Update: On Friday afternoon, Republican State Senate President Robert Stivers backed off his earlier statements floating the possibility that the Kentucky legislature could reverse the results of this week’s election for governor. According to the Louisville Courier Journal, Stivers believes “Gov. Matt Bevin should concede his loss to Democrat Andy Beshear if next week's recanvass doesn't significantly change the vote totals.” Our headline has been updated. The original post is below.
With Kentucky Gov. Matt Bevin trailing Democrat Andy Beshear by more than 5,000 votes, Bevin’s fellow Republicans in the legislature are now plotting to overturn the results of this week’s election for governor. With all precincts reporting, Beshear leads 49.2 to 48.8, a margin of 5,189 votes. In typical Trumpian fashion, Bevin has repeatedly claimed that the election was marred by "voting irregularities," but, reported the Louisville Courier Journal on Wednesday, his campaign had "not replied to multiple requests asking for any of those examples." In a press conference later that day, Bevin offered a few hazy allegations but provided no proof that anything had gone awry during the election.
Bevin has also sought a recanvass of the results. Not that there are any problems to uncover, but a recanvass—which differs from a recount—wouldn't find them anyway. In a recanvass, officials simply check the tallies reported by each voting machine and compare them to the numbers that were reported to the state Board of Elections. (To seek a recount, in which all ballots would be individually reviewed, Bevin would have to petition a court and pay the entire cost.)
Barring an impossible profusion of tabulation errors, then, the end result won't change as a result of a recanvass—something Bevin knows well, since a recanvass of his narrow 2015 primary win didn't budge his 83-vote lead by even a single vote. In fact, a recanvass has never altered the outcome of an election in Kentucky.
The goal, however, is not to clarify the results but rather sow confusion about them—and, if state Senate President Robert Stivers has his way, throw the election to the GOP-dominated legislature. Speaking to reporters right after the election, Stivers cited Section 90 of the state constitution, which specifies that "[c]ontested elections" for governor "shall be determined by both Houses of the General Assembly." It’s a provision that hasn't been used since 1899.
There are no grounds, of course, for such a contest, but Stivers is happy to invent one: He said it was "appropriate" that Bevin hadn't conceded because he thinks that most of the votes received by Libertarian John Hicks, who won just under 2% of the vote, "would have gone to Bevin."
This is as bonkers as it is anti-democratic. For starters, Kentucky obviously doesn't have any sort of instant-runoff voting, though Stivers surely could have passed such a law at any point during the last three years, when Republicans held complete control of state government. In our actual reality, rather than Stivers' fantasy, Hicks was in fact on the ballot and therefore his vote wouldn't "have gone" to another candidate—it did go to Hicks and Hicks alone. Stivers can't now retroactively invent a kinda-sorta instant runoff on his own say-so.
What's more, there's good reason to think that Hicks' supporters want nothing to do with Bevin. In a statement posted on Facebook, the Libertarian Party of Kentucky said, "[W]e are always happy to split the vote in a way that causes delicious tears. Tonight there are plenty of delicious tears from Bevin supporters." The post continued, "We split the vote. And we could not be more thrilled. If our friends in the major parties do not want this to happen again, they should think about passing ranked choice voting."
On Thursday, Stivers’ counterpart in the state House, Speaker David Osborne, similarly did not rule out the possibility that the legislature could intervene to pick a winner. In a statement, Osborne would only say that if Bevin "chooses to file a formal election contest, the House Majority Caucus will handle the matter in a legal, ethical, and appropriate manner…." Osborne's invocation of the "House Majority Caucus" as the responsible entity is notable, because it would mean he plans to exclude Democrats from adjudicating any contest of the election.
Now, a conservative activist is making robocalls trawling for reports of "suspicious activity at polling locations," though Republicans don’t even need any actual evidence to proceed: The state constitution doesn’t require any proof of voter fraud or any other problems at all for the legislature to overturn the results of an election. While a handful of rank-and-file Republican lawmakers have expressed some skepticism about the prospect, GOP leadership in the statehouse has done the opposite.
Bevin has yet to take any formal steps toward seeking a recount or contesting the election, though he'll likely wait until after the recanvass, which Democratic Secretary of State Alison Lundergan Grimes says will take place on Nov. 14. Republicans won't have much time to launch any schemes to steal the election after that date, though, as Beshear's inauguration is currently set for Dec. 10. But anyone who cares about democracy needs to remain on red alert.
