Magoffin County Board of Elections v. John Montgomery

RENDERED: AUGUST 25, 2016
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2015-SC-000572-DGE
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CHARLES HARDIN, M.D. APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2015-CA-000305-MR, 2015-CA-000328,
AND 2015-CA-000332
MAGOFFIN CIRCUIT COURT NO. 14-CI-00371

JOHN MONTGOMERY, MAGOFFIN APPELLEES
COUNTY BOARD OF ELECTIONS, RENEE
ARNETT-SHEPHERD, MAGOFFIN COUNTY
CLERK, CARSON MONTGOMERY, IN HIS
OFFICIAL CAPACITY AS A MEMBER OF
THE MAGOFFIN COUNTY BOARD OF
ELECTIONS, SUSIE SALYER, IN HER
OFFICIAL CAPACITY AS A MEMBER OF
THE MAGOFFIN COUNTY BOARD OF
ELECTIONS, AND JUSTIN WILLIAMS, IN
HIS OFFICIAL CAPACITY AS A MEMBER
OF THE MAGOFFIN COUNTY BOARD OF
ELECTIONS

AND

2015-SC-000575-DGE

MAGOFFIN COUNTY BOARD OF ELECTIONS, APPELLANTS
RENEE ARNETT-SHEPHERD, MAGOFFIN
COUNTY CLERK, CARSON MONTGOMERY,
IN HIS OFFICIAL CAPACITY AS A MEMBER
OF THE MAGOFFIN COUNTY BOARD OF
ELECTIONS, SUSIE SALYER, IN HER
OFFICIAL CAPACITY AS A MEMBER OF THE
MAGOFFIN COUNTY BOARD OF ELECTIONS,
AND JUSTIN WILLIAMS, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
MAGOFFIN COUNTY BOARD OF ELECTIONS
 ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2015-CA-000305-MR, 2015-CA-000328,
AND 2015-CA-000332
MAGOFFIN CIRCUIT COURT NO. 14-CI-00371

JOHN MONTGOMERY AND APPELLEES
CHARLES HARDIN, M.D.

OPINION OF THE COURT BY JUSTICE VENTERS

REVERSING

The Magoffin County Board of Elections (the Board) and its members in

their official capacities (Carson Montgomery, Susie Salyer, and Justin Williams,

and Magoffin County Clerk Renee Arnett-Shepherd), and Democratic candidate

for judge executive Charles Hardin, referred to collectively as "Appellants,"

appeal from a decision of the Court of Appeals which affirmed the judgment of

the Magoffin Circuit Court setting aside the results of the November 4, 2014

election for Magoffin County judge executive and declaring the office vacant.

The officially-tabulated vote count revealed that Republican candidate, Appellee

John Montgomery, lost the election to Hardin by a mere twenty-eight votes.

Montgomery filed this action to challenge the election results.

Appellants contend (1) that the trial court and the Court of Appeals

nullified the election on grounds that were not set forth in Montgomery's

petition to challenge the election, and thus deprived them of fair notice of such

grounds; (2) that contrary to the trial court's conclusions, the election was

conducted in substantial compliance with the applicable election laws; (3) that

any violations of applicable election laws that occurred in the election were de
minimus and had no impact on the result of the election; and (3) that

Montgomery's evidence was insufficient to prove the illegalities he alleged and

insufficient to prove that the result of the election was affected by any

irregularities and improprieties which may have occurred.

For the reasons stated below, we reverse the opinions of the lower courts.

Accordingly, we conclude that Appellant Hardin is entitled to occupy the office

of Magoffin County judge executive in accordance with the tabulated results of

the November 4, 2014 election. 1

I. FACTUAL AND PROCEDURAL BACKGROUND

In the November 4, 2014, general election for the office of Magoffin

County judge executive, Republican candidate John Montgomery challenged
,

the incumbent, Democratic candidate Charles Hardin, M.D. The vote tallies

showed that of the 5,389 votes cast at the polls on election day, Montgomery

received 2,899 votes (53.8%) and Hardin received 2,490 votes (46.2%), a 409-

vote advantage for Montgomery. In contrast with that tally, Hardin received

791 (69%) of the 1,145 absentee votes that had been cast while Montgomery

received only 354 (31%), a 437-vote advantage in favor of Hardin. Added to the

I We are aware of the recent proceedings in the United States District Court for the
Eastern District of Kentucky in which a jury returned verdicts convicting Magistrate
Gary Risner, Tami Jo Risner, and Larry Shepherd, husband of Appellant Renee
Arnett-Shepherd, of vote buying in connection with the 2014 election cycle, including
the Magoffin County Judge Executive race which is the subject of this opinion. See
Montgomery Brief, Appendix I (copy of the federal district court Indictment). Our
analysis is properly limited to the evidence in the record before us. We cannot consider
evidence that may have been available to federal prosecutors but was not presented in
this action. The recent criminal convictions have no bearing upon the issues we
address.
 election day votes, this absentee vote advantage gave Hardin an overall 28 vote

margin (3,281 to 3,253) of victory.

Pursuant to KRS 120.155, Montgomery filed a petition in the Magoffin

Circuit Court to contest the election. He alleged that violations of the voting

procedures detailed in KRS 117.225 2 and KRS 117.227 3 occurred on election

day at twelve of Magoffin County's fourteen precincts; that violations of KRS

117.075 through KRS 117.088 4 occurred in the absentee balloting process in

that absentee ballots were given to people who were ineligible to vote, absentee

ballots of people who died were counted, 5 and other irregularities occurred

affecting the fairness and equality of the election; and that vote buying

occurred when supporters of Hardin exchanged consideration such as paving

work, graveling, cash, and other incentives for votes in violation of KRS

121.055, a central component of the Corrupt Practices Act (KRS 120.015). A

bench trial, which commenced on February 2, 2015, included testimony of

twenty-seven witnesses presented by Montgomery and ten witnesses presented

by Appellants, in addition to the documentary evidence.

In timely fashion, the trial court entered an extensive Findings of Fact,

Conclusions. of Law, and Judgment. Among other things, the court found that

2 KRS 117.225 addresses voter identification and voter signature procedures.
3 KRS 117.227 addresses confirmation of voter identity procedures.
4 KRS 117.075 through KRS 117.088 prescribe absentee ballot protocols.
5Before the trial on Montgomery's petition, it was determined that the only allegedly
dead absentee voter was, in fact, alive at the time of the election. Consequently, this
allegation was dismissed before trial.

3
 corrupt practices in violation of KRS 120.015 and KRS 121.055 had occurred

in that gravel had been placed by county workers on private property shortly

before the election, and that cash payments had been made or promised to four

voters. The court also determined that statutory procedures for identifying

voters at the polls and for assisting voters in need of help were not followed by

election officers. The trial court also found that applications for absentee

ballots were not properly filled out and that procedures for casting and

counting of absentee ballots were not followed.

Ultimately, the trial court determined that none of the individual

improprieties and irregularities, taken in isolation, were sufficient to overturn

the election, but that based upon the totality of the circumstances, the election

outcome was the result of "fraud and bribery" to the extent that neither

contestant could be judged to have been fairly elected. Consequently, the trial

court set aside the results of the election and declared the office of Magoffin

County judge executive to be vacant pending a new election.

Hardin and the Board appealed to the Court of Appeals. Montgomery

cross-appealed arguing that the trial court should have declared him to be the

winner of the contest rather than deeming the office vacant. 6 A divided panel

of the Court of Appeals concluded that the trial court's factual findings were

supported by substantial evidence and that it had properly applied the

6 The Court of Appeals failed to grant this relief and Montgomery did not petition for
discretionary review of that decision. The propriety of that disposition is not before us
in the present appeal.

4
 applicable election law to those facts. It affirmed the annulment of the election

and the trial court's judgment vacating the office pending a new election. We

granted Appellants' motion for discretionary review.

