By Jeremy D. Wells
Carter County Times
Embattled mayoral candidate Fred Miller met his challenger in court last week when the judge held the first hearing in the lawsuit brought by Larry Doucet to disqualify Miller’s candidacy.
Doucet’s suit alleges that Miller, as a convicted felon, is ineligible to hold public office. Miller was convicted of obstructing and secreting mail for holding mail in storage rather than delivering it in a timely manner.
Doucet’s lawsuit points out that convicted felons are ineligible to hold office in Kentucky unless pardoned.
Miller’s lawyer, Robert Miller, would eventually argue that his client had lived in Ohio at the time of his conviction and home confinement and that in Ohio a felon’s rights are returned after completing their sentence – meaning Miller’s rights were restored before moving back to Kentucky. He also pointed out that Fred Miller returned to military service, serving his nation in Iraq and earning a Purple Heart and two Bronze Stars, has been a registered voter since returning to Kentucky, and was even called for jury duty in circuit court. None of this, he argued, would have been possible if his client’s rights had not been restored.
He began, however, by attempting to have Doucet’s lawsuit dismissed on a technicality. The lawsuit enjoins Carter County Clerk Mike Johnston, in his role as clerk and chair of the board of elections, but it also enjoins the board of elections as a body. Miller said precedent indicated they needed to name and enjoin members of the board of elections separately, by name, rather than enjoining them as a body. Judge Rebecca Phillips took it under advisement, but proceeded with the hearing.
John McGinnis, the KACo (Kentucky Association of Counties) appointed attorney for Johnston and the board, had no opinion on the claim.
During his opening questioning of Miller, Doucet’s attorney Justin Criswell asked Miller if he was a convicted felon, to which Miller replied, “I was at one time.”
Criswell and Miller then detailed the terms of his plea agreement – six months of home confinement followed by three months of probation – and the penalty if he had violated those terms. There was no indication that Miller had violated the terms of his plea or taken any action without the express knowledge and permission of his probation officer.
Criswell also asked Miller if he was aware of the KRS policy when he filed to run for mayor, to which Miller replied he was not. He then asked Miller if he has since filed for the return of his rights in Kentucky, which he answered in the affirmative. He said he filed for the return of his right in September, after being served with the lawsuit.
While both Fred Miller and his attorney, Robert Miller, contend that Miller’s rights were returned upon completion of his plea deal, they said they’ve applied for the governor’s pardon/return of rights simply as a precaution.
During questioning of Doucet, Miller’s attorney asked him to tell the court his full name, to which he replied, “Larry Bruce Doucet Sr.”
Miller then asked if that had always been his name. Doucet said no, indicating that until age 17 he was known as Larry Bruce Gebhart. Doucet later explained to the Times that he took his biological father’s surname after his mother and stepfather split.
Robert Miller also asked Doucet if he knew Fred, to which Doucet replied, “no.”
Miller then asked if he had ever had occasion to speak to Fred, to which Doucet replied he had attempted to, but that he would not speak to him. Doucet didn’t indicate if this was before or after filing the lawsuit, and Miller did not ask.
Miller also asked Doucet if he thought it was too late to change the ballot, and if that wouldn’t lead to additional costs for the county.
Doucet said he didn’t think it would cost anything to strike Miller from the ballot, indicating that voting was done electronically. However when County Clerk Mike Johnston was questioned later, he indicated that it would lead to an increased cost for the county. While voting is tallied electronically, he said, they are now required to have a hybrid system, with a physical backup, for voting security. Voting is completed, he said, by filling in a bubble on a paper ballot that is then scanned so a digital count can be compiled.
Miller also asked about the absentee ballots which have already been mailed and early voting. “Would you acknowledge that some absentee ballots have already been casts?” Miller asked.
“I imagine so,” Doucet responded.
Miller and Doucet then clashed on whether or not the governor could pardon Fred.
Robert Miller asked Doucet if he proposed not counting those votes until Fred Miller had secured a pardon, provided he could before swearing in.
Doucet countered that the governor couldn’t pardon Miller for a federal crime, which led to a back and forth about jurisdiction. Miller pointed out that the statute Doucet based his claim on was built around the premise that the governor could pardon an individual to allow them to run. The implication here is that if the governor can’t pardon Miller, then the motion is based in part on a false premise.
Doucet and Miller then clashed over whether or not Miller could receive a pardon before being sworn in – with Miller asserting that the will of the voters should be heard and the votes only dismissed if the court found Fred was ineligible and he didn’t receive a pardon in time.
Doucet, however continued to assert that there was no way for Miller to receive a pardon in time because he needed a Presidential pardon, not a governor’s pardon.
The judge would later state that she didn’t believe Doucet’s assertion that Miller needed a Presidential pardon, or that the governor couldn’t return his rights, because of the wording of the statute in question.
Miller than asked Doucet how he, as an individual, would be prejudiced if they allowed voters to cast their votes for the candidate of their choice. If it was found Miller was then ineligible, he said, he wouldn’t be able to take his seat.
Doucet said that it would be problematic for the city because council would then have to pick a mayor from council and then fill the council seat.
Miller, though, asked again how it would prejudice Doucet, not the city.
