A Campbell County commissioner whose primary election win was vacated last month filed an appeal on Thursday.
Commissioner Brian Painter narrowly won renomination in the District 1 Republican primary on May 17, but his defeated rival David Fischer challenged that win. Ruling that Painter violated Kentucky’s electioneering laws and the Corrupt Practices Act, Jefferson County Circuit Court Judge Charlie Cunningham said Fischer would replace Painter on the November ballot.
The case was moved to Jefferson County to avoid conflicts.
“The county clerk, the (Campbell County) Board of Elections, and Commissioner Brian Painter filed appeals to the Kentucky Court of Appeals seeking to reverse Judge Cunningham’s decision that found Mr. Painter guilty of electioneering and removing him from the ballot,” said Fischer’s attorney Steve Megerle.
The case will now head to the court of appeals, where it will be expedited.
Painter was found guilty of illegal electioneering after attending poll worker trainings where he displayed campaign materials and passed out pens to some of the poll workers ahead of the May 17 primary.
“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.
According to Campbell County Clerk Jim Luersen’s and the BOE’s attorney Jeff Mando, Painter and his legal team filed the appeal for three reasons with the first being that the decision wasn’t authorized by the statute.
“Judge Cunningham dismissed the votes of 4180 Republican voters in Campbell County who dutifully voted in the primary election,” Mando said.
Second, the impact of the ruling is consequential, and third that Judge Cunningham acknowledged there was no quid pro quo.
“Judge Cunningham correctly acknowledged that there was no evidence of any quid pro quo with respect to the poll workers who voted on May 4,” Mando said. “It’s simply a bridge too far to suggest that the primary election was not fair simply because pens were left on a desk.”
New evidence also surfaced involving text messages from Painter to Luersen the two having a back-and-forth on when the election trainings were, according to Megerle, who issued a subpoena for the text messages.
“Those text messages unequivocally prove that Mr. Luersen gave Mr. Painter permission and specifically told him when the election trainings were and for him to show up and electioneer,” Megerle said.
Mando said that he doesn’t deem the texts consequential.
The Kentucky Association of Counties (KACo) provides insurance in these instances to cover legal fees under the Kentucky Association of Counties All Lines Funds (KALF). All public officials are covered under the Elected Public Officials Legal Defense Coverage.
However, they don’t provide insurance in the case of criminal acts, and it could leave Campbell County taxpayers on the hook, according to a letter from a senior litigation adjuster from KACo to the county.
“It has put the county clerk and the board of elections on notice that they may not provide insurance coverage because of criminal acts, and intentional tort exceptions to their insurance policy,” Megerle said.