II. STANDARD OF REVIEW

In cases tried without a jury, the court's findings of fact "shall not be set

aside unless clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of the witnesses." CR

52.01; McClendon v. Hodges, 272 S.W.3d 188, 190 (Ky. 2008). A factual

finding is not clearly erroneous if it is supported by substantial evidence.

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). "Substantial evidence is

evidence that a reasonable mind would accept as adequate to support a

conclusion and evidence that, when taken alone or in the light of all the

evidence . . . has sufficient probative value to induce conviction in the minds of

reasonable men." Id. at 354 (internal citations and quotations omitted).

We note at the outset that the detailed findings in the trial court's fifty-

five page judgment are, for the most part, supported by the evidence presented

at the trial and are not clearly erroneous. However, many of the "findings" are

simply summaries of the witness's testimony with no determination of the

verity of the testimony.? Our general agreement with trial court's fact findings

7Several of the more crucial findings of fact, in which verity issues are resolved, are
contained under the heading "Conclusions of Law." We regard those verity
determinations, consistent with their actual nature, as findings of fact rather than as
conclusions of law.

5
is, however, marred with crucial exceptions where material facts are not

supported by adequate evidence. Many of the trial court's findings concerning

vote buying are not supported by substantial evidence, but are instead based

upon speculation and conjecture. More importantly, we conclude that the trial

court's ultimate finding that Hardin's victory was "the result of fraud and

bribery" such that "neither contestant nor contestee can be judged to have

been fairly elected" is clearly erroneous.

In contrast to the deference we accord to factual findings of the circuit

court, its conclusions of law are subject to de novo review. McClendon, 272

S.W.3d at 190. As further discussed below, we diverge significantly from the

conclusions of the trial court and the Court of Appeals in our determinations

concerning the manner in which the applicable election law authorities interact

with the circuit court's findings of fact.

In this vein, we begin our discussion by noting the extraordinarily high

standard that we have established for setting aside an election. Over a century

ago in Stewart v. Wurts, our predecessor court summarized this high standard

and the justifications for it. The principles cited in Stewart v. Wurts, and set

forth below, still serve as the polestar that guides our review of election

contests.

The burden of proof is on the contestants to show such fraud,
intimidation, bribery, or violence in the conduct of election that
neither the contestant nor the contestee can be adjudged to have
been fairly elected. These things are not presumed. But it must
be affirmatively shown, not only that they existed, but that they
affected the result to such an extent that it cannot be reasonably
determined who was elected. Elections are not lightly set aside.
6
 They are the means provided by law for the expression of the will of
the people. To set them aside unnecessarily would be to destroy
that confidence in them which is essential. If often set aside they
would be less attended; for the voters would await the next chance,
and the election, instead of settling things, would be only the
starting point for new controversies. Elections must be free and
equal; but they cannot be free and equal unless supported by
public confidence. When once the notion prevails that confidence
cannot be placed in the stability of elections, their power and
usefulness is destroyed.

135 S.W. 434, 439 (Ky. 1911) (quoting Skain v. Milward, 127 S.W. 773 (Ky.

1910)).

The application of these stringent standards, along with the other

authorities we cite herein, placed the burden upon Montgomery to prove: 1)

that the improprieties he alleged actually occurred and were significant enough

to have affected the result; or 2) that the election was so corrupted by fraud,

intimidation, and bribery that the vote tallies are substantively unreliable. For

the reasons explained below, we are persuaded that Montgomery made neither

showing, and the trial court and Court of Appeals were in error to conclude

otherwise.

III. LACK OF COMPLIANCE WITH STATUTORY TIMING REQUIREMENTS
AND SPECIFICITY OF PLEADINGS

Appellants first contend that the trial court erred by permitting an

extended period of time for proof-taking in violation of KRS 120.165(2), 8 and

8 KRS 120.165(2) provides as follows:
The evidence in chief for the contestant shall be completed within thirty
(30) days after service of summons; the evidence for the contestee shall
be completed within twenty-five (25) days after filing of answer, and
7
that by hearing evidence of alleged election law violations that were not

specifically asserted in Montgomery's petition and basing its decision on that

evidence, the trial court violated KRS 120.155's mandate that the initial

petition contesting an election "shall state the grounds of the contest relied on,

and no other grounds shall afterwards be relied upon." 9 Appellants contend

that the trial court's judgment should be set aside for those violations. We

disagree.

For obvious reasons, challenges to the results of an election must be

resolved as fast as possible, and by enacting KRS 120.165(2), the legislature

put in place a pretrial procedure to achieve that goal. KRS 120.165(2) requires

the contestant to complete his proof within thirty days after the service of

summons unless the court finds "cause" to grant a reasonable extension.

Appellants correctly assert that the trial court failed to make a specific finding

of the "cause" that justified a prolonged election contest process.

evidence for contestant in rebuttal shall be completed within seven (7)
days after the contestee has concluded; provided that for cause the court
may grant a reasonable extension of time to either party.
9 KRS 120.155 provides, in pertinent part:
The petition [to contest the election] shall be filed and process issued
within thirty (30) days after the day of election; it shall state the grounds
of the contest relied on, and no other grounds shall afterwards be relied
upon. The contestee shall file an answer within twenty (20) days after the
service of summons upon him. The answer may consist of a denial of the
averments of the petition and may also set up grounds of contest against
the contestant; if grounds are so set up they shall be specifically pointed
out and none other shall thereafter be relied upon by the party . . . .
(Emphasis added.)

8
 Appellants also suggest that the additional time allowed by the trial court

permitted Montgomery to undertake an extended "fishing expedition" to

discover grounds for challenging the election not stated in the initial petition.

We agree that the time line established by KRS 120.165 was not followed, but

we are persuaded that the trial court did not err in permitting the parties

additional time to conduct discovery. To satisfy the statutory text, the trial

court should have made a formal written finding stating the "cause" for the

timing deviation. Nevertheless, the statute plainly vests the trial court with

discretion in the matter.

KRS 120.165(1) directs the trial court to "complete the case as soon as

practicable." This case presented a complex set of facts which under any

circumstances would be difficult to conclude expeditiously. We commend the

trial court's effort to balance the competing goals of providing a thorough

exposition of the facts within a reasonably brief timetable, and to conclude the

action it with a final judgment in just seventy-seven days from the filing of the

petition. We are convinced that this slight departure from the statutory

timetable for presenting evidence, which would not have been avoided by an

explicit finding of just cause, affords no basis for setting aside the trial court's

judgment.

Appellants further contend that the trial court based its decision to set

aside the election, in large part, upon evidence of irregularities which were not

specifically pled or otherwise identified in the initial petition. Because the

general allegations cited in the petition do not incorporate the deficiencies

9
relied upon by the trial court as the basis for its decision to void the election,

Appellants contend they did not receive adequate notice of the factual issues

being tried.

We need not address this issue in this opinion. Regardless of the

adequacy of the notice afforded to Appellants and the sufficiency of

Montgomery's petition, we conclude that Montgomery failed to present

sufficient evidence to sustain the allegations which the trial court relied upon

to nullify the election. The requisite specificity of a petition and the effect of a

trial court's reliance upon allegations not alleged in the petition are issues we

reserve for another day.

IV. ALLEGED IRREGULARITIES IN ABSENTEE VOTING

A major aspect of Montgomery's election challenge and the trial court's

decision to void the election arises from the alleged irregularities in the

absentee voting. Because absentee voting is subject to rules not otherwise

applicable to election day voting, we review separately the allegations affecting

absentee votes.

The right to vote by absentee ballot is a special privilege granted by
the legislature, exercisable only under special and specified
conditions to insure the secrecy of the ballot and the fairness of
voting by persons in this class. The absentee vote is completely
separable from the general vote. If the procedures for conducting
this phase of the election are violated to such an extent that a
substantial number of votes cannot properly be counted,
regardless of the candidate for whom the votes were cast, then the
entire absentee vote, as a unit and as in the case of a precinct,
should be disregarded.