Doucet said anything that hurt the city hurt him as a businessman residing and doing business within the city.
Miller than asked Doucet if he was aware of Miller’s military service, both before and after his conviction, to which Doucet replied, “no.” “Are you aware he was awarded a Purple Heart, and two Bronze Stars? Don’t you feel that’s something the community can be proud of?” Miller asked.
“I wouldn’t, but some would,” Doucet responded, adding “it’s a shame he didn’t serve (in that manner) as a mail man.”
Questioning between Miller and Doucet then degraded to the point that Miller requested, and the judge ordered, Doucet to answer the questions directly and not be argumentative.
Miller then moved into his line of questioning related to his assertion that the statute doesn’t prevent a convicted felon from running, only from holding office, which Doucet said he was also unaware of.
On redirect Criswell asked Doucet if would “have a problem with (Fred Miller) staying on the ballot and not counting votes” cast for him. Doucet said he would have no problem with this.
But when he was questioned, Johnston indicated that – like with the paper ballots – this would also cause issues for the board of elections. In this case, he said, because it would mean they couldn’t report any results from the five districts that have portions of their voters in Grayson until after they had redacted Miller’s votes from the record. Because of this, he said, full results might not be available until the next morning rather than on election night.
Johnston said all paper ballots had already been mailed out for absentee voters requesting mail-in ballots. He said they’ve already received 400 of those ballots back. He said they were also already starting “in house absentee voting” for the elderly, sick, or those who will be out of town for work during the election.
He said if the judge ordered Miller be removed from the ballot the new ballots would have to be printed now, and it was too late to strike his name from any already mailed absentee ballots.
Johnston said it would absolutely increase the county’s costs if they had to print new ballots, and they could only get them in time if they requested them immediately.
Criswell asked if it would lead to a cost increase if they simply ordered them not to count the votes instead of printing new ballots. Johnston said it wouldn’t cost them anything in materials, but indicated it would take more time.
He also indicated they wouldn’t be able to show the results for any races in those districts on the courthouse screen, or release the ballot results until they had physically marked out the votes for Miller. “We’d have to mark them out before anyone could see,” Johnston said.
“So you couldn’t release jailer or judge executive results in those precincts?” Phillips asked.
“No,” Johnston said. “Not until it was marked out.”
He said they could show they results for those other precincts as they came in, but they weren’t going to be the correct and final results.
“It will probably be (early into) the morning,” before results are released if they have to mark everything out by hand, he said.
On his return to the stand Miller related his military service, returning to the Army from 2009 to 2016, for another seven years and a total of 15 years of service. He also related having been called for and reporting to jury duty, even claiming to have drawn a check for the day though he didn’t actually set for a trial, however a preliminary search by Phillips’ clerk could find no record of Miller having been paid.
Miller’s attorney also asked if he requested a criminal records check in Kentucky, which Miller answered in the affirmative, and noting that no results were returned. His attorney also asked if he had, “in an abundance of caution” submitted a petition for a governor’s pardon after the filing of the lawsuit, which Miller also answered in the affirmative.
Miller also said he was a good faith candidate, that he was confident he would get a pardon because of the Ohio statutes, that he had never been incarcerated, and that he felt the voters should have their voices heard.
“I say let the voters have their voice, and see if my rights are legally restored,” Miller said.
When Criswell re-examined Miller he asked why he applied to be pardoned if he believed he already had his rights. Miller said he had done so simply to cover all his bases. He noted that in addition to voting and serving in the military, he had passed all necessary background checks to work for the TSA and was only disqualified on the physical tests because he is a 100 percent disabled veteran. He said he answered correctly that he had been convicted on his application, but there were no results returned on a criminal background check.
After questioning from the judge about his time being called for jury duty, Robert Miller made a request for the motion against Fred Miller to be dismissed. None of the restrictions on office applied to his client, Miller said, and even if they did apply, there was no time to remove his name from the ballot. He further claimed that the statute in question related to partisan elections and political parties only, and not to non-partisan offices such as mayor. Criswell, however, said the statute related to both partisan and non-partisan races. Phillips noted there had been some changes to statutes and that she would have to review those changes, as well as the Ohio statutes related to restoration of voting rights. But, as she noted earlier, voting rights are not exactly the same as eligibility for office.
“It’s not whether he has the right to vote,” Phillips said. “It’s whether he qualifies for candidacy.”
It was at this point, as well, that the judge disagreed with Doucet’s earlier assertion that a Presidential pardon was necessary.
Robert Miller said that given Fred’s military service and background, he was convinced the governor would grant a pardon. When the judge asked what if he did win, however, and the courts then determined he was ineligible and the governor didn’t issue a pardon, Miller answered that he felt “the most important thing should be the will of the voters.”
Criswell, in his closing statements, countered that they still contended Miller was “not a bonafide candidate” and that the “problem is he was not qualified when he filed to run.”
Phillips said they would return for another hearing as soon as possible before the election. In the meantime, she said, she would look further into the Ohio and Federal statutes.
“This isn’t a situation of living in city limits,” she said. Rather, she said, it “is a complete legal argument” involving federal statutes and the laws of two different states.
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