The Resolution of Election Disputes: Legal Principles that Control Election Challenges
622 S.W.2d 686
622 S.W.2d 686
(Cite as: 622 S.W.2d 686)
Page 3
it may be served by leaving a copy at his home with a member of his family over sixteen years of age, or by posting a
copy on the door of his residence. The statute does not address who may serve a summons in an election case.
[1] It would appear that since the contest was filed and summons issued within the time period required by the statute
and since the contestee did receive actual service of the
summons, the contestee cannot complain of any technical
defect if indeed there was one.
2. Illegal Voting.
[2] Callie Gillenwater. The circuit court concluded that the
vote of Callie Gillenwater was illegally cast for Mrs. Jessie
Pearl Curtis. It cannot be said that this finding was clearly
erroneous, and therefore, it cannot be disturbed upon appeal.
However, the circuit court was erroneous in adding the vote
to Mrs. Jernigan's total *689 after deducting it from Mrs.
Curtis' total. The illegality here was not that Mrs. Gillenwater's vote was cast for someone other than the candidate for
whom she wished to vote, but rather was that the vote was
openly cast. A vote that is illegally cast cannot be counted.
See Sims v. Atwell, Ky., 556 S.W.2d 932 (1977).
[3] G. C. Key and Joanne Key. The Keys testified that they
received improper assistance at the Fountain Run precinct,
such that their votes were improperly cast for Mrs. Curtis
when they intended to vote for Mrs. Jernigan. There was
contradictory testimony from the individual who allegedly
assisted them and several election officers that the Keys
were not assisted in any way at the polls. The lower court
found that they were not assisted in any way. There was adequate evidence to support this finding.
[4] Levi Waller and Vera Waller. Levi Waller and his wife,
Vera Waller, voted at the Fountain Run precinct. In the
complaint it was alleged that they were not residents of
Monroe County and were therefore not entitled to vote at
that precinct or in this race. The circuit court found that the
Wallers were actual residents of Allen County and should
not have been allowed to vote in the Monroe County race.
The tax records appeared to have been particularly persuasive. They showed that Mr. Waller paid taxes on the residential part of his property in Allen County and qualified for
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the homestead exemption in Allen County. There is no reason to disturb the finding that the Wallers are residents of Allen County rather than of Monroe County.
The circuit court found, based on Mr. Waller's testimony,
that he had voted for Mrs. Curtis. This vote was properly
deducted from Mrs. Curtis' majority.
The circuit court was unable to obtain the testimony of Mrs.
Waller, in spite of repeated efforts, and the circuit court
made no actual finding as to how she had voted. The circuit
court did state that it was sure that if her testimony had been
obtained, she would have testified that she voted for Mrs.
Curtis. It may be that given her husband's reputation for
bringing out the vote in the precinct, and the effort that was
expended to avoid having her testify, the circuit judge could
have made a finding that she had voted for Mrs. Curtis.
However, little would be served by the making of such a
finding at this point because of the earlier finding the court
made regarding the votes cast by G. C. and Joanne Key.
Deducting the votes of Callie Gillenwater and Levi Waller
from Mrs. Curtis' total, leaves her with a total of 1,859
votes. This is still two more than the number of votes received by Mrs. Jernigan. Even if it were determined that
Mrs. Waller had cast an illegal vote for Mrs. Curtis, this
would still leave Mrs. Curtis with a majority of one vote.
Therefore, the result of the election is not altered by the rulings on the illegal votes.
3. Precinct Irregularities.
West Tompkinsville Precinct. It is the opinion of this panel
of this Court that the circuit judge was extremely gentle in
reflecting on the conduct of the election officers in these
two precincts. The conduct of this election smacks of almost
incredible misfeasance and in one case, at least, deliberate
malfeasance.
There were two significant errors alleged in the West Tompkinsville precinct. The first was that there was a discrepancy
between the number of votes cast on the machine and the
number of voters casting their ballots at the polling place.
Second, it was alleged that open voting occurred in the precinct in that assistance was provided to various voters by
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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