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Judge’s rule overturns Harpers Ferry decision

CHARLES TOWN — Circuit Judge Debra McLaughlin issued a ruling Wednesday overturning a Harpers Ferry Tribunal regarding four provisional ballots from the June 11, 2019 municipal election.

In addition to addressing what she says was a technical error as reason why the four voters were not in the Harpers Ferry poll book, the judge also addressed the issue of standing of Nancy Case to bring or prosecute this election contest.

McLaughlin ruled that while it was clear that Case submitted a written request for a recount by email to council member Kevin Carden, she did not post the required bond for such a recount.

“This Court does affirm the Tribunals decision that Nancy Singleton Case does not have standing to Contest the election for the reason that she failed to submit the required bond within 48 hours.

“Despite Case’s lack of standing, the ruling of the judge is clear in that the court orders that Harpers Ferry Town Council count the provisional ballots of Linda McCarty, George McCarty, Leah Howell and Adam Hutton and that these votes be included in a recount.”

McLaughlin heard the case Oct. 28, following a filing in Circuit Court by Case and Deborah McGee, two candidates who were on the June ballot but were not successful in their election bid. The two sought the reversal of the tribunal’s Aug. 24 ruling that four provisional ballots would not be counted.

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 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 Carden and town recorder and newly elected councilman Jay Premack disagreed, writing a scathing dissenting opinion on the matter.

After hearing oral arguments, McLaughlin concluded, “the names of these four voters were left out of the poll book due to a technical error and the WV Code Section 3-1-41Ä requires that under these circumstances, the Town Council should count the four provisional ballots of Voters L. McCarty, G. McCarty, Howell and Hutton.”

McLaughlin, in the ruling, chastised the Tribunal on several issues. One issue involved council members Johnson and Thompson who chose not to recuse themselves from the decision-making process of the Tribunal despite that they were candidates in the election whose seats could be challenged.

“The Tribunal seems to ignore WV Code 3-7-6 which prohibits a member whose election is being contested, from participating in judging the election, qualifications and returns.” Officially, the court ruled that “,This Court will not address this specific issue any further as the present makeup of the Tribunal is not relevant to the findings of this court and conclusions reached on the merits of the case.”

Judge McLaughlin indicated the Tribunal failed to focus on the lack of any evidence from the DMV concerning the nature, source or cause of the alleged voter registration errors. The judge ruled that Jefferson County Election Clerk Nikki Painter, who testified at the Aug. 24 Tribunal, explained that “based on the address of all four voters, that those residences should have been contained in the Harpers Ferry poll book.”

The judge went on to rule, “The evidence presented by Ms. Painter was clear and undisputed that Voter G. McCarty, Voter L. McCarty, Voter Howell and Voter Hutton were each duly registered voters in the State of West Virginia. It was clearly against the weight of the evidence and manifestly wrong for the Tribunal to have listened to the undisputed testimony of the Chief Deputy Clerk of Elections and not to have reached this conclusion.”

McLaughlin ruled that the names were not placed in the Harpers Ferry poll book because Painter was misled by the word “West” in the street address.

“This was a technical error whether caused by DMV or a Mapping system,” McLaughlin wrote. “It was an error that could have been corrected had Ms. Painter known to rely upon the house numbers listed in the address.”