Campbell County Commissioner Brian Painter, who narrowly won renomination in the District One Republican primary on May 17, has seen his victory vacated by a Louisville judge following a challenge by his defeated GOP rival David Fischer.
Fischer, the judge ordered, will now replace Painter on the November ballot.
“The court found that Commissioner Brian painter cheated in the primary election, which had an effect on the outcome on the primary contest,” said Steve Megerle, Fischer’s attorney.
Painter’s attorney Jim Morgan, and attorney Jeff Mando, who represented Campbell County Clerk Jim Luersen and the Campbell County Board of Elections, and David Fischer weren’t immediately available for comment. Painter declined comment.
Fischer will replace Painter on the ballot after Jefferson County Circuit Court Judge Charlie Cunningham found that Painter violated Kentucky’s electioneering laws and the Corrupt Practices Act. The case was moved to Jefferson County to avoid conflicts.
“WHEREFORE, the Court ORDERS that Brian Painter’s victory in the May 17, 2022, primary election for County Commissioner, District 1 is VACATED,” the 12-page filing read. “The Campbell County Clerk is hereby ORDERED to proceed accordingly.”
As part of the ruling, the person receiving the next highest vote count will be the Republican nominee and placed on the ballot. That is David Fischer.
The ruling states that Painter violated two key provisions of election law – the first is electioneering. The statute states that in Kentucky, “No person shall electioneer within the interior of a building . . . during the hours in-person absentee voting is being conducted in the building.”
“Painter violated the anti-electioneering provision by distributing campaign literature, cards, or handbills in the same building where early absentee voting was taking place on May 4,” Cunningham’s ruling reads.
In Kentucky, there is case law for electioneering, and 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.
“In some respects, Painter’s conduct was more clearly contrary to Kentucky statutes than Meeks’ conduct,” Cunningham said in his ruling. “Meeks brought no campaign literature to the building; Painter clearly did. Meeks did not ask any voter to vote for him; Painter presumably was stumping for the votes of the trainees, who were (potential, and in many instances, actual) voters. An arguable distinction is that the fried chicken boxes Meeks left at the polling places were more valuable (but less readily connected to the candidate) than Painter’s 22¢ pens.”
The second key provision is the Corrupt Practices Act which says, “No candidate for nomination or election to any. . . county. . . office shall expend, pay … money or other thing of value, either directly or indirectly, to any person in consideration of the vote. . . of that person.”
The ruling shows that Painter left campaign literature in the building for the trainees’ consideration and ink pens with his name imprinted on them that cost 22 cents per unit.
“Unlike electioneering, which is only banned from occurring in close proximity to actual voting (to prevent voters from feeling undue pressure or questioning their privacy as they cast their ballot), ‘vote buying’ is illegal whenever and wherever it occurs,” the ruling reads.
The next part of the case deals with the number of votes. Painter beat Fischer by 106 votes, 4,180 to 4,074. 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 earlier this month.
In Cunningham’s ruling, the judge breaks down early voting versus in-person.
“It bears mentioning that the available data does support a conclusion that the events of May 4 likely altered the voting such that the election was not ‘fair,’” Cunningham says. “The vast majority of the votes cast in the primary were cast on election day. Fischer received more of those votes than Painter did. However, Painter received a statistically significant larger share of the votes cast prior to election day.”
A breakdown of the votes shows that in absentee voting, Painter beat Fischer 151 to 96. In early voting, Painter again beat Fischer 293 to 219. On election day, Fischer received 3,759 votes to Painter’s 3,736.
“Clearly, Painter received not insignificantly more votes than Fischer prior to election day (a lead of 129 votes), which was enough to overcome his shortfall on May 17 (a deficit of 23 votes),” Cunningham says. “It is not unreasonable to conclude that Painter’s efforts in those early days, including the electioneering Fischer, complains of, moved some early votes his way.”
In an hour-long hearing on June 10, Painter’s lawyer, Jim Morgan, and the lawyer for Campbell County Clerk Jim Luersen, and the Campbell County Board of Elections, Jeff Mando, along with Megerle, participated in a very detailed pre-trial conference. They were then to submit detailed case explanations to the judge by June 17. Once submitted, Fischer’s attorney, Steve Megerle, had five calendar days to file a response.
At the hearing, all three legal teams agreed that nothing was in dispute. 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.
The case will most likely be appealed, according to Megerle.
“We anticipate that Mr. Painter may appeal this to the Court of Appeals or the Supreme Court,” Megerle said. “We hope that the Board of Elections and the County Clerk do not waste any more tax dollars on defending unlawful conduct by another sitting elected official.”