Chapter 4 The court of appeals then ordered the lower court to declare that Patsy Jernigan was the Republican nominee for the office of circuit court clerk in Monroe County.76 A.1. Fraud which does not affect the election outcome might not invalidate an election if it is not pervasive In Jernigan v. Curtis, the court was not able to determine the exact number of fraudulent ballots and found that the entire election in the Fountain Run Precinct was tainted by fraud. But what if the court knew exactly how many ballots had been affected, for whom those ballots had been cast, and that the fraudulent activity made no difference in how the election came out? In other words, what if the illegal activity had no effect on the election results? That was the situation in Nugent v. Phelps, 816 So.2d 349 (La. Ct. App. 2002), where Benji Phelps ran against Gleason Nugent, the incumbent, for the office of Winnfield Police Chief. (Winnfield is in Winn Parish, Louisiana.) Also on the ballot was the incumbent mayor, Deano Thornton, who was running for reelection. On the ballot, Mayor Thornton was designated as candidate number two and Mr. Phelps as candidate number four. Mr. Nugent lost the April 6, 2002 election to Mr. Phelps by four votes—907 to 911—and brought a lawsuit to have a new election held. In his lawsuit, Mr. Nugent claimed that the April 6 election should be voided because: 1. 2. 3. Mr. Phelps bought enough votes to change the result of the election; Mr. Phelps deprived Mr. Nugent of three specific votes and votes from hundreds of other unnamed people by arranging for three of Mr. Nugent’s campaigners to be jailed from the Thursday before the election to the Monday after the election; and Mr. Phelps deprived Mr. Nugent of votes from unnamed people by causing Mr. Nugent to spend the entire week before the election testifying before a grand jury instead of campaigning. The evidence showed that Mr. Phelps set up a $100 account at a convenience store known, alternatively, as the Winn-Mart or the Corner Store. Robert Hall, Jr., known as “Lip,” was to: • • • 76 give voters a piece of paper with the numbers two and four, the numbers on the ballot that corresponded to candidates Thornton and Phelps; ask the voters to vote for those candidates; and take the voters to the Corner Store (after they had voted) and buy them whatever they wanted, paid for out of the $100 account, known as “Benji’s account.” Note that, in awarding the election to Ms. Jernigan rather than ordering a re-run of the election, the court was following state law that specified that result. This is a good example of how a particular state law impacts the resolution of election disputes. Monroe County and the West Tompkinsville Precinct have been a source of trouble in Kentucky for over 50 years. In 1957 the Kentucky Supreme Court in Crowe v. Emmert, 305 S.W.2d 272, 274 (1957), found that illegal voting activity existed in Monroe County, quoting the trial court as saying, “[T]here is no conceivable abuse of the absentee-voting statute which is not reflected in this record; and the proved violations of both letter and spirit are so many and so extensive that the touch of fraud, actual or constructive, extends to every ballot, making it impossible to segregate the valid from the invalid.” At the time that the second edition of this book went to press, we were still waiting for the Supreme Court of Kentucky’s decision in McClendon v. Hodges (2007-SC-559-DGE), appeal argued Jun. 13, 2008, where the Kentucky Court of Appeals concluded that a substantial number of illegal ballots were cast in the November 7, 2006, Tompkinsville mayoral election, which again involved the West Tompkinsville Precinct. Noting the history and continuing presence of vote fraud in the county, the Court of Appeals of Kentucky said, “…we DIRECT the CLERK of this Court to serve a copy of this opinion by certified mail on the…Attorney General of Kentucky, the…Secretary of State of Kentucky and the…Monroe County Clerk…and request that the Attorney General and Secretary of State take whatever action that they may deem to be warranted concerning the conduct of the… November 7, 2006 mayoral election, as well as to prevent such abuses in the conduct of future elections.” No. 2007-CA-000488-MR, 2007 Ky. App. LEXIS 230 (Ky. Ct. App. Jul. 20, 2007) (emphasis in the original). 89