Glenn asks AG to investigate House 13 recount

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Logo for the office of Kentucky Attorney General
Logo for the office of Kentucky Attorney General

In a letter sent to Attorney General Andy Beshear today (Jan. 6), the legal team for Rep. Jim Glenn asked for an investigation by the AG’s office into the election recount held this past Saturday. Specifically, the letter asks “that your office investigate whether Kentucky election law was violated in a recent recount of the 13th House District race on 2/2/19.”

During the recount, a ballot with no vote in the House race for either candidate was deemed to not count for either candidate. After intervention by the losing candidate, D.J. Johnson, and his lawyers, the ballot was counted for Johnson.

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According to the letter, these actions reflect “intentional and effective interference in an election by counsel, who are under a legal duty not to meddle with elections and results.  Persons present during a vote count are witnesses, as outlined in the relevant statutes, and not participants in determining which candidate should receive the vote.”

By law, the state Attorney General is authorized to investigate violations of the election laws. Glenn’s legal team asked that the Attorney General do so, and include the State Board of Elections, the Secretary of State’s Office, and the Registry of Election Finance.

Additionally, the letter notes that the 17 absentee ballots from the race are all “spoiled ballots” due to their being removed from the custody of the local county clerk by the Republican leadership in Frankfort, and transported to Frankfort. The letter continues,

This constituted spoliation of the ballots and destroyed any evidentiary value they may have had.  More than a week later, the ballots were returned to the clerk and the clerk felt pressured to count a number of those invalid ballots as part of the recount process.  Again, this constitutes partisan or political pressure on the elected officials who were simply trying to do their job in accordance with law.

The request goes on to note other ways that the absentee ballots were mishandled, and concludes with the reminder that challenges of absentee ballots must be done in writing, which was not done by Johnson’s attorneys.

The entire letter sent to AG Beshear by Anna Whites, attorney for Rep. Jim Glenn, is below.

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General Beshear,

My office represents State Representative Jim Glenn.  Representative Glenn requests that your office investigate whether Kentucky election law was violated in a recent recount of the 13th House District race on 2/2/19.

Witnesses and press accounts report that a vote which had been correctly handled by the County Board of Elections (CBE) was targeted by losing candidate DJ Johnson and his legal team. The vote appears to have been improperly altered as a direct result of election interference by Johnson and his attorneys. In particular, a ballot which had the House race unmarked was found by the CBE to not count towards Johnson’s total, as required by law.  Eyewitnesses report that Johnson and his lawyers demanded that this ballot count as a vote for Johnson, in direct violation of applicable law.

 31 KAR 6:030 “Definition of a Vote” provides, at Section 7, “Straight Party Voting”: (1)  For all voting systems and types of ballots, if a voter designates a choice to vote a straight political party ticket and also designates a vote for an opposing candidate whose name appears on the ballot or writes in the name of an eligible write-in candidate in a specific race, the vote shall be counted for the opposing candidate or the eligible write-in candidate for that specific race and the remaining votes on the ballot shall be counted for the straight political party.

In the present case, the County Board of Elections and recount staff appropriately followed the directive of the administrative regulation and properly did not count the vote. When confronted by Johnson’s counsel and subjected to argument, the Board then altered that vote and gave it to Johnson. That is an impermissible result, but more importantly, that reflects intentional and effective interference in an election by counsel, who are under a legal duty not to meddle with elections and results. Persons present during a vote count are witnesses, as outlined in the relevant statutes, and not participants in determining which candidate should receive the vote.

KRS 117.275(1) permits a candidate or designated observers to “witness” the counting of ballots. This statute does not permit discussion or attack of the count during the process by the candidate or his designates. KRS 117.317(5) prohibits interference with the conduct of an election by any challenger or observer. KRS 119.155(1) provides, in pertinent part:  “Any person who . . . unlawfully interferes with the election officers in the discharge of their duties, shall be guilty of a Class D felony.”  Johnson and his counsel intentionally interfered with the election and recount and have violated the law in so doing. KRS 119.195(9) expressly holds that persons who “tampers with or changes the initial ballots” is guilty of a Class D felony. Johnson and his counsel appear to have engaged in just such an action in this case.

Because this action is open and documented, and because it directly overrides the results of a free and fair public election, this Office should immediately exercise its prerogative to investigate under KRS 15.143, which spells out such jurisdiction, and KRS 15.242, which provides as follows:

15.242 Election law jurisdiction — Notice to Registry of Election Finance.
The Attorney General shall possess jurisdiction, concurrent with that of county and Commonwealth’s attorneys, to investigate and prosecute violations of the election laws. The Attorney General, county attorneys, and Commonwealth’s attorneys shall notify the Registry of Election Finance of any investigation or prosecution of alleged election law violations.

We ask that you review the matter and include the State Board of Elections, Secretary of State’s Office and Registry of Election Finance as outlined in law.

The handling of 17 invalid absentee ballots is also at issue in this recount. Those ballots were taken from the care and custody of the county clerk’s office, where they were to be maintained as a matter of law, and transported to Frankfort. This constituted spoliation of the ballots and destroyed any evidentiary value they may have had. More than a week later, the ballots were returned to the clerk and the clerk felt pressured to count a number of those invalid ballots as part of the recount process. Again, this constitutes partisan or political pressure on the elected officials who were simply trying to do their job in accordance with law.

In addition, the 17 invalid absentee ballots were further mishandled in the following manner, according to the CBE report:

  1. A signature discovered on the back of an outer envelope which was rejected in the initial vote count due to lack of any signature on the outer envelope;
  2. A signature rejected during the initial count was accepted during the recount because “a power of attorney had signed the application.”  No proof of any alleged power of attorney or cite to law permitting a person with power of attorney to act on behalf of the voter, or proof that it was the voter who made the selection of candidates and was permitted by law to do so, is contained in the report. In addition, there does not seem to be any evidence that the individual with a power of attorney was actually competent to vote. Counsel for Glenn is unaware of any law allowing the County Board of Elections to go beyond the face of the documentation to accept or reject ballots.
  3. A ballot rejected during the vote count last fall due to signatures that didn’t match. On recount, the County Board of Elections counted that ballot because the voter “was in assisted living facility” and the Board decided “they could have had health issues which may have created the discrepancy.” Neither the ballot nor the report support the determination that the voter had health issues making the voter’s signature different.

Johnson and his attorneys also violated KRS 117.087 “Challenge of an absentee ballot,” which requires any challenge to be in writing. If the ballot at issue was an absentee ballot, then that is the only procedure lawfully available to Johnson and his attorneys for challenging the manner in which the ballot was counted. No such written challenge was made, rendering the attempt to alter the vote invalid.

Rep. Jim Glenn calls upon your office to protect the most fundamental of any democratic right, that of an election free from political taint and bias. The public interest requires protection of the ballot box. For these reasons, an immediate investigation is requested.

Respectfully submitted,
Anna Whites