On August 28, a petition was filed to the Clerk of the Marion Country District Court. The document lists Plaintiff Larry J. Cushenbery vs County Clerk Election Officer Tina D. Spencer and The Board of County Commissioners of Marion County.
Cushenbery was listed as a Republican candidate on the ballot for the office of Marion County Board of County Commissioners, District 1 for the Marion County Primary Election was held on August 7.
Spencer served as the elected County Clerk and Election Officer of Marion County. Her duties are described in the document as operating and overseeing elections in Marion County. She was in charge of election operations held on August 7 and was in charge of all election boards as well.
The document states that it is a civil matter regarding the election procedure and election results, and violation of the Kansas Open Meetings Act (KOMA), regarding the Marion County Primary Election, held on August 7. Cushenberry seeks declaratory judgment and a writ of mandamus compelling Clerk Spencer to list him as a candidate for the District 1 County Commissioners Office, for the general election to be held in November of this year.
“It’s not about being a sore loser. It’s not about trying to win. It’s nothing to do about winning or losing. When I was running as a candidate, on my platform, I promised to be honest, transparent and open with people so that they knew what was going on within their county government and where their money was being spent. Some of the things that I saw happen leading into the election and the night of the election – there’s questionable things being done, not for statute as I see it,” said Cushenbery, in an interview on Monday.
The petition states that KOMA declares that the policy of the state to be one where “meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.” Canvassing boards are considered special meetings but fall under the KOMA. However, the document also states that a few exceptions to “open to the public” are allowed, in order to ensure an orderly process.
According to the document, Cushenbery holds that procedures did not substantially comply with the Kansas statues governing elections. These are mandatory safeguards required to ensure the integrity of the election process and results. Further, due to the failure of the election to be conducted with the mandatory statutory guidelines, and open meeting requirements, the election results are uncertain due to the significant and deficient violations which occurred. As a result of these accusations, the election outcome would have changed if conducted properly and the number or statuary violations rendered the election’s outcome uncertain.
“The only way that’s left for me to deal with any of that, is the way that I am doing it. It’s called a suit but it’s really a writ of mandamus. Basically, if you research that it is the way the legislative branch makes sure statutes are followed. You take it to a judge and if the judge agrees that they weren’t done correctly, then the judge goes to them and requires them to do that as required by law,” said Cushenbery.
The petition states that due to the uncertainty of the election results, and the futility of a recount being accurate, Plaintiff seeks an order compelling Clerk Spencer to (have) his name placed on the fall, general election, in addition to Kent Becker’s, so that District 1 will have a chance to vote, unhampered, and in an legally conducted election.
“If this thing is all above hand, and it just appeared to not be legit, that’s fine. If I actually got beat by that many votes, I don’t know why someone would be that worried about having a run off in the fall, because they should still beat me by that many votes if it was legit. And if I lost, no biggie. It’s not about winning or losing but about holding true to a promise I made people that I would try and make things above board and transparent in the way it’s supposed to be,” said Cushenbery.
The document is filled with multiple statements of facts to support the claim of a breach of the KOMA in the August 7 election. Here are a few:
Cushenbery asked on two occasions to be allowed to watch the processing of the ballots, as they were taking from the polling box, sorted and ran through the optical scanner machine and he was denied both times by election officials.
Nobody other than election officials were allowed in the commission room during the processing, scanning and tallying of the ballots.
A wooden church pew was moved from the hallway and turned to block entrance into the commission doorway so observers could not go into the commission room at all.
Observers could not see clearly what items were taken out of a rolling tote or what the process was as the workers blocked their view. They also could not see where the rolling tote was taken throughout the process.
Observers could not see from the commission room doorway what activities or sorting/counting occurred as the machine was about 25′-30′ away.
An individual walked upstairs to the 2nd floor to see what was going on and why the public had been excluded from seeing any part of the process and was immediately escorted back down.
“One of the things I saw before the election was one of the people responsible for counting the votes the night of the election had a slanderous post on social media about me that was blatantly slanderous that I could prove. And he went on to state to vote for the other guy. And then that person is counting votes on the night of the election. That just seems kinda weird to me,” said Cushenbery. “If you hold that position that you are counting votes in that office, maybe you should refrain from doing those things. That’s the kind of thing I want to get correct. That’s the only thing that’s motivating me. I don’t give up easy.”
It is uncertain what the next steps are.
“I believe that the only thing that has been filed is the petition. I don’t know if anyone will hire an attorney until they are served,” said Clerk of the District Court Jan Helmer.
“Lawyers are taking care of things. Some amendments are being made. Then it will go before a judge and the judge will hear it and decide yes or no. The date is pending,” said Cushenbery. “I’ve got nothing to lose with this. I’ve had people call me with concerns saying ‘we don’t think this happened right; we don’t think that happened right’ so I am looking into it.”
Cushenbery’s lawyer, Lori Lalouette did not respond to efforts for an interview.
“I really can’t say anything right now, but at some point in the future, maybe I will. I’m not able to comment on it at this time,” said Election Officer Tina Spencer.
“I’m really not a sore loser. It’s not like that. I know they are trying really hard to make it sound like that, but I’m not real sure why. I mean if there’s nothing to hide…I’m gonna look like an idiot if they find that I really did lose by that much. I’m risking a lot here for the people to know if it was done right or wrong. And for them to try to say it looks like I am a sore loser beforehand kinda makes me suspicious to be truthful,” said Cushenbery.
