CHARLES TOWN – Count the votes.

That was the ruling Circuit Court Judge Debra McLaughlin handed down Wednesday morning as she found in favor of Nancy Singleton Case and Deborah A. McGee, who appealed a decision by Harpers Ferry leaders earlier this year to not count four provisional ballots in the town's municipal election, on the grounds that the voters – who lived in Harpers Ferry – were accidentally listed as Bolivar residents.

A few hours after McLaughlin's ruling, J. Zak Ritchie, a Charleston attorney representing three Harpers Ferry Town Council members involved in defending the town's decision to reject the provisional ballots, filed a joint appeal to the West Virginia Supreme Court of Appeals, asking for McLaughlin's ruling to be reversed. 

Ritchie, in the appeal, said that McLaughlin erred in her interpretation of facts from the original tribunal and usurped its powers.

The appeal also stated that McLaughlin was wrong in her assumption the creation of a 2004 centralized voter registration database implicitly overturned Galloway v. Common Council of City of Kenova, (1949), a ruling that found that voters were responsible for registering on both state and local voter registration lists that were used at the time. 

McLaughlin, in her decision wrote, “This Court concludes the names of these four voters were left out of the poll book due to a technical error and that WV Code §3-1-41(e) requires that under these circumstances the Town Council should count the four provisional ballots of Voters L. McCarty, G. McCarty, Howell and Hutton. The WV Constitution and WV Code, both require this outcome.

"For all the foregoing reasons, this Court does reverse the decision of the Harpers Ferry Contest Tribunal Order Declaring Election Results and ORDERS that the Harpers Ferry Town Council count the provisional ballots of L. McCarty, G. McCarty, Howell and Hutton and that those votes be included in a recount.”

Counting those votes cast by four town residents could potentially determine who wins and who loses three of five council seats. The outcome of the June 11 election is considered pivotal to the fate of the Hill Top House Hotel redevelopment, a project mostly delayed in part by slow action by town officials over the past decade.

Six candidates for the town’s council received enough votes to possibly win or lose depending on how votes were cast on the four provisional ballots. Two council candidates, Case and McGee, who came up short of winning by two and three votes, filed a formal challenge to a Sept. 11 decision by a majority of current town officials not to count the votes.

The same address errors were made in the voter registrations for the four Washington Street residents who cast the disputed ballots. Those errors mistakenly left those residents’ names out of the town’s poll book prepared for Election Day.

McLaughlin said the tribunal where Harpers Ferry leaders decided to not count the votes was flawed in its focus.

“The Tribunal mistakenly focused on a need to hear from a DMV representative as to the cause of having included the word 'West' in these voters’ addresses,” she wrote in her decision. “The Tribunal ignored the totality of the circumstances, that all four voters registered to vote while at the DMV and all three of the four voters testified that DMV added the word 'West' to their address. There was no evidence presented to contradict the testimony of Ms. [Nikki] Painter [Jefferson County's chief deputy clerk for elections] or the three voters who testified.”

Harpers Ferry Mayor Wayne Bishop and three council members  who made the decision not to count the ballots—including incumbents Hardy Johnson and Charlotte Thompson, whose decisions could ensure they retain their council seats — argued that the voter address errors don’t need to be overlooked and that the provisional ballots can be rejected.

Harpers Ferry officials have scheduled an election vote recount for Monday at 5 p.m. at Harpers Ferry Town Hall at 1000 Washington Street. Town officials plan to open the provisional ballots and count their votes. Afterward, all of the votes cast in the 2019 election for council candidates will be recounted. A final vote result will be adopted, and decisions to address possible vote ties could also be made.

The appeal filed by town officials requests that such a recount or any action counting votes on the provisional ballots be delayed until a final decision is handed down by the state Supreme Court. 

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