Losing candidates petition court for new election

Seven losing candidates in the May 16 primary election filed a lawsuit late Friday afternoon seeking to have the election results thrown out, and calling for a new election.
Dewayne Bunch, Linda Chinn Schutz, Evelyn McCullah, Ronnie Faulkner, Will Leach, James Privett, and Arnold Young all signed the petition filed Friday in Whitley Circuit Court.
“Wherefore plaintiffs pray that the election results be deemed incorrect and also for a re-election with unbiased parties overseeing the re-election in its entirety,” the lawsuit states.
Friday was the last day to file a petition to contest an election or a petition for a recount. The lawsuit filed is merely listed as a “petition” and doesn’t specifically say whether it is an election contest petition or a petition for a recount.
“I have no idea what our chances of winning are, but we filed it because something was wrong with the machines. We are getting together signed affidavits to that effect now. It was machines all over the county,” McCullah said.
McCullah said she has no idea how many affidavits the candidates will be able to obtain, but that it “will be numerous.”
Schutz said Tuesday morning that the group would be hiring an attorney in the next few days, and that they filed the petition themselves Friday after getting advice from an attorney because of the pending deadline.
The three-page lawsuit names as defendants, the Kentucky State Board of Elections, Whitley County Board of Elections, Charlie Siler, Gary Barton, Pat White Jr., Lawrence Hodge, Ken Mobley, Troy Sharp, and other unknown defendants.
Whitley County Clerk Tom Rains, who is chairman of the county’s board of election, declined to comment on the suit because it is still pending litigation.
The lawsuit alleges that on May 16, numerous voters and candidates complained about the voting machines not working properly.
Several candidates have reported getting calls from individuals who say they pressed the button by one candidate’s name only to have the light beside another candidate’s name light up.
Some, but not all of the candidates have gone as far as to allege that the voting machines were “rigged.”
Republican Election Commissioner Nancy Jones said Thursday afternoon that she has heard some of the criticism about the election, and conclusions that machines were rigged is simply wrong.
“You can’t rig those machines,” she said. “You are not going to get four people in a precinct working – we have very honest people, very honest workers – to agree on anything any way.
“Certainly, we have upstanding workers, and they are not going to cheat. Those machines were not rigged.”

Other claims
The lawsuit further lists other claims regarding the timeliness of the vote tabulations, and the reliability of the voting machines.
“Election results were not reported to the public in a timely manner, being more than two hours after polls closed before the precincts were reported and some results were not reported until the morning of May 17, 2006,” the lawsuit states.
“Winners were announced before less than half the precincts were in. Precinct results were reported as several precincts combined instead of individually. Absentee ballots were reported inaccurately,” the lawsuit claims.
Rains provided final election results and a precinct by precinct break down of the results to the News Journal at approximately 10:50 p.m. election day.
The lawsuit also alleges that DRE voting machines, like the ones used in Whitley County, are “reported to be the most unreliable machines used in elections and the most simple machines to program.”
The lawsuit states to “See attached” for more information about the Direct Recording Electronic (DRE) voting machines, but officials with the circuit clerk’s office said Tuesday morning that there was no attachment filed with the lawsuit.
Verifiedvoting.org is an organization that supports a requirement for voter-verified paper ballots on electronic machines allowing voters to inspect individual permanent records of their ballots and election officials to conduct meaningful recounts as needed, it writes on its website.
“The risks of paperless DRE machines are large,” the website writes on its list of frequently asked questions. “Programming errors are an inevitable fact of life given current technology. With these paperless DRE machines, there is nothing that can stop a determined group from achieving large-scale election theft.
“We see no reason why major problems will not occur, including obviously messed up elections, elections of incorrect candidates, and, certainly, disillusioned and disenfranchised voters.”
The website lists specific problems with the ELECTronic 1242 machines the county uses that have occurred such as a poll worker in Rutherford County, Tenn., inadvertently casting a ballot during a demonstration that may have resulted in a tie for a town council position.
Les Fugate, Director of Communications for the Kentucky Board of Elections, said last week that the ELECTronic 1242 machines, which was the primary voting machine used in Whitley County during this month’s election, have been used in Kentucky since the mid-1980s, and have been reliable machines.
“We’ve seen no evidence of problems,” he said.

No hearing date yet
So far no hearing date has been set in the case, which was assigned to Circuit Judge Jerry Winchester, who will likely recuse himself from the case and ask that a special judge be assigned to hear it.
Winchester recused himself as judge in two pre-election lawsuits. He is also the father of Whitley County Attorney Paul Winchester, and because of this doesn’t preside over cases involving county government.
As County Attorney, Paul Winchester could potentially be the attorney representing the Whitley County Board of Elections.

How they finished
Bunch and two other candidates unsuccessfully challenged Siler in his bid for re-election as state representative. Siler garnered 4,582 votes in the Republican primary to Bunch’s 1,902, Ron Harmon’s 1,193 votes, and James Larry Goins 661 votes.
Schutz opposed Barton in the Republican Primary for circuit clerk, and received 3,845 votes to Barton’s 4,645 votes.
McCullah finished third in a three-way race for sheriff. Lawrence Hodge received 5,241 votes to H.D. Moses 2,185 votes, and McCullah’s 1,192 votes.
The first page of the lawsuit lists Moses as a plaintiff, but Moses didn’t sign the lawsuit on page two along with the rest of the candidates, and his name was partially marked out on page two of the lawsuit.
Faulkner ran for county clerk and finished second in a three-way race receiving 2,310 vote to Kay Smith Schwartz’s 4,311 votes and Mark Lawson’s 1,832 votes.
Schwartz was not named as a defendant in the lawsuit. Lawson’s name was listed on the signature page of the lawsuit, but it was marked out and unsigned.
Leach and Privett each ran unsuccessfully for the Republican nomination for jailer. Young ran for the Democratic nomination.
Mobley won the Republican primary for jailer with 3,060 votes to Leach’s 1,048 votes, Privett’s 867 votes, and Les Moses 839 votes. Les Moses name was also listed on the signature page of the lawsuit, but was marked out.
Sharp won the Democratic primary for jailer with 843 votes to Young’s 398 votes.
White won the Republican primary for judge-executive receiving 3,915 votes, but none of his three opponents in the primary, Leroy Gilbert, Mike “Benji” Campbell, or Bob Mauney are listed as plaintiffs in the lawsuit.
The names of state senate candidate Oline Carmical and first-district magistrate candidate Doug Rains are listed but marked out on the signature page of the lawsuit. N/A is listed on the signature line as it is with the other candidates whose names appear, but they didn’t sign as participants in the lawsuit.