Judge requests more info as lawsuit wants incumbent Campbell commissioner booted from ballot

Mark Payne
Mark Payne
Mark Payne is the government and politics reporter for LINK nky. Email him at [email protected]

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After a hour-long hearing, there is not yet resolution in a lawsuit attempting to have the winner of a local Republican primary removed as the party’s nominee in November.

Dave Fischer sought to oust incumbent Campbell County District One Commissioner Brian Painter in last month’s GOP primary but lost by 106 votes.

Jefferson County Circuit Court Judge Charlie Cunningham requested additional information from both parties before making a decision. The case was moved to the Louisville court due to recusals by Campbell Co. judges.

Fischer’s lawsuit seeks to remove Painter as a candidate and replace the incumbent with Fischer.

“As a result of the egregious, unlawful, corrupt practices alleged herein, to solicit and influence likely voters, namely gifting inside of a polling place to a group of likely voters, Petitioner, David Fischer, is entitled to relief at equity, that the election results in favor of Respondent, Brian Painter, be set aside and the election of Respondent, Painter be deemed void, and David Fischer be deemed nominated as the Republican nominee for Campbell County, First District,” the lawsuit reads. 

Judge Cunningham signaled that he would make a decision in the case after Painter’s lawyer, Jim Morgan, and the lawyer for Campbell County Clerk Jim Luersen, and the Campbell County Board of Elections, Jeff Mando, submit detailed explanations of the case to the judge by June 17. Once submitted, Fischer’s attorney, Steve Megerle, will have five calendar days to file a response. 

Morgan didn’t respond to requests for comment.

All lawyers waived the right for a hearing, allowing Cunningham to make a decision once the lawyers present their additional explanations. Cunningham said he was going to make a decision as soon as possible.

“We had a very detailed pre-trial conference with the court where we narrowed the issues,” Megerle said.

Megerle filed a temporary injunction on May 28 to delay the certification of results. But that was the same day the results were set to be certified, so the injunction was not granted.

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The pre-trial conference was done via phone. 

All three legal teams agreed that nothing was in dispute, according to Megerle. The case alleges that poll workers attending special election training in Campbell County were subjected to the presence of handbills and campaign materials from Painter, Campbell County Judge/Executive Steve Pendery, and Jailer James Daley, all of whom won their Republican primary elections on May 17. Painter also allegedly passed out pens to 158 poll workers, the suit alleges.

However, Mando, attorney for the county board of elections, said that certain material allegations were false, such as that early voting didn’t occur on May 2 and 3. Mando and Megerle agreed that there was early voting on May 4, however. 

“On that day, there were 34 Republican voters who voted on May the 4th and we would put on proof of all those 30 Republican voters, 19 were polling workers,” Mando said, elaborating that Fischer still lost by over 100 votes and those votes wouldn’t affect the outcome. 

“Since the alleged electioneering did not affect the outcome of the Fischer/Painter race. We believe the fair and prudent thing for Judge Cunningham to do is to respect the will of the voters in Campbell County and dismiss the Petition,” Mando said. 

Megerle, Fischer’s attorney, suggested that video shows Painter arriving at the courthouse and passing out election materials.

The courthouse served as a polling location.

“Interestingly, because Mr. Painter’s actions also could have criminal consequences, Mr. Painter’s counsel asserted that he would not be testifying because of the protections afforded to him by the Fifth Amendment,” Megerle said, adding the video shows Painter committing violations of election law and the Corrupt Practices Act, which is a law that prevents bribery.

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In the original suit, Megerle cites Meeks Vs. Ellis, a case in which a politician in Louisville delivered boxes of chicken to poll workers for lunch. The judge, in that case, ruled that Meeks ultimately committed unlawful electioneering, which is the persuasion of voters in a political campaign; there are restrictions about when and how politicians can campaign near polling places on election day.

“My boss was of the consensus if you bring a bunch of chicken to precincts and you let people have some chicken, that’s a violation of the Corrupt Practices Act,” Cunningham said. 

The then detailed that the cost of a pen is probably comparable in value to an individual piece of chicken, after elaborating that it might matter to some how much the value of a pen is worth, but it doesn’t matter to him if it’s 50 cents or $5 dollars. 

“I haven’t been to KFC lately and tried to buy a single piece, but I’m guessing it’s comparable,” Cunningham said. 

After the original suit was filed, Megerle filed a motion to dismiss Luersen and the Campbell County Board of Elections, but Mando was still on the call as the outcome of the case could affect his client. 

“We’re concerned about the remedy that could be imposed upon my client,” Mando said. “This whole case is an attack on election integrity in Campbell County.”

Cunningham said to all parties that he would allow Luersen and the Campbell County Board of Elections back into the case after hearing arguments from Mando and Morgan.

“If you want me to do what you want me to do, I’m going to grant Mr. Morgan’s oral motion to allow him to bring the board back into this case,” Cunningham said, adding he wants to make a timely decision because either way the case goes, it’s most likely to be appealed by either set of lawyers. 

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“Since Fischer is asking the court to order the County Clerk and BOE to invalidate the election and place him on the ballot, its important that they, as the parties responsible for elections in Campbell County, have a say in the outcome and the remedy, a fact the court acknowledged on Friday,” Mando said.

The hearing for the case came just a day after another lawsuit regarding election integrity in Campbell County for second-place Republican primary finisher Jessica Neal, who filed a petition for a recount on May 27, prompting a court hearing Thursday to determine the cost. Neal lost to Shelley Funke Frommeyer in the Republican primary for Senate District 24, an open seat covering Campbell, Pendleton, and Bracken counties as well as part of Kenton.

“It was a pretty close race, and I firmly believe in making sure we have secure elections,” Neal said on her reasoning for a recount to LINK nky. Neal serves on the Campbell County Republican Party election integrity committee and previously penned an op-ed published at LINK nky suggesting that the election system is broken and that there is fraud present in it. 

Both lawsuits follow the takeover of the Campbell County Republican Party by individuals with a strong focus on voter fraud and election integrity, inspired by former President Donald Trump. In an unusual move, county party leadership challenged Republican incumbents in county races. Party Chair Anna Zinkhon ran against Judge/Executive Steve Pendery. Vice Chair Fischer ran against Painter. Usually, parties get behind incumbents and members of their own party. 

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