LawReader : OUR MAIN - LAW DIGEST INDEX : STEVE HORNER COLUMN

Steve Horner is a LawReader columnist with over fifty years of experience in Ky. politics. He served as Commissioner of Kentucky’s Alcoholic Beverage Commission, and previously served as a Juvenile Judge for Jefferson County, and later as Legal Counsel for the Louisville Sinking Fund, the agency that collects taxes for our largest city. Judge Horner is a Director of the American Association of Internet Journalists.

JUDGE HORNER’S ROUNDUP FOR WEEK OF MAY 17, 2008

H-L: Clinton by 27%; SurveyUSA: Clinton by 32%

Lundergan’s Blueprint for a Clinton Nomination

H-L: Lunsford by 20%; SurveyUSA: Lunsford by 18%

Lunsford, Fischer Disagree on Gas Tax Holiday

Briscoe Suggests Fischer Sue His TV Consultant

Northup Expects to Win Primary, Now Focused on Yarmuth

KY Voter Registration Numbers for Primary

H-L Poll: Beshear Approval Slips to 39%

Expert: State Lawmakers’ Disapproval Near US-Worst Ever Measured

Williams Sues Beshear Over Road Bill Veto

NK U to Offer Same-Sex Partner Health Benefits to Employees

Political Analysts’ Comments

H-L: Clinton by 27%; SurveyUSA: Clinton by 32%

The Herald-Leader released its poll of 500 likely Democratic voters on May 14 showing that US Sen. Hillary Clinton (D-NY) has a 27% margin over US Sen. Barack Obama (D-IL) leading up to the May 20 state presidential primary. Clinton had 58%, Obama had 31%, and 11% were undecided. The newspaper’s second poll of 600 likely general election voters indicated that, in a fall race against presumptive GOP presidential nominee US Sen. John McCain (R-AZ), Clinton would lose in Kentucky by 12% and that Obama would lose by 25%, prompting the newspaper’s Ryan Alessi in a May 14 story to doubt that the state will be in the “battleground” category in November. Alessi pointed out that this is a very positive indicator for McCain since Kentucky has voted with every presidential winner to date beginning with former Pres. Lyndon Johnson’s landslide win over then-US Sen. Barry Goldwater (R-AZ).

The telephone survey of the Democrats was conducted between May 7 and May 9 and has a margin of error of 4.5%. The poll of 600 likely general election voters during the same time frame has a 4% error margin.

SurveyUSA.com’s latest Kentucky poll on the Democratic presidential race taken from May 9-11 and released on May 12 shows Clinton ahead of Obama by 32%. The poll of 641 likely Democratic voters has an error margin of 3.8%. Clinton received 62%, Obama 30%, and 8% preferred other possible candidates or were undecided. The following commentary is on the organization’s web site about the findings:

“…In a Democratic Primary in Kentucky today, 05/12/08, 8 days until votes are counted, Hillary Clinton decisively defeats Barack Obama, and is well-positioned to pick up delegates and popular votes, according to SurveyUSA’s 5th pre-primary tracking poll, conducted for WHAS-TV Louisville and WCPO-TV Cincinnati. Clinton leads 62% to 30% today, effectively unchanged from SurveyUSA polls released 4 weeks, 2 weeks and 1 week ago. Clinton gets 84% of the vote in Eastern Kentucky, 62% in Western KY, 61% in North Central KY and 52% in greater Louisville….”

Kentucky received quite a lot of attention from presidential hopefuls and their families within the last week. Obama made his first appearance in Kentucky – since he was in Lexington last August – at a Louisville rally on May 12. Former first daughter Chelsea Clinton campaigned for her mother in Ashland, Maysville, Edgewood, and Lexington on May 12. Former Pres. Bill Clinton spoke for his wife in Louisville, Bardstown, and Elizabethtown on May 15, and traveled on her behalf to Owensboro, Madisonville, Paducah, Murray, and Hopkinsville on May 16. McCain came for his initial visit to the state on May 16 for a speech to the National Rifle Association’s convention in Louisville.

