Politics & Government

Judge throws out election results in 2014 Magoffin judge-executive race

There were so many violations of election rules in last November's election for Magoffin County judge-executive that the results must be thrown out, a judge has ruled.

Circuit Judge John David Preston declared the office vacant, creating a question about Judge-Executive Charles "Doc" Hardin's status.

Hardin, a Democrat seeking a third consecutive term, defeated Republican challenger John P. Montgomery by 28 votes in the disputed election, 3,281 to 3,253.

On Saturday, one of Hardin's attorneys, James L. Deckard, said Hardin is disappointed with the ruling and will appeal.

In Preston's decision, he cited a raft of improprieties, including a lack of required information on applications for absentee ballots; precinct officers failing to document how they identified voters and improperly helping people vote; and residents casting early ballots at the county clerk's office when there was no Republican election commissioner present as required.

Preston also concluded county workers acting under the direct supervision of Hardin illegally spread gravel on private driveways in at least four or five cases shortly before the election.

Also, the decision cited evidence that a few people sold their votes. In one case, a man named Larry Douglas Perkins, who operates the Handi Mart at Falcon, said he saw Simon Marshall the day of the election. Marshall had a $50 bill and wanted to know how much beer he could get, according to Perkins' testimony.

Perkins said when he asked Marshall — who had limited intellectual ability — where he got the money, Marshall replied, "It is Election Day."

Preston ruled the election was the result of fraud and bribery. However, there was no finding that Hardin or Montgomery took part in any wrongdoing.

Preston set aside the election results and ruled that the judge-executive's office "be deemed vacant."

Montgomery said that means Hardin is out. He wants the job, which would come by appointment from Gov. Steve Beshear.

"I ran for Magoffin County judge-executive because I want to restore honesty and integrity to the office and to improve the lives of my fellow Magoffin County citizens," Montgomery said.

However, Preston decided against declaring Montgomery the winner, ruling that with so many irregularities and such a close margin, neither man could claim to have been fairly elected. Still, Montgomery, who owns a convenience store, argues that he won the election.

Preston's order noted that on Election Day, Montgomery carried 10 of the 14 precincts in the county and won the ballots cast that day by 7.8 percent, but that Hardin won far more absentee votes than Montgomery.

A consultant who studied the election results, Kim Geveden, testified that in nearby counties, absentee votes made up from 1.3 percent to 3.5 percent of the total votes in elections the last few years. However, absentee votes made up 18 percent of the ballots cast in Magoffin County last November. Magoffin County ranks 80th in Kentucky in the number of registered votes but recorded the 10th-highest number of absentee votes in the state in November, Geveden said.

Geveden said he believed there was no logical explanation for such high absentee voting in the race, and that there was likely some "nefarious manipulation" involved, Preston wrote in his decision.

A high level of absentee voting is a red flag for fraud. It can indicate people have obtained ballots and sold them to people representing candidates, who then fill them out.

After the November 2010 election, Randy Salyer, a Democrat on the Magoffin County election board whose wife worked for Hardin, was convicted in federal court of buying absentee ballots. He was sentenced to 21 months in prison.

Hardin has consistently denied involvement in election wrongdoing.

On Saturday, Hardin said he couldn't answer whether the decision means he has to give up the office. Hardin's camp provided a citation to the Kentucky Constitution that says county officials hold their office until the qualification of a successor, however. It appears Hardin also could seek a stay of the judgment while appealing.

There have been some examples of officeholders being allowed to stay in office while appealing criminal convictions, though Montgomery's challenge to the election was a civil case.

The November 2014 election is the third in a row in which Hardin has had to fight at the polls and in court to keep the job.

After he defeated Montgomery in November 2010, Montgomery joined a challenge alleging that the election was corrupted by vote-buying.

A judge ruled Montgomery and another losing candidate proved votes were bought, and had raised strong suspicion that Hardin knew about illegal acts by supporters. However, the judge ruled Montgomery had not presented strong enough evidence that Hardin arranged or had knowledge of vote-buying, and let the election results stand.

Hardin faced more allegations of fraud after the May primary last year, in which he narrowly defeated former county Clerk H.B. Arnett. The count on Election Day showed Arnett winning by three votes, but in a recount the next month, Arnett lost one vote and Hardin picked up five, making him the winner by three votes. The state Court of Appeals ordered that Hardin be declared the winner.