A Republican-dominated board of Kentucky lawmakers investigating a Democrat's election by a one-vote margin has obtained 17 unopened absentee ballots from the local county clerk's office.
Democrat Jim Glenn defeated Republican state Rep. DJ Johnson by one vote in the November election. The Kentucky State Board of Elections certified Glenn as the winner, but Johnson has asked the Republican-controlled House of Representatives for a recount. Kentucky state law allows for the House itself, not the courts, to oversee election challenges of its members.
Johnson's lawyers have focused on 17 absentee ballots that were not counted in the November election for various reasons, including missing signatures from the voters who mailed them. Those ballots had been stored at the Daviess County Clerk's office.
But Wednesday, a police officer took those ballots on behalf of a nine-person legislative committee that is investigating the election. David Floyd, chief of staff for the House Republican Caucus, says the ballots are locked in a safe in the House clerk's office.
Glenn's lawyer, Anna Whites, says those ballots are "spoiled evidence" because there is no way to prove the ballots have not been "tampered with, opened, altered or otherwise changed from its original condition."
"This is not how we treat election returns. This is also not how we treat evidence in any case," Whites said.
Cory Skolnick, an attorney for Johnson, did not respond to a phone call or email seeking comment.
Floyd said none of the ballots have been tampered with, saying a police officer took them from the county clerk, put them in a bag and delivered them to the House clerk, who locked them in a safe.
"It was transferred in a normal way, just like state police do every day," Floyd said.
The committee overseeing the election challenge consists of six Republicans and three Democrats, all selected in a random drawing by the House clerk earlier this week. The board met three times this week to speak with attorneys on both sides and review a proposed list of evidence. Floyd said the committee voted unanimously to obtain the absentee ballots as part of its investigation.
But House Minority Floor Leader Rocky Adkins, who is a member of the board, disputed that.
"The other Democratic members on the committee and I were unaware that these disputed absentee ballots were being transferred to the House clerk's office," Adkins said. "We have serious concerns about this and made those known during our meeting."
Joshua Douglas, an elections law and voting rights professor at the University of Kentucky, said most postelection disputes involving uncounted ballots focus on the validity of the ballots instead of the chain of custody.
"I think if they've been under the lock and key of the election official and transferred by law enforcement, I'm not sure a court would find that to be problematic," Douglas said.
A bigger issue, Douglas said, is Kentucky's process for overseeing election challenges of state lawmakers. Douglas, who recently reviewed the election challenge procedures in all 50 states for a law review article, said the best method is to have a system that is impartial "in both fact and appearance."
"Because Kentucky law has set this up to be a legislative determination, then politics can drive the decision as much as law," he said.
Republican House Speaker David Osborne has said no one in the legislature "is looking at this with the intention of doing anything less than we would hope and expect out of people that the electorate of Kentucky have selected."
"They are honorable people," Osborne said.