Secretary of State Alison Lundergan Grimes has lost her first court battle in a lawsuit seeking to throw out provisions of legislation passed by the 2019 General Assembly stripping her of most of her election duties.
Franklin Circuit Court Judge Phillip Shepherd denied a motion for a temporary injunction that would have halted provisions of House Bill 114 from taking effect until the merits of the case were heard.
In the suit, Grimes maintains the bill reconstituted the State Board of Elections as an independent state agency and her duties as chief election officer were removed, relegating her to a nonvoting ex officio member of the State Board of Elections. A move Grimes argues is in violation of the separation of powers doctrine between the executive and legislative branches of government in the Kentucky Constitution.
In his five-page ruling, Shepherd stated Grimes, “has failed to demonstrate the likelihood of irreparable harm in the absence of a temporary injunction. To satisfy this essential element, she must allege ‘possible abrogation of a concrete personal right.’ Here, however, the harm theorized by [Grimes], that deadlocks among the voting members of the Board cannot be resolved by the tie-breaking vote of the Secretary—remains speculative at this time.”
In addition, the “Secretary of State retains her statutorily-granted title as chief elections officer of the Commonwealth of Kentucky,” he said.
Shepherd also stated, “the Court finds it inappropriate to address injunctive relief until all proper parties are before the Court and all issues related to immunity have been resolved. At this time, the only defendants before the Court are two non-voting members of the Board and certain members of the legislature (e.g., the President of the Senate and Speaker of the House of Representatives).”
The judge said, “It is unclear whether all necessary parties are before the Court, and whether the appropriate public officials from the executive branch of government, who administer the legislation that is being challenged, are before the Court.”
In response to the ruling, Grimes stated, “While I disagree with the Court’s decision on this preliminary motion and am disappointed relief was not granted before the Primary, I appreciate the Court’s acknowledgment of my “authority” [as Chief Elections Official] to take all necessary and appropriate measures to administer the duties of [my] position,” said Grimes.
She continued, “I am grateful for the Court’s repeated clarification that the two new members to the Board are ‘non-voting members.’ This stands in stark contrast to how the State Board of Elections has operated its past three meetings, including Primary Election Day, where it allowed new members to make and second motions and vote on every matter before the Board.”
“I’m confident that with additional time, the Court will be able to address the full merits of my claim before the November election,” said Grimes.
On primary election day, some members of the State Board of Elections expressed confusion over the bill, when they were called to order on primary election day, over whether the representatives named by the county Clerk’s Association were voting or non-voting members, under HB 114.
In a transcript of the meeting, obtained by Kentucky Today, board members discussed the matter as soon as they convened at 6 a.m., after a letter from Grimes stating the two county clerk members were non-voting members, since the legislation also stated there were only six voting members, which she interpreted were the six who were already appointed by the governor before the new law was enacted.
As a result, two Democratic members, Ben Chandler and Sherri Whitehouse, abstained from voting on any of the business, while the two clerk members seconded and voted on motions.
No date has been set for Judge Shepherd to hear arguments on the merits of the suit, and at least one more hearing is anticipated before that takes place, possibly within a month.
By Tom Latek, Kentucky Today
