                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 10a0279p.06

             UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                  X
 Individually and on behalf of the class of 542 -
 GENEAL WARF and GLENN GUPTON,
                                                   -
 disenfranchised Green County, Kentucky            -
                                                   -
                                                        No. 09-5265
 absentee voters,
                          Plaintiffs-Appellants, ,>
                                                   -
                                                   -
                                                   -
            v.
                                                   -
 BOARD OF ELECTIONS OF GREEN COUNTY,               -
                                                   -
                                                   -
 KENTUCKY; CAROLYN SCOTT, Chairperson,
                                                   -
 Board of Elections of Green County,
                                                   -
 Kentucky; TIMOTHY STUMPH; SAMUEL E.
 THOMPSON; JERRY ARNETT, Members, Board -
                                                   -
                                                   -
 of Elections of Green County, Kentucky;

                         Defendants-Appellees, -
 GREEN COUNTY, KENTUCKY,
                                                   -
                                                   -
                                                   -
               Intervening Defendant-Appellee. -
 BILLY JOE LOWE,

                                                   -
                                                   -
                                                  N
                      Appeal from the United States District Court
                for the Western District of Kentucky at Bowling Green.
               No. 08-00072—Thomas B. Russell, Chief District Judge.
                            Argued: January 21, 2010
                      Decided and Filed: September 1, 2010
           Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.

                               _________________

                                    COUNSEL
ARGUED: Joseph H. Mattingly III, MATTINGLY & NALLY-MARTIN, PLLC,
Lebanon, Kentucky, for Appellants. Bobby H. Richardson, RICHARDSON,
GARDNER, BARRICKMAN & ALEXANDER, Glasgow, Kentucky, Harold M. Johns,
OFFICE OF THE COUNTY ATTORNEY, Elkton, Kentucky, Jonathan G. Hieneman,
HIENEMAN LAW OFFICE, Campbellsville, Kentucky, for Appellees. ON BRIEF:
Joseph H. Mattingly III, MATTINGLY & NALLY-MARTIN, PLLC, Lebanon,

                                         1
No. 09-5265            Warf et al. v. Board of Elections of Green                                  Page 2
                       County, Kentucky et al.


Kentucky, for Appellants. Woodford L. Gardner, Jr., RICHARDSON, GARDNER,
BARRICKMAN & ALEXANDER, Glasgow, Kentucky, Harold M. Johns, OFFICE OF
THE COUNTY ATTORNEY, Elkton, Kentucky, Jonathan G. Hieneman, HIENEMAN
LAW OFFICE, Campbellsville, Kentucky, for Appellees.
                                        _________________

                                               OPINION
                                        _________________

         JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants Geneal Warf and
Glenn Gupton1 (“the Warf appellants”), individually and on behalf of a class of
542 absentee voters, appeal the district court’s order denying their motion for a
preliminary injunction and granting summary judgment to defendants-appellees the
Board of Elections of Green County, the Chairperson2 and Members of the Board of
Elections, the county of Green County, Kentucky and Billy Joe Lowe, on the Warf
appellants’ 42 U.S.C. § 1983 claim of unconstitutional disenfranchisement. The Warf
appellants allege that their voting rights under the Fourteenth Amendment were violated
by a Kentucky state trial court judgment that declared void all 542 votes cast by absentee
ballot in the 2006 General Election for the office of Green County Clerk. The district
court determined that the Kentucky trial court’s decision to void every absentee ballot
cast followed Kentucky precedent and therefore did not rely on non-uniform rules,
standards, and procedures in violation of due process.

         For the following reasons, we affirm the judgment of the district court.




         1
          Washington Vaughn, the representative plaintiff at the start of the litigation, was voluntarily
dismissed from the case by the district court on June 9, 2008.
         2
           Carolyn Scott, the former Chairperson of the Board of Elections of Green County by virtue of
her position as Green County Court Clerk, was named as a defendant in the action in her capacity as
chairperson. Her brief on appeal, filed after her removal from office, adopts the arguments set forth by the
Plaintiffs-appellants.
No. 09-5265              Warf et al. v. Board of Elections of Green                                    Page 3
                         County, Kentucky et al.


                                                      I.

