Bevin said he "wanted the process to be followed" under law before he made a concession, referring to unspecified "irregularities" that were "corroborated."
The first step in that process under Kentucky law, when it comes to election results that are contested, should be as familiar to Bevin as anyone else in the state, as he won a razor-thin victory in the Republican gubernatorial primary of 2015 by margin of just 83 votes over now Rep. James Comer.
The first step under Kentucky law is a recanvass of the vote, which is a review of the vote totals by each county clerk — counting absentee votes and checking printouts to make sure the numbers they transmitted to the State Board of Elections were correct.
State law allows for a recanvassing if a county clerk or a county board of elections notices a discrepancy, or if a candidate makes a written request to the secretary of state.
Comer requested a recanvass of the vote totals in that 2015 race, but the results were unchanged. He declined to request the next possible step in the process under Kentucky law — a formal recount that includes a physical examination of the ballots.
There is no provision for an automatic recount under Kentucky law. A candidate must file a petition with the Franklin Circuit Court by the Tuesday following the election.
If petitioned, the judge would take possession of the paper ballots and voting machines and conduct their own recount. After doing so, the judge would make the final decision on who won the race, but that would be subject to appeal to the Kentucky Court of Appeals or the Kentucky Supreme Court.
Joshua Douglas, a professor in the University of Kentucky Law School, told The Courier Journal that while Bevin would not be charged for the costs of a recanvass should he want one, he would have to pay for a recount.
Most people would stop here and concede. But Bevin won't, because Donald Trump will not let him do so. Monday night, Trump put his neck on the line for Bevin, and Trump doesn't repay failure well. Bevin's career is over unless he makes good on Trump's promise. So here's where things get ugly.
The third step that a candidate could take is a formal election contest, which must also be filed by the Tuesday after the election. Under this contest, the candidate challenging the results must specify the grounds for the action, such as a violation of campaign finance rules or specific problems when it comes to how ballots were cast.
Last but not least, there is Section 90 of the state constitution, which addresses a "contest of election for Governor or Lieutenant Governor."
Section 90 states: "Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law."
You catch that? Bevin is already complaining of "irregularities" in the vote that are "corroborated". He's already on step one as of this afternoon. He has a week for steps two and three in order to set up step four: election theft.
Sam Marcosson, a constitutional law professor at the University of Louisville Brandeis School of Law, told The Courier Journal that this language of the state Constitution suggests there must be procedure established by law for a review of a contested election to take place by the House and Senate.
“They can’t just make them up,” Marcosson said.
Further, he said, such a review would be extremely risky for lawmakers to undertake without clear reasons for a contested election.
“If the House and Senate were just to proceed on vague allegations without proof, that raises serious questions about disenfranchisement of the voters who voted for Attorney General Beshear,” Marcosson said. “It’s an extraordinary proposition to suggest that the General Assembly would take vague allegations of unspecified irregularities and call into question a gubernatorial election.”
Douglas, noting that he had “no idea” what irregularities Bevin referred to in his speech to supporters Tuesday night, said in the case of a legislative election contest, Bevin would have to call a special session of the General Assembly. Douglas said his session would involve a committee of 11 members, eight from the House and three from the Senate, which “would hear evidence and make a final determination. And that determination would be final.”
After that committee decision, no lawsuits could be filed over the decision, Douglas added.
Watch this very closely. I promise you the GOP dirty tricks department is gaming this scenario out right now.
The Battle for Bevinstan is just beginning.