The Kentucky Supreme Court will now decide whether Brian Painter or Dave Fischer will be the Republican nominee for District 1 Campbell County Commissioner.
Painter, the incumbent, narrowly defeated Fischer in the May primary, but was later removed from the ballot by a judge after Fischer’s campaign accused Painter of electioneering. Painter saw the decision against him reversed at the Kentucky Court of Appeals.
Now it’s on to the state’s highest court.
On Sept. 1 Supreme Court Chief Justice John D. Minton Jr. gave Painter, Campbell County Clerk Jim Luersen, and the Board of Elections until 4:30 p.m. on Sept. 7 to respond to Fischer’s motion for discretionary review (MDR). Fischer’s attorney, Steve Megerle, filed the MDR on Aug. 29.
Normally, the Supreme Court gives respondents 30 days, but Minton requested to expedite the responses, after Megerle requested an expedited review due to upcoming election deadlines.
The clerk and the BOE are represented separately from Painter. The Court of Appeals, however, combined the cases, but the attorneys must still file independently. Both groups of attorneys have separately filed responses to the MDR.
On Aug. 26, the Kentucky Court of Appeals overturned a decision that removed Campbell County Commissioner Brian Painter from the November ballot.
Painter narrowly won renomination in the Republican primary last May, only to have his name removed from the November ballot after being found to have allegedly violated Kentucky’s electioneering laws by a judge in Louisville. The COA decision overturned the charge.
Jefferson County Circuit Court Judge Charlie Cunningham, who heard the case, ruled that Dave Fischer would replace Painter as the Republican nominee. Painter had defeated Fischer at the polls, but Fischer later challenged Painter’s distribution of campaign materials inside the Campbell County Fiscal Court building, where poll workers were attending a training. Cunningham agreed that the move violated election law.
But the Court of Appeals decision said, “Courts must not whittle away the elevated standard for setting aside election results.”
This is the same argument that Luersen and the county BOE attorney Jeff Mando use in his filing to request the Supreme Court to decline the motion for discretionary review.
Fischer’s attorney, Steve Megerle, said they would file a motion for discretionary review with the Kentucky Supreme Court after the COA overturned Judge Cunningham’s decision.
“This case was always going to be decided by the Kentucky Supreme Court,” Megerle said at the time.
In his filing to the Supreme Court, Megerle said that “time is of the utmost essence” as there are important deadlines.
On Sept. 19, absentee ballots must be printed, with the deadline to send these ballots to those who requested them on Sept. 23. The county board of elections must send those who requested overseas absentee ballots by Sept. 24. This is also the day that opens the online absentee portal request by the state board of elections, and somebody can request from the county clerk.
The Republican nominee will face Democrat Melissa Whalen in November.