The city of Union has become the site over a conflict about voter disenfranchisement and election procedures.
LINK nky began receiving tips on Election Day from Union voters claiming to have received incorrect ballots at two of the city’s polling sites: Union precinct 1, whose polling place is at the Union Firehouse, and Union precinct 4, whose polling place is at Ryle High School.
LINK nky spoke with multiple residents in Union who said they got the wrong pre-printed ballots. There have been no accusations of anything criminal or conspiratorial, but all parties seem to be on the same page that a portion of the voters in Union were disenfranchised. But how deep is the actual problem? How many people were affected?
In truth, it’s difficult to tell exactly, but some preliminary analysis based on available sources could shed light on the issue’s scale. Union Commissioner Doug Bine – who lost the election, according to the results currently tabulated – was the one who brought the challenge to the court. Bine and his legal team consulted with Xavier University Political Science Professor Mack Mariani to assess the figures based on currently available information.
Mariani pulled data from available legal documents and other public records to sketch out a picture of the problem’s scale.
He started with the number of pre-printed ballots the office of County Clerk Justin Crigler distributed to polling sites, which contained people who live both inside the city of Union and outside the city of Union.
City residents were slated to receive ballots with spaces for the commissioners’ race and the medical cannabis question. People living outside of the city were meant to get ballots without those spaces. This information was elicited in legal documents Crigler and his legal team submitted to the court last month.
Upon receiving reports that ballots for city residents and city non-residents might be getting mixed up at around 11:30 a.m., Crigler and his team began taking voting machines offline, according to court documents. The precincts got fresh machines sometime between 12:15 p.m. and 12:30 p.m., about six hours into the allotted time to vote.
Bine and his legal team requested records from the voting machines to discern how many ballots were cast before they were taken offline.
Several discrepancies emerge as a result of Mariani's analysis.
First, the number of ballots cast by city voters exceeds the number of ballots the county claims to have distributed to the polling sites in its legal documents by 57 and 75, respectively.
Secondly, discrepancies between the number of ballots requested and the number of ballots submitted emerge. In Union precinct 1, 997 ballots were requested, but only 963 were submitted. In Union Precinct 4, 693 ballots were requested, but only 679 ballots were submitted.
Finally, Mariani points out there appears to be a discrepancy in the number of city ballots cast compared to the number of city ballots requested. In both precincts, it seems the number of city ballots cast exceeds the number of city voters who requested ballots.
"518 illegal voters cast somewhere between 890 and 984 illegal votes in the city commission race," Bine's suit alleges. "Because the difference in votes from 2nd place and 5th place is only 348 votes, the tainted and illegally cast votes conclusively altered and affected the outcome of the election.”
To be clear, there are things Mariani's analysis doesn't account for. For one thing, it only accounts for votes on Election Day. Absentee votes and early votes aren't included in the above figures.
There may be reasonable explanations for the discrepancies. The polling places may have requested additional ballots late in the morning, for instance, that ended up not getting recorded in the legal documents for whatever reason. It's possible there could have been technical or equipment issues that are currently unknown.
There may have been confusion among the poll workers after the ballots were delivered, as well. Some voters may have made a mistake on their initial ballots, realized it and then requested new ones. Several people with whom LINK nky spoke about their experiences at the polling places, saying they believed it was possible that people inside and outside the city went ahead and cast incorrect ballots, even when they were aware they were incorrect.
Crigler and his team declined to comment on the numbers, saying that details would come out as the legal proceedings progressed.
Mariani's analysis admits, as well, that "it is impossible to know the number of votes affected for certain."
Bine's argument contends that "at least 20% of City of Union precincts had gross irregularities providing a good faith basis for an election contest beyond the recount sought by the county clerk."
There has been back and forth in Kentucky case law about the so-called 20% rule, which contends that if there is evidence that 20% of votes in a precinct were cast illegally, the courts can rule the election was irrevocably tainted and can, thus, call a new election. Much of the case law, however, centers around cases where voter intimidation, bribery and other forms of graft took place, rather than an error from a county official.
Union Commissioner Brian Garner has been critical of Bine and his legal team's numerical assertions. He feared that tossing the current election's results and running a new special election would likely lead to a lower turnout and even have the effect of disenfranchising the large number of voters who were not affected by the problems at precincts 1 and 4.
"I hope for a swift resolution to this matter," Garner wrote in an email. "While irregularities in the process are undisputed, I firmly believe that the over 4,000 residents of Union who legally cast their ballots without issue should not have their votes thrown out. Two wrongs don’t make a right, and the idea of spending tens of thousands of dollars on a redo election, where four candidates compete for four positions, resulting in all of us winning, doesn't sit right with me."
Union Commissioner Jeremy Ramage, who won in November, recently resigned from his spot on the commission and vacated his seat for the next term. This means that if a new election were to take place, the remaining four candidates would run unopposed.
Garner questioned whether Bine's argument about 20% of precincts showing irregularities was correct. By his accounting, the discrepancy was closer to 10%. He looked at the number of cannabis votes cast - which only allowed for a single vote and was, in his view, a better way of determining the number of voters who actually participated in the election than the votes for the commissioners - and said only about 10% of ballots were cast by non-city voters, a good deal lower than the threshold Bine argues.
Bine's legal team, on the other hand, argues that a county official's margin of error should not be so broad.
"I appreciate Mr. Garner's acquiescence and agreement that there were significant election irregularities," Bine's attorney Steve Megerle, told LINK nky. "The heart of an election contest is to challenge the results of the election, which -based on the facts as plead both by the county clerk and through expert testimony deduced thus far - show this election cannot stand, despite there now only being four candidates for city commission.
"The election as a whole is now in question because over five hundred people were allowed to illegally cast a ballot, which without question affected the results and election of Mr. Garner, the other three candidates, including Commissioner Bine, or if there were more candidates. The fact of the matter is that the irregularities were at the hands of election officials, including the county clerk, the election officials should not get the benefit of certifying an election or calling an election regular and of high-integrity when 15% to 20% of the votes were cast by illegal voters."
So, what's next?
The board of elections filed a motion last week to strike Bine's challenge, arguing it was filed improperly and should be refiled as its own suit. Bine's team fired back 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.
In an email to LINK nky, Crigler said, "we do not believe the Board of Elections (BOE) certification of the election required public notice under Kentucky’s Open Meetings law. The process to certify elections used by our county and others has been for BOE members to sign certification forms and not hold a formal meeting since it is a purely clerical task."
A hearing for the case is scheduled for Tuesday, Dec. 17, at 9:01 a.m. at the Boone County Justice Center in Burlington. LINK nky will report more on this situation as it develops.