         The facts underlying the voters’ challenge arise from the 2006 election for the
office of Green County Court Clerk. The November 7, 2006, general election held in
Green County, Kentucky featured a race for the office of court clerk between the
incumbent Democratic candidate, Carolyn Scott (“Scott”), and the Republican
challenger, Billy Joe Lowe (“Lowe”). After the polls closed, the Board of Elections of
Green County (“Board of Elections”) certified Scott as the winner of the election as she
received the majority of the total votes cast. Although Lowe received the majority of
votes cast by machine, Scott received enough absentee votes to prove victorious by a
margin of 151 votes.3

         Lowe thereafter filed suit in the Green Circuit Court4 to contest the election
results, claiming that there had been irregularities in the handling of absentee voting
during the election. Lowe alleged that Scott, who had served one four-year term as clerk
prior to the 2006 election and had previously served for twenty-eight years as deputy
clerk, engaged in multiple improprieties including affixing campaign materials to
absentee voting applications that were sent to prospective absentee voters and placing
the absentee voting machine in her personal office instead of elsewhere in the clerk’s



         3
             The results of the machine totals and absentee ballots are as follows:
                              Machine Total                Absentee Total             Total Votes
Carolyn Scott (D)             2,172                        364                        2,536
Billy Joe Lowe (R)            2,207                        178                        2,385
         4
             Pursuant to Ky. Rev. Stat. Ann. § 120.155:
         Any candidate for election to any state, county, district or city office (except the office
         of Governor, Lieutenant Governor, member of the General Assembly, and those city
         offices as to which there are other provisions made by law for determining contest
         elections), for whom a number of votes was cast equal to not less than twenty-five
         percent (25%) of the number of votes cast for the successful candidate for the office,
         may contest the election of the successful candidate, by filing a petition in the Circuit
         Court of the county where the contestee resides . . . .
The action then proceeds as an equity action before the Circuit Court, which may either “adjudge that
there has been no election” upon a finding of “fraud, intimidation, bribery or violence in the conduct of
the election so that neither contestant nor contestee can be judged to have been fairly elected” or may
adjudge “one of the parties . . . to be elected to the office.” Ky. Rev. Stat. Ann. § 120.165(4).
No. 09-5265            Warf et al. v. Board of Elections of Green                               Page 4
                       County, Kentucky et al.


office. Lowe sought to have all 542 absentee ballots cast in the election declared void
and be certified the winner of the election.

       On June 2, 2007, a special judge of the Green Circuit Court issued findings of
fact, conclusions of law, and final judgment in the case. The court determined that Scott
had placed campaign stickers on the outside of at least thirteen envelopes containing
absentee ballot applications—not the absentee ballots themselves—between September
19 and October 9, 2006. Prior to sending out the ballot applications, Scott had sought
legal advice and was advised by a local attorney that “inasmuch as the envelopes
contained applications and not ballots there would be no problem” in placing the stickers
on the envelopes. On October 9, 2006, however, Scott received a telephone call from
the Kentucky Attorney General’s Office about the practice and subsequently stopped
using the campaign stickers. On October 16, 2006, Scott received a letter from that same
office advising her that the use of campaign stickers on official correspondence sent
from her office was, at a minimum, inappropriate. The court further determined that
Scott had placed the absentee voting machine in her personal office rather than
elsewhere in the clerk’s office and that the door to Scott’s office was closed at times
when other persons, including potential absentee voters, were in Scott’s office with her.

       The court then concluded that Scott’s conduct amounted to “two distinct election
irregularities.” First, Scott “used county funds to promote her own campaign by sending
campaign stickers on absentee ballot applications” in violation of, “at a minimum,” Ky.
Rev. Stat. Ann. § 117.085(2), which prescribes the form for transmitting absentee ballot
applications and absentee ballots.5 Second, “Scott improperly used her office by placing

