Adair Cnty. Bd. of Elections v. Arnold

ADAIR COUNTY BOARD OF ELECTIONS APPELLANT v. BEN ARNOLD, CURTIS HARDWICK, RUTH SMITH, WILLIAM BURTON,JUNE PARSONS, AND THE CITY OF COLUMBIA APPELLEES

NO. 2015-CA-000661-MR

Commonwealth of Kentucky Court of Appeals

SEPTEMBER 11, 2015

NOT TO BE PUBLISHED

APPEAL FROM ADAIR CIRCUIT COURT

HONORABLE JUDY D. VANCE, JUDGE

ACTION NO. 14-CI-00211

OPINION

REVERSING

BEFORE: DIXON, KRAMER, AND THOMPSON, JUDGES.

KRAMER, JUDGE: This appeal arises from an election contest filed by Ben Arnold, an unsuccessful write-in candidate for Mayor of the City of Columbia, and two voters, Ruth Smith and William Burton, against several parties, including the appellant here, the Adair County Board of Elections (the Board); Curtis Hardwick, the successful mayoral candidate; June Parsons, another unsuccessful candidate;and the City of Columbia. The circuit court voided the November 2014 election results and ordered a new mayoral election be held. The Board now appeals.

FACTUAL BACKGROUND

The City of Columbia lies within Adair County, Kentucky. Registered voters in Adair are considered either city residents or county residents for purposes of casting their ballots. The Mayor's office is, obviously, a governing body for which only city residents can vote. To ensure voters get the proper ballot at their polling place, they are coded as either a "city resident" or a "county resident" on the voting rosters. During the November 2014 general election, some apparent irregularities occurred when a number of city residents were coded as county residents and vice versa. Because of this and other irregularities, which he argued disenfranchised some voters, Appellee Arnold contested the election results. Appellees Burton and Smith¹ claimed their constitutional right to vote had been abridged because they were unable to vote in the mayoral race.

Arnold's argument to the circuit court was that the irregularities in the election reached the level of fraud required to render the mayoral election invalid. See KRS² 120.165(4). Arnold did not argue that the fraud was a deliberate attempt on anyone's part to affect the outcome of the election; instead, he argued that the irregularities constituted "constructive fraud," that is, "fraud [which] arises through some breach of a legal duty which, irrespective of moral guilt, the law wouldpronounce fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests." Wood v. Kirby, 566 S.W.2d 751, 755 (Ky. 1978).

On April 17, 2015, the Adair Circuit Court held a one-day bench trial, wherein thirteen witnesses testified for Arnold and six witnesses testified for the defendants. Ultimately, the circuit court found for Arnold:

This Court is very mindful of the fact that the law supports and prefers that elections be upheld if at all possible. An election shall not be set aside for trivial causes, or in circumstances where the results of irregularities can be eliminated. Unfortunately the irregularities in this case are voluminous and cannot be remedied.

Apparently the most significant irregularity stemmed from the then county clerk's (Joyce Rogers) failure to properly update the voting rosters. Rhonda Loy, the current city clerk, testified that several properties had been annexed by the city since the year 2000. Each time a property is annexed, the city clerk duly notifies the county clerk and provides a map of the property annexed and a list of any registered voters affected by the annexation. Russell Heights, Green Hills, Parrot Avenue, and Bridgeport Estates, four subdivisions which had been annexed during 2008 and 2009, were the last annexations by the city before the November 2014 general election. Voters from these four subdivisions were those most often incorrectly coded on the rosters. Loy testified her office received complaints from voters throughout the day. When she herself went to vote early on election-day morning, her polling place was already out of paper ballots for the county election.

Numerous other people had trouble voting as well. Mary Thomas, a city resident for 15 to 20 years, was given a county ballot. Although she would have voted for Arnold, she did not get to vote in the mayoral race. Chad and Pam Bevins, city residents for 10 years, were incorrectly coded on the roster as county residents. They were only allowed to vote in the mayoral race because one of the poll workers recognized them. Anthony Grant was a county resident who was given a city ballot. Victoria Pike, her husband, and her mother were all improperly coded city instead of county, though they corrected the error.

