A Power Grab in Kentucky Sparks a Revolt
The September 2018 meeting of the Kentucky State Board of Elections was strikingly contentious. There was shouting, cross-talk and threats to eject staff — all playing out in a public forum in front of TV cameras.
But the most unusual moment, perhaps, was this: Two board members moved to rescind the votes they had cast at the previous meeting, only three weeks before. They claimed that Kentucky Secretary of State Alison Lundergan Grimes, whose position also makes her chairwoman of the State Board of Elections, or SBE, had essentially misled them into granting her unprecedented day-to-day power over the SBE. The board members’ efforts to void the resolution failed. Grimes cast the deciding vote.
Today, Grimes wields that new power over the SBE — and she’s facing a revolt by some staff as well as a loss of trust from many of the county clerks who administer elections, according to interviews with more than 30 people involved in the election-administration process, as well as documents and emails. “Alison has just got so much more access to things than any other secretary of state I’ve known,” said Julie Griggs, the clerk of McCracken County, who has worked in that office for 30 years. (Like Grimes, Griggs is a Democrat.) “It’s too much control for one person to have.”
Tension between Grimes’ office and the SBE has “turned our office upside down,” longtime SBE employee Sheila Walker wrote in an email to the board in August, adding that the agency had “never experienced anything like this in past years.”
Meanwhile, Grimes has slowed the process of cleaning the state’s voter rolls. That could put Kentucky out of compliance with an agreement it signed with the U.S. Department of Justice to improve the accuracy of its rolls. In an interview, Grimes denied the state was out of compliance.
Grimes asserts that as the state’s chief elections officer, it’s only natural that she exercises close control of both the secretary of state’s office and the SBE. She has cited the SBE’s resolution granting her day-to-day control of the agency as an endorsement of the breadth of her power. Consistent with the resolution and Kentucky law, Grimes has “taken an active role in the operations of the SBE,” according to a statement provided by her legal team. The statement denied that she has introduced partisanship into the SBE.
Kentucky has long split election oversight between two agencies to reduce the possibility of partisan control, according to experts. The secretary of state manages the candidate nomination process, while the SBE handles almost all other state election functions, such as maintaining voter rolls and coordinating with the 120 county clerks in the state who oversee polling sites.
In keeping with the goal of nonpartisanship, past secretaries have presided over the board meetings of the SBE but allowed its staff to run day-to-day operations unfettered. “It appears that Grimes views the SBE as an arm of her office,” said Trey Grayson, who served as secretary of state from 2004-11. “I certainly didn’t.”
Three state agencies are now investigating what multiple SBE staff members have called a “power grab” by Grimes. The investigations largely originated with complaints by those staffers, who charged that Grimes was encroaching on the SBE’s responsibilities.
One aspect of the secretary of state’s response to the investigations suggests how closely the agency oversees the SBE: An assistant secretary of state, Erica Galyon, requested the right to sit in when investigators question SBE staffers, as did Luke Morgan, a lawyer that Grimes retained to represent the SBE.
That proposal did not go over well with the Kentucky Personnel Board, one of the agencies investigating Grimes. A lawyer for the Personnel Board emailed Galyon and Morgan, rejecting their request to be present. The email quoted messages from unnamed SBE staffers. One noted, “Our staff has been intimidated enough…is it possible to request that they not be there?” Another employee wrote, “We all just want to do our job and not be in constant fear of SOS staff retaliation.” (Grimes’ statement defended Morgan’s right to be present for the investigative interviews but did not address Galyon’s role.)
The power struggles have led to a stalemate. SBE staff is unwilling to trust the secretary of state’s office, which they’ve been told to report to, and Grimes has been stymied in her attempts to remove the SBE’s two top executives.
SBE employees say Grimes’ team is controlling even basic tasks. For example, they say they’ve been barred from meeting with third parties — including the Department of Homeland Security, which regularly assists states with cybersecurity services — without consulting the secretary’s office.