10
Ragan v. Burnett, 305 S.W.2d 759, 760 (Ky. 1957).

In Wan en v. Rayburn, 267 S.W.2d 720, 721 (Ky. 1954), the Democratic
-

candidate for county sheriff enjoyed a slim margin of victory over his

Republican rival in the election day voting (2,414 to 3,286, or 57.65%) but

garnered only 16 out of 197, or 8.1% of the absentee votes. In the same

election, the incumbent Republican county clerk, who was primarily

responsible for compliance with the absentee voting laws and had virtually

exclusive control over the absentee voting process, won 60% of the election day

balloting and more than 99% of the absentee ballots.

The trial court in Warren found that the county clerk had, contrary to

statute but in accordance with a local custom, printed 600 ballots exclusively

for use by absentee voters, resulting in a suspicious allocation of absentee

votes. The use of improperly printed ballots was not properly documented.

The trial court found, "If this latter is the correct reason then this disregard of

the statute is responsible for much of the majority received by contestee in the

absentee voting." Id. at 724. The trial court found a direct nexus linking the

illegal procedures employed for handling absentee ballots to the great

discrepancy in the results of the election day voting and the absentee balloting.

That nexus persuaded our predecessor court to affirm the judgment voiding all

absentee ballots cast in the election under review.

Montgomery, citing the discrepancy between the election day vote and

absentee vote in his own election, asserted in his petition that the applicable

absentee ballot statutes, KRS 117.075 through KRS 117.088, were violated by

11
election officials. For purposes of review, these alleged violations may be

divided into three principal areas: the absentee ballot application process; the

"in-house" absentee ballot voting process; 10 and the absentee ballot counting

process. We begin with a discussion of the statistical anomalies as indicators

of voting irregularity which have understandably raised concerns in this case,

to determine if the holdings of Ragan and Warren are applicable.

A. Statistical Anomalies

In setting aside the election results, the trial court and Court of Appeals

emphasized the prominent difference in the absentee voting results and

election day votes cast at the polls. Of the 6,534 votes counted in the election,

5,389 (82.5%) were cast at the polls on election day and 1,145 (17.5%) were

absentee votes. Montgomery received about 54% (2,899) of the election day

vote, but only 31% (354) of the absentee votes.

Montgomery's "election expert," Kim Geveden, a political consultant often

associated with Democratic Party candidates, testified that under normal

circumstances the absentee vote closely tracks the election day vote, with an

expected 3% to 10% variance between a candidate's election day vote and his

absentee ballot vote. Montgomery's variance, and correspondingly, Hardin's

variance, was 23 percentage points. Geveden explained that such a wide

variance is a potential indicator of misconduct. He also testified that the large

10 "In-house" absentee voting refers to the voting which occurred at an absentee voting
machine located in the offices of the Magoffin County Clerk and which was available
for in-person voting during the period of October 20 to November 3, except for
Sundays.

12
number of absentee votes cast relative to the total vote suggests that "some

impropriety [was] involved, as there could not be a legitimate explanation for

this voting."

Notwithstanding Geveden's opinion, our case law holds that a statistical

anomaly in absentee voting is not alone sufficient grounds to set aside an

election or to cast out of all the absentee ballots. Arnett v. Hensley, 425 S.W.2d

546, 553 (Ky. 1968) (The fact that a candidate received 50.6% of the votes cast

at the polls but less than 24% of the absentee ballots "alone would not suffice

to warrant rejection of all the absentee ballots, but it does arouse suspicion

that all may not have been well."). It is reasonable to expect that any

conditions or circumstances that may induce a voter to use the absentee voting

process would normally fall proportionately on each candidate's voters. "In the

absence of some plausible explanation, it would be supposed that the general

ratio of voting as between poll voters and absentee voters would be more nearly

equal." Id. at 553.

Casting an even broader shadow on the Magoffin County absentee voting

was the evidence showing that the rate of absentee voting in Magoffin County's

2014 general election exceeded the rate of absentee voting in all of its

surrounding counties. It also represented a substantial increase over the

absentee voting in previous Magoffin County elections. Magoffin County voters

cast more absentee ballots than any other county in Eastern Kentucky.

Appellants offered a number of factors to account for the statistical

anomalies. They presented evidence showing that many residents of Magoffin

13
County work outside the county and vote absentee to avoid missing work.

Many of the voters working outside the county are union members traditionally

allied with Democratic Party politics, and thus their absentee ballots would

correspondingly be skewed in favor of Democratic candidate Hardin, and

against Montgomery, the Republican candidate.

Appellants also posit that Hardin, a medical doctor in Magoffin County

for more than twenty years, has treated many of the elderly, disabled, and ill

Magoffin County voters who vote in disproportionate numbers by absentee

ballot, and, having an affinity for their doctor they cast a disproportionate

share of votes for him, thus further skewing the absentee vote in Hardin's

favor. Other testimony attributed the larger than normal voter turnout to

strong interest by voters in a number of other races, including an enthusiastic

Democratic challenger in the United States Senate race that garnered national

attention and increased voter response. Appellants also offered evidence that

the absentee vote totals in Magoffin County for 2014 were generally consistent.

with other non-presidential elections in that county.

We agree with the trial court's conclusion that the disproportionate

result of the absentee vote count raises questions which cast suspicion on the

integrity of the absentee voting. But questions and suspicion alone do not

authorize a finding of fraud. Showing that the vote tally looks suspicious is not

the same thing as proving the illegality of the votes tallied.

The reasonable suspicion raised by the observed anomalies justified

further investigation to determine if any Magoffin County absentee votes were

14
fraudulent. It was incumbent upon Montgomery to present evidence to answer

the questions and validate that suspicion. Evidence was available to do so.

Every absentee ballot was cast in the name of a registered voter, any of which

could have been consulted to determine the integrity of his or her absentee

vote. Montgomery offered no evidence to validate his suspicion. Appellants

offered plausible, if largely unconvincing, explanations to account for the

statistical anomalies, but the burden of proving the claim was on Montgomery.

Because a statistical anomaly alone does not authorize the courts to

disturb results of this election, other evidence of significant irregularities

affecting those votes must be established. As further explained below, while

deviations from proper election protocols occurred, the irregularities were not

shown to have any nexus to the disproportionate vote count so as to bring this

case within the scope of Ragan and Warren.

B. Absentee Ballot Application Process

The evidence presented at trial disclosed several irregularities in the

absentee ballot application process that were contrary to statutory and

Kentucky Board of Elections protocols. These irregularities include the county

clerk's acceptance of absentee voter applications without obtaining the

applicant's social security number and phone number, where the voter would

be on election day, and the identity of the person requesting the absentee

ballot.

KRS 117.085 sets forth in extensive detail the statutory absentee ballot

requirements. KRS 117.085(2) provides as follows:

15
 The clerk shall type the name of the voter permitted to vote by
absentee ballot on the application form for that person's use and
no other. The absentee ballot application form shall be in the form
prescribed by the State Board of Elections . . . and shall contain
the following information: name, residential address, precinct,
party affiliation, statement of the reason the person cannot vote in
person on election day, statement of where the voter shall be on
election day, statement of compliance with residency requirements
for voting in the precinct, and the voter's mailing address for an
absentee ballot. The form shall be verified and signed by the voter.

An examination of the text discloses that KRS 117.085(2) does not

require the voter's telephone number or social security number. Nevertheless,

the absentee ballot application form promulgated by the state Board of

Elections provides spaces to record that information. The trial court found that

of the 1,145 absentee ballot applications, 910 failed to record the voter's social

security number; 463 failed to note the voter's telephone number; and 354 did

not identify the place where the voter would be on election day. Eight of the

1,145 applications omitted the name of the person who made the request for

the absentee ballot in violation of KRS 117.085(1).

