount, Hardin's attorneys argued.

The appeals judges agreed, sending the case back to Childers for a new order.

Hardin has a Republican opponent in the November election.

The May 20 primary was the second local election in a row with a controversy involving Hardin.

Two candidates — including one who lost to the judge-executive — sued over alleged improprieties after the November 2010 election.

Witnesses said Randy Salyer, a Democrat on the county election board, was involved in buying signed absentee ballots.

The judge ruled that the losing candidates proved there was vote-buying in the election and that they had raised strong suspicion that Hardin and Carson Montgomery, a Republican who won the sheriff's race, knew about illegal acts by their supporters.

However, the judge said the evidence was not strong enough to warrant overturning the election results.

Hardin said at the time he had not been involved in buying votes and had no knowledge of fraud.

Salyer was convicted in a separate federal case with buying votes and sentenced to 21 months in prison.

Bill Estep: (606) 678-4655.Twitter: @billestep1.

Lexington Herald-Leader is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service