Prosecutor files replies to Dennis Flores' demand of probe of 2015 voter fraud

Through its legal counsel, the Lorain County Prosecutor's Office has filed a reply to attorney Gerald Phillips' suit demanding action on alleged election fraud he said was committed against a client more than four years ago. In a response to demands from Phillips and his client, former Lorain City Councilman Dennis Flores, that the Ohio Supreme Court order the Lorain County Prosecutor's Office to investigate accusations of voter fraud in a 2015 Lorain City Council race, Prosecutor Dennis Will and Assistant Prosecutor Gerald Innes have denied Phillips' claims against them. Phillips' claims are "nothing more than a political stunt," according to the response, as Phillips is a Republican candidate for county commissioner in this year's primary election. He is facing North Ridgeville Councilwoman Michelle Hung in a race to determine who will challenge incumbent Democratic Commissioner Lori Kokoski in the general election this fall. Will and Innes, through attorney Robert Cahill, also said Phillips has failed to state claims requiring legal relief, lacks standing to make claims or has made claims that are beyond the statute of limitations. They also request that the Supreme Court dismiss Phillips' suit outright. It was appropriate to have the Lorain Police Department "conduct the investigation because of its officers' knowledge of the locations at issue in the Flores v. Horn trial." Lorain police investigator Sgt. Tom Nimon, who died in November 2018, told the Prosecutor's Office in January 2017 that he was having difficulty locating or getting cooperation from the homeless voters involved in the trial, according to the prosecutor's reply. Many of those voters had apparently registered as their addresses properties owned by Anthony Horn Sr., father of Ryan Horn, who was Dennis Flores' opponent in the election. Unofficial results on primary Election Night 2015 showed Flores, a Democrat, with a lead of 151 to 131 over Horn. Once provisional votes were counted, Horn was found to have received 22 additional votes and was declared the winner of the race. Flores sued, and Lorain County Common Pleas Judge Mark Betleski ruled that nine votes for Horn came from people ineligible to vote in the primary. Flores was declared the winner and went on to run unopposed in the general election later in November that year. The only legal conclusion the Lorain police investigation reached was that Anthony Horn Sr. should be charged with misdemeanors for claiming improper tax homestead tax exemptions on properties he owned, prosecutors have said. Will later said he advised police to forward their recommendation to the Lorain City Prosecutor's Office, which could file charges against Anthony Horn Sr. in Lorain Municipal Court. "The Lorain County Prosecutor's Office's standard practice is not to present misdemeanors to the grand jury, but to have such cases referred to the local municipal jurisdiction," the prosecutor's office wrote in its motion for judgment. No such charges were filed, according to Lorain Municipal Court records. The Prosecutor's Office also noted that Flores "waited approximately four and a half years after he obtained a judgment in Lorain County Court of Common Pleas to seek ... to compel an investigation of the alleged voter fraud in the 2015 primary." "What appears to be the cause for urgency at this time is (Phillips') desire to obtain free publicity generated by this suit as he runs for county commissioner. In any event, (Flores') delay in seeking mandamus was clearly unreasonable." Phillips' group, Ohio Citizens for Honesty, Integrity and Openness in Government, a nonprofit limited liability corporation, also does not have standing to pursue an action as a taxpayer because it does not pay taxes, is not a citizen and doesn't vote, the reply states. Phillips replied in an interview Thursday that he believes his group has "institutional standing, so I don't believe that (the prosecutor's argument) is correct." "You don't have to be a taxpayer just to have standing," he said. Phillips' and Flores' "assertion that immediate relief is necessary is farcical," according to the prosecutor's response. "Had immediate relief truly been necessary, (Phillips and Flores) would not have waited to bring this suit for nearly five years after the allege voter fraud occurred in the 2015 primary election and two and a half years after the Lorain Police Department concluded its investigation concerning the same. The only urgency appears to arise from (Phillips') desire for free press coverage for his candidacy for county commissioner." The prosecutor's arguments are "silliness," Phillips said Thursday. He said he doesn't believe Will and Innes can make the request they made because they "don't have clean hands." He said Betleski found at the end of his client's trial that there was "clear and convincing evidence" there was felony voter fraud in the election. Betleski sent a letter to Will in early 2017 sharing that opinion. The Prosecutor's Office "said I can't prove by clear and convincing evidence (there was voter fraud). Well I have clear and convincing evidence ruled on by a judge" who heard eight days of testimony and had "tons and tons of exhibits," Phillips said. As for the timing of the suit and allegations he is trying to get free publicity for his own run for political office, Phillips said Flores has been trying for three years to get the full Lorain Police Department investigative file on the alleged voter fraud. He said "some money finally came forward for me to pursue it." "Their argument that this is for political purpose, I call it silliness," Phillips said. "If Will and Innes did their job, it wouldn't have had to be filed." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on Twitter.