Montgomery suggests that these deficiencies justify the disqualification

of the affected absentee ballots. The first problem with his position is that no

evidence indicates for which, if either, candidate the affected votes were cast.

Even if we were to agree that the affected ballots should be invalidated, without

knowing for whom those secret ballots were cast there is no way to make

corresponding adjustments to the vote tallies. Once again, we note that none

16
of the voters associated with the deficient ballots were called to testify or

otherwise attest to how they voted.

The trial court concluded that the failure to record the voter's social

security number invalidated the application because "the Court is unable to

review the validity of the applications in the absence of [the social security

number.]" We disagree. The failure to obtain the voter's telephone number

and social security number does not render the application invalid or illegal.

As noted above KRS 117.085(2) does not direct the clerk or the election officials

to obtain that information, and we are aware of no other law that does so. The

name and address of the voter on the application provides adequate identifying

information so the use of social security numbers and phone numbers is

unnecessary. "

KRS 117.085(2) does require that the absentee ballot application identify

where the person will be on election day. In addition, KRS 117.085(1) provides

that "[t]he absentee ballot application may be requested by the voter or the

spouse, parents, or children of the voter, but shall be restricted to the use of

the voter." Unlike the social security and phone numbers, the voter's location

on election day and the name of the person requesting the ballot are statutorily

required, and thus those omissions represent a substantial deviation from the

statutory procedures regarding applications for absentee ballots.

Traditionally, our analysis of election law violations and their effects

11 The Magoffin County Clerk testified that the Board of Elections is in the process of
phasing out the social security and phone number fields due to privacy concerns.

17
upon election results requires us to determine if the statutory requirement

under review is directory or mandatory. ViOlations of directory requirements

do not nullify the elections results, but violations of mandatory provisions may.

[I]n order that the legal voter may be protected, and not
disfranchised for the time being, by mere irregularities in the
appointment of the election officers, or mere irregularities in the
proceedings of the election officers, the statute authorizing their
appointment and prescribing the manner in which they shall
conduct the election must be construed to be directory merely, and
not mandatory, unless such irregularities really affect the merits of
the case, in which case the statute must be construed to be
mandatory.

Varney v. Justice, 6 S.W. 457, 459 (Ky. 1888). A statutory requirement is

"directory . . . if the directions given by the statute to accomplish a given

end are violated, but the given end is in fact accomplished, without

affecting the real merits of the case . . . ." Id.

The Vamey doctrine requires us to engage in a practical view of election

statutes and distinguish between mandatory, nondiscretionary provisions

which are fatal to the election result (such as, for example, noncompliance with

candidate residency requirements or disqualification of a candidate as a

convicted felon or holding the election outside of the permissible election hours)

and merely directory provisions which, even when violated, do not negate the

election result.

"Whether a statute is to be deemed directory or mandatory depends, not

on form, but on the legislative intent, which is to be ascertained by

interpretation from consideration of the entire act, its nature and object, and

18
the consequence of construction one way or the other." Skaggs v. Fyffe, 98

S.W.2d 884, 886 (Ky. 1936). Skaggs further explains a statutory election

requirement will be regarded as directory "where compliance is a matter of

convenience or the directions are given merely with a view to securing proper,

orderly, or prompt procedure." Id.

Provisions of election laws are all mandatory in the sense that they
impose the duty of obedience on those who come within their
purview, but it does not follow that every slight departure
therefrom should vitiate the whole proceeding. If a statute simply
provides that certain acts or things shall be done within a
particular time or in a particular manner, but does not declare or
indicate that their performance is essential to the validity of the
election, they will be regarded as directory if they do not affect the
actual merits of the election.

Id.

Skaggs holds also that "laws are to be liberally construed when

necessary to reach a substantially correct result, to that end their provisions

will, to every reasonable extent, be treated as directory rather than mandatory."

Id. (citations omitted).

Our predecessor courts have generously applied the directory-mandatory

dichotomy in the context of absentee ballots:

Through all the cases relating to absentee voting, the theme of
substantial compliance with statutory regulations is omnipresent.
The courts are reluctant to deprive a voter of his right of suffrage
because of mere irregularities which do not affect the fairness and
equality of an election. It is felt that a voter, through no fault on
his own part, should not suffer the consequences of a minor failure
on the part of election officials to follow the formal steps
prescribed.

Jarboe v. Smith, 350 S.W.2d 490, 493 (Ky. 1961).

19
 We are confident that the deficiencies identified by the trial court in

failing to record the telephone number and social security number, which are

not even statutorily required, and the violations in failing to record where the

person would be on election day and who requested the absentee ballot fall well

within the scope of directory requirements. By their nature, they are designed

to facilitate absentee voting by providing election officials with statewide

uniform directions for processing absentee voting. Compliance is not essential

to the validity of a fair election and lack of compliance does not inherently

produce an unfair election. The failure to conform to the directives of KRS

117.085(1) and KRS 117.085(2) do not invalidate the election except when it is

shown that it actually affected the electoral outcome.

C. In House Absentee Voting Process
-

Montgomery also presented testimony concerning alleged irregularities

relating to the "in-house" absentee process. In-house voting refers to the

absentee voting which occurs in the weeks preceding an election, typically in

the county court clerk's office. See KRS 117.085(1)(c). 12

In this case, in-house voting began on October 20, 2014. KRS

117.085(1)(h) provides in pertinent part:

12 KRS 117.085(1)(c) provides as follows:
Absentee voting shall be conducted in the county clerk's office or other
place designated by the county board of elections and approved by the
State Board of Elections during normal business hours for at least the
twelve (12) working days before the election. A county board of elections
may permit absentee voting to be conducted on a voting machine for a
period longer than the twelve (12) working days before the election.

20
 The members of the county board of elections or their designees
who provide equal representation of both political parties may
serve as precinct election officers, without compensation, for all
absentee voting performed on a voting machine in the county
clerk's office or other place designated by the county board of
elections and approved by the State Board of Elections. . . . If the
members of the county board of elections or their designees do not
serve as precinct election officers for the absentee voting, the
county clerk or deputy county clerks shall supervise the absentee
voting.

On October 17, 2014, the Republican member of the Magoffin County

Board of Elections resigned and his successor was not named until October 24.

Thus, from October 20 to October 24 no Republican board member served to

function as an election official during the in-house voting although other board

members were present for in-house voting. The trial court concluded that "the

Defendant Magoffin County Board of Elections violated that provision of the

statutes by allowing in-house absentee balloting to take place in the absence of

the Republican election commissioner."

An examination of KRS 117.085(1)(h) discloses no requirement for each

board member to be present at the in-house voting site. Rather, the statute

provides that members serving as a political party representative "may" be

present. In the absence of the member and his "designee," the statute provides

that "the county clerk or deputy county clerks shall supervise the absentee

voting."

In light of the evidence and the plain language of the statute, we

determine that the trial court's conclusion that in-house absentee voting

21
conducted in the absence of a Republican board member violated KRS

117.085(1)(h) is clearly erroneous.

Montgomery also presented evidence showing violations of the statute

authorizing election officers to render assistance to voters with special needs.

KRS 117.255(3) provides:

Upon making and filing the oath with the precinct clerk, the voter
requiring assistance shall retire to the voting machine or ballot
completion area with the precinct judges, and one (1) of the judges
shall, in the presence of the other judge and the voter, operate the
machine or complete the ballot as the voter directs. A voter
requiring assistance in voting may, if he prefers, be assisted by a
person of his own choice who is not an election officer, except that
the voter's employer, an agent of the voter's employer, or an officer
or agent of the voter's union shall not assist a voter.

The trial court found that the statute was violated when deputy county

clerk Larry Shepherd and Democrat election commissioner (and Appellant)

Susie Salyer on at least four occasions assisted voters in the voting booth with

no one else present. We agree with the lower courts that these violations were

not so widespread as to invalidate the entire absentee balloting process under

the Ragan:Warren standard.

