Voters in Magoffin County may have to choose a judge-executive again this fall after the Kentucky Court of Appeals upheld on Friday a lower court's ruling to toss out the results of the November 2014 race.
Judge-Executive Charles "Doc" Hardin won re-election last fall by a scant 28 votes over Republican challenger John P. Montgomery. However, Circuit Judge John Preston ruled the race was tainted by a raft of improprieties and threw out the results.
A three-judge panel of the state Court of Appeals upheld Preston's decision in a 2-1 ruling released Friday.
The panel did not agree with all of Preston's conclusions, but the majority ruled the evidence of failures to follow election rules was substantial enough to justify setting aside the election.
With such a close vote and evidence of irregularities, fraud and misconduct, it is impossible to judge that either man was fairly elected, the majority on the panel said.
"We are not sure which candidate won the election, but we know who lost — the voters of Magoffin County who were entitled to confidence in the fairness and integrity of their election," the ruling said.
Hardin or Montgomery could ask the full Appeals Court to reconsider, or petition the state Supreme Court to review the decision.
If they don't, or if the courts continue to uphold the decision to toss out the election, there would be another vote for judge-executive in November.
Montgomery, who operates a general store, said Friday he was waiting to see whether Hardin appeals.
He would like to see the office vacated and have Gov. Steve Beshear appoint him.
"That would only be fair," Montgomery said. "He needs to make a bipartisan decision and appoint me if he wants to end the corruption in Magoffin County."
Hardin's attorney was not available Friday.
Hardin can continue in office while the case remains on appeal.
Hardin has consistently denied being involved in vote fraud, but the November 2014 election was the third in a row in which he's had to fight at the ballot box and in court to keep the job.
After Hardin defeated Montgomery in November 2010, Montgomery and another losing candidate sued over alleged improprieties.
Witnesses in the case testified that Randy Salyer, a Democrat on the county election board whose wife worked for Hardin, took part in buying signed absentee ballots — which could be filled in later — for $50 or more apiece.
Buying absentee ballots has been one key avenue of vote fraud in Eastern Kentucky.
The judge ruled that the losing candidates proved there was vote buying in the election and said they had raised strong suspicion that Hardin knew about illegal acts by supporters. The judge said the evidence was not strong enough to warrant overturning the election, however.
Salyer was later convicted in a separate federal case of buying votes and sentenced to 21 months in prison.
In the next local election, the May 2014 primary, former county Clerk H.B. Arnett cried foul after Hardin beat him by three votes.
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.
Arnett's attorney charged that someone had gone back after the initial Election Day count and added votes for Hardin on absentee ballots.
Attorneys for Hardin, however, said there was an error in the initial count that was caught in the recount.
County Clerk Renee Arnett-Shepherd, who oversees elections, said she did not think there was any fraud involved in the changed vote total.
The Court of Appeals ultimately ordered that Hardin be certified the winner, making him the nominee in a rematch with Montgomery last November.
Montgomery carried 10 of 14 county precincts and won the ballots cast on Election Day by nearly 8 percent.
However, Hardin received 791 absentee votes to 354 for Montgomery.
Absentee voting made up 18 percent of the ballots cast. There were more absentee votes in Magoffin County than in Pike and Floyd counties combined, even though both have considerably larger populations.
An absentee vote well over 5 percent of the total can be an indication of fraud.
Montgomery sued, alleging vote buying by Hardin and improper conduct by county election officials, including giving absentee ballot applications to ineligible voters.
Hardin denied any wrongdoing, but Preston ruled in February that there were so many violations of election rules the results had to be thrown out.
Preston said some applications for absentee ballots did not include required information; that precinct officers failed to document how they identified voters, and also improperly helped people vote; and that there was no Republican election commissioner present as required when some people cast early ballots on a machine at the county clerk's office.
Preston also concluded county employees who reported directly to Hardin illegally spread gravel on private driveways in at least four or five cases shortly before the election.
The decision also cited evidence that a few people sold their votes.
Montgomery wanted Preston to declare him the winner, but Preston declined.
Both Hardin and Montgomery appealed the decision, resulting in Friday's ruling.
The decision said there was testimony that there are a lot of union members in Magoffin County who work outside the county, which could explain the high absentee vote.
Still, the high count raises suspicion, the majority opinion said.
What's more, election officials failed to get required information on some applications for absentee ballots about where the voter was going to be on Election Day, which ignored plain law, the decision said.
The majority opinion also said the evidence of vote fraud in the election was troubling.
There was only direct evidence of a few cases of vote buying, but the openness of the conduct "suggests a far more pervasive practice," Judge Irv Maze wrote in the opinion for the majority.
The cumulative effect of the various irregularities was to disenfranchise legal voters, said the opinion, which Judge Debra Lambert joined.
Judge Kelly Thompson dissented, arguing that affirming the decision to toss out the election is an injustice to Hardin and those who voted for him. Thompson said there was not nearly enough evidence to justify voiding the election.
He said there was not a scrap of evidence that Hardin took part in corrupt practices or that anyone else did with his knowledge or consent, or at his request.
Thompson also said there was no evidence that election officials acted in bad faith.
He said the majority opinion was based on speculation and suspicions — suspicions that may have grown from what the majority considered a history of election misconduct in the county.