BEVERLY McCLENDON v. JERRY R. HODGES
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RENDERED: JULY 20, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000488-MR
BEVERLY McCLENDON
v.
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE RON JOHNSON, SPECIAL JUDGE
ACTION NO. 06-CI-00180
JERRY R. HODGES
APPELLEE
OPINION
AFFIRMING IN PART; REVERSING IN PART;
AND REMANDING
** ** ** ** **
BEFORE: ABRAMSON AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE: Beverly McClendon brings this appeal from a judgment of
the Monroe Circuit Court in an election contest that voided the November 7, 2006,
mayoral election for the city of Tompkinsville, Kentucky. We affirm in part, reverse in
part, and remand.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
On November 17, 2006, Jerry R. Hodges filed a “Petition for Recount
Pursuant to KRS 120.185 and Petition of Election Contest” in the Monroe Circuit Court
challenging the legality of the general election for the mayor of the city of Tompkinsville.
In the petition, Hodges initially named McClendon and the Monroe County Board of
Elections (Board) as respondents. The Board conducted a recount of the mayoral election
on December 15, 2006, and the election results were verified. Following the recount, the
Board was dismissed as a party. Hodges specifically challenged the legality of the votes
cast by walk-in absentee ballot in the West Tompkinsville and Courthouse Precincts,
which are located within the city of Tompkinsville and comprise the Fourth Magisterial
District (District 4).2
The record reveals that in the general election conducted on November 7,
2006, McClendon won the mayoral race by a single vote. McClendon's total was 325
votes, one more than the 324 votes received by Hodges.3 Of this total vote, McClendon
received 162 votes by walk-in absentee ballot and Hodges received 35. Of the 162 walkin absentee votes for McClendon, 102 were from District 4. And, of the 35 walk-in
absentee votes for Hodges, 9 of those votes were from District 4.
The petition filed by Hodges contained four counts. In count one, Hodges
requested a recount of the mayoral election pursuant to KRS 120.185. Count two alleged
McClendon and/or his agents violated KRS 117.235 by conducting election activities
2
Relevant to this appeal, a walk-in absentee vote or ballot was one cast within the twelve days
preceding the election by a qualified voter who was to be absent from the county on election day.
Such votes were cast by voting machine in the Monroe County Clerk's Office.
3
There were three other mayoral candidates: Windell Carter, who received 251 votes; Norman
Clarkson, who received 183 votes; and Marrs Kerr, who received 47 votes.
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within three hundred feet of a polling place during walk-in absentee voting. In count
three, Hodges claimed McClendon and/or his agents violated the Corrupt Practices Act
(KRS 121.055). And, count four alleged fraud. Specifically, the alleged fraud included
“various and numerous individuals” who voted in District 4 by walk-in absentee ballot in
the mayoral election, who were not residents of Tompkinsville, and/or who were not
absent from the county on election day.
The action was tried upon the facts without a jury. CR 52.01. After a nineday bench trial where more than one hundred witnesses testified, the circuit court found
“there was no proof as to specific acts of misconduct by the Respondent Beverly
McClendon.” Rather, the circuit court found:
9. One important aspect of this case is the new
electronic voting machines furnished by Harp Enterprises in
96 of Kentucky's 120 counties. These machines obviously
cause some concern and intimidation on the part of certain
voters. Many individuals apparently obtained assistance in
voting that were not authorized to obtain assistance pursuant
to Kentucky Statute because they were not blind, they
understood the English language, and they have no physical
disability which effected [sic] their ability to cast a vote.
However, the newness of the voting machines did not create
false addresses for certain voters, and there was evidence
that the utilization of false addresses in District #4
regarding the walk-in absentees was rampant.