Both Appellees Smith and Burton were precluded from voting in the mayoral race. Smith not only was given a county ballot, but later discovered her husband had been given a city ballot, although their addresses on the rosters were identical. Later testimony showed that she was actually coded correctly on the roster, but was apparently mistakenly given the wrong ballot by a poll worker. Burton and his wife got county ballots and filled them out before they realized the error. Out of frustration they left the polling place without voting. Thus, they too were also precluded from voting in the mayoral race.

Another irregularity occurred when city zoning maps were neither up-to-date nor made available to poll workers. Loy testified that there were no maps at her polling place, even though she had offered before the election to provide a current zoning map of the city, and to verify the list of registered voters and city addresses, for the county clerk. In fact, accurate maps were only provided to polling stations on Election Day itself. Jason Cross, the Chief of Police, was calledto the Mayor's office to pick up a map of the city for the county clerk's office to distribute to poll workers. The maps were printed and copied that day, and Cross had to handwrite the names of the four annexed subdivisions on the map before copying and delivering it.

Because there were no maps—correct or otherwise—to rely on, the county clerk attempted to correct the problem by allowing poll workers to let people vote "if they come in and say that they own property in the city." Two poll workers testified that they were told to let people who said they paid city taxes vote a city ballot and to ignore the coding on the rosters themselves. At least two voters, Steve and Leigh Ann Willis, were allowed to vote because they told a poll worker they paid taxes to the city.

Several other irregularities occurred. One election sheriff's report noted that "[t]he inherent problem associated with multiple ballots of any voting place virtually guarantees mistakes." Another sheriff's report noted being short of supplies and running out of paper ballots, thereby requiring voters to use the voting machines and wait in slow lines. She did not know whether some voters left the polling station without voting. In one of the annexations, one side of a street was coded on the rosters as being located in the county but the other side of the same street was coded as being located in the city. Workers, unaware it had been annexed, and without personal knowledge of the road's location, had no map to refer to.

Arnold, the unsuccessful write-in candidate, testified that he filed the election contest after several voters contacted him and were unhappy with how the election was conducted. He obtained a correct map of the city boundaries and a copy of all the voting rosters. When he compared the coding on the rosters to the residences on the map, he found many voters who were coded as county voters but were actually city voters. Three of the four annexed subdivisions—Bridgeport Circle, Russell Heights, and Green Hills—were the most problematic. All the voters in Bridgeport Circle, about fifty registered voters, were coded as county voters, though later evidence revealed that only six of them actually voted in the election. In Green Hills, about forty or fifty addresses were wrongly coded, although poll workers corrected them on Election Day. Russell Heights was mixed, with some addresses coded county and some coded city. In at least one instance, a husband and wife living at the same address were coded differently. Arnold estimated the number of voters miscoded was "something over a hundred."

Arnold also testified that 1505 city voters signed the precinct rosters, yet only 1273 voted for mayor, leaving 232 "under votes" not accounted for. And while under votes are not uncommon, the percentage of under votes in the city council race, also on the city ballot, was 3.3 percentage points, whereas in the mayoral race, under votes accounted for 14 percentage points. He counted 53 miscoded voters who signed the rosters and voted, but because of the error may have been precluded from voting in the mayoral race. He testified that 20 of those 53 voters signed affidavits swearing they had been given the wrong ballot.However, affidavits filed by the defendants, when compared against those filed by Arnold, show that only 9 of the 20 were actually precluded from voting. When Arnold added those 53 voters to the 232 under votes, he believed the number of votes unaccounted for in the mayoral race was 285.

Arnold also questioned the county clerk's reporting accuracy. For example, 91 people had requested to vote an absentee paper ballot, but the clerk reported only 45 such votes. He counted 153 total absentee votes, but the clerk reported only 108. And the county clerk's roster was not properly updated: there was testimony that people who had moved remained listed, people who were deceased remained listed, and a foreign national was listed as a voter. Arnold compared the county roster to the State Board of Elections roster and discovered a 200-300 difference in the number of registered voters.

The defendants countered with testimony from Deputy County Clerk Natalie Asberry who codes voters for the county clerk's office. She testified that in 2011, KRS 116.200 had been...