The SBE has been barred from having staff meetings without someone present from the secretary’s office. The SBE is also no longer allowed to handle its own public records requests. Document requests made to the SBE for this article were decided by the office of the secretary of state.
Asked what’s driving Grimes’ efforts to expand the scope of her role, her communications director, Lillie Ruschell, said, “I think the secretary has made it pretty clear that first and foremost, it’s her job to [have day-to-day oversight] and second, she is somebody who is on the ground every year and every day.” Ruschell added: “She’s only as involved as she feels she needs to be. She’ll back off if she needs to, but if she needs to or wants to [be involved] that’s her prerogative.”
Grimes’ attempts to expand her power first surfaced publicly in the fall of 2017. That’s when Matt Selph, then assistant executive director of the SBE, filed a complaint against her to the SBE. Among other things, it detailed a litany of ways in which he claimed Grimes and her team were increasingly asserting control over the SBE: insisting on approvals of new hires and even that Grimes’ office had to vet any correspondence between SBE staff and the organization’s board.
Grimes and her supporters brushed off Selph’s complaint as a partisan attack by a Republican. She persuaded the board to fire him. Not, she maintained in a closed session, in retaliation, but because he had allegedly harassed two employees. In an interview for this article, Grimes said Selph was terminated “for the protection of the workers at the State Board of Elections.”
Don Blevins Sr., who was on the board at the time and voted against the termination, called the accusations “weak.” And interviews for this story with more than 25 people who had worked with Selph failed to turn up anyone who witnessed any harassment. Nearly all said they believed Grimes fabricated the accusation to justify the firing, a statement echoed by Selph, who fought in the Iraq War and asserted that Grimes attempted to portray him as a troubled veteran to try to tar him. (In her statement, Grimes did not address the allegations that she fabricated the claim. For his part, Selph filed a whistleblower lawsuit against the state.)
Complaints about Grimes cycled back into view in late August 2018. Jared Dearing, a Democrat who Grimes had selected as executive director of the SBE, filed a complaint that was strikingly similar to Selph’s.
Grimes snapped into action. She called an emergency meeting of the SBE for the next day, Aug. 28. At the meeting, most of which was closed to outsiders, she and Dearing squared off against each other, trading heated arguments as the board members watched in stunned silence.
Eventually, Dearing was asked to leave the room. After he departed, Grimes continued to assail him at length, using words she has repeated to the media multiple times since, that he has a “fundamental misunderstanding” of her office’s statutory authority. Her extended criticisms of Dearing left the impression that Grimes wanted him ousted, according to a person with close knowledge of the board.
The emergency meeting ultimately lasted six hours. Before it ended, Grimes took one more step that would spark a controversy. Having grappled directly and indirectly with Dearing over the extent of their respective sway, Grimes insisted that the board needed to at least reaffirm her powers.
Weary after the hours of combat, the board decided to “pacify” Grimes, according to the source with knowledge of the board and multiple others who have spoken to board members, by adopting a resolution that reaffirmed her powers. They viewed it as a harmless step.
The vote was 4-0 (two board members were absent and the chair tends not to vote unless there is a tie). But two of the four who voted would almost instantly regret their actions.
Only three weeks later, the board reassembled for a regular meeting, with a full complement of six members and the chair present. Republican members DeAnna Brangers and Josh Branscum attempted to rescind the previous vote.
“Frankly, I’ve come to regret my vote on it,” Brangers said, according to an audio recording of the meeting. Board members, she explained, were “under the impression that it really just codified things that are already written in state and federal law. I mean, who can argue with that?” After she began to look at the resolution in more detail after the meeting, Brangers said, she realized she’d made a mistake. (Brangers did not explain how she missed the plain language of the resolution, which stated that the secretary of state “is necessarily charged with the day-to-day oversight of regular operations of the Kentucky State Board of Elections and its staff. …”)
It was too late. The effort to rescind the vote split along partisan lines and Grimes cast the deciding vote against the motion. Since then, she has repeatedly pointed to the disputed resolution as proof of the board’s confidence in her.