10. Other problems included individuals being within
the County on Election Day when they indicated they would
be out of the county, individuals who testified that they were
in one location on Election Day when their absentee ballot
application stated they would be elsewhere, individuals who
improperly obtained assistance (generally from persons they
did not know and who operated the machine on their behalf,
to the extent that they were not even aware who they voted
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for in certain races), and the fact that two individuals who
were heavily involved in the Tony Gumm candidacy, namely
Martha Hughes and Billy Proffitt, assisted a total of over 80
voters combined in District #4.4 Various voters who lived
outside the City voted in the City race and several indicated
they went to Tony Gumm's car lot to obtain their false
address, addresses within the City of Tompkinsville.
11. Based on the evidence heard by this Court in this
proceeding, the taint in this matter is pervasive and cast a
great doubt as to whether or not the results obtained in
District #4 reflect the true will of the electric [sic]. There has
been repeated testimony that every vote should count but this
Court concludes that every honest vote should count. The
Court notes that this one vote margin in the outcome of the
election causes this entire process to be examined very
carefully.
12. Proof of pervasive illegal activity should cause an
election to fall. The judiciary is a watch dog in regard to this
process.
13. The Court again notes there was no proof as to
specific acts of misconduct by the Respondent Beverly
McClendon. The fact that McClendon was friends with
Gumm and Page5 does not make him liable for their actions.
Politics makes strange bedfellows. However, in the opinion
of the Court, the actions of a handful of people have been
pervasive in this matter and have certainly affected the
outcome of the election in a manner contrary to law.
Reasonable inferences can be taken from Billy Pro[f]fitt's
actions, but again, Proffitt is not specifically tied to Beverly
McClendon. But the fact is that Tony Gumm, Billy Proffitt
and to a lesser extent the Page family have been heavily
involved in these violations of Kentucky Election law.
Further, McClendon's margin in the walk-in absentees is
evidence that he benefited from the manner in which the
election was conducted.
4
Tony Gumm was an unsuccessful candidate for magistrate in the Fourth Magisterial District
(District 4).
5
Mitchell Page was an unsuccessful write-in candidate for County Judge in Monroe County.
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(Emphasis added.) Ultimately, the circuit court invalidated the mayoral election and
specifically concluded:
1. . . . the illegal acts regarding walk-in absentees in
the 4th District have been so pervasive and numerous so as
to leave no reasonable person any doubt as to whether or not
the results obtained in that district were the will of the
electorate. Upton v. Knuckles, Ky 470 SW2d 822 (1971).
2. Due to the closeness of the election, all of the
precincts can be called in to question, even though the proof
in this action was limited to the walk-in absentees in
District #4.
3. Because of the extent and number of the walk-in
absentees, the Court concludes that the entire results in the
Mayoral Election for the City of Tompkinsville November 7,
2006, are not a true sense of the electorate and the entire
election should be set aside.
(Emphasis added.) This appeal follows.
We initially observe that the judiciary is empowered by the legislature to
review and decide election contests. Newsome v. Hall, 169 S.W.3d 66 (Ky. App. 2005).
This election contest was instituted in the circuit court by Hodges pursuant to KRS
120.155 and an appeal to this Court was filed under the provisions of KRS 120.175. As
the circuit court tried this matter without a jury, we review the court's findings of fact
under the clearly erroneous standard and the court's rulings of law de novo. Black Motor
Co. v. Greene, 385 S.W.2d 954 (Ky. 1964); Cinelli v. Ward, 997 S.W.2d 474 (Ky. App.
1998). With these standards in mind, we shall now address McClendon's allegations of
error.
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McClendon alleges the circuit court erred by “trying this case beyond the
allegations in the complaint.” Specifically, McClendon points out that the circuit court
ultimately found that the walk-in absentee votes in District 4 were tainted by pervasive
fraud and that such fraud was perpetrated by individuals other than McClendon.
However, McClendon maintains the petition did not assert a cause of action against
anyone other than himself and the circuit court found he committed no election fraud.
Consequently, McClendon argues Hodges' petition should have been dismissed.