Lt. Gov. Daniel Mongiardo endorsed Obama on May 11 before the following four former governors jointly announced their support of Clinton on May 14: Paul Patton, John Y. Brown Jr., state Sen. Julian Carroll (D-Frankfort), and former US Senate Majority Whip Wendell Ford (D-KY). Gov. Steve Beshear has not yet announced a preference in the presidential race. Beshear is a super-delegate to the Democratic National Convention but Mongiardo is not.

Lundergan’s Blueprint for a Clinton Nomination

A Clinton multi-state coordinator laid out a path for Clinton to come from behind to win the presidential nomination despite the fact that many national observers have unofficially declared Obama the party nominee, according to a story by The Cincinnati Enquirer’s Patrick Crowley posted by the newspaper on May 13 at its nky.com. Former state Democratic chairman Jerry Lundergan said that Obama had about a 700,000-popular vote lead so far counting all primaries leading up to West Virginia. Lundergan estimates that Clinton will shave off a significant amount of that lead after all remaining primaries through early June are held. (Clinton engineered a massive 2 ½-to-1 landslide over Obama in West Virginia on May 13 as she won a 67%-26% majority with 7% voting for uncommitted delegates. That translated into almost a 150,000 popular vote majority for Clinton.)

Lundergan predicts that the Democratic National Committee (“DNC”) on May 31 will restore voting privileges to Michigan and Florida delegations which were stripped from them when their state legislatures decided to hold their primaries earlier than the DNC wanted them. (Of course, it almost goes without saying that the DNC has no authority whatsoever over state lawmakers.) Clinton had very big wins in both states, but Obama was not on the ballot in Michigan. This action by the DNC would mean that those primaries will “count” thereby giving Clinton a big lead in the aggregate popular vote. Lundergan contends that, when all of the above happens, remaining uncommitted super-delegates would then shift to Clinton, believing her to be the strongest candidate.

“At that point Sen. Clinton has won the popular vote, Sen. Clinton has won all the big states that you have to win in November – Texas, Ohio, Pennsylvania – she has won the southern swing states like West Virginia, Kentucky and Tennessee,” Lundergan said. “All that shows she can win the electoral votes in November.” Lundergan added that Obama has won a lot of small states that are likely to vote for McCain in November. (Clinton also won New York, New Jersey, Massachusetts, and California all by double digit percentages. Obama won Illinois, his home state, but was unable to win any other large states.)

“Do you take a sure bet like Hillary Clinton, who is going to win all the big states it takes for a Democrat to win?” Lundergan said. “Or do you take a long shot like Obama and let him maybe win? That’s the question the super-delegates will have to ask themselves.” Altogether there are nearly 800 super-delegates to the Democratic National Convention who may not vote the way their states or congressional districts voted. Plus, they can change their minds after committing initially to one or the other candidate. It is believed that these super-delegates will decide the nomination because Obama only has about a 150-delegate lead among delegates won at the primary or caucus level pursuant to the Democrats’ proportional delegate allocation formula.

Kentucky Obama campaign spokesman Clark Stevens said that Obama has won “big important states” like Virginia, Missouri, North Carolina and Colorado. Stevens said that Obama has the nomination sewed up and is focusing on McCain. “The Democrats are going to come together in the fall because Americans and the people in Kentucky know they don’t want a third term of the George Bush presidency” by electing McCain.

H-L: Lunsford by 20%; SurveyUSA: Lunsford by 18%

The same poll by The Herald-Leader indicates that multi-millionaire Louisville businessman Bruce Lunsford will easily win the Democratic nomination to oppose US Senate Minority Leader Mitch McConnell’s (R-KY) bid for a state-record fifth term. Lunsford gets 43% in the poll with millionaire Louisville businessman Greg Fischer in second place with 23%. Undecideds are at 5%, and five other candidates widely split up an aggregate of 29%. The newspaper’s pollster, Del Ali who is president of Research 2000, called Lunsford’s lead “commanding.”