D. Absentee Ballot Counting Process

The final step of the absentee balloting process is, of course, to count the

ballots. The trial court found significant violations regarding the procedure

employed for counting absentee ballots. KRS 117.087(1)-(7) provide a detailed

protocol for the counting of the absentee ballots. KRS 117.087(3) includes the

following statutory directives: the counting of the ballots is to begin at 10 a.m.

22
on election day 13 ; the mailed ballots are to be removed from their boxes

individually and examined to determine whether the outer and the detachable

flap are in order; the signature on the detachable flap is then compared with

the signature on the voter's registration card by the chairman of the county

board, here county clerk Renee Arnett-Shepherd; any unsigned ballots must be

summarily rejected; and if there is no challenge after the name of the voter is

read aloud, the flap is to be removed and the inner envelope containing the

actual ballot is to be placed in a ballot box.

After the above steps are concluded, KRS 117.087(5) provides thereafter

that "the [ballot] box shall be thoroughly shaken to redistribute the absentee

ballots in the box. The board shall open the ballot box, remove the absentee

ballots from the inner envelopes, and count the ballots." In summary, the

paper mail-in ballots are removed, counted, and the total from those ballots is

then combined with the absentee ballots cast on the in-house voting machine

to obtain the total absentee ballot results.

The evidence revealed several deviations from these statutory directives

which the trial court enumerated in its findings of facts. The trial court found

that the Board violated KRS 117.087 by failing to count the ballots one at a

time and instead distributed the ballots among the board members present; by

not having Arnett-Shepherd alone handle them; and by failing to shake the box

to redistribute the absentee ballots. It is readily apparent to this Court that

13 The statute has been subsequently amended was later amended to 8:00 a.m.

23
each of these violations concerned directory, rather than mandatory,

requirements, and, as such, do not warrant disenfranchising any of the

absentee voters. Jarboe v. Smith, 350 S.W.2d 490 (Ky. 1961) (absentee votes

would not be invalidated by improper means employed to count the ballots

where there was no attack upon the integrity of the absentee ballot box,

nothing indicated that the count was not authentic and no one was willfully

excluded after establishing his right to be present at the count, and no

contention of fraud or deliberate wrongdoing was made). Republican election

board member Pastor Williams was present at all times for the absentee ballot

counting process and at trial, expressed his unqualified endorsement for the

integrity of the count. We are unpersuaded that any of the deviations from the

statutorily mandated procedures merit any concern for the integrity of the

absentee ballot vote count.

E. Summary

The evidence presented by Montgomery validated his claim that some

irregularities occurred in the absentee voting process. However, none of the

proven violations of the statutory requirements are linked to any invalid or

illegal votes. We agree with the trial court's conclusion that "while substantial

questions have been raised about the validity of the absentee ballots, the Court

concludes that there is insufficient evidence to discard the entirety of the

absentee ballots." Ragan v. Burnett, 305 S.W.2d 759 (Ky. 1957); Warren v.

Rayburn, 267 S.W.2d 720 (Ky. 1954).

24
 V. VOTE BUYING ISSUES

Montgomery's petition alleged that vote buying occurred when

"supporters of [Hardin] exchanged consideration such as paving work,

'graveling, cash, and other incentives for votes." In its final judgment, the trial

court concluded that "the Corrupt Practices Act, KRS 120.015 was violated by

the buying of votes by persons unknown"; by "gravel [ ] placed illegally upon

private property on at least four or five occasions in a short period of time prior

to the election"; and "by employees of the Magoffin County Fiscal Court, under

the supervision of the Defendant Charles Hardin, in illegally placing gravel on

private property."

KRS 121.055, a component of the Corrupt Practices Act, provides as

follows:

No candidate for nomination or election . . . shall expend, pay,
promise, loan or become liable in any way for money or other thing
of value, either directly or indirectly, to any person in consideration
of the vote or financial or moral support of that person. No such
candidate shall promise, agree or make a contract with any person
to vote for or support any particular individual, thing or measure,
in consideration for the vote or the financial or moral support of
that person in any election . . . and no person shall require that
any candidate make such a promise, agreement or contract.

(Emphasis added.)

"The purpose of the Corrupt Practices Act is to preserve the purity of

elections, and . . . courts should lend a willing hand in its enforcement where

the facts and circumstances justify it." Humbert v. Heyburn, 42 S.W.2d 538,

541 (Ky. 1931) (internal citation omitted). KRS 120.015 provides: "If no such

25
violation by the contestant, or by others in his behalf with his knowledge,

appears, and it appears that such provisions have been violated by the

contestee or by others in his behalf with his knowledge, the . . . election of the

contestee shall be declared void."

A. Cash Payments
Montgomery presented evidence suggesting that three voters, Jerry

Adams, and the brothers Simon Marshall and Mickey Marshall, received cash

payments for their votes on election day. None of the three can read or write,

and, in addition, each suffers from a cognitive deficiency which presented each

with substantial difficulties in testifying about the election day events.

Montgomery also presented evidence that Doug and Brian Marshall voted with

the expectation of being paid for their vote.

Jerry Adams first candidly testified that his cousin, Jason Holland, gave

him $25.00 to vote for Hardin. He said that Holland handed him the money

after he voted and that Holland got the money from someone driving a gray car

at a grocery store. Adams testified that he voted for Hardin. However on cross-

examination, Adams testified that the money may have been a payment for his

share of scrap metal recycling transaction rather than a payment for his vote,

and that it in any event, the payment did not influence how he voted. Holland

was never called to testify.

Greg Isaac testified that he took Simon and Mickey Marshall, along with

two other voters, to the Flat Fork precinct. Doug Perkins, the operator of a

local convenience store, testified that Simon, a regular customer, entered the

26
store on election day with a $50.00 bill, and that it was unusual for Simon to

have a bill of that denomination. Perkins testified that when he asked Simon

where he got the bill, Simon laughed and replied, "It's election day," apparently

implying that he had been paid fifty dollars for his vote. Simon, however,

testified that neither he nor his brother were paid for their vote. Also, he never

testified who he voted for in the judge executive race, although his

transportation to the polls by Greg Isaac, a Hardin supporter, lends

circumstantial support to the notion that he voted for Hardin.

Mickey Marshall, like Simon, testified that he was not paid for his vote

and Montgomery presented no evidence to contradict that testimony. There

was no evidence at all that Mickey was paid for his vote.

Montgomery presented witnesses who testified that two individuals,

Doug and Brian Marshall, arrived at the Magoffin County courthouse after the

polls closed on election day, looking for a representative of the Hardin

campaign to compensate them for voting for Hardin. There was no evidence

that either man was actually paid for his vote; nor was any evidence presented

to show that anyone had offered compensation or agreed to pay compensation

to the men. Notably, neither man was called as a witness to verify the account.

Despite his later recantation, Adams' initial testimony that he was paid

for his vote, and the attendant circumstances, could induce a reasonable fact-

finder to conclude that he was paid to vote for Hardin. However, we are

constrained to conclude that the record lacks substantial evidence that Simon

Marshall, Mickey Marshall, Doug Marshall, or Brian Marshall sold their votes,

27
or contracted with someone to sell their votes. Perkins' testimony about his

interaction with Simon Marshall may lead one to suspect that someone paid

Simon for his vote, but it falls far short of substantial evidence proving the fact.

With respect to the other suspected vote sellers, only by pure conjecture and

sheer speculation could one conclude that their votes in the county judge

executive's race, if indeed they voted at all, were bought. The trial court's

finding that the votes of Simon Marshall, Doug Marshall, and Brian Marshall

were illegally bought is clearly erroneous.