       5
           Section 117.085(2) provides:

       The clerk shall type the name of the voter permitted to vote by absentee ballot on the
       application form for that person’s use and no other. The absentee ballot application
       form shall be in the form prescribed by the State Board of Elections, shall bear the
       seal of the county clerk, and shall contain the following information: name,
       residential address, precinct, party affiliation, statement of the reason the person
       cannot vote in person on election day, statement of where the voter shall be on
       election day, statement of compliance with residency requirements for voting in the
       precinct, and the voter’s mailing address for an absentee ballot. The form shall be
       verified and signed by the voter. A notice of the actual penalty provisions in [Ky.
       Rev. Stat. Ann. §] 117.995(2) and (5) shall be printed on the application.
No. 09-5265         Warf et al. v. Board of Elections of Green                       Page 5
                    County, Kentucky et al.


the absentee voting machine within her personal office, affording her the powerful
opportunity to influence potential voters as they made use of the machine.” The court
then identified the case as one “fall[ing] into a very special category of election contest
cases,” in that it involved allegations that an incumbent clerk misused her own office to
her electoral advantage. The court reviewed Kentucky law involving county-clerk
election contests and concluded that precedent placed upon Scott, as the incumbent
clerk, “the burden of showing ‘that the balloting was conducted legally, and that all
requirements of the law to insure its fairness, at least, were met substantially.’” See
Crowe v. Emmert, 305 S.W.2d 272, 274 (Ky. 1957). Because Scott could not meet this
burden, and in light of the court’s finding that Scott’s conduct “so tainted the entirety of
the absentee ballots cas[t] via machine and paper in the election for the office of Green
County Court Clerk . . . [such that it] call[s] into question the integrity of all said
ballots,” the court voided all 542 absentee ballots cast and declared Lowe to be the
“Winner.”

        Scott thereafter filed an appeal with the Court of Appeals of Kentucky, which
dismissed her appeal as untimely. Scott’s subsequent petition for discretionary review
was denied on December 10, 2008.

        While Scott’s Petition for Discretionary Review was pending before the
Kentucky Supreme Court, the Warf appellants filed the instant action in federal court.
The Warf appellants moved for a preliminary injunction to enjoin the Board of Elections
from enforcing the judgment of the Kentucky trial court. The appellees thereafter moved
for summary judgment and dismissal. On March 3, 2009, the district court granted
summary judgment in favor of the appellees and denied the Warf appellants’ request for
injunctive relief. Warf v. Bd. of Elections, No. 1:08-cv-72-R, 2009 WL 530666 (W.D.
Ky. Mar. 3, 2009). The district court determined that the Kentucky trial court “did not
stray from past Kentucky precedent and that the burden of proof was properly placed on
the incumbent clerk” and that there was no indication that the Kentucky court had “relied
on ‘non-uniform rules, standards, and procedures’” in deciding to void the absentee
No. 09-5265        Warf et al. v. Board of Elections of Green                      Page 6
                   County, Kentucky et al.


ballots. Id. at *6. The district court therefore concluded that a constitutional violation
had not been established and declined to intervene in the matter. Id.

       The Warf appellants timely appealed.

                                           II.

       On March 25, 2009, the Warf appellants filed a motion before this court seeking
certification of a question of law to the Kentucky Supreme Court.        They sought to
certify the question of:

       Whether Kentucky law provides an exception to the general rule that in
       a Regular Election Contest the burden of proof rests with the contestant,
       thus re-assigning the burden of proof to the contestee in circumstances
       where the contestee is the incumbent county clerk.

The Warf appellants concurrently filed a similar Petition for Certification of Law before
the Kentucky Supreme Court. That petition was denied by the Kentucky Supreme Court
on October 1, 2009.

       “The decision whether or not to utilize a certification procedure lies within the
sound discretion of the district court.” Pennington v. State Farm Mut. Auto Ins. Co., 553
F.3d 447, 449–50 (6th Cir. 2009) (quoting Transam. Ins. Co. v. Duro Bag Mfg. Co., 50
F.3d 370, 372 (6th Cir. 1995)) (internal quotation marks omitted). “Certification is most
appropriate when the question is new and state law is unsettled,” but the “federal courts
generally will not trouble our sister state courts every time an arguably unsettled
question comes across our desks.” Id. (citations and internal quotation marks omitted).

       Certification of the question presented here is inappropriate under the
circumstances. As noted above, the Kentucky Supreme Court has already denied the
appellants’ request to certify the question. The appellants also did not raise the
certification request before the district court, therefore causing that court to expend
considerable time and resources addressing the question. See id. at 450. Finally, there
is applicable Kentucky precedent to guide our consideration of the issues before us. For
these reasons, we deny the certification motion and will resolve the case on its merits.
No. 09-5265        Warf et al. v. Board of Elections of Green                       Page 7
                   County, Kentucky et al.


