By: Jessica Neal
NEWPORT, KY - On Friday, August 26, Campbell County Circuit Judge Daniel J. Zalla found the integrity of the ballots was “satisfactorily shown” in the recount for the Kentucky State Senate District 24 race, and chose to certify the results for the May 17, 2022 primary election.
This decision came after a lengthy court battle between myself and the State Board of Elections. The process began back on May 27, when I filed a petition for a recount.
According to KRS 120.095, any primary candidate may pursue a hand recount of paper ballots so long as they post the bond set by a Circuit Judge to cover all expenses.
I chose to pursue this recount because it was a very close race: only 307 votes separated myself and Shelley Funke Frommeyer. Additionally, my platform focused heavily on election integrity, something I have taken great interest in since the events of the 2020 Presidential Election. I believe if we do not have free and fair elections, we do not have a country.
At my first court hearing on June 9, the State Board of Elections moved to dismiss my case. This was the first of many attempts to thwart my legal right to a simple hand count of paper ballots.
As things progressed, it became clear that my innocent petition for transparency was hitting a nerve with Kentucky Secretary of State Michael Adams (left).
He took to social media and any news outlet who would listen, spewing vitriol at myself and other candidates who were also pursuing recounts.
- “They just want to take a crowbar to these machines and tear them up.”
- “These people are conspiracy theorists.”
- “I think they just want to watch the world burn.”
Any rational Secretary of State who truly cares about election integrity would welcome the opportunity for a hand count to compare with the machine totals reported on election night. Many constituents assumed we should check the many new voting machines being used for the first time in Senate District 24. This was not a scenario Secretary Adams wanted to entertain.
Throughout my court battle, I provided sample budgets and timelines from recounts of races similar in size. Even after overestimating timelines and costs, I still determined that the entire race, which constituted approximately 10,500 ballots, could be counted in 3 days for no more than $10,000.
Over my objections, the judge ordered that I would have to include Kenton County in the costs, despite it accounting for only 73 votes between the 3 candidates. I originally sought to omit Kenton County because of its large size and the subsequent increase in cost. After an open records request, I determined the exact locations in Kenton County where votes were cast in my race. At the bond hearing on July 28, Kenton County Clerk Gabrielle Summe confirmed we would not need to count the entire county of 20,000 ballots to simply verify the 73 cast in this race.
During this hearing, which lasted over 4 hours, several witnesses provided cost estimates for Judge Zalla to factor into his decision on the bond amount. Judge Zalla had previously stated that Campbell County Judge Executive Steve Pendery had said the courtroom of the Fiscal Court could be used for the recount. Suddenly, however, the State Board of Elections called Lieutenant Nick Chaplin of the Campbell County Sheriff’s Department to testify. Chaplin is a sitting member of the Campbell County Board of Elections, who then suggested with Campbell County Attorney Steve Franzen that the Fiscal Court was not a suitable location for the recount.
It struck me as odd that suddenly this plan was now off the table. The Fiscal Court provided superior video surveillance and security was allegedly of paramount importance to all parties. The ballooning timeline of 13 days was used to justify changing the location due to availability issues for the courtroom.
Conveniently, Lt. Chaplin immediately suggested an alternate location in the basement of the Newport Courthouse, which is the proposed home of a future law library. Campbell County residents will recall this space being previously used for driver’s licenses.
After court adjourned, Judge Zalla provided time for what he termed “open season,” where any of the witnesses, including county clerks, sheriff’s deputy, and county attorneys could voice their opinion on how the recount should proceed.
Following the “open season” mayhem, Lt. Chaplin enthusiastically took Judge Zalla, Mr. Brown, and myself to see his proposed location for the recount. Upon entering the location, a few things were readily apparent. There was minimal surveillance, it was an isolated space away from the rest of the courthouse, and there was a labyrinth of side rooms off the main room that were not surveilled by the lone camera. Despite my hesitations, Judge Zalla declared right there on the spot that this would be the location for the recount.
To follow up, I was instructed to draft a proposed order for the recount with the Board's attorney, Mr. Brown. We were instructed to find common ground, if possible. Mr. Brown sent over the first draft, including the new location and an estimated duration of 13 days. I argued for the Fiscal Courtroom with its superior video recording capabilities, since I believed the timeline was wildly exaggerated. The lone motion-activated camera in the proposed recount space was not adequate to keep track of anything going on in the side rooms, since walls blocked the line of sight to trigger its recording.
