Bridgette Ehly v. Commonwealth of Kentucky State Board of Elections ( 2022 )


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  •           RENDERED: SEPTEMBER 30, 2022; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2022-CA-0803-EL
    BRIDGETTE EHLY                                       APPELLANT
    AN ELECTION APPEAL
    ARISING FROM OLDHAM CIRCUIT COURT
    v.         HONORABLE JERRY D. CROSBY, II, JUDGE
    ACTION NO. 22-CI-00246
    COMMONWEALTH OF KENTUCKY,
    STATE BOARD OF ELECTIONS; AND
    COMMONWEALTH OF KENTUCKY,
    SECRETARY OF STATE                                   APPELLEES
    AND
    NO. 2022-CA-0878-EL
    BRIDGETTE EHLY                                       APPELLANT
    AN ELECTION APPEAL
    ARISING FROM OLDHAM CIRCUIT COURT
    v.         HONORABLE JERRY D. CROSBY, II, JUDGE
    ACTION NO. 22-CI-00246
    COMMONWEALTH OF KENTUCKY,
    STATE BOARD OF ELECTIONS; AND
    COMMONWEALTH OF KENTUCKY,
    SECRETARY OF STATE                                   APPELLEES
    OPINION
    REVERSING AND REMANDING
    ** ** ** ** **
    BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
    THOMPSON, K., JUDGE: Appellant Bridgette Ehly filed two notices of appeal
    from orders of the Oldham Circuit Court relative to her petition for a recount of the
    votes in the May 17, 2022, Republican primary election for the office of State
    Representative. Having reviewed the record and the applicable law, we reverse the
    June 27, 2022, order granting dismissal and remand for a recount.
    I.    FACTUAL AND LEGAL BACKGROUND
    Ehly ran against incumbent David Osborne (Speaker Osborne) in the
    Republican primary for State Representative in the 59th District. The election
    returns reflect Ehly received 1,975 votes to Speaker Osborne’s 4,164. On May 26,
    2022, Ehly filed in the Oldham Circuit Court a petition for a recount pursuant to
    Kentucky Revised Statutes (KRS) 120.095. Ehly named only the Commonwealth
    of Kentucky, State Board of Elections (the Board) as a party-defendant therein.
    However, Ehly alleges she served Speaker Osborne with a copy of the petition and
    that he did not file an entry of appearance in the lawsuit. Additionally, the record
    on appeal reflects the Oldham Circuit Court Clerk served notice of entry of a June
    6, 2022, order, in which the circuit court ruled that Ehly “has the statutory right to
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    request a recount and said recount shall proceed upon the posting of the necessary
    bond[,]” upon:
    BROWN, TAYLOR, SCUTCHFIELD, JENNIFER
    SCHWARTZ . . . EHLY, BRIDGETTE, STATE
    BOARD OF ELECTIONS ATTN DANIEL CAMERON.
    COPY SENT TO DAVID OSBORNE X2[.]
    The record reflects four separate orders entered by the Oldham Circuit
    Court, to wit:
    1. On June 6, 2022, following an evidentiary hearing, the
    circuit court entered an order setting a recount bond
    pursuant to KRS 120.095(1) in the amount of $21,700.00
    and directing Ehly to post the bond within 10 days. The
    order noted that Ehly “has the statutory right to request a
    recount and said recount shall proceed upon the posting
    of the necessary bond.” The order recited that it “is final
    and appealable with no just reason for delay.”
    In response to this order, Ehly posted a cash bond of $21,700.00 on June 16, 2022.
    2. On June 27, 2022, the circuit court entered an order
    granting the Board’s motion to dismiss the petition for
    failure to join necessary parties to the petition. That
    order recites, “There being no just cause for delay, this
    order will become final and appealable upon the issuance
    of a check to [Ehly] for the balance of the bond posted
    for the recount.”
    3. On July 6, 2022, the circuit court entered an order
    directing the circuit court clerk “to pay out of the bond”
    Ehly posted the sums of $782.63 and $958.41 which,
    respectively, “cover[ed] the cost of security and
    transportation of the voting machines pursuant to
    invoices tendered by the Oldham County Sheriff’s Office
    and the Oldham County Road’s [sic] Department.” The
    court further stated that although it had “elicited
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    testimony from the Oldham County Clerk’s office as to
    the cost associated with this election recount . . . [u]pon
    further reflection . . . those services were part of the
    clerk’s regular course of business and therefore not
    subject to reimbursement.” Finally, the order recites:
    “Pursuant to this Court’s prior Order, the invoices have
    been tendered and after payment of the above expenses,
    the remainder of the bond shall be refunded to [Ehly].