A companion poll by the newspaper showed that McConnell’s approval rating among all voters was only 48% with 44% expressing disapproval and 8% undecided about his performance in office. With McConnell’s approval hovering around 50% for many years, Democrats have continued hope that they could unseat him, but if re-elected in November, he will become the state’s longest-serving US Senator in history. This poll indicated that McConnell would defeat either Lunsford or Fischer by 12% in November.

One Kentucky political scientist observed that the disparity in name ID between Lunsford and Fischer seals the deal for Lunsford in the primary, according to a May 13 story by The Herald-Leader’s Jack Brammer. “Lunsford has been in two races for governor,” said Dr. Joe Gershtenson, director of EKU’s Center for Kentucky History and Politics. “This is Fischer’s first statewide race. It takes time to build up name recognition.” Lunsford lost races for Governor in the 2003 and 2007 Democratic primaries.

Lunsford, 60, told Brammer that, even though McConnell has been running TV ad’s touting his Senate accomplishments off and on since the Nov. 6, 2007 general election, “he still can’t get to 50 percent” in his approval rating. Thus, Lunsford said that McConnell is very vulnerable and that the gap will be closed after the primary. “You can’t get everybody to settle yet,” Lunsford said, according to Brammer’s story.

“I look forward to the next five months of having about $15 million spent against me to destroy my reputation,” Lunsford said during a May 14 debate sponsored by The Louisville Forum. “Because every now and then, there are some fights that are worth the battle, and this is one of them,” Lunsford said, according to a story by The Associated Press’ Bruce Schreiner posted on May 14 at nky.com.

Fischer, 50, said that his campaign has gained momentum and that there is still time for him to pass Lunsford because Lunsford’s support is “thin,” according to Brammer’s story. Fischer mentioned his endorsement by The Herald-Leader. (The Courier-Journal endorsed Lunsford.)

Ali said that McConnell is vulnerable. However, Dr. Larry Sabato, a nationally quoted political observer, disagreed and said that all signs point to McConnell’s re-election, according to Brammer’s story. Sabato, the director of the University of Virginia’s Center for Politics, mentioned McConnell’s financial advantage (he has at least $7 million in the bank), his position as Senate minority leader, and his long incumbency as way too much for any Democrat to overcome this year.

NKU political scientist Dr. Michael Baranowski came up with a new term for the also-rans in a campaign, like the five in the Democratic Senate race. “I call them vanity campaigns,” Baranowski said, according to a story by The Associated Press’ Joe Biesk posted on May 13 at nky.com. “When you start out shooting for a Senate race with no prior experience, unless you have megabucks to self finance, you’re deluding yourself.”

The same SurveyUSA.com poll noted above found that Lunsford would defeat Fischer by 18%. Lunsford had 41%, Fischer had 23%, 6% of respondents were undecided, and the other five candidates split up the remaining 30%. The following commentary by the poll’s editors is quoted as follows:

“…Eight days until Kentucky Democrats go to the polls, businessman Bruce Lunsford appears poised to win the Democratic Primary for US Senate, according to a SurveyUSA poll conducted exclusively for WHAS-TV Louisville and WCPO-TV Cincinnati. Today, 05/12/08, it’s Lunsford 41%, businessman Greg Fischer 23%. Five other candidates remain in single digits. Compared to an identical SurveyUSA poll released one week ago, Lunsford is flat; Fischer is up 1. Lunsford leads among every demographic group; Fischer shows significant movement only in North Central Kentucky, where he trailed by 23 points last week, and by 12 points today….”

Lunsford, Fischer Disagree on Gas Tax Holiday

Lunsford and Fischer are divided over a proposal first touted by McCain – to suspend the 18.4-cents-per-gallon tax on gasoline from Memorial Day to Labor Day as a small measure of relief to struggling US families. Lunsford favors the idea as part of a multi-pronged strategy to ease gas prices, according to a story by Schreiner posted on May 9 at nky.com.

