HARPERS FERRY – The West Virginia Supreme Court has issued deadlines for attorneys to file briefings in the challenge to the town’s results of its election in June. If attorneys requesting the appeal provide complete documents by Dec. 6, the appeal will be expedited,” the high court’s order states.
Meanwhile, another court decision over whether four contested ballots that could sway the outcome of last summer’s Town Council election is on hold at least until Friday.
Jefferson County Circuit Court Judge Debra McLaughlin faces at least two options when she hears oral arguments this week:
uphold her own Nov. 6 order directing town officials to open and count the provisional ballots; or
require town officials to wait to count the ballots until the West Virginia Supreme Court weighs in with its own decision.
McLaughlin said she expects to make a decision after hearing from attorneys representing both sides in a challenge to the results of the town’s June 11 election.
The Supreme Court’s scheduling order for the appeal does not restrict McLaughlin from acting in the case.
However, according to court records, a Charleston attorney representing three current town officials who defend their decisions not to count the ballots has argued that counting them before the high court rules on an appeal of McLaughlin’s decision could do “irreparable harm.”
Attorney Zak Ritchie told McLaughlin that keeping the ballots sealed and uncounted would “preserve our ability to have [their appeal] fully heard” later by the Supreme Court, according to a transcript of a Nov. 12 conference call the judge held with the attorneys involved in the election challenge.
“We are very concerned about what may happen to those four ballots that are currently sealed but may be opened,” Ritchie said during the call.
His remark referred to an attempt by some Harpers Ferry officials one night earlier to obey the judge’s previous order to count the votes. He said such a recount would mix the four ballots together in a way that might theoretically prevent the Supreme Court from identifying one or more of them — but not all of the ones that it might wish to disqualify.
McLaughlin’s order to count the votes did not give town officials a deadline to do so.
A Charles Town attorney representing the two candidates who are challenging the decision to not count the provisional ballots said he was considering what legal options to ask McLaughlin to take.
In the conference call before the Supreme Court’s scheduling order, Greg Bailey said he was concerned that waiting for the Supreme Court to act could potentially delay a resolution of the final results for weeks, if not months.
Bailey said he might ask McLaughlin to issue an order requiring town officials to count the ballots depending on what his research determines by Friday. He said he also might ask the judge to order further actions or restraints, such as preventing town officials from making consequential and permanent decisions until the Supreme Court acts.
After Mayor Wayne Bishop and three council members failed without notice to show for a regularly scheduled council meeting on Nov. 11, Harpers Ferry officials have scheduled a special council meeting for Thursday. The agenda for the meeting includes a discussion and possible action to appoint members of the Board of Zoning Appeals, the body that will have considerable authority over the Hill Top House Hotel redevelopment project.
The fate of the long-delayed hotel project was a primary issue in the town’s election and some residents have questioned the right of Bishop and like-minded council members of making significant decisions, including appointments to town boards and commissions.
Bishop and council members Hardy Johnson, Charlotte Thompson and Barbara Humes have backed decisions to slow the Hill Top project, and they were the elected leaders who voted against counting the provisional ballots. Town Recorder Kevin Carden and council members Jay Premack and Christian Pechuekonis want to count the ballots and support moving the Hill Top forward.
Meanwhile, the town’s counsel, Effie Kallas of Shepherdstown, who is representing officials divided over whether to count the votes, weighed in with her own concerns. She also worried that the votes might be counted before a Supreme Court decision.
“The Town Council is fractured, and last night was a horrible situation and so it was very likely that last night those ballots were going to be opened,” Kallas told the judge, speaking of the attempted recount. “At this point, I’m not sure anyone knows where they are right now.”
Kallas, who also did not attend the recount meeting called the meeting a “show.”
“The only reason [the ballots] were not counted is because—well, the threats were made and it was very clear should one more Town Council person walk through that door [the ballots] were going to get unsealed and counted,” she said.
McLaughlin decided to allow the lawyers to formally present their cases and requests again in court on Friday. The hearing will take place at 2:30 p.m. in a Charles Town courtroom.
After the judge’s conference call, Harpers Ferry officials asked the Jefferson County Sheriff’s Office to take custody of the provisional ballots. Prosecuting Attorney Matt Harvey and West Virginia Secretary of State General Counsel Donald Kersey advised the handover of the ballots.
Some town officials first reported concerns to West Virginia State Police that the ballots had been moved from a cabinet in a locked office. State police called the Sheriff’s Office to handle the matter, according to Sheriff Pete Dougherty.
On Monday, Dougherty said the four contested ballots are secured in his department’s evidence room. He also said there was no indication that the tightly sealed ballots had been opened or tampered with.
He said the evidence room is highly secure.