By Jack Brammer
NKyTribune reporter
The Kentucky Supreme Court decided Thursday not to review legal action in a disputed race for Campbell County commissioner.
The decision is a victory for Brian Painter to be the Republican nominee for Campbell County commissioner in the Nov. 8 general election. He will face Democrat Melissa Whalen, a lawyer from Fort Thomas.
David Fischer had requested the state’s highest court to review the Kentucky Court of Appeals decision that said Painter, not Fischer, is entitled to be the GOP nominee in the race.
“Mr. Fischer and I are very disappointed that the Supreme Court did not take up the case and reverse the Kentucky Court of Appeals decision,” said Fischer’s attorney, Steve Megerle of Covington.
David Fischer and Brian Painter
Painter’s attorney, Carol Schureck Pettit of Pewee Valley, has not returned phone calls seeking comment about the case.
On June 27, a special judge in Campbell Circuit Court – Charles Cunningham Jr. of Jefferson County – ruled that Painter, a longtime incumbent commissioner of Campbell County from Alexandria, should not be on the November ballot because he had violated campaign laws in the May Republican primary election.
The appellate court unanimously disagreed in late August and said Painter should be the nominee.
That led to Fischer’s request for the Supreme Court to review the case. Fischer is a Fort Thomas businessman and vice chair of the Campbell County Republican Party.
Fischer lost to Painter by 106 votes in the primary.
Fischer had sued Painter May 27 for allegedly illegally campaigning in the May primary election. Fischer asked the court to void the election and declare him the winner.
Painter denied the allegations and asked that the suit be dismissed.
The lawsuit contended that Painter illegally campaigned for himself and others at least six different times inside the board of elections during training sessions for poll workers.
The suit noted that state election law requires all poll workers to be trained by the county clerk and county attorney and candidates are prohibited from being within 100 feet of a polling place during voting or from campaigning or placing campaign materials inside a polling place.
It said the training for 158 poll workers for the Campbell County race was held at the Campbell County Administration Building, which houses the county clerk’s office or county board of elections.
While early absentee voting was going on May 2, 3 and 4, the lawsuit said, Painter spoke to, gave campaign literature, and solicited votes from Republican poll workers inside poll worker training area for himself and others. It said the poll workers voted after their election training.
But the Court of Appeals said it could not determine how many votes changed because of a particular violation of the election laws and it would not overturn the election results.
Fischer also claimed in his Supreme Court filings that Campbell County Clerk James Luersen and his fellow election officials violated their oath to administer fair elections by allowing the solicitation of votes during poll worker training sessions in May.
Luersen’s attorney, Jeff Mando of Covington, said Thursday in an email, “Jim Luersen and the Board of Elections are pleased that justice was served and that 4,180 Campbell county citizens who exercised their civic duty will have their votes counted.
“My clients felt it was extremely important that they advocate for those citizens to prevent their disenfranchisement. With today’s ruling, the Supreme Court wisely recognized that the technical violation that occurred on May 4 did not threaten the integrity of the election results in Campbell County.”
Megerle, Fischer’s attorney, said he is hopeful “that this type of conduct will never happen again and will shed light on the fact that election procedures in Campbell County need a complete overhaul.”
Megerle said he did not know the status of state Attorney General Daniel Cameron’s investigation of electioneering in the May primary election for Campbell County commissioner.
Cameron has declined to comment on it.
In Thursday’s Supreme Court decision not to review the case, Justice Michelle Keller recused herself from hearing the case, noting that she had represented Whalen, the Democratic nominee, in a civil matter about 20 years ago while she was practicing law.