    The Order of June 27, 2022 is final and appealable.”
    4. On July 28, 2022, the circuit court entered an order
    denying Ehly’s motion to alter, amend, or vacate the
    orders of June 27, 2022, and July 6, 2022.
    Ehly filed two separate appeals: (1) the notice of appeal filed on July
    5, 2022, resulted in No. 2022-CA-0803-EL; in it, Ehly appeals from the June 6,
    2022, order; and (2) the notice of appeal filed on Monday, July 18, 2022, resulted
    in No. 2022-CA-0878-EL; in it, Ehly appeals from the June 27, 2022, order and the
    July 6, 2022, order. As to this second appeal, Ehly explained that the July 6, 2022
    order “made the June 27, 2022 Order, final and appealable[.]”
    We observe that the Board did not file a cross-appeal regarding the
    July 6, 2022, order lowering of the bond amount to eliminate the cost of the
    recount to the county clerk, so the issue as to whether this reduction was
    appropriate is not before us.
    KRS 120.095(2) provides that appeals of recounts of primary
    elections are governed by the provisions of KRS 120.075. KRS 120.075(1)
    provides in relevant part that such appeals:
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    shall be in accordance with the Rules of Civil Procedure,
    except that the notice of appeal shall be filed and a
    supersedeas bond executed in the Circuit Court, and the
    record shall be filed in the Court of Appeals, within ten
    (10) days after the entry of the judgment, or within such
    other time as the Court of Appeals may, for cause shown,
    permit.
    II.   Was the Dismissal of the Appeal Warranted?
    We first address the Board’s arguments that these appeals should have
    been dismissed because: (1) the first appeal was from an interlocutory order; (2)
    the second appeal was untimely because the June 27, 2022, order was the final and
    appealable order; and (3) Ehly failed to post a supersedeas bond.
    We agree with the Board that the circuit court’s order of June 6, 2022,
    was inherently interlocutory. It could not be made final and appealable by
    inclusion of finality recitals under Kentucky Rules of Civil Procedure (CR) 54.02
    because it did not adjudicate any claim, nor did it terminate the cause of action.
    Craft v. Davidson, 
    189 Ky. 378
    , 
    224 S.W. 1082
     (1920); Hook v. Hook, 
    563 S.W.2d 716
    , 717 (Ky. 1978). Furthermore, even if the June 6, 2022, order were not
    inherently interlocutory, Ehly’s appeal from that order would have been untimely
    as it was filed on July 5, 2022, well outside of the statutory time limit prescribed in
    KRS 120.075(1).
    However, we disagree with the Board that Ehly had to appeal from the
    June 27, 2022, order. There was no need to appeal from this order because it did
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    not fully terminate the cause of action. Instead, the June 27, 2022, order expressly
    stated that it would become final and appealable upon the occurrence of a future
    event. Thus, it was interlocutory.1
    The July 6, 2022, order disposed of the case. It was a proper final and
    appealable order which could be appealed. Once it was entered, the prior orders
    could be appealed as being finally adjudicated. CR 54.02(2). The second notice of
    appeal was timely filed on Monday, July 18, 2022, within ten days of the July 6,
    2022, order being entered as calculated in accordance with CR 6.01. See generally
    Shackelford v. Barnette, 
    445 S.W.2d 449
     (Ky. 1969). Therefore, the June 27,
    2022, order is properly before us.
