Legislative Leaders Propose Bill To Overhaul Election Challenge Rules

Dec 2, 2019

Credit WKU Public Radio

In the wake of Kentucky’s close gubernatorial race, state lawmakers are considering a constitutional amendment that would trigger an automatic vote recount in close elections.

Under the proposal by Republican House Speaker David Osborne and Democratic House Minority Leader Rocky Adkins, an automatic recount would be triggered if election results show a candidate winning by less than half of a percentage point.

Eric Lycan, general counsel for House Republicans, said that the measure would allow candidates to get a recount without making larger claims of irregularities or voter fraud.

“And in doing so, we hope to prevent those kind of things from becoming a circus that goes on for months until the legislature can come in and deal with them. When all we really needed to do was recount some ballots and just make sure the will of the voters was done,” Lycan said.

Osborne and Adkins proposed a similar version of the bill during this year’s legislative session. It came in response to last year’s election contest that took place in Kentucky House District 13, which took place after incumbent Republican Rep. DJ Johnson lost the election by one vote.

The election contest process required the state House of Representatives to determine the outcome of the race. A panel of lawmakers reviewing the election conducted a formal recount of the results and determined the race to be a tie.

In the 2018 case, Johnson ended up dropping the contest after the ultimate victor — Democratic Rep. Jim Glenn of Owensboro — threatened to sue.

Current law doesn’t allow gubernatorial candidates to seek recounts. Their only options to challenge election results are a recanvass — a light recalculation of the vote totals — and an election contest, which requires a joint session of the full legislature to determine the outcome.

In this year’s election, Republican Gov. Matt Bevin lost by about 5,000 votes — a difference of 0.38 percentage points to Democratic Attorney General Andy Beshear.

Bevin requested a recanvass of the election, yielding a difference of one vote, and many worried that he would formally contest the election results after making unsubstantiated claims of voter fraud.

Rep. Kevin Bratcher, a Republican from Louisville, said that he didn’t want the legislature to decide the result of this year’s gubernatorial election.

“That scared me to death when you think that the General Assembly was going to decide the election. That probably scares everybody,” Bratcher said.

An election contest of a Kentucky gubernatorial race hasn’t taken place since 1899. The process was contentious and coincided with the assassination of one of the candidates — William Goebel, the ultimate victor who was sworn in as governor on his death bed.

Senate Majority Floor Leader Damon Thayer, a Republican from Georgetown, said that he “wouldn’t relish being in a legislature that would have to deal with an election contest,” but that the process is an important check of the state’s legislative branch upon the executive.

“That of course is the separation of powers as enumerated in our constitution,” Thayer said.

The current version of the bill — which has not been officially filed yet — would require the state to pay for an automatic recount if the discrepancy between votes is less than a half of a percentage point.

Candidates could also seek a recount if there is a larger margin than half a percentage point, but they would have to pay for it.

Rep. Jim DuPlessis, a Republican from Elizabethtown, said he would like the measure to require candidates to pay for a recount, even if it is automatic.

“If you’re a candidate that was so close in an election that it was within a half of a percent, I would think that means you’ve got a lot of supporters and would have a fairly nice war chest. I don’t think we should be shifting this burden to the taxpayers,” DuPlessis said.

The proposal would be a constitutional amendment, meaning it would need 60 votes in the 100-member state House of Representatives and 23 votes in the 38-member Senate

The measure would not be signed by the governor but would have to be approved by a majority of voters during the General Election.