0724 COMM CAL Hill Top.tif

A rendering of the planned Hill Top Hotel re-development.

HARPERS FERRY – The West Virginia Supreme Court plans to hear arguments on May 19 over whether the votes on four provisional ballots cast during the town’s municipal election last June should be counted.

The Supreme Court will hear arguments over an appeal filed by four current and former Harpers Ferry council members challenging a Jefferson County Circuit Court judge’s order requiring the votes marked on the contested ballots be counted.

Continuing a divisive legal wrangle over the town’s election, the four people appealing Judge Debra McLaughlin’s decision—current council members Barbara Humes, Hardy Johnson and Charlotte Thompson and former council member Midge Flinn Yost—contend they properly followed guidelines issued by the West Virginia Secretary of State’s Office to reject the provisional ballots.

However, Secretary of State Mac Warner, West Virginia’s highest election official, has filed court briefs stating that the provisional ballots and their potential votes should be accepted as valid based on state election law.

The four Washington Street residents, all of Harpers Ferry,  who cast a rejected ballot were incorrectly assigned to a wrong voting precinct outside Harpers Ferry due to a clerical error recorded at the West Virginia Division of Motor Vehicles office in Kearneysville.

The clerical errors caused the four voters’ names not to appear as registered voters in a poll book used for the municipal election.  

The four Harpers Ferry officials maintain that the secretary of state’s guidelines define eligible voters as those properly registered on Election Day. They say the four voters who cast the provisional ballots were not properly registered, regardless of the clerical errors involved.

Warner has written that state law expressly requires election officials to overlook such errors that would deny the votes of otherwise valid voters.

One of the voters whose ballot was rejected was certified by the town as a resident eligible to run as a council candidate; her name appeared on her rejected ballot.

While the Supreme Court is expected to decide the issue, it’s unclear when even as the one-year anniversary of the town’s election approaches.

Two candidates who narrowly lost council seats during the town’s election — Nancy Case and Deborah McGee — have pursued multiple legal hearings and appeals to have the potentially pivotal provisional ballots accepted. Each ballot could contain up to five separate votes cast for council candidates.

Six town residents have a mathematical chance of either taking over or retaining a seat on the town’s five-member council if all of the votes on each ballot are counted.

Johnson and Thompson could possibly lose their council seats if the votes on the ballots are counted and given to other candidates. Both Johnson and Thompson have consistently voted several times to reject the ballot, despite a ruling by the West Virginia Ethics Commission that they should avoid participating in votes that could determine the outcome of their own re-election campaigns.

No action has been taken by the Ethics Commission.

Harpers Ferry’s still-unresolved election, once considered pivotal to the future of a long-delayed Hill Top House Hotel redevelopment in town, has provided a high-profile battle that has generated various maneuvers and intrigues surrounding the election and the Hill Top project.

Mayor Wayne Bishop, Humes, Johnson, Thompson and Yost have either opposed certain aspects of the Hill Top project or have sought to continue an already lengthy negotiation process over the project — despite the exasperation of the owners of the longstanding hotel property.

Case and McGee are among the town residents and candidates — including three current town officials — who support advancing the hotel project without further delays.

Meanwhile, the Secretary of State’s Office also separately initiated several investigations into wrongdoing related to the election, including an inquiry over whether town officials knowingly disenfranchised town residents. No charges have been filed, and state election officials have been prevented by law from commenting.  

One intrigue involves the mayor’s younger daughter agreeing last month to plead guilty to voting illegally in the election.

Tess Bishop, 29, who works and lives in Utah, voted in the Harpers Ferry election three months after registering to vote in the Beehive State. Because ballots slipped into the ballot boxes are anonymous, unless a new town election is called, her votes will continue to be counted among the final election results.

A March 18 hearing before McLaughlin was postponed due to the coronavirus outbreak.  

In a more recent legal dispute, Bishop, Humes, Johnson and Thompson agreed to challenge as unconstitutional legislation Gov. Jim Justice signed into law this month related to the Hill Top project. The Tourism Development Act will allow West Virginia Commerce Department officials to take over all oversight of the hotel project’s planning reviews and construction permitting. The officials who oppose the law say it unlawfully usurps the town’s authority and ordinances.

Several lawmakers in Charleston said they supported the legislation after growing impatient with the years of various delays to the Hill Top project, a project touted as a boost to local tourism jobs and a boon to statewide tax revenues. The hotel property’s Leesburg, Va., developer anticipates filing plans with the Commerce Department for the $140 million luxury hotel they envision sometime in July.

It’s not yet clear whether a lawsuit the mayor and three council members approved on March 11 by a narrow 4-3 vote might delay the hotel project.

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