CHARLES TOWN – Jefferson County Circuit Court Judge Debra McLaughlin has granted a hearing for Oct. 28 to listen to arguments in the appeal of a decision by Harpers Ferry officials not to count four ballots in the town's June 11 election.

Nancy Case and Deborah McGee seek to reverse a 4-2 decision by town officials not to count the votes on four provisional ballots cast in the town’s municipal election.

Case and McGee contend that the four voters who cast provisional ballots were known town residents and duly registered voters who were placed in the Bolivar voting precinct because of technical errors they didn’t cause. The pair maintain town officials misinterpreted state election law to deny the provisional ballots when they ruled on Sept. 11 to uphold their own earlier decision to reject the ballots.

McLaughlin will hear the case at 2 p.m. at the Jefferson County Courthouse in Charles Town.

One of the disputed ballots was cast by a town resident who qualified to run as a candidate in the election and whose name appeared among the slate of council choices on the same ballot.

“The provisional ballots should have been tallied. To find otherwise requires a complete disregard and misinterpretation of the law,” reads the 17-page petition filed last Friday by Charles Town attorney Greg Bailey, who is representing both Case and McGee.

The candidates’ appeal argues in part that the Harpers Ferry officials who rejected the ballots misinterpreted an outdated 1949 case in order to support their ruling. That West Virginia Supreme Court case, Galloway v. Common Council of City of Kenova, decided that voters are responsible for registering separately for municipal elections because of distinct state and local registration lists that were maintained at the time. However, those separate registration lists have been combined into a single registration since 2003. Today, Harpers Ferry officials use polling books based on voter registrations maintained by the county Clerk’s Office.

“Instead of adhering to well-established law to enfranchise the votes of their duly registered citizens, the majority [of elected town officials] worked tirelessly to craft an opinion that disenfranchised the votes cast by their neighbors and constituents,” the petition reads.

Acting as a tribunal last month, Mayor Wayne Bishop and Town Council members Hardwick “Hardy” Johnson, Charlotte Thompson and Barbara Humes upheld their earlier decision not to count the four provisional ballots. In a written decision, the four town officials argued that because the four voters were not listed in the town’s poll book on Election Day their votes “cannot be counted under West Virginia law.”

Harpers Ferry Recorder Kevin Carden and Councilman Jay Premack did not join — and harshly criticized — the majority ruling. In a 15-page joint dissenting opinion, they stated rejecting the provisional ballots amounted to disenfranchisement of town voters “by a brute majority” that willfully disregarded state election law.

The majority’s conclusion contradicts legal views from Jefferson County election officials and the West Virginia Secretary of State’s Office. Those officials say state law directs election officials to consider the circumstances under which provisional ballots were contested, which Harpers Ferry officials did not do. They also cited W.Va. Code 3-1-41(e), which requires election officials to disregard “technical errors, omissions and oversights” that might disqualify voters and their ballots.

Each of the four voters who cast provisional ballots had recently moved to Harpers Ferry and their Washington Street addresses were incorrectly registered at the West Virginia Division of Motor Vehicles, assigning them to West Washington Street, which is in Bolivar and omitting their names Harpers Ferry’s poll book.

Each of the four voters say they didn’t know they were improperly registered until they voted during the municipal election.

In their dissent, Carden and Premack also noted that council members voted to accept provisional ballots in four of the past seven Harpers Ferry municipal elections.

“As elected public servants beholden only to the law and our fellow citizens, we must dissent from this craven and unfortunate decision,” wrote Carden and Premack.

The appeal also notes that Johnson and Thompson took part in the tribunal despite warnings from a Jefferson County judge and the West Virginia Ethics Commission to not participate because their deciding votes could determine whether they got to keep their seats.

“The guiding principle behind our democratic election process is founded upon the enfranchisement of the voting citizens of our nation, states, counties, and municipalities,” the petition reads. “That guiding principle was completely ignored and disregarded by the majority below in an opinion permeated by bias and personal motivation … The motive behind the majority tribunal’s absolute disregard of statutory law is rather transparent given the additional votes may very likely change the election results.

Johnson and Thompson won re-election by three and two votes, respectively. Case lost by three votes, McGee by four.

Councilman Christian Pechuekonis, who won a seat on the council in the June election, voluntarily recused himself from participating in the tribunal’s deliberations and decision, noting his participation could affect whether he keeps or loses his seat.

The five current Harpers Ferry officials — Johnson, Thompson, Pechuekonis, Premack and Barbara Humes — are named in the appeal as “respondents” who have knowledge of the provisional ballots’ decision. Midge Flinn Yost, a previous council member who voted June 17 to deny the provisional ballots while serving on the town’s Board of Canvassers, was also named as a respondent.

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