To be sufficient, a complaint or petition must only give “fair notice” of the
cause of action asserted and the relief sought thereunder. Security Trust Co. v. Dabney,
372 S.W.2d 401 (Ky. 1963). As to an election contest, the court is required to give the
pleadings a “rational construction according to their general scope and tenor.” Upton v.
Knuckles, 470 S.W.2d 822, 825 (Ky. 1971). Moreover, we are directed to disregard
“technical objections” to such pleadings. Id.
In Hodges' petition, count four generally alleged fraud and particularly
alleged, inter alia:
15. That within said District, various and numerous
individuals who were not legal voters within the City of
Tompkinsville, Kentucky, by reason of ineligibility due to
residence, were allowed to vote as walk-in absentees.
16. That within said District, numerous individuals
were allowed to vote as walk-in absentee voters when they at
the time of their voting were aware they would be in Monroe
County, Kentucky, on Election Day, November 7, 2006 and
by reason of there being a substantial number of voters who
were in fact in Monroe County, Kentucky, on Election Day
who had previously voted by walk-in absentee, each voter
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who is determined to have been present in Monroe County,
Kentucky, on election day who had previously votes [sic] by
walk-in absentee in District Four should have their vote not
counted as they did not cast their ballot in compliance with
Kentucky Law.
17. That such a substantial number of walk-in District
Four voters were not qualified by reason of residency outside
the City of Tompkinsville, or by reason of having voted by
walk-in method when they were in fact within Monroe
County, Kentucky between 6:00 a.m. and 6:00 p.m. on
November 7, 2006 (Election Day), or they were not a resident
of Tompkinsville, Kentucky within the corporate limits on
November 7, 2006, that any hope of the walk-in absentees of
District Four being a fair indication of the sense of voters in
that District regarding the Mayoral race in the City of
Tompkinsville has been destroyed.
....
20. That due to gross irregularities in regard to walk-in
absentee voting, as set forth herein, all walk-in votes cast
within District Four (identified by the Monroe County Board
of Elections as Ballot Style Eight) should be thrown out and
not counted and if not counted, then the Petitioner Jerry R.
Hodges would be the winner of said election by margin of
315-223.
Also, in the petition's prayer for relief, Hodges requests:
For the Court to determine that the walk-in absentee votes
from District Four, City Ballot, City of Tompkinsville are so
tainted and subject to such gross irregularities that said walkin votes from District Four should be thrown out and not
counted.
In count four, Hodges specifically attacked the walk-in absentee votes in
District 4 for “gross irregularities.” He alleged that many of the walk-in absentee voters
did not reside in the city of Tompkinsville and/or were not absent from Monroe County
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on election day, November 7, 2006.6 As previously recited, the trial court specifically
found: 1) that “a clear majority” of the votes cast in District 4 by the walk-in absentee
method were tainted for various reasons; 2) that the utilization of false addresses in
District 4 regarding the walk-in absentees was “rampant;” 3) that over eighty (80) walkin absentee voters in District 4 were assisted by individuals heavily involved in the the
Tony Gumm candidacy; 4) that Gumm and individuals on behalf of Page and Gumm
were involved in fraudulent activities by improperly assisting, recruiting, and supplying
false addresses to walk-in absentee voters in District 4; 5) that there is cause for concern
when the proof indicates that 75% of the walk-in absentee voters obtained assistance; and
6) that the actions of a handful of people have “certainly affected the election in a manner
contrary to law.”
Upon consideration of the petition and the circuit court's judgment, we do
not agree with McClendon that the court erroneously “tried” the case beyond the claims
presented in the petition. Rather, we interpret the petition as adequately setting forth a
claim of fraud in relation to the walk-in absentee votes in District 4. Simply put, we hold
that the petition gave McClendon “fair notice” as to the claims of fraud concerning the
walk-in absentee votes in District 4.
Next, McClendon argues the circuit court erred by removing him from the
office of mayor and by declaring the November 7, 2006, mayoral election void. We
6
To be eligible to vote in the mayoral election for the city of Tompkinsville, it was mandatory
that the voter reside within the city limits.