                                           III.

       This court reviews a district court’s grant of summary judgment de novo. White
v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008); Williams v. Mehra, 186
F.3d 685, 689 (6th Cir. 1999) (en banc). Summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). We must review all the evidence, facts, and
inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In order to defeat a summary
judgment motion, the nonmoving party “must show sufficient evidence to create a
genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297 F.3d 438,
442 (6th Cir. 2002). Entry of summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       “The right to vote is a fundamental right, ‘preservative of all rights.’” League of
Women Voters v. Brunner, 548 F.3d 463, 476 (6th Cir. 2008) (quoting Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886)). Because “the right to exercise the franchise in a
free and unimpaired manner is preservative of other basic civil and political rights, any
alleged infringement of the right of citizens to vote must be carefully and meticulously
scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). The Constitution, however,
“‘leaves the conduct of state elections to the states.’” Shannon v. Jacobowitz, 394 F.3d
90, 94 (2d Cir. 2005) (quoting Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)).
The “[p]rinciples of federalism,” therefore, “limit the power of federal courts to
intervene in state elections.” Id. at 94 (quoting Burton v. Georgia, 953 F.2d 1266, 1268
(11th Cir. 1992)) (internal quotation marks omitted). Courts “have long recognized that
not every state election dispute implicates federal constitutional rights.” Burton, 953
F.2d at 1268. As such, “‘[o]nly in extraordinary circumstances will a challenge to a state
[or local] election rise to the level of a constitutional deprivation.’” Shannon, 394 F.3d
No. 09-5265         Warf et al. v. Board of Elections of Green                       Page 8
                    County, Kentucky et al.


at 94 (quoting Curry v. Baker, 802 F.2d 1302, 1314, (11th Cir. 1986)) (alteration in
original).

        We have held that “[t]he Due Process clause is implicated, and §1983 relief is
appropriate, in the exceptional case where a state’s voting system is fundamentally
unfair.” Brunner, 548 F.3d at 478 (citing Griffin v. Burns, 570 F.2d 1065, 1078–79 (1st
Cir. 1978)). “[D]ue process is implicated where the entire election process including as
part thereof the state’s administrative and judicial corrective process fails on its face to
afford fundamental fairness.” Griffin, 570 F.2d at 1078. Such an exceptional case may
arise, for example, if a state employs “non-uniform rules, standards and procedures,” that
result in significant disenfranchisement and vote dilution, Brunner, 548 F.3d at 478, or
significantly departs from previous state election practice, see Roe v. Alabama, 43 F.3d
574, 580–81 (11th Cir. 1995) (intervening where failure to exclude contested absentee
ballots constituted a post-election departure from previous state practice); Griffin, 570
F.2d at 1079 (intervening where state court disrupted seven-year practice of voting by
absentee and shut-in ballot). Federal courts, however, “have uniformly declined to
endorse action[s] under [§] 1983 with respect to garden variety election irregularities.”
Griffin, 570 F.2d at 1076; see also Brunner, 548 F.3d at 478 (“[T]he federal courts
should not be asked to count and validate ballots and enter into the details of the
administration of the election.” (citation and internal quotation marks omitted)).

        It is evident from the record that the Green Circuit Court’s decision to void all
of the absentee ballots cast altered the outcome of the election and resulted in significant
disenfranchisement. The decision impacted eleven percent of the voting electorate and
resulted in Lowe’s being declared the winner. See Warf, 2009 WL 530666, at *1. While
this level of impact may be sufficient to warrant federal intervention, the result must rise
to the level of fundamental unfairness. See Griffin, 570 F.2d at 1078–79 (describing
disenfranchisement of almost “ten percent of the qualified and voting electorate” as “one
of the perhaps exceptional cases where a district court could properly exercise the
limited supervisory role that such courts have in election cases.”). The question is
therefore whether the court’s decision to void the absentee ballots amounted to an
No. 09-5265          Warf et al. v. Board of Elections of Green                        Page 9
                     County, Kentucky et al.


