There was not adequate evidence to support earlier election-fraud rulings that would have forced Magoffin County Judge-Executive Charles “Doc” Hardin out of office, the state Supreme Court ruled Thursday.
The decision will allow Hardin to keep the office he won in a disputed November 2014 contest, the latest of several in the county marked by allegations of vote fraud.
Circuit Judge John David Preston had declared the judge-executive’s office vacant in February 2015, ruling the election was tainted by fraud and improprieties.
Hardin, a Democrat, defeated Republican John Montgomery by 28 votes to win a third consecutive term.
A three-judge panel of the state Court of Appeals upheld Preston’s ruling.
However, the Supreme Court overturned those rulings in Thursday’s decision.
The high court said lower courts erred in deciding that Montgomery had presented sufficient evidence to justify throwing out the vote tally in the judge-executive’s race.
State court decisions dating back more than a century have set an “extraordinarily high bar” for setting aside an election, based on the reasoning that the will of voters should not be set aside lightly, the decision said.
“One contesting an election has a heavy burden and the public has a right to demand substantial proof. Tolerating a lesser standard allows mere speculation and suspicion of political wrongdoing to become a presumption of electoral corruption,” the court said in the unanimous opinion, written by Justice Daniel Venters.
Hardin and his attorneys are pleased that the decision brings the election challenge to a close, said Jim Deckard, who represented Hardin.
“Judge Hardin was elected by the voters of Magoffin County and can now complete his term without the distraction of ongoing litigation,” Deckard said.
The decision could be seen as somewhat at odds with a recent federal court case in which three allies of Hardin’s were convicted on vote-fraud charges.
However, there were important differences, including stronger evidence of wrongdoing in the federal case.
Prosecutors in the federal criminal trial presented testimony from more than half a dozen people who confirmed they sold their vote, receiving $50 in most cases.
In addition, a one-time associate of Hardin, Scotty L. McCarty, pleaded guilty and testified against others charged in the criminal case.
McCarty said Hardin had taken part in vote fraud for years with Magistrate Gary “Rooster” Risner and Larry Shepherd, a deputy clerk in the office of his wife, county Clerk Renee Arnett Shepherd.
Among other things, McCarty said Hardin put in $30,000 to buy votes in 2010, when he was up for reelection.
Jurors convicted Risner, his ex-wife Tami Jo Risner and Larry Shepherd of conspiring to buy votes.
Hardin was not charged in the case and has steadfastly denied being involved in vote-buying.
The Supreme Court decision said justices were aware of the federal criminal convictions, but said evidence from that case was not provided for consideration in the state election challenge.
Montgomery’s attorney, Gordon Long, said he was disappointed by Thursday’s decision. Montgomery did not have the resources to marshal as much evidence as federal authorities, Long said.
Long said the FBI is continuing to investigate alleged vote-buying in the county and there are strong indications more people will be indicted.
“I think we’re still going to get this cleaned up,” he said of local election fraud. “We’ve just lost a battle. I’m not deterred by it.”
The road to Thursday’s decision began when Montgomery sued after losing to Hardin in November 2014, alleging the election was tainted by fraud.
Ruling in that lawsuit, Preston cited a number of problems with the election, 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 when there was no Republican election commissioner present as required.
Preston said county workers acting under the supervision of Hardin illegally did work such as spreading gravel on private drives in four or five cases before the election, and also concluded there was evidence a few people sold their votes.
Preston declared the judge-executive’s office vacant, ruling that the combination of problems meant there was no way to determine whether Hardin or Montgomery fairly won.
Hardin and the county board of elections appealed. Hardin was allowed to stay in office during the appeal.
The Supreme Court said Preston was right on many points, but wrong on some crucial issues.
The vote in the judge-executive’s race raised suspicion, the high court acknowledged.
One reason is that while Montgomery won most of the votes cast on Election Day, by a margin of 53.88 percent to 46.2 for Hardin, Hardin won far more absentee votes.
Absentee votes split 69 percent for Hardin to 31 percent for the challenger, allowing Hardin to eke out a victory.
It would be reasonable to expect a more even ratio of absentee votes, the Supreme Court said.
The high level of absentee voting also cast a shadow on the contest, the court said.
Absentee votes made up 17.5 percent of the total cast in the election, far more than in any other county in Eastern Kentucky.
Absentee voting has been used as an avenue to corrupt elections. One method is for people to sign their ballot, then sell it to be filled in with the name of a candidate.
Hardin and the election board offered explanations for the high absentee vote, including that Hardin, a doctor, has treated a lot of the county’s older residents, who are more likely to vote absentee and voted for him out of affinity for their doctor.
The justices found the explanations largely unconvincing, but said Montgomery did not present enough evidence to prove allegations of wrongdoing.
“Showing that the vote tally looks suspicious is not the same thing as proving the illegality of the votes tallied,” the court said.
Preston concluded there was reason to believe four people sold their vote in the race between Hardin and Montgomery, but the Supreme Court said the evidence was lacking on three of the four.
The court said there was enough evidence to prove one instance of vote-buying, in which a man testified that his cousin paid him $25 to vote for Hardin.
The high-court ruling docked Hardin that one vote, cutting his winning margin to 27.
As to the alleged illegal road work, the Supreme Court said there was no evidence it was done as a payment to vote for Hardin.
The court said Montgomery proved there were irregularities in the election.
For example, the county clerk’s office failed to get some information on absentee-ballot applications; precinct officials did not record how they confirmed the identity of some voters; and the method the board of elections used to count paper absentee ballots did not follow state law.
However, none of those violations was linked to any invalid or illegal votes, the court said.