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commence our review of the trial judge's decision by examining the statutory
underpinnings of the election contest.
KRS 120.165(4) prescribes the remedy to be applied upon proof that the
election has been tainted:
If it appears from an inspection of the whole record that there
has been such fraud, intimidation, bribery or violence in the
conduct of the election that neither contestant nor contestee
can be judged to have been fairly elected, the Circuit Court,
or an appellate court, on appeal, may adjudge that there has
been no election. In that event the office shall be deemed
vacant, with the same legal effect as if the person elected had
refused to qualify. If one of the parties is adjudged by the
court to be elected to the office, he shall, on production of a
copy of the final judgment, be permitted to qualify or be
commissioned.
(Emphasis added.) Accordingly, the court is directed to void an election when fraud,
intimidation, bribery, or violence has so corrupted the election that the true outcome of
the election cannot be fairly determined from the whole record.
In the case sub judice, the circuit court found pervasive fraud only in the
walk-in absentee ballots in District 4 and yet voided the mayoral election because it
could not determine a true sense of the electorate. Having reviewed the entire videotape
of the trial proceedings, we believe the circuit court's finding of pervasive fraud in the
walk-in absentee ballots in District 4 to be substantiated by the record but find no
evidence to support a finding of pervasive fraud in the election as a whole. At trial,
several witnesses testified to voting by walk-in absentee ballot in District 4. Many of
those witnesses further testified that they were not residents of the city of Tompkinsville
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and/or were not absent from the county on election day. Additionally, through the
testimony of witnesses, it was established that false city addresses were supplied to voters
by Gumm and/or by his supporters. Moreover, numerous witnesses testified to being
“assisted” in the voting booth by Gumm's nephew, Billy Proffitt, and to being unaware
for whom they voted for mayor. As such, although we concur in the circuit court's
finding of pervasive fraud in District 4 concerning the walk-in absentee votes, we do not
agree that the fraud so permeated the election as a whole as to require voiding the entire
vote in the Tompkinsville mayoral race.
Two significant factors preclude us from extrapolating the conduct of walkin absentees in two precincts to the entire city. First, the evidence clearly established that
the illegal votes were procured for the purpose of affecting the District 4 magistrate race,
a race confined to two precincts – the West Tompkinsville Precinct and the Courthouse
Precinct. Given that the illegally procured votes were directed to that race, there is no
basis for concluding that similar conduct occurred in other precincts where the District 4
magistrate race was not even on the ballot. Second, there was absolutely no evidence of
any illegal or fraudulent conduct, even in District 4, on election day, November 7, 2006,
when voters would have voted in their respective precincts as opposed to the county
clerk’s office. All of the illegal voting about which the trial judge heard evidence
involved walk-in absentee votes cast at the county clerk’s office in the days preceding the
election. On election day, voters would have appeared at the polls where precinct
election officers from the Democratic and Republican parties, drawn from the
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community, would have had to personally identify or obtain identification from voters,
allowing them to then sign the voter roll and receive their ballots. See KRS 117.045 and
KRS 117.227. This process, which includes statutorily-mandated “checks” on the
process by virtue of the precinct election officers drawn from opposing parties, is much
less susceptible to abuse than the walk-in absentee process as administered by the county
clerk’s staff in Monroe County. In light of these two salient facts, the trial court erred in
concluding that there was pervasive fraud requiring the entire mayoral election to be set
aside.
We hasten to add that proof of illegal voting or fraud in one or two
precincts could certainly be the basis for a conclusion that pervasive fraud occurred
throughout the city. For example, if a candidate sponsored an event where the attendees
were provided cash or other incentives for their votes and those attendees then scattered
throughout the city to vote in their respective precincts, voiding the entire election might
be appropriate in a close election even though only a few individuals who attended the
event and sold their votes actually so testified. Proof of the “vote-buying” event, directed
at multiple people who lived beyond the one or two precincts from which the witnesses
came, might be sufficient to conclude that the seeds of fraud were pervasive. Other
scenarios might similarly lead to the conclusion that the misconduct was so widespread
that only by voiding the entire election could the true will of the electorate be determined.
