HAZARD – A motion for a temporary injunction that would have removed Martin Mayor Sam Howell from office and re-installed the city’s former mayor was denied Friday, though it may be considered again, depending on the results of an election recount scheduled for Tuesday.

Howell defeated Thomasine Robinson by a total of three votes – 161 to 158 — though his original margin of victory was five votes. Robinson gained two additional votes from the absentee tallies following a recanvass in November. Robinson’s attorney, Doug McSwain, argued that the added votes suggest that something occurred during the election that warrants further evaluation, and that Howell’s taking office and acting as mayor was inappropriate.

Howell was sworn into office Dec. 28 by Floyd Circuit Judge Johnny Ray Harris. But McSwain argued Friday before special Judge William Engle, of Perry County, that a request for a recount of the November election should have prevented Howell from taking office, as his victory was never legally certified.

“We would submit, your honor, given that we’ve properly and timely requested the recount, the recount has not happened nor has the court overseen one, that any certificate of election that may have been rendered to Mr. Howell is not a proper one,” McSwain said, “and therefore he does not qualify to act as mayor. As a result, my client … is entitled to continue to operate as mayor until the court hears the merits of this case.”

The results of November’s election were certified following the recanvass, noted Floyd County Attorney Keith Bartley, who represents the county board of elections. Even though there is an ongoing lawsuit stemming from the election along with a request for a recount, that is not enough to disqualify Howell from taking office, he added.

“I don’t think that there are any laws that disqualify him (Howell) because of an ongoing case,” he said. “What if this case goes on for a year?”

The basis for an injunction or restraining order in the case is that the plaintiff, Thomasine Robinson, faces irreparable harm. But both Mayor Howell and the city of Martin will face irreparable harm if the injunction had been granted, argued attorney Doug Adams on Howell’s behalf.

“She’s entitled to a recount,” Adams said, but removing Howell from office would leave the city of Martin in limbo without a mayor.

Judge Engle, who was assigned the case after Floyd Circuit Judge John David Caudill recused himself this week, denied Robinson’s request for an injunction, ruling that no irreparable harm on her behalf has been shown. But he added that Friday’s ruling may not be the motion’s ultimate conclusion.

“I said I was going to deny it for today, because I’m going to leave it open for reconsideration,” Engle said, adding that he may hear the motion again after the recount, which he scheduled for 9 a.m. on Tuesday, Jan. 9, in Prestonsburg.

Engle also ordered McSwain to prepare an order that the absentee ballots, which are currently in the custody of the Kentucky Attorney General’s Office for the purposes of a joint investigation with the FBI, be delivered to the Floyd County Justice Center next week for the recount.

It was during Friday’s hearing that Bartley confirmed the investigation, noting that, after the recanvass, a representative of the AG’s office took custody of the absentee ballots. Bartley said after the meeting that he could confirm that the investigation concerns Robinson and others connected with her.