HARPERS FERRY – After 12 months of tortuous election challenge procedures and court hearings, the West Virginia Supreme Court issued an opinion last week that the four provisional ballots from Harpers Ferry’s municipal election last year must be counted.
So when will the potentially pivotal votes on the ballots finally be counted?
The answer: Not necessarily soon, according to a Supreme Court official and court procedural rules.
The Supreme Court, after receiving the case on appeal Dec. 6 and hearing oral arguments May 19, issued its 4-0 opinion in the case on June 15 supporting a previous order issued by Jefferson County Circuit Court Judge Debra McLaughlin to count the votes. Under the procedural rules for appellate cases, a legal party to a Supreme Court case decision has 30 days to file a petition to request a rehearing after the court issues an opinion.
The state’s high court has the ability to shorten that time period to file a rehearing, but it did not do so when it filed its ruling in this Harpers Ferry election case, according to Jennifer Bundy, the court’s public information officer.
Once the period to file a petition ends, if no petition is filed, then a “mandate” would be issued that ends the matter before the Supreme Court, Bundy wrote in an email. “Generally, if the Court wants to change that time period, it includes a direction in the opinion/decision for the Clerk’s Office to issue the mandate within a different time period,” she explained. “The Court did not do that in this case.”
Zak Ritchie, a Charleston attorney hired by three Town Council members and a former council member to appeal McLaughlin’s court order to count the votes on the four ballots, did not respond to an email Monday asking whether a rehearing request might be filed.
The three current council members are Barbara Humes, Hardwick “Hardy” Johnson and Charlotte Thompson. Former council member Midge Flinn Yost is also a party supporting the appeal.
The Supreme Court has broad discretion in these procedural matters, Bundy explained. The court may refuse or grant a rehearing request. It may also decide to hold further proceedings, including an additional round of oral arguments, or even modify its original opinion.
The court can rule anytime whether to accept a petition if one is filed, Any decision would be made in writing.
If a petition for rehearing is denied, the Supreme Court’s clerk must issue the mandate within seven days—unless that time frame is specifically ordered to be shortened or extended—to make the court’s opinion final.
After a mandate is issued in the case, then McLaughlin could reissue her another order to count the ballots.
Six candidates have a mathematical chance of either taking over or retaining a Town Council seat in Harpers Ferry—including a chance to win a possible vote tie-breaking process—if all of the potential votes on the four provisional ballots are counted.
The town’s election has been closely contested in part over how, and therefore possibly whether, the $140 Million Hill Top House Hotel redevelopment project should move forward.
The $140 million project was first proposed in 2009.