    However, as the second notice of appeal did not list the June 6, 2022,
    order, it is not properly before us. As the cases were consolidated, it would not be
    appropriate to dismiss this portion of the appeal, but we decline to consider Ehly’s
    1
    See, e.g., Campbell v. Hulett, 
    243 S.W.2d 608
    , 610 (Ky. 1951) (“It has been said that if an
    order entered in a cause does not put an end to the action, but leaves something further to be
    done before the rights of the parties are terminated, it is interlocutory and not final. . . . [The
    question is whether] the lower court intended to terminate the litigation once and for all.”);
    Jacoby v. Carrollton Fed. Sav. & Loan Ass’n, 
    246 S.W.2d 1000
    , 1001 (Ky. 1952) (internal
    quotation marks and citations omitted) (“A final order means one where the last say has been
    said, while an interlocutory order means one that is speaking between.”); Knott v. Crown
    Colony Farm, Inc., 
    865 S.W.2d 326
    , 329 (Ky. 1993) (citation omitted) (“An interim or
    interlocutory order at the trial court level, even one that ultimately proves to be fatal to the
    outcome of the case, cannot be appealed before the final decision of the trial court disposing of
    all issues.”). The parties’ discussion, in their appellate briefs, of the motion to alter, amend, or
    vacate is a red herring because Appellant did not attempt to appeal this order, nor could she
    appeal it as an order denying a CR 59.05 motion is not an appealable order. Tax Ease Lien
    Investments 1, LLC v. Brown, 
    340 S.W.3d 99
     (Ky. App. 2011).
    -6-
    argument regarding the June 6, 2022, order. We also note that Ehly’s reasons for
    appealing this order are largely moot based on the circuit court subsequently
    lowering the bond amount needed for the recount and our decision that follows.
    Finally, we address whether dismissal of these appeals is required due
    to Ehly’s failure to post a supersedeas bond as set forth in KRS 120.075(1). The
    statute provides that this Court may extend the time for filing such a bond for cause
    shown. Ehly argues the amount and necessity of the supersedeas bond were
    unclear given that there is no monetary judgment against her which could be
    superseded, and considering her having posted the $21,700.00 recount bond
    pursuant to KRS 120.095(1). Clearly, the amount of the original bond would have
    been sufficient to secure any damages and costs to the Board on appeal. We hold
    that payment of an additional amount into circuit court would have been
    duplicitous and unnecessary. Therefore, we deny the Board’s motion to dismiss
    via a separate order.
    III.   Were the Necessary Parties Named in the Petition?
    Because we have determined this matter is properly before the Court,
    we turn now to the merits of Ehly’s allegation of error regarding the June 27, 2022,
    order, that her petition for a recount should not have been dismissed for failure to
    name necessary parties.
    -7-
    This Court reviews de novo the circuit court’s granting of a motion to
    dismiss under CR 12.02:
    When considering the motion, the allegations contained
    in the pleading are to be treated as true and must be
    construed in a light most favorable to the pleading party.
    The test is whether the pleading sets forth any set of facts
    which -- if proven -- would entitle the party to relief. If
    so, the pleading is sufficient to state a claim. Since the
    trial court is not required to make factual findings, the
    determination is purely a matter of law. Consequently,
    we review the decision of the trial court de novo.
    Mitchell v. Coldstream Labs., 
    337 S.W.3d 642
    , 644-45 (Ky. App. 2010) (citations
    omitted). KRS 120.095 provides, in relevant part:
    (1) Any candidate voted for at a primary held under KRS
    118.015 to 118.035 and 118.105 to 118.255 may
    request a recount of the ballots by filing a petition
    with the same court that contest petitions are required
    to be filed with, within ten (10) days after the day of
    the primary, or, if the candidate is qualified to bring a
    contest proceeding under KRS 120.055, by including
    a request for a recount in his or her petition instituting
    the contest proceedings. Any candidate who is a
    contestee in a contest proceeding under KRS
    120.055 may request a recount in his or her answer
    filed in the contest proceeding, but in that case the
    answer shall be filed within five (5) days after the
    service of process on the petition. When a request for
    a recount is made, the State Board of Elections or the
    county board of elections, whichever would issue the
    certificate of nomination, shall be made a party
    defendant. The party requesting the recount shall
    execute a bond with approved surety for the costs of
    the recount, in an amount to be fixed by the Circuit
    Judge. Upon the bond being filed, the clerk shall
    immediately notify the Circuit Judge of the request
    -8-
    and the filing of the bond, and the judge shall at once
    enter an order directing custody of the voting
    machines, voting equipment, or voting system, the
    ballots, boxes, and all papers pertaining to the
    election to be transferred to the Circuit Court, and fix
    a day for the recount proceedings to begin. A copy
    of the order shall be served upon the parties or their
    counsel in the same manner as notices are required to
    be served, which shall be deemed sufficient notice of
    the proceeding. On the day fixed, the court shall
    proceed to recount the ballots if their integrity is
    satisfactorily shown and shall complete the recount as
    soon as practicable, and file and enter of record the
    results thereof, and direct the state board or county
    board, whichever would issue the certificate of
    nomination, to issue a certificate to the party entitled
    thereto as shown by the recount.
