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When are election irregularities so substantial as to void election results? That was the question before the Kentucky Court of Appeals in Adair County Board of Elections v. Arnold, No. 2015-CA-000661-MR, 2015 WL 5308132 (Ky. App. 2015).

In Adair, Ben Arnold, an unsuccessful write-in candidate for mayor, and two voters, brought suit against the Adair County Board of Elections, the City of Columbia and others contending that irregularities in the mayoral election reached the level of constructive fraud, which required election officials to declare the mayoral election invalid. In Adair County, registered voters are considered either city residents or county residents for purposes of casting their ballots.  To ensure voters get the proper ballot, they are coded as either a “city resident” or a “county resident” on the voting rosters. According to Arnold, during the 2014 general election, irregularities occurred where a number of city residents were coded as county residents and vice versa. This irregularity occurred due to the then county clerk’s alleged failure to properly update voting rosters as property was annexed by the city. After reviewing all of the evidence, the trial court found that “[d]ue to the numerous errors, omissions, and apparent acts of negligence committed on Election Day, an indeterminate amount of votes in the mayoral election were unaccounted for. It was undisputed that this number could have easily exceeded one hundred votes.”  2015 WL at *4.  Thus, the trial court voided the election.

In an unpublished opinion, the Kentucky Court of Appeals reversed by a vote of 2-1. The court began its analysis by noting that “[w]hile our country’s deep-rooted passion and hard-fought battle that the individual and the collective voice of the people as to who should govern them should prevail in every election, this does not guarantee a flawless election, nor does it mandate that a flawed election must be voided.”  Id. at *5. The court found that even though “it appears that this election was ripe to be set aside for incompetence and incomprehensible carelessness[]” the law “mandates us to determine solely whether this election should be voided only if it cannot be fairly determined who was elected, not whether voters might lose confidence in the election process.”  Id.  The plaintiff had the “soaring” burden of proving the result of an election cannot be determined with certainty by clear and convincing evidence establishing “not only that there were irregularities, but also that despite even irregularities, that it ‘cannot be reasonably determined who was elected.’”  Id. at *6.

Here, the court concluded that even given the irregularities in this “shoddy election that does not reflect the principles upon which our country was founded,” id. at *7, there was a reasonable method of determining who the successful candidate was in the mayoral election. The court concluded that even if these irregular votes were treated as properly cast votes and if all these votes were attributed to the candidate who came in second place, it would have not changed the outcome of the election.

Read the full opinion here.