However, facts permitting a finding of citywide misconduct are plainly not the facts
before this Court.
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Here, the circuit court's findings of illegal voting and fraud were pinpointed
to the District 4 walk-in absentee voting which occurred in the office of the Monroe
County Clerk. Under these specific circumstances, we are convinced that it is
unnecessary to disenfranchise the entire electorate of Tompkinsville when a less drastic
alternative is available—the voiding of all of the walk-in absentee voting in District 4.
In reaching this conclusion, we find persuasive and instructive the rationale
utilized by the Court in Beauchamp v. Willis, 300 Ky. 630, 637, 189 S.W.2d 938, 941-42
(1945), to support its conclusion that improprieties which are confined to certain
precincts cannot be considered “pervasive”:
Courts should proceed slowly and carefully in undertaking to
declare an election void; it should not be done unless the
evidence is such as to convince the court that there was
general fraud or irregularity. Here the charges of fraud were
limited to a few of the 576 precincts; the same is true as to
such irregularities in other precincts that could hardly be
classified as fraud. The established rule is that where, after
giving the evidence of fraud (or irregularities) its fullest
effect, and fraudulent or illegal votes may be eliminated, and
the result of the election be fairly ascertained from votes
which were regular or untainted, the court should not go to
the extreme of declaring the election void. Ferguson v.
Gregory, 216 Ky. 382, 287 S.W. 952; Butler v. Roberson, 158
Ky. 101, 164 S.W. 340; Caudill v. Stidham, 246 Ky. 174, 54
S.W.2d 654; Watts v. Bowen, 250 Ky. 678, 63 S.W.2d 917.
The rule applies here.
While there are shown irregularities, and proof
indicative of fraud in a limited number of precincts, there is
not enough to justify the court in concluding that such were
‘general’ to the extent that the election as a whole was
tainted.
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Here, in light of the trial court's specific finding that the proof in this case was limited to
the walk-in absentee voting which was conducted in District 4, there is no doubt as to the
sense of the electorate outside walk-in absentee voting in the two precincts comprising
that district and we therefore find no basis for voiding the election as a whole.
We are also guided by caselaw in which similar improprieties resulted in all
of the absentee ballots being discarded and the election decided on the basis of the
remaining votes. In Arnett v. Hensley, 425 S.W.2d 546, 552-53 (Ky. 1968), for example,
the Court voided all absentee voting on the basis of “gross irregularities” in the handling
of the absentee ballots:
The court is reluctant to disfranchise voters because of
irregularities or derelictions on the part of election officials,
but it will face its responsibility and approve such a result if
the departures from legal requirements are so broad as to taint
the election or so as to require rejection of the part
affected.
(Emphasis added.) The “part affected” in this case is the walk-in absentee voting in
District 4. This principle was succinctly reiterated in Upton v. Knuckles regarding the
invalidation of the vote in a precinct or precincts:
...we conclude the law to be (1) that the vote of a precinct can
be thrown out for irregularities in the conduct of the election
therein of such magnitude as effectively to destroy any hope
that the results as tabulated were a fair indication of the sense
of the voters in that precinct and (2) that the result of the
election can be determined on the basis of the votes from the
remainder of the election territory unless the number of votes
in the voided precinct constituted a substantial portion (20
percent or more) of the votes in the entire territory.
470 S.W.2d at 825. The walk-in absentee vote in District 4 falls within those criteria.
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Lastly in this regard, we emphasize the holding of the Court in Hale v.
Goble, 356 S.W.2d 33, 35 (Ky. 1961):
To say the least, the absentee voting law is difficult to
administer. However, it confers a privilege and not an
absolute right, and failure of election officials to carry out the
provisions of the law may result in disfranchisement of voters
taking advantage of it.
