A ruling that would cost Magoffin Judge-Executive Charles “Doc” Hardin his office was not correct and should be overturned, attorneys for Hardin and county election officials argued to the state Supreme Court Wednesday.
The attorney for the candidate who challenged Hardin, however, said fraud and violations in the November 2014 election justified tossing out the results.
It could be several months before the state’s highest court rules.
If it upholds lower-court decisions, Hardin would be out of office, which ultimately would result in a new election for judge-executive.
Hardin, a Democrat serving his fourth term, has been fending off allegations of vote fraud for several years. He has consistently denied any wrongdoing.
Republican challenger John Montgomery, a small-business owner who had lost to Hardin four years earlier, out-polled Hardin by nearly 8 percent in votes cast on Election Day in November 2014.
However, Hardin won far more absentee ballots, defeating Montgomery by 28 votes overall.
Montgomery filed a lawsuit alleging Hardin took part in vote fraud and that the local election board violated a number of election rules.
Circuit Judge John David Preston ruled in February 2015 that the election was tainted by a range of problems, including a lack of required information on applications for absentee ballots and precinct officers improperly helping people vote.
Preston concluded county workers illegally spread gravel on some private driveways shortly before the election, and that there was evidence a few people took cash for their votes.
Preston said there were so many problems there was no way to say whether either candidate fairly won, and vacated the office.
A state Court of Appeals panel upheld that ruling in a 2-1 vote. Hardin and the county election board appealed, leading to Wednesday’s hearing.
The law allows Hardin to stay in office while appealing. He posted a bond of $80,000 to stay enforcement of Preston’s ruling during the appeal.
In court Wednesday, one of Hardin’s attorneys, Eldred E. “Bud” Adams Jr., said there was no proof Hardin took part in election fraud.
Montgomery couldn’t present evidence that absentee ballots were tampered with, so he switched his challenge to focus on supposed shortcomings in how the election board provided or counted those ballots, Adams said.
“There is no evidence that Judge Hardin engaged in any fraud whatsoever,” said Adams, who represents Hardin with attorney James L. Deckard.
Adams and Jason Nemes, who represents the election board, acknowledged that the board didn’t strictly follow state law on every point.
For instance, the law says absentee ballots are to be removed from the ballot box one at a time for counting. In the disputed election, members of the Magoffin County election board put all the ballots on a large table as part of the count.
Some ballot applications did not have some required information, such as the voter’s Social Security number and where he or she planned to be on Election Day.
However, Adams and Nemes said the board substantially complied with the law, which was sufficient to protect the integrity of the election.
“There’s not a single vote, not a single vote, that was affected,” Nemes said.
Salyersville attorney Gordon Long, who represents Montgomery, argued that the law is clear on what information is to be on applications for absentee ballots, and on how the ballots are to be verified and counted, and that the election board did not substantially comply.
Long pointed to a consultant’s report that absentee ballots made up 18 percent of the votes cast in the county in November 2014 — far higher than in other nearby counties.
A high level of absentee voting can be 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 and ally of Hardin, was convicted in federal court of buying absentee ballots and sentenced to 21 months in prison.
Hardin has argued that Preston’s ruling disenfranchised thousands of county residents who voted for him, but Long said he takes the opposite view — that the ruling restored voters’ rights.
“We now have a hope . . . of an honest and fair election,” Long said.
There have been allegations of fraud in the last several local elections in Magoffin County.
In the May 2014 primary, former county Clerk H.B. Arnett beat Hardin by three votes on Election Day, but then lost one vote in a recount while Hardin picked up five, making him the winner by three votes.
Supporters of Arnett charged that someone had added votes for Hardin after the election. However, county Clerk Renee Arnett-Shepherd said there was no tampering, and the Court of Appeals ordered Hardin declared the winner.
A federal grand jury later charged that Magoffin County Magistrate Gary “Rooster” Risner and others — including Shepherd’s husband — conspired to buy votes for Hardin and Shepherd in the 2014 elections.
Risner and Larry Shepherd have pleaded innocent. The case is set for trial later this year.
Long said FBI agents had contacted him and picked up documents from Montgomery’s election challenge.