No criminal charges in case of unidentified and fraudulent campaign mailers

This fraudulent mailer was sent to House District 43 residents without the legally required “paid for by” disclaimer

The Kentucky Office of the Attorney General is not bringing forward a criminal action related to fraudulent campaign mailers in a local primary race last month, as an investigation by the office was not able to identify who mailed the flyers.

The complaint was filed with the office’s criminal division in May by the campaign manager for state House District 43 candidate Jackson Andrews. It cited a mailer in the final week of the Democratic primary campaign that not only suggested it was from Andrews, but also that the white candidate was actually African-American and endorsed by groups and people who had not done so.

The mailers did not have the legally required “paid for by” disclaimers, but suggested that Andrews was endorsed by the Rep. Darryl Owens — who is retiring from this seat he had long held — and the Fairness Campaign.

Owens had actually endorsed candidate Phil Baker, and the Fairness Campaign had endorsed Charles Booker, who would go on to win the primary with 30 percent of the vote.

Andrews — the only white candidate among the seven Democrats running in the largely African-American district — finished in sixth place, with less than 6 percent of the vote.

Kevin Borland, the campaign manager of Andrews, asserted in his complaint that the fraudulent mailers were sent out to appear as if they were from Andrews “in an attempt to frame him as if he was trying to fool the African-American community.”

Borland’s complaint noted that the mailer was sent to the wife of Sen. Gerald Neal — who had endorsed Baker — and Courier Journal reporter Phillip Bailey, as well as the fact that photos of this campaign material quickly spread on social media, along with criticism blaming Andrews as the culprit.

In the complaint, Borland also attached an article by Bailey in March about candidates in the race being invited to a meeting at Owens’ home a month earlier — with the exception of Andrews — in which Owens, Neal and Rep. Reginald Meeks were said to have spoken about their worry that a black candidate wouldn’t win the seat.

“I feel strongly that we need to identify the campaign and persons responsible for attempting to influence the outcome of the election in this way,” wrote Borland in an email to Jeff Prather, an assistant attorney general looking into the complaint. “I’m certain that there is a printer or mail house that was involved in printing these documents.”

However, a copy of the investigation by the Department of Criminal Investigations shows that it was closed last week with no action taken. In addition to not having a disclaimer, the items were mailed using first class stamps and not in bulk, which would have had identifying numbers.

The investigation notes detailed that Prather told Andrews in a phone call after the case was closed that “we cannot investigate without probably cause regarding which mail house” it was processed through, but that “if they get more information we would be willing to review it.”

The complaint has now been forwarded to the Kentucky Registry of Election Finance, which also investigates potential violations of state campaign laws.

In an email included in the copy of the investigation, KREF general counsel Emily Dennis noted to Prather that the case was “a fine mess,” as the omission of the disclaimer requirement was most likely intentional and in the realm of a criminal complaint.

She also stated that the person who sent the mailers may also be required to submit a postelection expenditure report to KREF.

Noting that if a candidate in the race had created and sent the mailers, he or she would also be required to report this in their postelection filings to KREF, Dennis added that such a possibility “seems unlikely but not out of the question.”

Terry Sebastian, the spokesman for the Office of the Attorney General, told Insider in an email that they take every election complaint seriously, and that this particular one was thoroughly reviewed and investigated. However, the office is limited in what they can prosecute if those sending illegal mailers take steps to hide their identity.”

“Our Department of Criminal Investigations typically can track bulk mailings, but in this case, these flyers were individually mailed, making it impossible for the post office to determine the sender,” stated Sebastian.

Similar political mailers were sent out in the final week of last month’s Democratic primary in Metro Council District 21, but Sebastian says that no one filed a criminal complaint regarding that matter.

The mailers in that District 21 race — attacking candidate Nicole George and praising incumbent Councilman Vitalis Lanshima — indicated that they were paid for by “Concerned Beechmont Citizens,” though there is no public record of such a group. Lanshima denied any involvement with or knowledge of the group, and George went on to win the primary by a large margin.