“officially-sponsored election procedure which, in its basic respects, was flawed” to the
level of fundamental unfairness. Id. at 1078.

        The Green Circuit Court reviewed state precedent and concluded that the “case
[fell] into a very special category of election contest cases” because it involved an
interested incumbent clerk charged with “misus[ing] her own office to her political
advantage.” The court, relying on Crowe, noted that an incumbent clerk “has the burden
of showing ‘that the balloting was conducted legally and that all requirements of the law
to insure its fairness, at least, were met substantially.’” See 305 S.W.2d at 274. The
court then described its conclusions regarding the alleged election irregularities. It
concluded that “[t]here is no question that Scott included campaign advertising materials
with absentee ballot applications,” and that such activity “is prohibited by statute, and
cannot be tolerated.” It further concluded that “Scott . . . by her own testimony, placed
herself in a precarious position by locating the absentee ballot machine in her personal
office.” As a result, according to the Green Circuit Court, Crowe placed on Scott the
burden to show that she had not “improperly influenced any specific voter.” The court
determined that Scott could not “meet her burden . . . because [she] failed to put in place
any appropriate checks and balances to prevent her own overreaching.” Rather, despite
the fact that “[t]he full extent to which Scott was successful in influencing the number
of absentee votes cas[t] in her favor cannot be determined,” her conduct “so tainted the
entirety of the absentee ballots cas[t] . . . that [it] call[ed] into question the integrity of
all said ballots.”

        The Warf appellants contend that the decision was a clear departure from
precedent because it improperly reassigned the burden of proof in the election contest
from the contestant to the incumbent-clerk contestee. According to the appellants, the
burden of proof in a Kentucky election contest has always been upon the contestant,
regardless of whether the actions of an incumbent county clerk are challenged. See
Gross v. West, 283 S.W.2d 358 (Ky. 1955). They argue that rather than creating an
exception for cases involving incumbent county clerks, Crowe merely applied long-
standing rules that shift the burden of proof to the contestee only where the contestant’s
No. 09-5265            Warf et al. v. Board of Elections of Green                               Page 10
                       County, Kentucky et al.


proof is so compelling that without some contrary showing by the contestee, no
reasonable fact-finder could fail to find for the contestant.6 Finally, the Warf appellants
contend that the remedy imposed by the Green Circuit Court—the voiding of all
absentee ballots—was unprecedented, and that the proper course of action would have
been to void the entire election.

         While it appears that the Green Circuit Court may have misinterpreted Crowe on
the issue of which party bore the ultimate burden of persuasion in the election contest,
we do not believe that, given the shifting burden of production under Kentucky law in
this context and the evidence of irregularities identified by the court, the Green Circuit
Court’s decision in this case was an unreasonable application of controlling law rising
to the level of fundamental unfairness.

         The Warf appellants are correct that the burden of proof in state election contests
generally falls upon the contestant. See, e.g., Gregory v. Stubblefield, 316 S.W.2d 689,
691 (Ky. 1958), overruled on other grounds by Upton v. Knuckles, 470 S.W.2d 822 (Ky.
1971); Gross, 283 S.W.2d at 360–61; see also Ky. Rev. Stat. Ann. § 120.165(2)
(providing that the contestant in election contests must produce his evidence in chief
within thirty days); Ky. R. Civ. P. 43.01 (setting out the general burden of proof in civil
litigation). And the appellants are also correct that Kentucky election law presumes that
elections are valid and that elections returns are regular. See McIntosh v. Helton,
828 S.W.2d 364, 366 (Ky. 1992); Gregory, 316 S.W.2d at 691.