Fischer discredited the proposal as a “band-aid.” Fischer told Schreiner, “It provides little relief to the average working person, doesn’t address our addiction to foreign oil ... and will only increase the federal deficit.” Fischer’s comments mirror those of Obama who has criticized the proposal. Like Lunsford, Clinton has expressed strong support for the temporary removal of the tax. Both Senate candidates say that Congress should formulate a policy to encourage the private marketplace to formulate “green energy” alternatives to fossil fuels.

Briscoe Suggests Fischer Sue His TV Consultant

After last week saying that Fischer had no chance to win, Democratic political consultant Danny Briscoe had another blockbuster comment about the candidate: “Fischer’s commercials have been so bad, he ought to sue his people for making them.” Briscoe gave this comment to CNHI News Service’s Ronnie Ellis, and the quote appeared in a story by The Herald-Leader’s Larry Dale Keeling that was posted on May 13 at KYKurmudgeon.typepad.com. Briscoe is not involved in any Senate primary candidate’s campaign.

Northup Expects to Win Primary, Now Focused on Yarmuth

An almost certain rematch awaits Jefferson County voters as former US Rep. Anne Northup (R-KY3) is poised to win her GOP primary contest and then continue her effort to recapture her old seat against US Rep. John Yarmuth (D-KY3) in November. Northup has ignored her primary opponents and has already begun to hammer Yarmuth as “too liberal and out of touch” with voters in the state’s largest urban area. Yarmuth unseated Northup by a little more than 5,000 votes two years ago thus depriving Northup of a sixth term.

But Northup didn’t skip a beat, came out firing against the politically flawed former Gov. Ernie Fletcher in last year’s GOP gubernatorial primary, and crushed Fletcher among her home county Republicans. But Republicans elsewhere were not that charitable toward her, and Fletcher won party re-nomination state-wide with about 50% of the votes as Northup finished at about 38% and upstart multi-millionaire Paducah businessman Billy Harper grabbed about 12%. Now, Northup returns for her third campaign in three years. As the incumbent in 2006, Northup raised over $3 million in her failed race against Yarmuth, and last year against Fletcher, she brought in about $1.6 including about $500,000 of her own money.

SurveyUSA.com’s only poll on the GOP primary race was released on Apr. 7 showing Northup with a gigantic 68% lead against developer Chris Thieneman, who around Feb. 1 threatened to quit the race and endorse Yarmuth after Thieneman claimed that GOP officials were strong-arming him to withdraw. “I never had any intention of doing it in the first place,” Thieneman said, according to a May 12 story by The Courier-Journal’s Deborah Yetter. Thieneman characterizes himself as a “tax slayer” based on his opposition to a Jefferson County voter referendum last November that lost but would have, if passed, increased the occupational tax rate for the support of the municipal library system.

The poll numbers – that involved interviews with 337 likely Republican voters – showed Northup at 79%, Thieneman at 11%, and the remaining 10% split among two hardly known Republicans and undecideds. The poll carried a 4.4% margin for error. Corley Everett and Bob Devore are the other GOP candidates. Yarmuth has no primary opposition.

KY Voter Registration Numbers for Primary

Since the November election, Democrats boosted their registered voters state-wide by 13,259 while the GOP added 2,577 new voters, according to a story by Crowley that was posted on May 3 at nky.com. Democrats now have 1,629,845 – about 57% of the state’s voters – who may vote in the May 20 primary while Republicans have a total of 1,040,438 (about 37%). Others – including independents and persons designating other political parties – represent about 6% of the state’s voters, and may not vote in Kentucky’s closed primary where only persons affiliated with one of the two major parties may vote in that party’s primary.

H-L Poll: Beshear Approval Slips to 39%

The public apparently has punished Beshear for his involvement in the widely viewed as failed 2008 session of the state General Assembly, according to a poll released on May 13 by The Herald-Leader that tests his approval rating. Only 39% of the state’s voters express approval of Beshear’s job performance so far, while 55% disapprove and 6% are undecided. The poll has a 4% margin for error.

Beshear’s office released the following statement about the poll: “We are coming off a legislative session that was disappointing to everyone and people are worried about the economy and high gas prices,” he said. “Polls go up and polls go down, and we will not be guided by polls in our efforts to move the state forward.”