    (2) Any party may appeal from the judgment to the Court
    of Appeals, in the same manner as provided in KRS
    120.075, all of the provisions of which statute shall
    be applicable.
    The circuit court dismissed Ehly’s petition on the ground that she
    failed to name therein: (1) Speaker Osborne, who ostensibly received the highest
    number of votes in the primary; and (2) the Oldham County Clerk.
    A. Is the Winning Opponent a Necessary Party?
    As to Speaker Osborne, the circuit court provided three reasons why
    he was a necessary party. First, the circuit court found that Speaker Osborne has
    an interest that could be divested by the recount action, assuming the recount
    ultimately reflects that Ehly received more votes, i.e., he would lose the
    nomination, and therefore, Ehly was required to join him under CR 19. Second,
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    following Ehly arguing for a lower recount bond amount at an evidentiary hearing,
    the circuit court stated that Osborne was deprived the reciprocal opportunity to
    argue for a higher recount bond amount. Third, the circuit court found the General
    Assembly’s use in KRS 120.095 of the phrase “to issue a certificate to the
    party entitled thereto as shown by the recount” requires that the opposing candidate
    be a “party” in the recount action.
    We agree with Ehly that the circuit court erred in dismissing the
    petition for failure to name her opponent, Speaker Osborne, because our case law
    reveals that opponents listed on the ballot are not necessary parties. In Kirby v.
    Creech, 
    235 Ky. 816
    , 
    32 S.W.2d 419
     (1930), Creech instituted election contest
    proceedings against Kirby following the November 1929 election for the office of
    police judge of the town of Loyal, Harlan County, Kentucky. Kirby appeared to
    have received the highest number of votes. Creech appeared to have finished
    fourth, out of seven candidates appearing on the ballot, based on the election
    returns. However, a recount of the votes revealed that one Suttles had received the
    most votes, then Wolfe, then Creech, then Kirby. Thus, neither the appellant nor
    the appellee received a plurality of votes. To make matters worse, “Creech did not
    make either Suttles or Wolfe a party to [the] contest, and [those] two candidates
    seem[ed] to have taken no action to protect whatever rights they had.” 
    Id.
     at 419-
    20. Therefore,
    -10-
    [a]s neither Suttles nor Wolfe was a party to the suit and
    had taken no independent action to protect their rights
    . . . [the trial court] could not declare the appellee elected,
    since he had not received a plurality of the votes cast at
    the election, [the trial court] would have to declare that
    no valid election had been held, and he entered a
    judgment accordingly.
    Id. at 419. On appeal, Kirby argued that the trial court should have granted his
    motion to dismiss the petition “on his plea setting up what he claimed to be a lack
    of necessary parties to the suit[.]” Id. Our then-highest Court held:
    It would have been much better practice had appellee
    made the other candidates at this election parties to
    the suit to the end that on final adjudication the court
    could have declared who had been elected to the office
    in question. But it was not indispensably necessary
    for the appellee to do so. . . . A public office does not
    possess the attributes of private property; so an election
    contest suit in its essence is not a controversy between
    parties in the sense of ordinary litigation, but is in the
    nature of an inquiry into the purity of the election.
    Id. at 420 (internal quotation marks and citations omitted) (emphasis added). See
    also Dixon v. Maddox, 
    311 Ky. 28
    , 
    223 S.W.2d 178
    , 179 (1949) (observing that in
    a statutory recount action, “[n]ot only is the proceeding a summary one, but it also
    embodies some of the elements of a proceeding in rem”).
    In Kirby, 
    32 S.W.2d at 421
    , although the trial court’s declaration that
    there had been “no election” was a misnomer, “as there was shown no such fraud,
    intimidation, bribery, or violence in the conduct of the election as that the court
    could not determine who was elected,” the Court affirmed, holding that “neither
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    appellant nor appellee was entitled to the office of police judge.” Concerning the
    appropriate remedy, “[t]he other candidates, and especially Suttles, who really
    received a plurality of the votes, did nothing to protect their rights, nor did they in
    time or even at all undertake to assert their rights to the office and to qualify
    therefor[.]” 