B. Graveling and Road Work

The trial court found that on at least four or five occasions just prior to

the election gravel had been illegally placed on private property by employees of

the Magoffin County Fiscal Court acting under the supervision of Judge

Hardin. Consequently, the trial court "conclude[d] that the Corrupt Practices

Act, KRS 120.015, was violated by employees of the Magoffin County Fiscal

Court, under the supervision of Defendant Charles Hardin, in illegally placing

gravel on private property."

Montgomery alleged at trial that Magoffin County Clerk Renee Arnett-

Shepherd and her husband, Larry Shepherd, had received free gravel, repair of

a drainage tile at the county's expense, and repair to a pipe bridge on their

property, and that Kermit Howes and other residents of Dodson Branch Road

had benefited from county work in advance of the election. Further evidence

was presented that the beneficiaries of the alleged road, gravel, and drainage

work supported Hardin.

28
 Appellants denied that any party received any gratuitous work at county

expense or as an election quid pro quo. They presented evidence that the

drainage tile was installed by the county long before the Shepherds acquired

the property, and that it was causing flooding in the area, prevention of which

was a legitimate governmental purpose for the work. They also presented

evidence that the graveled road led to a cemetery near the Shepherds' property

and was part of the county road system in need of repair; and that any repair

work on the pipe bridge, if done at all, was quickly abandoned and never

completed.

At most, the evidence demonstrated that gravel was placed and work was

done at county expense near and on private property, but no evidence

supported a finding that the gravel and road work was payment exchanged for

votes for Hardin or anyone else. Contrary to Montgomery's speculative

evidence, the testimony of the property owners and the road crew personnel

who performed the work affirmed that all the expenses incurred were either

incidental to necessary county road work or the result of privately contracted

work paid for by the owners.

This Court is well aware of the popular perception and common

assumption in many areas that corrupt incumbents will provide favors at

public expense in exchange for political support. We are not so naïve as to

believe that such corruption does not occur. In many instances the mere

suspicion of such wrongdoing, or simply perception of such wrongdoing, may

be enough to justify some form of judicial response. But the power to nullify

29
an election and cast aside the apparent will of the people is a tremendous

power that cannot be exercised on the basis of popular perception and common

assumption supported only by evidence that arouses suspicion. One

contesting an election has a heavy burden and the public has a right to

demand substantial proof. Tolerating a lesser standard allows mere

speculation and suspicion of political wrongdoing to become a presumption of

electoral corruption. It is, of course, possible that the road work observed in

close proximity to the election was a visible but tacit form of vote buying. But

we cannot presume that to be so, especially given the plausible explanations

provided by Appellants' evidence. Upon the record as a whole, the inference

which leads to a conclusion of vote buying is no stronger than the inference

which leads to a conclusion of that routine county road department work was

performed in the normal course of business. "[B]efore a case is submitted to a

jury on circumstantial evidence the proven facts must justify a fair inference of

liability. An inference of liability is not a fair one if other inferences of non-

liability are equally as reasonable." Bryan v. Gilpin, 282 S.W.2d 133, 135 (Ky.

1955).

We add to this point if we allow a presumption to persist that work on

public roads in and around private property near election time signifies a

corrupt practice in progress, then we effectively force municipal, county, and

state road departments to cease operation for a reasonable time before and

after the election to avoid appearances of impropriety. We avoid that dilemma

by maintaining the requirement for substantial evidence.

30
C. Summary

The trial court's findings with respect to vote buying involving Jerry

Adams are supported by substantial evidence, whereas the finding of vote

buying from Simon Marshall, Brian Marshall, and Doug Marshall is not so

supported. 14 While no evidence directly links the buying of Adams' vote to

Hardin, the circumstantial evidence permits the inference that he voted for

Hardin. The buying of Jerry Adams' vote is a corrupt practice condemned by

KRS 120.015, and thus we are constrained to hold that a deduction of one vote

from Hardin's vote tally is necessary.

Our predecessor court decreed in Stewart v. Wurts:

However much we may deplore the improper use of money in
elections, we cannot afford upon mere suspicion to declare an
election void merely because money may have been appropriated
for some sort of use therein; there must be in such case some
tangible, positive proof that it was corruptly used in violation of
law, to justify a court in declaring the election void.

135 S.W. at 439. As further explained in Gross v. Cawood,

It has long been a rule of this court not to declare an election void and of
no effect on account of a violation of the Corrupt Practice Act, except it
be shown by unimpeachable evidence that the contestees violated the act
itself, or that, with their knowledge, consent, or procurement, the act
was violated by others for them.

109 S.W.2d 597, 598 (Ky. 1937) (citations omitted)

We are persuaded upon our review that there was no "unimpeachable

evidence that [Hardin] violated the act itself, or that, with [his] knowledge,

14 The trial court made no finding with respect to vote buying involving Mickey
Marshall.

31
consent, or procurement, the act was violated by others for [him]" so as to

authorize the nullification of the election under the Corrupt Practice Act. The

evidence satisfactorily established only one vote that could be said with fair

assurance to have been illegally bought, and that is well short of the number

Montgomery needed to tie the election. As such, this violation of the Corrupt

Practices Act, standing alone, is not sufficient to set aside the election; rather,

at best, Hardin's margin of victory is reduced to twenty-seven.

VI. CLAIMS OF DISCREPANCIES IN VOTER SIGNATURES

Montgomery introduced at the trial the testimony of Thomas Vastrick, an

expert on handwriting analysis who had examined voter signatures on the

election day voter roster at the Flat Fork precinct and on the absentee ballot

materials. Vastrick opined that the signatures of forty-three Flat Fork voters

did not match the corresponding signature on the voter's voter registration

card; that fourteen voter signatures on voting precinct forms did not match,

and that twenty-six voter signatures on the absentee ballots did not match the

corresponding signature on the voter's absentee ballot application. The

implication of his opinion is that eighty-three votes cast in the names of those

voters were cast by imposters who forged the signatures of the registered voter.

Only two of the eighty-three voters were called as witnesses and both

refuted the insinuated forgery. Both verified the authenticity of their

signatures on the voting roster and attested to having personally cast the votes

recorded in their names. One of the voters explained that her current

signature might look different than the signature on her voter registration card

32
because the latter was signed thirty years prior, when she was eighteen, and

the former was signed on election day. The other voter testified that he was

left-handed, and because he had a broken left arm on election day he had to

sign the voter roster with his right hand. None of the other voters whose

election day signature was identified by Vasterick as suspect were called to

testify. Montgomery's attempt to demonstrate that imposters cast ballots in

place of legitimate registered voters by forging their signatures falls woefully

short. Proving the suspected forgeries would have been relatively easy because

the names and addresses of the eighty-three voters whose signatures were

suspect were readily available.

Appellants refuted Vastrick's opinion with the countervailing analysis by

their handwriting expert, Stephen Styler. Ultimately, Vastrick conceded that

he used an unreliable method of handwriting comparison and could not

definitively establish any forgeries. In this vein, our predecessor court has

acknowledged that the comparison of a single signature with a challenged

signature is not a reliable method to determine the authenticity of the

signature in question. Beauchamp v. Willis, 189 S.W.2d 938, 941 (Ky. 1945).

With respect to the alleged voting by imposters, the trial court found that

a[blased upon the evidence, the Court cannot find that any particular voter's

signature was invalid, but does find that a question has been raised as to the

validity of the signatures of an undetermined number of voters." The extent to

which this mere raising of the question of the validity of voter signatures

contributed to trial court's ultimate conclusion that the whole election was "the

33
result of fraud and bribery" is unclear. But under our prevailing standards,

unconvincing and unproven allegations that merely raise questions cannot

provide the basis for voiding the result of an election.