356 S.W.2d at 35. On the basis of the facts before the trial court, we conclude that the
walk-in absentee voting in District 4 must be discarded as permeated with illegality and
fraud.
McClendon insists, however, that it would be manifestly unfair to change
the election result by discarding the walk-in absentee votes given the fact that there was
absolutely no proof at trial that he had engaged in any wrongdoing whatsoever, or even
that the illegal walk-in absentee votes were intended to influence the mayoral race.
While we acknowledge that there is no proof that McClendon engaged in any
wrongdoing, we cannot agree with his proposition that it would be unfair or erroneous to
discard the illegal walk-in absentee votes in District 4.
The trial court specifically found that although there was “no proof of
specific acts of misconduct” by McClendon, his margin in the walk-in absentee voting
did indicate that “he benefited from the manner in which the election was conducted.” In
fact, with the exception of a single precinct, McClendon did not finish first among the
five mayoral candidates in the voting on election day and he finished in fourth place in
the regular absentee votes. However, in District 4 where “illegal acts regarding walk-in
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absentees” were found to be pervasive, McClendon received 109 votes compared with
the 9 votes for Hodges who won five of the six precincts on election day by a substantial
margin. Although we recognize the existence of exceptions to the generalization noted
by the Court in Arnett, we nevertheless concur in its assessment that “[i]n the absence of
some plausible explanation, it would be supposed that the general ratio of voting as
between poll voters and absentee voters would be more nearly equal.” 425 S.W.2d at 553.
There appears to be no explanation for the huge discrepancy in this case other than the
pervasive illegalities concerning the walk-in absentee voting in District 4.
In Sims v. Atwell, 556 S.W.2d 929, 935 (Ky.App. 1977), the Court
observed that it is not essential to establish a nexus between proven misconduct and the
candidate that benefited from the illegality:
Sims suggests that the actions of the precinct election officers
were not intended to benefit either candidate. Even if this
were true, the absence of an express intent to benefit a
specific candidate does not detract from the wrong done to
the voters themselves.
Furthermore, we emphasize that McClendon could have no reasonable expectation that
he would receive any of the substantial number of illegal votes cast by walk-in absentee
voters who either did not reside within the district, would not be absent from the district
on election day, or did not legitimately require assistance in voting. In the oft-cited
words of Chief Justice Palmore, “[w]hen all else is said and done, common sense must
not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance
Commission, 450 S.W.2d 235, 237 (Ky. 1970). Because the true sense of the electorate
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was not in doubt except for the walk-in absentee voting in District 4, there is no basis for
setting aside the entire mayoral vote.
Considering the lack of caselaw interpreting the requirements of KRS
120.165 since the relatively recent advent of walk-in absentee voting in the year 2000, we
believe it appropriate to comment upon the dangers inherent in that procedure which are
so clearly demonstrated by the facts of this case. Rather than ameliorating the problems
associated with traditional absentee voting, the walk-in absentee voting process appears
to have in fact generated new avenues for potential abuse—at least where the process
lacks proper oversight by the county clerk. We reiterate the conclusion of the court in
Arnett, that “the county court clerk is in a particularly sensitive position as respects the
proper handling of absentee ballots.” 425 S.W.2d at 553. Because that position of trust
appears to have been abused in the conduct of walk-in absentee voting concerning
Magisterial District 4, we DIRECT the CLERK of this Court to serve a copy of this
opinion by certified mail on the Honorable Gregory D. Stumbo, Attorney General of
Kentucky; the Honorable Trey Grayson, Secretary of State of Kentucky; and the
Honorable Teresa McMillin Sheffield, Monroe County Clerk. The Court requests that
the Attorney General and the Secretary of State take whatever action that they may deem
to be warranted concerning the conduct of the walk-in absentee voting in the November
7, 2006 mayoral election, as well as to prevent such abuses in the conduct of future
elections.7
7
We are mindful that the conduct of elections in the West Tompkinsville Precinct (one of the
very same precincts involved in this appeal) and Monroe County has previously been the subject
of published opinions of this Court and the former Court of Appeals, now the Supreme Court of
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In sum, that portion of the judgment of the Monroe Circuit Court which
found evidence of fraud in the walk-in absentee voting in Magisterial District 4 is
affirmed. And, that portion of the judgment which voided the entire voting in the
mayoral election held on November 7, 2006, is reversed and remanded to the Monroe
Circuit Court. The winner of the Tompkinsville mayoral election shall be determined by
deducting the walk-in absentee votes in District 4 from the total votes received by each
mayoral candidate as previously certified in the November 7, 2006, election.