    Id.
     “Hence,” the Court said, “it necessarily follows that there is a
    vacancy in the office just as there would have been had Suttles been given the
    certificate of election and failed to qualify.” 
    Id.
    In Brock v. Saylor, 
    300 Ky. 471
    , 
    189 S.W.2d 688
     (1945), in a race for
    the Republican nomination for magistrate of Bell County, Kentucky, Brock
    received 261 votes to Saylor’s 256. Following a recount by the trial court upon
    Saylor’s petition, Saylor was declared the nominee by a margin of nine votes.
    Brock appealed, asserting the procedure did not conform to the applicable statute,
    at that time set forth in KRS Chapter 122. The Court noted that KRS 122.060, the
    statute then relating to a petition for a recount of the ballots, provided: “A copy of
    the order shall be served upon the parties or their counsel in the same manner as
    notices are required to be served, which shall be deemed sufficient notice of the
    proceeding.” Brock, 
    189 S.W.2d at 689
    . Identical language concerning service
    and notice appears in our modern-day recount statute, KRS 120.095(1). The Brock
    Court explained:
    It is to be observed that the statutory proceeding
    for a recount of the ballots in a primary election does not
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    require that the opposing party shall be summoned, as
    does the statute relating to the contest. In a recount
    proceeding the opposing party or his counsel shall be
    served with a copy of the order directing a transfer to the
    circuit court of the election paraphernalia and fixing a
    day for the recount. . . . The purpose of this notice is
    apparently the same as the summons although the
    recount of ballots would appear to be more of an ex
    parte or summary proceeding than is a contest of an
    election, and expedition is of the essence.
    Brock, 
    189 S.W.2d at 689-90
     (citations omitted) (emphasis added).
    In the instant case, the circuit court clerk entered a notation on the
    docket relative to the June 6, 2022, order, stating that copies were sent to Speaker
    Osborne. Based on our review of the applicable law, we cannot say that Speaker
    Osborne was a necessary party to Ehly’s petition for a recount or that the required
    statutory notice was not effectuated.
    B. Is the County Clerk a Necessary Party?
    We next examine whether the Oldham County Clerk was a necessary
    party to Ehly’s petition. As to the county clerk, the circuit court determined she
    was a necessary party due to her status as the “legal possessor” of the ballots,
    voting machines, and/or voting equipment. The circuit court ruled that Maddox
    required the county clerk to be named as a party-defendant in any recount action.
    We disagree as Maddox is clearly distinguishable from the present
    case. There, the dismissal of the plaintiff’s petition for a recount was affirmed
    because the plaintiff had failed to name the members of the Bell County Election
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    Commission therein. The Court held that the members were necessary parties
    because “[o]nce a recount is completed, the only parties to whom a judge could
    direct the execution of an order relative to the number of votes casts in the election
    would be the members of the County Election Commission.” Maddox, 
    223 S.W.2d at 179
    . “These officers are required to issue certain certificates which
    unquestionably are those referred to in KRS 122.060 [the former recount statute].”
    Maddox, 
    223 S.W.2d at 179
    . The Court further emphasized that the plaintiff’s
    naming the opposing party in his petition “could not give the trial judge
    jurisdiction of the subject matter of the recount, namely the ballots.” Id. at 180.
    There are two salient points here. First, Ehly named in her petition
    the entity responsible for issuance of the certificate of nomination, the State Board
    of Elections, in contrast to the faulty petition in Maddox. Second, as noted by
    Ehly, KRS 120.095(1) provides:
    Upon the [recount] bond being filed, the clerk shall
    immediately notify the Circuit Judge of the request and
    the filing of the bond, and the judge shall at once enter an
    order directing custody of the voting machines, voting
    equipment, or voting system, the ballots, boxes, and all
    papers pertaining to the election to be transferred to the
    Circuit Court, and fix a day for the recount proceedings
    to begin.
