August 13, 2008

Dirty trick - Defeated council candidate Ken Herndon to file a defamation lawsuit in response to homophobic campaign flier

A former candidate for Louisville Metro Council is preparing to file a defamation lawsuit in an effort to find out who is responsible for distributing an anti-gay campaign flier that might have cost him the election.

In May, Ken Herndon narrowly lost the Democratic primary for the 6th District seat to incumbent George Unseld by a mere 112 votes. The Saturday before the election, voters found in their mailboxes a malicious campaign mailer — a glossy, double-sided, high-priced flier — featuring a photo of Herndon’s face transposed atop the body of a man embracing two other men kissing at a gay-pride parade. Among a number of homophobic jabs in bold letters was this gem: “(Herndon) wants us to elect him because he designed new garbage cans?! I guess when you live a life of trash you become pretty familiar with garbage cans.”

“I frankly think it cost me the race,” Herndon, who is gay, told LEO Weekly in June, shortly after the election. 

Now, Herndon says he intends to file a civil complaint against a John/Jane Doe in Jefferson County Circuit Court in the next couple of weeks, the first step toward finding out who produced, paid for and distributed the mailer.

Filing suit against an unnamed party would give Herndon’s lawyer the power to subpoena any future witnesses about the mailer’s source. A line on the flier states that a group called “Citizens for Family and Moral Values” paid for it; however, no such organization is registered with the state.

“We don’t know their names — yet,” Morgan Ransdell, Herndon’s attorney, tells LEO Weekly. “One of the purposes of our complaint is to learn that information.”

Ransdell says the lawsuit is based upon the mailer’s inflammatory illustrative and written content, which falsely depicts Herndon with the purpose of injuring his reputation. Once an individual or group is named in the defamation lawsuit, that information could be used to open the door to criminal charges for whomever is responsible for the mailer. 

“When you have an anonymous violation you have to start somewhere,” says Herndon, adding, “If we find definitive evidence, we’d then proceed to change that Jane/John Doe to a specific name.”

Until someone with an address is indentified as being responsible for the mailer, Herndon cannot file a violation complaint with the Kentucky Registry of Election Finance, the regulatory agency that oversees campaign expenditures and investigates civil violations in Kentucky elections. The defamation suit is separate from any complaint Herndon might eventually file with KREF. 

According to state election laws, independent expenditures of more than $500 made by a person or group during a political campaign with the purpose of advocating the election or defeat of a candidate must be reported directly to KREF. As of yet, no such payments for the mailer have been accounted for.

This anti-gay flier was distributed to voters just days before the election.
This anti-gay flier was distributed to voters just days before the election.

Herndon believes that whomever created and distributed the mailer must have known it was a violation of Kentucky election laws. “They faked the name,” he says. “Why else would they create a fake name — it tells me they knowingly violated the statute.”

Though she wouldn’t comment on Herndon’s case specifically, Sarah Jackson, executive director of KREF, says anyone who knowingly violates the expenditure statute is open to criminal charges, and that there are various penalties. Depending upon the case, Jackson says that charges range from a misdemeanor to a felony, including a fine of up to $10,000 for each offense. After KREF investigates a violation they forward it to the appropriate prosecutorial agency, usually the Kentucky Attorney General’s Office. 

“Criminal penalties would depend upon the attorney general,” she says.

 In turn, Allison Martin, spokeswoman for the attorney general, says that any prosecution would depend upon initial findings by KREF.

“They may coordinate with us,” she says. “But it’s their call on any investigation.” 

Martin tells LEO that her office was first notified about the mailer on Election Day, when a Jefferson County resident called the Election Fraud hot line complaining about its homophobic content. After reviewing the mailer, the complaint was forwarded to Emily Dennis, legal counsel for KREF.

Meanwhile, Herndon is unwavering, saying he hopes the defamation complaint will spawn either a civil or criminal case to uncover who is responsible: “We will pursue both — vigorously.”