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Judge hears Harpers Ferry election case

Circuit Court Judge Debra McLaughlin heard oral arguments on Monday in a case brought by two candidates in Harpers Ferry’s June 2019 voting who have challenged a municipal tribunal’s decision to not count four provisional ballots cast during the election.

The hearing followed a filing in Circuit Court on Sept. 27 by Nancy Case and Deborah McGee, two candidates who were on the June ballot in Harpers Ferry’s municipal election, but were not successful in their election bid. The two are seeking remedy from the Circuit Court regarding provisional ballots that were not accepted by the canvassing board in June or during the tribunal on the matter, which was held Aug. 24.

At issue in the case is whether the Board of Canvassers for the election should have counted provisional ballots in the election, since results in the council race for Case and McGee were determined by as few as two votes.

Case and McGee contend four provisional ballots should have been counted, because those casting the ballots were not listed in the Harpers Ferry poll book, due to technical error. The four ballots in question were refused at canvassing, because the voters were not listed in the Harpers Ferry poll book, the official record of duly registered voters in the corporate limits. Each of the four votes – Leah Howell, George and Linda McCarty and Adam Hutton – were recorded in the Bolivar poll book, because their street addresses were all labeled as “West Washington Street” instead of “Washington Street.” Each of the voters had registered to vote at the Division of Motor Vehicles.

The August tribunal members, Mayor Wayne Bishop, council members Hardwick Johnson, Charlotte Thompson and Barbara Humes, upheld the original board of canvassers’ opinion to not count the ballots, while members Kevin Carden and town recorder and newly elected councilman Jay Premack disagreed, writing a scathing dissenting opinion on the matter.

At Monday’s hearing, McLaughlin sought agreement from both counsels on several issues. One issue was whether there would be any objection to an amicus brief that was recently filed by the Secretary of State regarding the case, stating that the provisional ballots should be counted based upon West Virginia State Code that requires that clerical errors assigned the four voters incorrect addresses should be overlooked.

All attorneys agreed they had no objection to the brief; however, there was disagreement over accepting documents that were marked as appendices to the dissenting opinion of the tribunal’s findings. McLaughlin ruled to not admit 31 pages of information that was not officially part of the tribunal’s record and that was not, according to town attorney Effie Kallas, part of the information used by the tribunal to make their ruling.

The judge then heard arguments from the attorneys representing both sides of the case, peppering their comments with questions for clarification on several issues.

Attorney Greg Bailey, representing Case and McGee, said elections law in West Virginia is “in favor of franchising not disenfranchising voters” and that when considering provisional ballots, those counting “shall disregard technical errors.”

McLaughlin asked several questions, focusing on the brief filed by opposing attorneys Ryan Donovan and Zac Ritchie, much of which focuses on only one of the four voters in question, Howell, whom they question on grounds of residency.

Bailey contended that while Howell was not present for questioning at the August tribunal, the town council certified her as a candidate in the election and certified that she received votes in the election – both of which require her to be a citizen of the town.

Donovan stated, “Above all else, no evidence is in the record that the court can reverse Leah Howell’s eligibility to vote. At the time you vote, you have to still live there.”

McLaughlin countered, saying, “So if you move within 30 days of an election, you lose your right to vote?”

McLaughlin also questioned Donovan repeatedly on what is required when one registers to vote. She stated that one must provide their residence: street address, city, zip code and state, but not evidence of whether one resides within municipal boundaries.

“She (Howell) gave all the information she was required to give,” McLaughlin said. She went on to point out that there were no specific findings that the other three voters were residents; but, the only issue of residency concerned Howell.

The judge also raised the issue of two of the tribunal members, Johnson and Thompson, who potentially should have recused themselves from serving because their seats were potentially in question.

Donovan expressed that if the two had recused, the tribunal could not have completed its duties. However, McLaughlin stated that even if they had recused, there still would have been a quorum on the tribunal.

Donald Kersey, general counsel for the Secretary of State, spoke briefly, explaining the state-wide single-voter system that went into effect in 2003. They system eliminated the need for individuals to complete separate forms for voting in municipal versus county and/or state elections.

Kersey told the judge, “230 other municipalities in the state would have done this differently.”

McLaughlin indicated that she would review all materials and draft her order within the next few days, the latest of which would be by the weekend.

Jefferson County Clerk Nikki Painter stated in her testimony that if the votes had come before the county canvassing board, they would likely have been accepted due to a technical error, and counted in the election results.

In the Circuit Court case, Case and McGee name Johnson, Thompson, Humes, Premack, former council member Midge Flinn Yost and the Corporation of Harpers Ferry. Bishop is not named in the suit.

The lawsuit also contends Thompson and Johnson should have been disqualified from presiding in the tribunal because, dependent upon the outcome of said tribunal, the two could be directly affected as candidates.

The lawsuit contends the majority vote of the tribunal shows a “disregard of statutory law” which “is rather transparent given the additional votes may very likely change the election results.”

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