ABRAMSON, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
TAYLOR, JUDGE: Respectfully, I dissent. I would affirm the judgment of
the Monroe Circuit Court that set aside the election results for the office of mayor of
Tompkinsville, Kentucky, in the November 2006 general election and further, directing
that a new election be held.
There is substantial legal precedent to guide courts in election contests
where votes from a particular precinct(s) were obtained by fraud or other illegality. A
court may either (1) declare the entire election void and the office vacant, (2) declare the
Kentucky, on at least two occasions. In Jernigan v. Curtis, 622 S.W.2d 686, 689-90 (Ky.App.
1981), a panel of this Court noted that the “conduct of this election smacks of almost incredible
misfeasance and in one case, at least, deliberate malfeasance,” concluding that the “election
officials at the West Tompkinsville precinct were either ignorant of their function or didn't care
how they performed it.” In support of its conclusion that all the absentee ballots in a Monroe
County election were illegal and void, the Court in Crowe v. Emmert, 305 S.W.2d 272, 274 (Ky.
1957), cited the trial court's finding that “there is no conceivable abuse of the absentee-voting
law which is not reflected in this record; and the proved violations of both letter and spirit are so
many and so extensive that the touch of fraud, actual or constructive, extends to every ballot,
making it impossible to segregate the valid from the invalid.”
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illegally obtained votes void, or (3) declare all votes from such precinct(s) void. See
Anderson v. Likens, 20 Ky. L. Rptr. 1001, 47 S.W. 867 (1898); Stewart v. Rose, 24 Ky. L.
Rptr. 1759, 72 S.W. 271 (1903); Scholl v. Bell, 125 Ky. 750, 102 S.W. 248 (Ky. 1907);
Felts v. Edwards, 181 Ky. 287, 204 S.W. 145 (1918); Taylor v. Neutzel, 220 Ky. 510, 295
S.W. 873 (1927); Scott v. Roberts, 265 Ky. 375, 96 S.W.2d 1046 (1936); Napier v.
Noplis, 318 S.W.2d 875 (Ky. 1958); Watts v. Fugate, 442 S.W.2d 569 (Ky. 1969); Upton
v. Knuckles, 470 S.W.2d 822 (Ky. 1971); Ellis v. Meeks, 957 S.W.2d 213 (Ky. 1997).
Under the first option, a new election would be held for the entire electorate. Under the
later two options, the election would be determined based upon the remaining valid votes.
The trial court chose the first option by throwing out the entire election and
ordering a new election for the mayor of Tompkinsville. The majority has chosen one of
the later options, voiding all of the walk-in absentee ballots in District 4, which
effectively results in Hodges winning the mayoral election.
While the majority's position is arguably supported by applicable precedent,
so is the trial court's position which they are overturning without sufficient justification.
In my opinion, the majority's reasoning is misplaced given the totality of the
circumstances surrounding this case. In election contests, I believe it is the duty of our
Courts to ensure fairness for both the voters and candidates in order to preserve the
integrity of the electoral process for all participants. While the majority's result may be
expedient, the result is totally inequitable - again, considering the circumstances of this
case.
