Mac Warner

Mac Warner

HARPERS FERRY – To uphold a fair and legal outcome of last summer’s municipal election in Harpers Ferry and to ensure just results in future elections, the West Virginia Supreme Court should direct that four provisional ballots rejected during the town’s election be counted.

That’s a main request made in separate court briefs filed Monday by two Harpers Ferry Town Council candidates and by West Virginia’s secretary of state that seek to have contested ballots counted in the final results of the town’s narrowly decided June 11 election.  

“The West Virginia Supreme Court declared long ago that fairness, purity and freedom of elections are essential to free government,” states a court brief filed on behalf of Harpers Ferry council candidates Nancy Case and Deborah McGee. “That pronouncement which dates back to 1891 holds true today. … An election that does not count all votes of its citizens fails to satisfy the criteria of fairness and is not a free election.”

Charles Town attorneys representing Case and McGee filed a 23-page brief in response to an appeal of a Jefferson County Circuit judge’s order to accept the rejected ballots. West Virginia Secretary of State Mac Warner filed the other brief also supporting the judge’s decision.   

The state’s top election official, Warner wrote—as he did earlier in circuit court—that West Virginia law requires the provisional ballots to be accepted. As part of his 11-page brief, Warner states that the ballots should be accepted despite clerical address errors made during voter registrations.

“The outcome of this process tilts strongly toward counting votes unless there are concerns beyond merely technical ones,” the secretary of state’s brief states.

Three current Harpers Ferry Town Council members and one former council member are defending their decisions to reject the provisional ballots. Those town officials are sitting council members Hardwick “Hardy” Johnson, Charlotte Thompson and Barbara Humes, and former council member Midge Flinn Yost. Together they argue address errors that assigned the voters to an incorrect voting precinct outside Harpers Ferry should disqualify the provisional ballots.

The town officials maintain that attorneys for Case and McGee failed to offer evidence during election contest proceedings that the ballots should have been accepted as legitimate.

Their legal stance, supported outside of court actions by Harpers Ferry Mayor Wayne Bishop, has been part of a series of hearings, decisions and appeals that have left the final outcome of the town’s election uncertain for seven months.

If the votes on the four contested ballots are counted, six candidates, including Case, McGee and Yost — who lost her re-election bid — have a mathematical chance to win or retain a council seat. Johnson, Thompson and Councilman Christian Pechuekonis — who stepped away from any decisions over the election — could lose their current seats.

Because town voters could cast votes for mayor and up to five council members, the ballots could contain multiple votes.

The outcome of the election is considered pivotal to the fate of the redevelopment of the Hill Top House Hotel, a project delayed in part by slow action by various town officials over the past decade.

In his brief filed Monday, Warner supported McLaughlin’s determination that the town residents who cast the provisional ballots were “duly registered” to vote in the election. The fact that the residents were registered in a single voter database that all elections rely on in West Virginia made them eligible to vote in the town’s election—regardless of the clerical address errors made. The Secretary of State’s Office has maintained the central, statewide voter registration list since 2004.

Warner rejected arguments by the town officials that municipalities can set their own voter qualification standards. “Any interpretation or holding that seeks to inject back into this system any distinction regarding municipal versus state or county registration is counter to the language of the Code and would create confusion where none presently exists,” he wrote.

Warner also supported McLaughlin’s ruling that the clerical errors constituted “technical errors, omissions or oversights” that state law requires election officials to overlook when evaluating the validity of contested votes. “This is even more certain where the assignment of a voter’s municipal precinct into the system was the result of other aspects of the voter registration process …, “ he wrote.

Warner also rejected as “immaterial” the argument by the town officials that the four voters should have known and corrected the address errors.

McLaughlin declined to rule on whether council members Johnson and Thompson should not have participated in the 4-2 decision not to count the provisional ballots. However, to protect future elections and avoid possible appeals that might delay a final settlement, Case and McGee’s attorneys asked the Supreme Court to rule that Johnson and Thompson should not have engaged in decisions over the provisional ballots.

Their attorneys cited West Virginia law—Chapter 3, Article 7, Section 6—that states county and municipal officials “whose election is being contested may not participate in during the election, qualifications and returns.”

Johnson and Thompson received a West Virginia Ethics Commission legal opinion — before they voted on Sept. 11 to reject the provisional ballots — that they should not participate in decisions on the election. The Ethics Commission’s opinion was grounded on state law that requires public officials to avoid decisions where they have a financial interest. Council members are paid a $2,000 annual stipend.

Attorneys for the town officials appealing McLaughlin’s order have 10 days to file a final written reply to both briefs. Afterward, the Supreme Court can ask for oral arguments or issue an opinion or decision anytime.

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