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CHARLES TOWN – Should four provisional ballots cast in Harpers Ferry’s municipal election on June 11 be counted?

The question has divided, bedeviled and publicly hounded the town’s officials and residents without a final resolution since those ballots were cast.

On Tuesday, the West Virginia Supreme Court heard oral arguments over an appeal of a Jefferson County Circuit Court judge’s order to count the votes on the four contested ballots. The state’s highest court is poised to potentially resolve the dispute, possibly as soon as next month.

If all of the possible votes on the four ballots are counted, six candidates have a chance to either win or retain a council seat in the sharply competitive election.

In oral arguments in the case streamed live over the internet, Supreme Court justices cited some case law but mostly asked questions about the primary issue of whether the four voters who cast the contested ballots should have their votes counted due to address errors made at the West Virginia Department of Motor Vehicles office in Kearneysville.

The address errors mistakenly add “West” to each of the four voters Washington Street mailing address, causing those voters to be registered incorrectly in the neighboring voting precinct for Bolivar residents. The errors prevented the four voters from appearing in Harpers Ferry poll book of qualified voters on Election Day.

Three current Harpers Ferry Town Council members are arguing — contrary to legal opinions of Jefferson County Judge Debra McLaughlin and West Virginia Secretary of State Mac Warner, the state’s highest election official—that the votes on the provisional ballots shouldn’t count because those voters were not “duly registered” for the election.

Charleston attorney Ryan Donovan, who is representing the town officials appealing McLaughlin’s order for town officials to count the provisional ballots, maintained that the four town voters did not properly follow the rules to register as voters.

“In order to understand the burden you have to walk through the various steps because the burden changes at the various steps,” Donovan told the Supreme Court justices. “The very first burden is on the citizen to follow the rules and register correctly.”

Chief Justice Tim Armstead pointed out to Donovan how several laws and court rulings set the standard that deciding election disagreements should tip in favor enfranchising voters over disenfranchising voters.

“If the word ‘West’ had not been included, whether that is at the DMV … we probably wouldn’t be here would we?” the justice asked.

Donovan said how the error was made is material to whether the voters should be allowed to vote in the election. “We don’t know how that error allegedly transpired, and that goes to the very heart of what the standard of review here is in this case and should dictate the outcome,” he responded.

Donovan said voters don’t have the entire burden to prove whether their voting registrations are valid. But he said voters have a responsibility, supported in state law, to follow the proper procedures to ensure that they’re registered to vote. Failing to be property registered to vote in an election does not amount to a technical error, he said.

“They received the voter registration card, as we all do, that tells them where and what precinct they’re registered,” Donovan said of the four voters. “It would have been easy to see on the face of that they were not registered at the correct precinct.”

Greg Bailey, the Charles Town attorney, representing Harpers Ferry council candidates Nancy Case and Deborah McGee, who have fought for 11 months to have the provisional ballots counted, challenged Donovan’s interpretation of the law and the record.

State law is clear in requiring election officials to overlook technical errors that would deny votes cast by otherwise valid voters, Bailey said. The address errors amount to such errors that the voters did not cause, he said.

Town officials fighting the circuit court order seized upon an ambiguous flowchart guide from the Secretary of State’s Office to justify their decision to reject the ballots of voters who were clearly town residents.

“They’re [Harpers Ferry officials] doing everything they can do to put the burden on the voters to prove that they had a right to vote,” Bailey said.

“This is actually akin to voter suppression,” he said. “They’re going to do everything they can, even though they know these people are citizens, not to count the votes, and we just ask the court not to stand for that.”

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