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I might agree with the majority's result if we knew exactly which votes
were fraudulent or illegal and how the walk-in absentee voters in District 4 actually
voted. There were one-hundred forty-three (143) walk-in absentee ballots cast, and
McClendon received one-hundred two (102) of these votes. However, upon review of
the record in detail, none of the walk-in absentee voters who were called as witnesses to
testify at trial were asked how they voted – presumably due to an agreement between
counsel. McClendon argues that only thirty-eight (38) walk-in absentee voters could be
determined to have cast an illegal or fraudulent vote based on the testimony at trial.
Given that there were forty-one (41) walk-in absentee votes cast for candidates other than
McClendon, under his theory, this Court would have no way of knowing whether the
fraudulent votes affected the election. Conversely, Hodges argues that approximately
ninety (90) of the one-hundred forty-three (143) walk-in absentee ballots casts in District
4 were fraudulent or illegal. The trial court made no determination on the actual number
of fraudulent or illegal votes, finding only that a majority “were tainted for various
reasons.” More importantly, the trial court concluded that there was absolutely no
evidence presented during the nine day trial that McClendon participated in any way in
the alleged fraud or illegality surrounding the walk-in absentee ballots in District 4.
McClendon was elected mayor by one vote. By voiding the walk-in absentee ballots in
District 4, the majority has chosen to change the outcome of the election – which is not
the proper result, in my opinion.
- 19 -
I agree that ordering a new election for the mayor of Tompkinsville will
certainly inconvenience the registered voters of the City of Tompkinsville. However,
none of the voters would be disenfranchised. Under the majority's opinion, legal walk-in
absentee voters in District 4 will lose their vote. In a democratic society, our citizens are
occasionally going to be inconvenienced in the protection of their rights and freedoms.
One needs only look at the events since September 11, 2001, to understand this concept.
Yet, that is the price we have paid in this country for over two-hundred thirty years to
ensure free and open elections, which is the cornerstone of our democracy and the
primary reason that our democratic system of government has prevailed. Those citizens
who have made the ultimate sacrifice during our country's history to preserve and protect
the freedoms that most of us take for granted on a daily basis would most certainly find
laughable any notion that the minor inconvenience of voters would take priority over
ensuring fair and open elections for all citizens.
Our Court, in reviewing the trial court's judgment, must balance the fairness
to the candidates for mayor of Tompkinsville with the inconvenience to be placed on
voters in six precincts in the City of Tompkinsville by having a new election. Equally
important, we should not substitute our judgment for that of the trial court absent a valid
reason. The trial court, having conducted a nine day trial and having heard testimony
from more than one-hundred witnesses, balanced the equities involved and concluded
that McClendon should not be penalized for the fraud of others and thus, the voters, not
the court, should ultimately determine who should be mayor of Tompkinsville. The
- 20 -
majority has not presented a sufficient legal reason to overturn the trial court's judgment,
in my opinion. I agree with the trial court's reasoning and outcome.
I believe that the trial court's finding of blatant and pervasive fraud in two
of the six city precincts is sufficient to throw out the entire election under applicable
precedent. As articulately stated in Ellis v. Meeks, 957 S.W.2d 213, 217 (Ky. 1997):
Every candidate who runs for office is entitled to an even
playing field, especially at a time when the electorate's
confidence in the electoral process is increasingly diminished,
as evidenced by the fewer number of voters who actually
participate in the voting process. . . . There was definitely not
an even playing field in this case and if we were to leave this
case as it currently stands, the confidence of the voters would
not only diminish with respect to the electoral process, but
also with the judicial process as a whole.
As stated, our Supreme Court has set forth three specific remedies in
election contest cases. Considering the unique circumstances of this case, I believe the
proper remedy is to declare the entire November 7, 2006, mayoral election void and to
declare the office of the mayor of the City of Tompkinsville vacant. Thus, a new election
for the office of the mayor of the City of Tompkinsville should be held for the entire
electorate. This would ensure that all candidates for mayor are treated fairly and no voter
loses his vote in this election.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Daniel T. Taylor, III
Louisville, Kentucky
David M. Cross
Albany, Kentucky
- 21 -
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