VII. ALLEGED IRREGULARITIES IN ELECTION DAY VOTING

Montgomery alleged and offered evidence to several other instances in

which election officers failed to follow proper procedures, much of which

concerned alleged irregularities at the Flat Fork precinct. The trial court and

the Court of Appeals determined that the failure of election officers to follow the

statutory directives cited by Montgomery was insufficient cause to cast out all

of the votes in the Flat Fork precinct and, thereby, disfranchise the

demonstrably valid votes of those who had no control over the diligence with

which election officers performed their duties. We agree with that

determination. We address the violations in the following paragraphs.

A. Failure of Election Officers to Comply with Voter Identification
Procedures

Montgomery's petition specifically alleges that election officials at twelve

of Magoffin County's fourteen precincts failed to comply with the voter

identification and signature procedures mandated by KRS 117.225. 15 Evidence

15 KRS 117.225(1) provides as follows:
Any person desiring to vote on election day shall give his name and
address to the clerk of the election. If the person's name is listed on the
precinct list furnished by the State Board of Elections as provided in KRS
117.025 and if no challenge is made, he shall sign his name on the
precinct list in the space opposite his printed name. The voter's
signature shall constitute his verification that he is a properly registered
and qualified voter. The voter shall then retire alone to cast his vote on
the voting machine. The county board of elections may provide to each
precinct the original registration form of each voter entitled to vote in
34
presented at trial supported Montgomery's contention that at least some

violations occurred, and to varying degrees the trial court found in his favor on

these issues.

B. Failure of Election Officials to Note Confirmation of Voter Identity

Montgomery also presented evidence showing that election officials at the

Flat Fork precinct in several instances failed to note on the precinct voter

roster the method used to confirm the identity of the voter as required by KRS

117.227. 16 The trial court found that KRS 117.227 had been violated by the

failure of some precinct official to sign the precinct voter roster and their failure

to note the means used to confirm the voter's identity. The trial court's finding

in that regard was plainly supported by substantial evidence.

C. Interference with Election Observers

Finally, Montgomery offered evidence an election official at the Flat Fork

precinct may have improperly interfered with efforts of Republican challenger

Stephanie Jo Montgomery to observe voting at Flat Fork, and with investigators

from the Kentucky Attorney General's office assigned to observe the Magoffin

that precinct. These forms shall be used to compare signatures in those
precincts to which the forms are provided.
16 KRS 117.227 provides as follows:
Election officers shall confirm the identity of each voter by personal
acquaintance or by a document, such as a motor vehicle operator's
license, Social Security card, any identification card that has been issued
by the county and which has been approved in writing by the State
Board of Elections, any identification card with picture and signature,
any United States government-issued identification card, any Kentucky
state government issued identification card with picture, or credit card.
The election officer confirming the identity shall sign the precinct voter
roster and list the method of identification.

35
County election. The trial court's findings of fact failed to confirm

Montgomery's allegation.

D. Failure to Follow Voter Assistance Requirements
Although not specifically set forth in his petition, Montgomery asserted

at trial that on several occasions the Democratic Party precinct judge at the

Flat Fork precinct and at the in-house voting at the courthouse, assisted voters

without being asked to, and did so in the absence of the Republican Party

judge. KRS 117.255(2) authorizes assistance to a voter only in response to the

voter's request given under oath and upon completion of the statutorily-

authorized voter assistance form. The statutory protocol also requires the

precinct judges from both parties to be present at the voting machine to render

the requested assistance. KRS 117.255(3). Montgomery's evidence

circumstantially raised the specter that the Democratic Party judge was

illegally interjecting herself into the voting booth to influence voters' ballot

choices, which if true, is obviously a violation of election standards and voter

privacy. The trial court found that at Flat Fork and three other precincts,

assistance was rendered to an unspecified number of voters without the

required signed voter assistance forms. That finding is supported by

substantial evidence.

E. Summary
Based upon his evidence of the foregoing allegations, Montgomery argued

that all of the votes cast at the Flat Fork precinct should be discarded.

Although the trial court found that election officers at the Flat Fork precinct

36
failed to comply with statutory protocols, it nonetheless concluded that these

irregularities "were insufficient to cause the entirety of the vote in that precinct

to be disregarded."

We agree that the failure of election officials to sign the precinct voter

roster and to conscientiously note the method by which each voter's identity

was confirmed violated KRS 117.227. While the violation is a serious matter, it

does not establish the illegality of any votes. It is significant that, despite the

ease with which any of the affected voters could have been located, none of the

voters whose identity confirmation was not properly noted were called as

witnesses to confirm or refute the implication that their vote was stolen by an

imposter. Reviewing an analogous situation in Skain v. Milward, our

predecessor court held:

In every election . . . there will be some illegal registrations and
some illegal voting, but the percentage of illegality here as
compared with the total vote is too small to affect the result. It is
not shown for whom the illegal votes were cast, and without this it
cannot be known that contestants were prejudiced thereby. An
illegal voter may be required to say how he voted, and it may be
that contestees' majority would be that much larger if none of
these men had voted.

127 S.W. 773, 778 (Ky. 1910) (citing Combs v. Combs, 97 S.W. 1127 (Ky. 1906)

and Scholl v. Bell, 102 S.W. 248 (Ky. 1907)). See Anderson v. Likens, 47 S.W.

867 (Ky. 1898) (clerk's failure to sign ballot book did not render votes illegal).

These authorities persuade us that Montgomery's evidence failed to

reach the high threshold required to set aside the votes of the entire Flat Fork

precinct. Where no vote was shown to have been improperly cast, we must

37
agree with the trial court's conclusion and the Court of Appeals' opinion that

the failure of election officers to follow the statutory directives shown by

Montgomery is, alone, insufficient cause to cast out all of the votes in the

precinct and, thereby, disfranchise the demonstrably valid votes of those who

had no control over the diligence with which election officers performed their

duties.

VIII. DISPOSITION

Based upon the election irregularities coupled with the "narrow margin of

victory," the trial court concluded that the election under review was the result

of "fraud and bribery" such that "neither contestant nor contestee can be

judged to have been fairly elected." Consequently, it nullified the election and

deemed the office of Magoffin County judge executive to be vacant.

The standard for doing so is provided by KRS 120.165(4):

If it appears from an inspection of the whole record that there has
been such fraud, intimidation, bribery or violence in the conduct of
the election that neither contestant nor contestee can be judged to
have been fairly elected, the Circuit Court, or an appellate court,
on appeal, may adjudge that there has been no election.

Thus, "[i]f the number of [invalid ballots] would be sufficient to change

the result if they had been cast for the minority, then the election should be set

aside upon the ground that it could not be determined with certainty that the

result . . . represented the will of the majority." McClendon v. Hodges, 272

S.W.3d 188, 191 (Ky. 2008) (citing Lakes v. Estridge, 172 S.W.2d 454, 456 (Ky.

38
1943), quoting Wallbrecht v. Ingram, 175 S.W. 1022, 1028 (Ky. 1915)).

However,

[i]f it can reasonably be done, a court should uphold the validity of
an election, and not set it aside for light and trivial causes, and
where there has been fraud, intimidations, bribery, illegalities, and
irregularities, and the results of such sinister influences can be
eliminated, and the result clearly ascertained between the legal
voters, it is the duty of the court to do so, and to sustain the
election, but, if the fraud, intimidation, bribery, irregularities, and
illegalities are such, that the court cannot with reasonable
certainty determine who has received a majority of the legal votes,
the election should be set aside, and a candidate cannot be
declared a victor, unless he can be shown to have received a
majority or plurality of the legal votes cast at the election.

Hendrickson v. Coign, 200 S.W.2d 905, 907 (Ky. 1947) (quoting Marina v.

Ratterman, 273 S.W. 69, 74 (Ky. 1925)). And "[t]he established rule is that

where, after giving the evidence of fraud (or irregularities) its fullest effect, and

fraudulent or illegal votes may be eliminated, and the result of the election be

fairly ascertained from votes which were regular or untainted, the court should

not go to the extreme of declaring the election void." McClendon, 272 S.W.3d at

191-192 (quoting Beauchamp v. Willis, 189 S.W.2d 938, 941 (Ky. 1945), adding

emphasis).

