The ongoing dispute over the election in Union continues after a judge declined to make a decision Wednesday morning.
Judge Richard Brueggemann of the Boone County Circuit declined to rule on Boone County Clerk Justin Crigler’s attempt to strike a challenge to recent local elections for the city of Union, which arose following reports of voters at two Union precincts receiving the wrong ballots on Election Day.
Brueggemann’s judgment occurred at a hearing Tuesday morning, where he considered arguments from Union Commissioner Doug Bine and his legal team, who had brought the challenge to the court, as well as the clerk’s legal team. Union Commissioners Brian Garner and John Mefford, as well as Mayor Larry Solomon, also attended the hearing.
“I would be loath to not allow there to be a challenge if there’s already been a determination that an election was improper or invalid,” Bruegemann said. “But I will not violate the law.”
The problem was, Bruegemann said, it’s not super clear in the current statutes what the proper course of action is.
“Right now, I’m not sure,” Bruegemann said, eventually saying that he would continue to consider the two sides’ arguments.
The legal proceedings stem from reports of wrong ballot distributions at two Union precincts. The elections that were affected included the race for the city commission seats and the medical cannabis ballot question.
Following reports from voters, the clerk’s office filed a petition for a recount on Nov. 8. Bruegemann rejected this as “futile” for determining the scale of the disenfranchisement that may have occurred and later granted Bine leave to levy a challenge against the election. The Board of Elections certified the election results on Nov. 15.
Bine filed an official election challenge on Dec. 4. Then, on Dec. 9, the clerk filed a motion to strike Bine’s challenge, arguing that it failed to follow proper legal protocols. The motion to strike argues that Bine must file a whole new election contest lawsuit rather than piggybacking on the current case that began on Nov. 8. The clerk also requested postponing evidence discovery until Bruegemann could rule on the strike. Bruegemann granted the motion to stay discovery on Tuesday.
Bine’s team filed their own motion on Friday, accusing the board of “forum shopping” (i.e., trying to move the proceedings to a venue that would be more favorable). Bine’s team also pointed out that the board failed to advertise the meeting where they certified the election results, arguing it violated Kentucky’s open meetings laws. The issue of advertising the certification did not come up during Tuesday’s hearing.
All parties involved admit that some voters got wrong ballots, but this is a novel situation for the court as it’s a case where voters were seemingly disenfranchised on accident rather than through fraud, graft, bribery or anything criminal.
“This issue is clear as mud,” Union City Attorney Greg Voss said at the city commission meeting on Nov. 18. “It’s not something that comes up often, and when you read the statutes, the intent when you read them, they’re talking about fraud, intimidation, and things of that nature. Well, here there was nothing intentional.”
As a result, much of the discussion at Tuesday’s meeting revolved around how to interpret the law as it stands and what the proper legal procedures ought to be.
“It’s a question of what does the law require,” Bruegemann said.
Jeff Mando, the clerk’s attorney, argued the law requires a challenge to come directly from a candidate, whereas this case began with the clerk’s request for a recount. Mando admitted the court had granted Bine permission to challenge the election following the clerk’s recount petition, but that allowance was laid out in a separate statute from the law regulating how elections could be challenged.
“We believe that was appropriate for purposes of participating in the clerk’s recount petition under [the law],” Mando said. “But it does not give the court jurisdiction, the power to decide a separate election contest the General Assembly said had to be handled in a separate way under a separate statute.”
Bine’s attorney, Steve Megerle, argued case law supported Bine’s challenge, characterizing Mando’s argument as a “hyper-technical argument.”
“We believe that we have met all the requirements,” Megerle said.
Additionally, Megerle argued that “it does not benefit judicial economy to allow for a contest to be brought in a separate action.”
In spite of Bruegemann’s trepidation, his own interpretation of the statute seemed to be leaning toward allowing the election challenge to continue.
“I see both of your arguments,” Bruegemann said. “I don’t know if it is so strict that, after the intervention, that [the law] would not allow this to proceed based on the way it’s been practiced.”
Bruegemann then granted the motion to stay discovery. As far as his ruling on the challenge, he said, “I do intend to issue the ruling as soon as possible.”
LINK nky will report more on this situation as it develops.