That confidence isn’t universal. In late September, the Kentucky County Clerk’s Association presented a letter signed by all 120 clerks in support of Dearing and Jennifer Scutchfield, Dearing’s second-in-command. Kenny Barger, the Republican clerk in Madison County, co-authored the letter with a Democratic clerk. “It comes to a breaking point sometimes, where you just have to call it and speak out,” he said.
Clerks have begun calling board members to express concern. Many interviewed for this article contend that Grimes has damaged the relationships between her office and the clerks, people she has little authority over but whose cooperation she and the SBE need to implement statewide programs. Grimes is term limited as secretary of state — her tenure runs out at the end of 2019 — and clerks hope her replacement will be less controlling.
Another point of controversy has been Grimes’ handling of a federal order regarding voter-roll maintenance. SBE board members and staff argue that she has prevented the board from complying with the order.
Grimes has long opposed what she refers to as “purges” of the voter roll. Like many Democrats, she views them as attempts to suppress voting. In the wake of a June 2018 Supreme Court ruling that granted Ohio the ability to remove people’s registration if they skip voting for several elections and fail to respond to a mailer, Grimes said she would never remove Kentuckians from the rolls for that reason.
At the time, Kentucky was already under fire for improper list maintenance. In early 2018, the Department of Justice joined a lawsuit against the state filed by conservative activist group Judicial Watch. The DOJ alleged that, since 2009, Kentucky had violated federal law by failing to send postcards to verify that voters’ address records are up-to-date and accurate. The lack of checking, the DOJ claimed, resulted in a voter roll with numerous incorrect entries. The state signed a consent decree on July 3 that committed Kentucky to implementing the address-checking process now and in the future.
The process has revealed a significant number of outdated registrations. Almost 300,000 postcards have been returned as undeliverable, suggesting that those voters do not live at those registered addresses. That’s equivalent to about 8 percent of registered voters in the state.
But no further actions have been taken, and some staffers and board members believe that’s intentional. Dearing’s complaint alleges that the day the consent decree was signed, Grimes insisted he stop the address-checking process. A week later, after Dearing complained about the legality of the request, according to the complaint, then-assistant secretary of state Lindsay Hughes Thurston told him and Scutchfield they could restart, but they were to “slow walk” the process.
The delays have frustrated some county clerks. “That reflects on me,” said Griggs, the clerk in McCracken County. “My county. And I don’t like that.”
The Justice Department concluded that the SBE was dragging its heels, according to a letter DOJ attorney David Cooper sent to the state in mid-September. Kentucky had agreed to begin sending additional mailers before Aug. 8 and failed to do so. Among other things, the letter asserted that the SBE had “ceased” what had been productive working discussions “and directed that all further communication take place through outside counsel.” Cooper wrote that Kentucky had “fallen short of its obligations” under the consent decree. (Neither the DOJ nor Judicial Watch responded to requests for comment.)
Morgan, the lawyer Grimes retained for the SBE, responded to the DOJ letter, asserting that the Justice Department had in fact approved a delay in order to ensure no voter was unfairly disenfranchised. He has since claimed the same to board members, and emails show at least one board member has asked Morgan to send proof that the DOJ made such an agreement. To date, Morgan, who did not respond to a request for comment, has not done so.
Compliance with the consent decree has become a major part of one investigation of Grimes, according to people questioned by investigators. Kentucky’s attorney general appointed Mark Metcalf as an independent counsel last year, initially to examine the allegations raised by the SBE’s Dearing. Metcalf declined to comment, citing the ongoing investigation. (Grimes’ statement to ProPublica and the Herald-Leader did not address the issues raised about the consent decree.)
Grimes appears unlikely to change her approach even under the pressure of investigations. At the September SBE meeting, after the Executive Branch Ethics Commission issued an advisory opinion finding that her access to the voting registration system may require her to recuse herself from her role as chief elections officer in 2019 should she run for office, Grimes responded that the ethics commission was “all Republican” and that it was “attempting to try and justify their use of taxpayer dollars to have interference in this board.” She added, “No outside agency can determine how this board runs.”
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