         The Kentucky courts, however, have repeatedly held that a challenge to the
actions of an incumbent county clerk regarding absentee ballots should receive
particularly close scrutiny. See Parrigin v. Sawyer, 457 S.W.2d 504, 508 (Ky. 1970);
Arnet v. Hensley, 425 S.W.2d 546, 553 (Ky. 1968); Crowe, 305 S.W.2d at 273–74. They
have explained that when an incumbent clerk is a candidate for re-election, he “finds


         6
            See Robert G. Lawson, The Kentucky Evidence Law Handbook, § 9.00(2)(f) (4th ed. 2003)
(“This so-called shifting process is well established in the law of Kentucky. . . . The [Kentucky] Supreme
Court . . . [has left] no doubt that the burden of going forward with evidence may shift back and forth
during the course of trial.”).
No. 09-5265         Warf et al. v. Board of Elections of Green                     Page 11
                    County, Kentucky et al.


himself in an extremely high position of trust and responsibility,” Parrigin, 457 S.W.2d
at 508 (quoting Crowe, 305 S.W.2d at 273–74), and that irregularities in absentee ballot
procedures “cannot be tolerated, especially when they are committed by a candidate and
obviously inure to his advantage.” Id. The Kentucky courts have therefore “require[d]
those in charge of absentee ballots . . . to show that the balloting was conducted legally,
and that all the requirements of the law to insure its fairness, at least, were met
substantially.” Crowe, 305 S.W.2d at 274. This requirement has included placing upon
the incumbent county clerk “the duty . . . to go forward with the proof.” Id.

        Although this broad language from Crowe may appear at first glance to place the
full burden of proof—that is, both the burdens of production and persuasion—on the
contestee where he is the incumbent county clerk, id. at 274, an examination of Crowe
reveals that Kentucky law merely shifts the burden of production only after a showing
of irregularity has been made. In Crowe, it was only upon the court’s reciting the trial
court’s conclusion that there were “proved violations of both letter and spirit” of the
election laws at issue that the court discussed burden shifting:

        We think there is even more reason in the case before us than there was
        in the [Warren v.] Rayburn[, 267 S.W.2d 720 (Ky. 1954),] case to require
        those in charge of absentee ballots, the appellant and her deputies, to
        show that the balloting was conducted legally, and that all requirements
        of the law to insure its fairness, at least, were met substantially. Under
        the circumstances, it was the duty of the appellant to go forward with the
        proof, and the trial court properly so held.

305 S.W.2d at 274. Though the district court concluded that, through this language, “the
Court of Appeals of Kentucky explicitly placed the burden of proof on the incumbent
clerk in election contests for county clerk involving absentee ballot irregularities,” Warf,
2009 WL 530666, at *6, we believe that the Crowe court did not go so far as to shift the
burden of persuasion from the contestant to the contestee. Rather, we read Crowe to
hold simply that, once the contestant has made a showing of irregularity, the incumbent-
clerk contestee must then come forward with evidence of substantial compliance with
balloting procedures. See Crowe, 305 S.W.2d at 274. In other words, after the
No. 09-5265         Warf et al. v. Board of Elections of Green                     Page 12
                    County, Kentucky et al.


contestant demonstrates that election irregularities have occurred, the court shifts the
burden of production to the incumbent-clerk contestee on the issue of substantial
compliance with the law.

        It is debatable whether the Green Circuit Court shifted the full burden of
persuasion or only the burden of production to Scott upon its findings of irregularities.
The court’s language speaks in broad terms about the burden shifting in this case. After
concluding that Scott’s placing of the absentee polling machine in her personal office
“placed her in a precarious position,” for example, the court described its view of the
burden of proof:

        Lowe cannot prove that Scott improperly influenced any specific voter.
        Neither, however, can [Scott] prove that she did not. According to the
        Crowe precedent, as stated above, the burden on this issue rests squarely
        on Scott’s shoulders because of the distinct position of trust she holds as
        the incumbent clerk. She cannot meet her burden. Lowe must therefore
        win because Scott has failed to put in place any appropriate checks to
        prevent her own overreaching.

This language, unfortunately, does not clearly delineate the type of burden shifting
employed by the court.

