HARPERS FERRY – Two candidates who lost their bids for seats on the Town Council say they will appeal a ruling last week by the town’s elected leaders to not count a handful of ballots from June’s municipal election.
In a 4-2 decision, Mayor Wayne Bishop, along with council members Charlotte Thompson, Barbara Humes and Hardy Johnson on Saturday voted to uphold an earlier decision not to count four provisional ballots cast by town residents on June 11 on the grounds that the town residents whose ballots they declined to count were not “duly registered” voters as defined under state law affecting Harpers Ferry’s municipal election.
The 16-page decision, which was released by town leaders on Wednesday, also maintains that the provisional ballots “cannot be counted under West Virginia law,” a conclusion that contradicts legal views of election officials with the West Virginia Secretary of State’s Office.
Bishop and the three council members issued their ruling in response to two council candidates, Nancy Case and Deborah McGee, who contested the town’s narrowly decided election results after both came up short in their efforts to secure spots on the five-person council. The third losing candidate, former councilwoman Midge Flynn Yost, who received 81 votes, has not challenged the election’s outcome.
Harpers Ferry Recorder Kevin Carden and Councilman Jay Premack, both of whom participated in last week’s tribunal hearing, did not join the majority opinion laid out in the ruling. Premack said they plan to file their own separate opinion. Newly elected Councilman Christian Pechuekonis did not participate in the hearing, noting he did not want to weigh in on a matter that could determine whether he retains his seat or not.
“Based on the Contestors’ stipulation that none of the names of the Provisional Voters were in fact in the official registration record of the Corporation of Harpers Ferry—the Poll Book—at the time each of them cast their ballots, the ballots cannot be counted in accordance with state law,” the four town officials wrote. “The alleged voter registration errors affecting the official voter registration records of George McCarty, Linda McCarty, Adam Hutton and Leah Howell were allegedly caused by someone or some policy at the DMV, the Contesters failed to satisfy their burden of proof or persuasion as to the source, nature or cause of the alleged voter registration errors at issue in this proceeding.”
“As a result,” they concluded, “the Contestors presented insufficient evidence to allow the Town Council to conclude that such registration errors affecting the votes of the Provisional Voters constituted the type of technical errors that may be disregarded under law.”
Case issued a statement in the wake of the publication of the council’s ruling.
“It is unfortunate when our elected officials refuse to be guided by the law,” she wrote. “It is disappointing when they refuse be guided by their civic duty. It is unforgivable when they refuse to be guided by moral conscience. Had our Mayor and those on Town Council who refuse to acknowledge their neighbors, exercised any of these characteristics … this Election Contest would not have been necessary.”
Counting the provisional ballots would likely do more than change the current makeup of the council; it could also decide the outcome for the $140 million redevelopment project for the Hill Top House Hotel, which supporters say is pivotal to the historic town’s character and financial future.
Case and McGee, as well as county election officials, have maintained that the error that kept the four voters’ names out of the town’s polling book originated as a result of a clerical error at the West Virginia Division of Motor Vehicles when the residents registered to vote. They cite Chapter 3, Article 1 in West Virginia Code, which directs election officials considering whether to count provisional ballots to “disregard technical errors, omissions or oversights if it can be reasonably be ascertained that the challenged voter was entitled to vote.”
The McCartys, Hutton and Howell all moved to Harpers Ferry either this year or last year. They were incorrectly given a “West Washington Street” address in Bolivar rather than a “Washington Street” address in Harpers Ferry—a mistake that left them out of Harpers Ferry’s poll book for the municipal election. All of the errors occurred when the residents applied for a new driver’s license and registered to vote at the DMV office in Kearneysville.
Bishop and the three council members cited various West Virginia Supreme Court cases to argue that “such incorrect registration errors do not constitute the type of technical error that may be disregarded under law.”
The state Supreme Court cases they cited to support their legal arguments include White v. Manchin decided in 1984, Peck v. City Council of Montgomery handed down in 1966 and Galloway v. Common Council of City of Kenova.
For the Galloway case, the town officials wrote that “the upshot” of the case was that “a voter’s failure to be properly registered in a municipality, where that municipality has adopted a permanent registration system, is not a mere technical error that must be disregarded.”
Furthermore, the council majority argued that no evidence presented at the Aug. 24 tribunal hearing established how the address errors occurred.
Each of the four town residents whose provisional ballots were not counted expressed that they want their votes counted.
The written majority ruling also noted that Case did not follow proper procedural steps to be a party that requested an election recount, which was conducted June 26. Because Case did not properly ask for the recount, the ruling maintains, she does not qualify — or “lacks standing”— to be involved in the subsequent election challenge she and McGee filed on July 8.
The Secretary of State’s Office initiated an investigation on June 24 into whether Bishop and the previous Town Council — of Johnson, Thompson, Humes, Carden and Yost — violated election law, in part, by not counting the votes of the four provisional ballots. The status of that investigation has not been reported publicly.
The Secretary of State’s Office is restricted by law from commenting on or confirming such investigations. However, Carden, who publicly criticized the decision not to overlook technical clerical errors that caused the provisional ballots to be set aside for later consideration, posted the letter about the investigation on the town’s website.
Carden also pointed out that town officials have routinely counted provisional ballots in past elections when they determined the voters who cast them were town residents eligible to vote. During the contest hearing, Bailey noted that Thompson made a motion in 2013 to count two provisionals ballots under circumstances similar to four disputed provisional ballots in this year’s election. That council motion passed unanimously.
Don Kersey, an attorney with the secretary of state, has said such investigations would be made known if and when a county prosecutor decides to file election fraud charges.
Meanwhile, both council members Johnson and Thompson participated in the decision to count the provisional ballots despite a ruling from the West Virginia Ethics Commission that they ought not to..
Ethics Commission staff attorney Theresa M. Kirk sent town officials a legal opinion two weeks ago arguing that Johnson and Thompson have a conflict of interest in participating in a decision involving the provisional ballot. Kirk’s legal opinion indicated the council members would violate ethics laws for public officials if they participated in the ruling.
On Aug. 23, during a temporary injunction hearing over whether Johnson and Thompson should participate in the decision for the election, 23rd Judicial Circuit Court Judge Debra McLaughlin warned the attorneys and participants to seek and heed an opinion from the Ethics Commission.
Johnson and Thompson were part of the 4-2 council decision on June 19 to not count the provisional ballots, a decision that triggered the ongoing legal challenge.