I also had reservations with specifically naming an individual from the Campbell County Sheriff’s Department to handle recount security. As I mentioned previously, Lt. Chaplin currently sits on the Campbell County Board of Elections, which is the local arm of the State Board of Elections who Mr. Brown represented in this case. This was a clear conflict of interest, so I suggested parity or replacement with independent security.
I also suggested moving machines on a weekday to reduce overtime, daily access to video surveillance, and more than one guest to accompany me to the recount. My requests were all ignored.
On Friday, August 5, around lunchtime, I finally received the judge's bond order. I was given until the following Monday at 1:00 P.M. to post a bond of $57,368.
Because I speculated for about a week that they would push for a high bond to discourage me, and allow as little time as possible to post it, I had begun fundraising efforts in earnest. Upon posting the bond, Secretary of State Adams took to his Twitter (left) to say that he hoped my fundraising was done legally and that I did not commit a Class D felony under KRS 121.990(3). Simply put, more smear tactics and false allegations.
On Tuesday, August 9, machines were transported from all 4 counties: Bracken, Campbell, Kenton, and Pendleton, to the recount site in the basement of the Newport Courthouse. Mr. Jack Porter had been appointed to oversee the count in the judge's absence. Despite not being allowed to select any of the counting team as I had suggested, I did still submit a list of over 20 names of individuals who were willing to count for free, none of whom were chosen by the court.
On Wednesday morning at approximately 7:45 A.M., I reported to the Newport Courthouse with my guest, a member of the local political media, 16 tabulators, the commissioner, county clerks, and the deputies in charge of security. As we were waiting, my guest and I became aware that Lt. Chaplin had a stash of yellow voting machine seals in his pocket. These seals are distributed by the voting machine vendors with serial numbers that are to be recorded on a chain of custody form. The only individuals who should be handling the seals are the voting machine vendors, county clerks, and poll workers. There was no court order directing the use of seals during the recount, so I was confused as to why Lt. Chaplin was in possession of the seals.
Things got even stranger upon entering the recount room. All of the machines were loaded into the rooms adjacent to the main counting room, in places where there was absolutely no video surveillance. The main room where tables were set up for tabulation was the only area with direct video surveillance.
The next thing we noticed was that many of the Campbell County machines were missing a yellow seal on the scanner. Upon inspection, it turns out that approximately 26 of the 61 voting machines were missing a yellow seal. This seal is required by law to be present once voting has concluded on Election Day.
KRS 117.275(2)(a) states, "As soon as the polls are closed, and the last voter has voted, the judges at that time shall immediately lock and seal the voting equipment so that the voting and counting mechanisms [scanner] will be prevented from operating, and they shall sign a certificate stating: (a) That the voting equipment has been locked against voting and sealed;" (emphasis added)
Take the Hart machines, for example, which are used in Bracken, Campbell, and Pendleton counties. We saw some well-sealed machines with a yellow seal on the scanner handle and a blue seal on the door to the ballot storage box. Since the Campbell County machines were a mix of present and missing yellow seals, I asked Campbell County Clerk Jim Luersen for the reason. He gave me a very noncommittal response, stammering something about the seal being needed for transport so that the scanner did not get jostled around.
This explanation was perplexing for a couple of reasons: First, the scanner is locked on the exterior; second, some of his machines had these seals while others did not. Did only some machines get jostled around during transit? These seals are not even used for that purpose, but rather to show no tampering has taken place which could compromise the integrity of the ballots.
Mr. Luersen never provided an adequate explanation for the mixed seal conditions for his machines, nor was I provided any chain of custody forms to verify serial numbers and any sealing/unsealing activity since Election Day. For these seals to be missing on so many of the machines with no chain of custody forms provided for inspection, I was immediately very concerned about the integrity of the process.
Furthermore, many of the seals (both yellow and blue zip ties) that were intact were loosely affixed, not zipped tight. The problem with a loose seal is that someone could still gain access to the ballots if they simply used the machine keys and opened the ballot box door or scanner top to the width of the seal’s girth. This would allow someone to not break the chain of custody technically since the seal from election night would remain intact, but the contents inside could be changed via adding or subtracting ballots.