        We need not determine this question with precision, however, because it is
evident from the record that Scott could not meet even her burden of production given
the demonstrated irregularities in the absentee balloting. The court found that the
evidence before it showed irregularities both with respect to Scott’s sending campaign
materials with absentee ballot applications and Scott’s locating the absentee polling
machine in her personal office. On the latter, the court took particular concern in the fact
that “Scott lost the regular machine voting and then won the absentee voting by a margin
of two to one.” The court then concluded that because the evidence showed that Scott
had opportunities to influence potential absentee voters, and “Scott failed to put in place
any appropriate checks and balances,” the absentee ballots were tainted. We believe
these conclusions to be reasonable, based on the evidence before the court, and
permissible under Kentucky election law. See Rayburn, 267 S.W.2d at 721–24 (finding
No. 09-5265         Warf et al. v. Board of Elections of Green                     Page 13
                    County, Kentucky et al.


both opportunity to influence and actual proven and admitted irregularities enough to
require incumbent county clerk contestee to show substantial compliance with laws);
Pickard v. Jones, 243 S.W.2d 46, 49 (Ky. 1951) (holding proven violation of law
requiring counting of absentee votes in public presented “too great an opportunity for
the perpetration of fraud for the courts to ignore them”). Because we conclude that the
result reached by the Green Circuit Court was proper even under the appropriate burden-
shifting framework, this cannot be considered “the exceptional case where [the] state’s
voting system is fundamentally unfair.” Brunner, 548 F.3d at 478 (citing Griffin,
570 F.2d at 1078–79).

        As for the Warf appellants’ challenge to the remedy devised in this case, in each
of the cases deciding challenges to incumbent county clerks’ handling of absentee
balloting, the Kentucky courts have permitted the voiding of all absentee ballots. See
Parrigin, 457 S.W.2d at 508; Arnett, 425 S.W.2d at 553; Crowe, 305 S.W.2d at 276.
Indeed, it appears that in several other cases involving absentee ballot irregularities the
Kentucky courts have determined that the voiding of absentee ballots was the
appropriate remedy. See Hale v. Goble, 356 S.W.2d 33, 35 (Ky. 1962); Kincer v.
Holbrook, 307 S.W.2d 922, 924 (Ky. 1957); Pickard, 243 S.W.2d at 49–50. In Kincer,
for example, the Kentucky Court of Appeals considered a county clerk’s failure to
properly lock the absentee ballot box and the fact that he had sole possession of all
duplicate sets of keys for the ballot box. 307 S.W.2d at 923. The court noted that “[t]he
meticulous system [created by the absentee voter law] recognizes that absentee voting
is a risky method. Unless the statutory provisions be strictly followed, there is greater
opportunity for persons of evil design to corrupt the ballot.” Id. at 924 (citation and
internal quotation marks omitted). It then affirmed the trial court’s decision to invalidate
the absentee ballots. Id.
No. 09-5265            Warf et al. v. Board of Elections of Green                                Page 14
                       County, Kentucky et al.


         It is therefore evident that the Green Circuit Court’s decision to void all absentee
ballots cast in the election reasonably applied applicable Kentucky case law.7 The court
appropriately looked to analogous state cases and applied the careful scrutiny to
incumbent county clerks described therein. We therefore cannot conclude that Green
Circuit Court’s decision to void the absentee ballots in this case rises to a level of
fundamental unfairness in violation of Due Process.

                                                   IV.

         For the foregoing reasons, we affirm the judgment of the district court.




         7
          The Warf appellants urge us to consider McClendon v. Hodges, a recent election case from the
Kentucky Supreme Court that discussed the standards by which courts should determine whether to
eliminate ballots or declare an entire election void. See 272 S.W.3d 188 (Ky. 2008). In McClendon, the
Kentucky Supreme Court wrote:
         Though Kentucky courts are reluctant to declare an election void, our case law has long
         established that this extreme remedy is nonetheless necessary when it is impossible to
         fairly discern a winner. The established rule is that where, after giving the evidence of
         fraud (or irregularities) its fullest effect, and fraudulent or illegal votes may be
         eliminated, and the result of the election be fairly ascertained from votes which were
         regular or untainted, the court should not go to the extreme of declaring the election
         void. Even when evidence of fraud is limited to only a portion of the electorate or to
         specific precincts, it may nonetheless be necessary to set aside the entire election.
Id. at 191-92 (citations and internal quotation marks omitted) (emphasis in original).
While this case may bring some well-needed clarity to this area of the law, the decision was not before the
Green Circuit Court at the time it decided the underlying case. As such, we do not consider it. Our task
is not to determine what would be the correct outcome under current Kentucky law; rather, our review is
limited to whether the Green Circuit Court’s decision rendered the state’s voting system fundamentally
unfair. Brunner, 548 F.3d at 478.
