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Court of Appeals sides with Brian Painter as GOP nominee in Campbell County commissioner’s race


By Jack Brammer
NKyTribune reporter
 
Brian Painter is entitled to be the Republican nominee for Campbell County Commissioner in the Nov. 8 general election, said the Kentucky Court of Appeals Friday in reversing a ruling by Campbell Circuit Court.

In a unanimous ruling, the three-member appellate court said a June 27 decision by a special judge in Campbell Circuit Court – Charles Cunningham Jr. of Jefferson County – should not stand.

Cunningham had voided the May primary election of longtime incumbent Commissioner Painter of Alexandria for alleged campaign violations.

Brian Painter

The effect of Cunningham’s order was to remove Painter’s name on the Nov. 8 general election ballot and replace it with Painter’s opponent, David Fischer, a Fort Thomas businessman and vice chair of the Campbell County Republican Party.

Fischer lost to Painter by 106 votes in the primary. Democrat Melissa Whalen, a lawyer from Fort Thomas, will face whoever is the Republican nominee in November.

Fischer’s attorney, Steven Megerle, who is a member of the Campbell County Republican County Committee and Republican National Lawyers Association, said Fischer will appeal to the Kentucky Supreme Court.

“The Kentucky Supreme Court was always going to make the final decision,” said Megerle. “The Court of Appeals’ opinion reeks of a result-oriented decision making.”

Painter had been sued May 27 by Fischer for allegedly illegally campaigning in the May primary election.   Fischer asked the court to void the election and declare him the winner.

Painter, through his attorney, Jim Morgan, 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.

The Court of Appeals said, “As a practical matter, it is impossible to know exactly how many votes changed because of a particular violation of the election laws. Voters cannot be compelled to go under oath and explain their choices or motivation.

“Moreover, one cannot accurately gauge the ripple effect of one voter being improperly electioneered, then speaking to a spouse or friend, and so on. Such impacts may be more pronounced when the offending party is an incumbent – someone already cloaked in the mantle of governmental authority and power.”

Thus, the appellate court said, “Courts must not whittle away the elevated standard for setting aside election results to the extent that the cure becomes worse than the disease.

“The power to nullify 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.”
 
It added:  “When the circuit court invalidated the primary results, it disenfranchised all Campbell County voters who had cast legal votes in the primary for the Republican nominee of the Campbell County Commissioner.

“Accordingly, this judicial intervention shall not stand.”

Kentucky Attorney General Daniel Cameron is investigating electioneering in the May primary election for Campbell County commissioner but has not commented on it.


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