    Thus, the statute vests the circuit court with the authority and jurisdiction to seize
    control of the voting paraphernalia. It is unnecessary that the county clerk be
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    named as a party to the recount petition in light of this statutory mandate and
    authority.
    We note that in Brock, 
    189 S.W.2d at 690
    , the Court held that
    constructive, not actual, possession of the ballot boxes was sufficient to comply
    with the recount statute, and offering as an example:
    It is not an unusual practice for the court to direct that
    ballot boxes be placed in a bank’s vault for safe-keeping.
    They are thereby effectually “transferred to the circuit
    court.” We see no reason why the same constructive
    possession is not acquired if they are left in the custody
    of the county clerk after the circuit court takes hold of the
    proceedings.
    We also recognize that the circuit court in its June 27, 2022, order, directed the
    Oldham Circuit Court Clerk to “return[] to the Oldham County Court Clerk as soon
    as practicable . . . [t]he ballots, papers, voting machines, keys, etc. currently in the
    possession of the Oldham Circuit Court Clerk[.]”
    Therefore, notwithstanding the circuit court’s conclusion that it lacked
    jurisdiction to marshal the voting equipment absent Ehly’s naming of the Oldham
    County Clerk in her petition, the provisions of KRS 120.095 proved sufficient for
    the circuit court to obtain control of the voting apparatuses, ballots, etc.
    Accordingly, the county clerk is not a necessary party to a recount action.
    For these reasons, we reverse the Oldham Circuit Court’s order
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    dismissing Ehly’s petition for a recount for failure to name necessary parties and
    remand this matter with directions to conduct the statutory recount forthwith.
    LAMBERT, JUDGE, CONCURS.
    JONES, JUDGE, CONCURS AND FILES SEPARATE OPINION.
    JONES, JUDGE, CONCURRING: I concur with the majority’s
    opinion both in substance and result. I write separately simply to explain that so
    long as the requesting party complies with the procedural requirements of the
    recount statute and posts a bond sufficient to cover the costs of the recount, the
    statute requires the recount to be performed. KRS 120.095 (“Upon the bond being
    filed . . . the judge shall at once enter an order directing custody of the voting
    machines, voting equipment, or voting system, the ballots, boxes, and all papers
    pertaining to the election to be transferred to the Circuit Court, and fix a day for the
    recount proceedings to begin.”). The statute does not have any threshold
    requirements. Specifically, the requesting party does not have to present any prima
    facie evidence of election irregularity, show that the reported results are within a
    certain margin, or come forward with voter petitions.
    As this case demonstrates, the recount process can stretch out up until
    the eve of the next election placing a heavy burden on county employees as their
    limited time and resources are diverted away from other matters to perform the
    recount. In cases where it seems doubtful that the recount will change the results
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    of the election, the temptation is for courts to look for a way to avoid having to
    make officials undergo the burdens associated with performing the recount.
    However, this is not the job of the courts. Our job is to enforce the statute as
    written regardless of whether we believe a better one could have been crafted.2
    Such is the case here. Appellant has shown she is entitled to the recount under the
    statute. We have no choice but to remand and order the recount regardless of any
    concerns we might have about the burdens it will place on those charged with
    performing it. Our role in the process, as it has been defined by our General
    Assembly, is an extremely limited one.
    BRIEF FOR APPELLANT:                          BRIEF FOR APPELLEE
    COMMONWEALTH OF
    J. Vincent Aprile II                          KENTUCKY, STATE BOARD OF
    Louisville, Kentucky                          ELECTIONS:
    Taylor Austin Brown
    Frankfort, Kentucky
    2
    A survey of other states reveals widely disparate recount statutes. NATIONAL CONFERENCE OF
    STATE LEGISLATURES, Election Recounts https://www.ncsl.org/research/elections-and-
    campaigns/automatic-recount-thresholds.aspx. Some states have automatic recount triggers but
    no process for a party to request a recount. About three-fourths of the states have a process for
    requesting a recount but the requirements vary widely among the statutes. For example, in some
    states, a court decides whether to grant the request; in others, the request will not be granted if
    the results do meet the threshold margin, and still other states require a petition signed by a
    specified number of votes to obtain the recount. Kentucky is among a handful of states with the
    most liberal recount provisions allowing any candidate regardless of the vote margin to obtain a
    recount by filing a petition and paying for the costs associated with the recount.
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