It is important to note here that all of this was treated as no big deal. The room became very chaotic as tabulators selected their tables and began getting set up. As machines began to be wheeled out, I inquired about the machine serial numbers to verify we had the exact ones used on Election Day. The serial number is located inside the locked scanner, and I received serious pushback when I asked that it be unlock for verification. Lt. Chaplin was adamant that we would not unlock the scanner because we were only concerned with the ballots. The problem with this explanation is that the entire machine is interconnected. The scanner feeds directly through a hole into the ballot box. Anyone with keys and some know-how could easily slip ballots into a machine, as some of the power cords were stored outside of the locked compartment.
Lt. Chaplin claimed a short time later that Mr. Porter had called Judge Zalla regarding the request to open the scanners to verify machine serial numbers. He instructed me to check in with him once he returned. When Mr. Porter did return, I inquired about what he needed, and he seemed confused. There was nothing he needed to tell me, he said, and proceeded to give the order to take note of any missing yellow seals and unlock the scanners for serial number verification. This was within his purview as the commissioner appointed on behalf of Judge Zalla. We found out in court later on August 19 that Judge Zalla said he never received any call.
Over the course of the day, the commissioner allowed county clerks to mingle among the tabulators, despite the court order only allowing myself, my guest, and the Board such access. I noticed on several occasions that clerks were talking with tabulators and even handling ballots. Meanwhile, my guest was hassled by various deputies.
Another important part of the law requires that clerks turn over keys to the court to access the machines for a recount. Despite Lt. Chaplin having a set of keys, other individuals such as county clerks had keys during the recount as well. When one machine door became jammed, a deputy enlisted the help of the Campbell County Deputy County Clerk who retrieved a spare set of keys and assisted with opening the door.
When lunch break was called, ballots in progress were left out on a table with the promise that the deputies would be guarding the room. Anyone leaving the room was instructed to sign out. I had never been instructed to sign in to begin with. If I, the petitioner, was not asked to sign in, who else was not accounted for in the records?
By this point, I had seen enough to lead me to believe that the integrity of the process was severely compromised. I contemplated calling off the entire recount because of the lack of integrity, but decided to finish out the process since we would be able to complete the entire count in the same day. 1 day, not 13 or even 6 as the order stated. The recount concluded at approximately 5:15 PM and everyone was dismissed.
Two days later, I filed a motion for findings on the integrity of the ballots to pursue discovery of the paperwork I had not been allowed to see, such as seal serial numbers. I also filed an open records request for the security camera footage of the camera in the hall and the lone camera in the recount room.
Five minutes before the start of the hearing on August 19 to discuss my motion, I received an email stating my request for the surveillance footage had been denied. During this hearing, I became aware that the commissioner was still drafting his report, despite the original order to complete it in 1 day.
The county clerks’ argument was that the yellow scanner seal was not required to be on the machines. Campbell County Clerk Jim Luersen asserted that this seal was only used to “keep the crazies happy.” Mr. Brown referenced KRS 117.275(2) in part, omitting some of the critical language on locking and sealing the voting and scanning mechanisms to prevent them from operating. It seemed as though either the law was being misinterpreted on the spot, the county clerks were trying to weasel their way out of admitting they violated the law, or both.
One week later, August 26, the judge certified the election despite glaring discrepancies, stating the results as follows:
- Neal 3787
- Frommeyer 4094
- Robinson 2730 (who ended up with one vote less)
Cost estimates have begun to come in, but it is unclear what the full total cost will be and when I will receive a refund of any surplus funds. I have still not received the serial numbers for the seals or surveillance video. Machines were transported to their home counties on August 30, 20 days after the conclusion of the recount.
Secretary of State Michael Adams, who ceremonially certified the race prior to the judge’s ruling, took to his Twitter account (right) to demand an apology from me for wasting taxpayer resources when, in fact, I posted beyond a reasonable bond to cover all expenses. Additionally, his deputy, Jennifer Scutchfield, wrote on Twitter about those questioning seals, “You people are the scum of the earth.”
Regardless of where this challenge goes from here, I can say at this juncture it has been nothing short of eye-opening. Those who have nothing to hide, hide nothing. They don’t take to their government office Twitter accounts to deride a private citizen who simply wants to ensure we have free and fair elections, and they don’t weaponize the legal and judicial system to punish people who simply want transparency.
Kentucky Election Recount Uncovers Missing Voting Machine Seals, Highlighting Election Integrity Issues says Jessica Neal GOP Primary Candidate for State Senator who paid $57,368.00 for Ballot Recount in the Senate District 24 counties of Campbell, Bracken, Pendleton & a Portion of Kenton County
All Photos/Screenshots - Credit: Jessica Neal