And we again emphasize that "[t]he burden of proof is on the contestant

to show such fraud, intimidation, bribery, or violence in the conduct of the

election that neither the contestant nor contestee can be adjudged to have been

fairly elected. These things are not presumed, but it must be affirmatively

shown, not only that they existed, but that they affected the result to such an

extent that it cannot be reasonably determined who was elected." Skain, 127
39
S.W. at 778 (citations omitted). See also Hall v. Martin, 208 S.W. 417, 419 (Ky.

1919) (An election should not be voided unless the evidence points "unerringly

to the establishment of the invalidating facts."); Upton v. Knuckles, 470 S.W.2d

822, 827 (Ky. 1971) ("[I]t is only in the most flagrant kind of case that voters

will be disfranchised for illegal acts of the election officials.").

Upon the application of the above standards we are persuaded that

Montgomery failed to meet the burden of affirmatively demonstrating such

fraud, intimidation, bribery, or violence in the conduct of the election that

Hardin cannot be adjudged to have been fairly elected.

As demonstrated above, once the trial court's factual findings are

adjusted to exclude its clearly erroneous determinations, it is seen that the

instances of irregularities and malfeasance that were shown are simply not

enough to demonstrate that those factors are sufficient to negate Hardin's

twenty-eight vote margin of victory.

For all of the testimony concerning alleged irregularities which occurred

at the various voting precincts on election day the evidence allows only one vote

to be deducted from Hardin's total. And while certain of the election officials

indeed failed to meet the standards expected by citizens, the rule prevails that

courts are reluctant "to disfranchise voters because of irregularities or

derelictions on the part of election officials . . . ." Arnett, 425 S.W.2d at 553.

We will of course do so "if the departures from legal requirements are so broad

as to taint the election or so as to require rejection of the part affected." Id.

(citing Pickard v. Jones, 243 S.W.2d 46, 49 (Ky. 1951)). Here, the irregularities

40
identified by Montgomery are not so broad and pervasive so as to require the

rejection of the entirety of the vote of the Flat Fork precinct or any other

precinct.

Similarly, Montgomery has failed to identify by affirmative evidence any

absentee ballot which should be deducted from Hardin's total or added to his.

And as discussed, the various irregularities in the issuing of the absentee

ballots, the in-house voting process, and the absentee vote counting process,

amounted to violations of directory standards as opposed to mandatory

standards of such a nature and magnitude which require the entirety of the

absentee ballots to be thrown out.

As to the alleged vote buying which occurred on election day, only the

vote of Jerry Adams was shown with sufficient evidence to have been

purchased. Throwing out that illegal vote reduces Hardin's lead to twenty-

seven. And as explained, Montgomery failed to demonstrate that the graveling

and other road, paving, and drainage work which occurred near in time to the

election was related to vote-buying as opposed to routine work which would

have been undertaken in accordance with normal maintenance needs in any

event.

Montgomery failed to convincingly establish through his handwriting

expert any adjustments to the vote counts which may fairly be made; and while

it was conceded by Appellants' expert that as many as ten signatures were

suspect, the identification of those signatures accomplishes only half of the

task. The unfinished half of the task being to corral the voters associated with

41
those questionable signatures into the election contest proceeding and make a

record of how it transpired that questionable signatures found their way into

the election process, and if there were indeed imposters behind the signatures,

identifying who they were, who was behind it, and who the imposters cast their

votes for so that appropriate adjustments to the vote tallies may be made. As

the record stands, however, we have only the bare finding that some voter

signatures are questionable. That information alone does not equip the Court

to make vote adjustments because there is no reason to suppose that any or all

of the votes cast under suspicious signatures were for Hardin; it is not beyond

plausibility that some or all of the alleged imposters, if there were any, cast

votes for Montgomery.

In summary, we agree with the assessment of the dissenting judge in the

Court of Appeals decision: the evidence presented "is woefully short of that

required to warrant judicial intervention and voiding this election."

IX. CONCLUSION
Public confidence in free and fair elections is vital to the body politic of

every community in this state and this nation. While corruption in the casting

and counting of votes, as was alleged in this case, certainly undermines the

integrity of election results, it is not the only threat that we must guard

against. Equally corrosive to the public's trust in fair elections is the

destabilization of election results that would occur if we cast aside election

results for trivial reasons or unsubstantiated accusations. We avoid both

threats and preserve public confidence in elections by imposing a rigid

42
statutory framework to regulate voting and the counting of votes before the

results are determined, and by maintaining a judicial policy that demands

persuasive evidence of corruption to challenge the integrity of election results

after the votes are counted.

A broad spectrum of election irregularities in this case aroused

reasonable suspicions that warranted an investigation to determine the facts.

But the accumulated evidence failed to establish improprieties sufficient to

impact the overall validity of the results. The contestant failed to meet the

burden of affirmatively proving fraud, intimidation, bribery, or violence in the

conduct of the election such that the incumbent cannot be adjudged to have

been unfairly elected. Consequently, we are bound to sustain the results as

certified by the Board of elections. We therefore reverse the opinion of the

Court of Appeals, and remand this case to the Magoffin Circuit Court with

directions to dismiss the election contest petition, to enter an order authorizing

Charles Hardin, M.D., to assume the seat of Magoffin County judge executive

to which he was elected, and for such other proceedings as necessary to

implement the mandate of this decision.

All sitting. All concur.

COUNSEL FOR CHARLES HARDIN, M.D.:

Eldred E. Adams Jr
Adams 86 Adams

43
James Lee Deckard
Hurt, Deckard 85 May, PLLC

COUNSEL FOR MAGOFFIN COUNTY BOARD OF ELECTIONS, RENEE
ARNETT-SHEPHERD, MAGOFFIN COUNTY CLERK, CARSON MONTGOMERY,
IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE MAGOFFIN COUNTY
BOARD OF ELECTIONS, SUSIE SALYER, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE MAGOFFIN COUNTY BOARD OF
ELECTIONS, AND JUSTIN WILLIAMS, IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE MAGOFFIN COUNTY BOARD OF ELECTIONS:

Jason Michael Nemes
Matthew Cory Williams
Fultz Maddox Dickens, PLC

COUNSEL FOR JOHN MONTGOMERY:
Gordon B. Long
Gordon B. Long Law Office, P.S.C.

44
 They are the means provided by law for the expression of the will of
the people. To set them aside unnecessarily would be to destroy
that confidence in them which is essential. If often set aside they
would be less attended; for the voters would await the next chance,
and the election, instead of settling things, would be only the
starting point for new controversies. Elections must be free and
equal; but they cannot be free and equal unless supported by
public confidence. When once the notion prevails that confidence
cannot be placed in the stability of elections, their power and
usefulness is destroyed.

135 S.W. 434, 439 (Ky. 1911) (quoting Skain v. Milward, 127 S.W. 773 (Ky.

1910)).

The application of these stringent standards, along with the other

authorities we cite herein, placed the burden upon Montgomery to prove: 1)

that the improprieties he alleged actually occurred and were significant enough

to have affected the result; or 2) that the election was so corrupted by fraud,

intimidation, and bribery that the vote tallies are substantively unreliable. For

the reasons explained below, we are persuaded that Montgomery made neither

showing, and the trial court and Court of Appeals were in error to conclude

otherwise.

III. LACK OF COMPLIANCE WITH STATUTORY TIMING REQUIREMENTS
AND SPECIFICITY OF PLEADINGS

Appellants first contend that the trial court erred by permitting an

extended period of time for proof-taking in violation of KRS 120.165(2), 8 and

8 KRS 120.165(2) provides as follows:
The evidence in chief for the contestant shall be completed within thirty
(30) days after service of summons; the evidence for the contestee shall
be completed within twenty-five (25) days after filing of answer, and
7