“Those 39 percent approved of him because those 39 percent haven’t been told how really bad this governor really is,” Senate Pres. David Williams (R-Burkesville) said, according to Alessi’s May 13 story.

House Majority Whip Rob Wilkey (D-Scottsville), who scorched other House Democratic leaders in a scathing e-mail last week, defended Beshear. “He had some loyal lawmakers who were there and I count myself among them,” Wilkey said, according to Alessi’s story. “I made the point that our fates were tied together. But it was constant criticism of the governor among some people in our chamber — Democrats in the House just dogging him, saying he didn’t do this right or didn’t do that.” Wilkey, though, said that Beshear and his staff were not visible on the Capitol’s third (legislative) floor. “My hope is that, between now and next January, the governor will work to establish better relationships with people in the House,” Wilkey, who announced in the e-mail that he was retiring, added. Finally, Wilkey pointed out that Beshear does have time on his side – with 3 ½ years left on his term.

As soon as he came into office in December, Beshear ordered state agencies and institutions to cut spending by 3% through June 30 because of reduced revenue projections. Lawmakers passed a budget which lowered state spending for the next biennium by an additional 3%. Beshear promised during his campaign against Fletcher that he would convince lawmakers to pass a proposed constitutional amendment to authorize casino gambling as a new source of revenue for the state – a measure that would have also required voter approval in a state-wide referendum. But Beshear’s proposal went nowhere in the legislative process, and with very high profile press attention given to the initiative’s failure, apparently now voters blame Beshear.

“It’s a pretty short honeymoon for any governor,” said WKU political scientist Dr. Scott Lasley, according to Alessi’s story. “It reflects a lot of overall frustration with what went on in Frankfort.”

Expert: State Lawmakers’ Disapproval Near US-Worst Ever Measured

The Herald-Leader’s poll revealed that 66% of the state’s voters disapprove of the job that legislators did in their legislative session that adjourned on Apr. 15. “That is pretty darn high for disapproval. It’s a little below the worst I’ve ever seen for any state,” said Ali, according to a story by Brammer posted on May 14 at polwatchers.typepad.com.

The poll indicated that 22% approved and 12% were not sure. Ali said that typically about 50% of the public in other states disapprove of their legislature.

Wilkey characterized the poll as “well deserved”, according to Brammer’s story. Wilkey added, “There was so much important stuff that was left hanging….”

House Speaker Jody Richards (D-Bowling Green) issued a statement blaming the GOP-controlled Senate for the legislative stalemate. Williams said, “If you asked me if I were disappointed with the legislature this year, I would say yes. Probably every member of the Senate Republican caucus was disappointed, especially that state pension reform was not enacted.”

Williams Sues Beshear Over Road Bill Veto

Williams sued Beshear on May 16 claiming that Beshear’s veto of a highway appropriation bill passed by lawmakers was not within the time limit prescribed by the state constitution, according to Brammer’s May 16 story posted at polwatchers. Williams maintains that Beshear only had 10 days from the date of lawmakers’ sine die adjournment date – Apr. 15 – to make his veto while Beshear contends that he had 10 days after the bill was “enrolled” and delivered to him on Apr. 16.

After his veto, Beshear ordered Transportation Cabinet Sec. Joe Prather to develop a substitute two-year plan to spend the money allocated in the new $18.8 billion state budget for highways. Williams contends that this action is unconstitutional as an encroachment on legislative branch authority. Williams says that, if Beshear’s veto stands, Beshear is left to comply with the language – relating to highways in the new biennial state budget (effective July 1) – that reconfirms the projects begun during the current biennium that expires on June 30 and that is quoted as follow:

“Projects in the enacted 2006-2008 Biennial Highway Construction Plan are authorized to continue their current authorization into the 2008-2010 fiscal biennium.”

Beshear’s 12 or so line-item vetoes in the budget did not relate to the quoted language above.

Beshear spokesman Dick Brown would not specifically address the lawsuit but had this comment by Beshear: “I am confident in our legal position and that the veto of House Bill 79 is effective and in the best interest of the Commonwealth.”

NKU to Offer Same-Sex Partner Health Benefits to Employees

NKU has joined UofL and UK in the middle of a big political football field by offering health benefits to non-married, independent partners of its administration, faculty, and staff. The Apr. 28 action by the NKU Board of Regents was passed by a vote of 7-2, according to a story by The Cincinnati Enquirer’s Cliff Peale posted on Apr. 29 at nky.com. The regents also raised tuition for in-state students by 9.68% for the up-coming academic year.

“I find NKU’s decision disappointing and a bit of slap in the face of the will of the people of Kentucky,” said state Sen. Damon Thayer (R-Georgetown). Thayer, the chairman of the Northern Kentucky Legislative Caucus, has been a sponsor of bills in past General Assembly sessions to forbid all state agencies and universities from offering such benefits to the same-sex domestic partners of employees. No such bill has yet been enacted into law.

UofL was the first to break the ice on this issue in 2007 with UK following a few months later. At each of these three institutions including NKU, the covered non-employee must pay for the added surcharge of his/her health insurance. Fletcher initially supported the right of each university to craft its own employee benefits plan but later reversed that position during his re-election campaign last year and came out full bore against the proposal. Beshear, who demolished Fletcher’s re-election bid by about 180,000 votes, has consistently been on record in support of each institution’s independent ability to negotiate benefit packages for the employees that they need.

“I know Northern will take a lot of heat for doing this, particularly from those in the Republican Party,” state Rep. Dennis Keene (D-Wilder) said. “But legislators should stay out of it. Northern has a lot of courage to be doing this. It is their decision to make.”

David Edmunds, spokesperson for The Family Foundation of Kentucky, took aim at NKU, according to Crowley’s May 9 story at frontier.cincinnati.com. “In the face of state budget shortfalls, NKU is pushing the homosexual political agenda of The Fairness Alliance and asking Kentucky’s students and parents to pay for it,” Edmunds said, who referred to a recent Michigan Supreme Court ruling on domestic partner health benefits at the University of Michigan. Crowley reported that the high court invalidated all state universities’ and agencies’ same-sex domestic partner health benefits on the reasoning that such programs violate the state’s same-sex marriage ban. Kentucky voters passed a state constitutional amendment in 2004 to outlaw same-sex marriages. “Especially considering the Supreme Court ruling in Michigan this week, NKU’s decision defies reason, and its timing is particularly ironic,” Edmunds said.

Political Analysts’ Comments

May 8 – Larry Dale Keeling in The Herald-Leader: “Wilkey flogs leadership as he exists House”

“…(State House) Majority Whip Rob Wilkey (has) rather scathingly criticized the way the chamber’s Democratic leaders handled this year’s General Assembly session, accused them of failing to support Gov. Steve Beshear and announced his intention to leave the legislature at the end of the year…

“Despite the lack of teamwork this year, Wilkey’s departure will be a loss for House Democrats, including the leaders who differed with him. He brought smarts, a quick wit, toughness and integrity to those perpetual confrontations with Senate Republicans.

“Since Rep. Greg Stumbo returned to the House in January, there has been much speculation that the former attorney general and former House majority floor leader would find a way to return to a leadership position.

“Wilkey’s departure opens at least one path for Stumbo to do so, although I would expect him to have his eyes on something higher than majority whip. And the dissatisfaction over this year's dysfunctional session could lead to other shakeups in the House’s Democratic leadership.”

Horner Column Archive Review past columns

JUDGE HORNER'S ROUNDUP FOR WEEK OF MAY 17, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF MAY 9, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF MAY 3, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF APRIL 26, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF APRIL 19, 2008

JUDGE HORNERS ROUNDUP FOR WEEK OF APRIL 12, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF APRIL 5, 2008

JUDGE HORNER’S ROUNDUP FOR WEEK OF MARCH 29, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF MARCH 22, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF MARCH 8, 2008

JUDGE HORNER'S ROUNDUP FOR WEEK OF FEB. 23, 2008