HARPERS FERRY – The votes still had not been counted as of Tuesday afternoon, despite a Jefferson County Circuit Court judge issuing an order last Wednesday to do so.
Instead, nearly five months of hearings, appeals, briefings and delays have continued over whether to count four contested provisional ballots cast in Harpers Ferry’s June 11 election.
A Charleston attorney representing three current Harpers Ferry council members fighting to ensure the contested ballots remain sealed and their votes uncounted filed an appeal with the West Virginia Supreme Court asking to overturn the order by Circuit Court Judge Debra McLaughlin to count the votes. The attorney, Zak Ritchie, also filed a separate request with McLaughlin seeking to halt her order for the votes to be counted while the state’s high court considers the appeal.
“A stay is necessary to prevent the gratuitous harm that would be caused by the immediate and potentially premature opening of the four provisional ballots when the appellate review process is not final, and which could result in ballots being publicly counted and then later uncounted if the Supreme Court reverses, in whole or in part, this Court’s intermedia appellate reviews,” Ritchie argued in a motion filed less than four hours after McLaughlin ordered the votes to be counted.
She did not set a deadline, however, for town officials to count the ballots.
Ritchie represents current Town Council members Hardy Johnson, Charlotte Thompson and Barbara Humes. Mayor Wayne Bishop has joined a 4-3 majority with those three council members opposing action to count the votes on the provisional ballots.
Meanwhile, a Charles Town attorney representing two council candidates fighting to ensure the sealed ballots are counted set a deadline for town officials to follow McLaughlin’s order by today. The attorney, Greg Bailey, represents Nancy Case and Deborah McGee who narrowly lost council seats by two and three votes in the town’s election. He warned that he will formally ask McLaughlin by then to uphold her order.
Bailey stated he would file a “petition for contempt” with the judge.
“The governing body’s failure to timely act in compliance with this order absent a stay issued by the circuit court constitutes willful contumacious contempt of a court order,” Bailey wrote. “It injures not only the candidates in this election contest but also the disenfranchised provisional ballot voters.”
Last week, McLaughlin handed down a decision that the provisional ballots should be counted despite address errors that caused the four voters who cast those ballots to be mistakenly registered as voters in the neighboring town of Bolivar.
All four voters who cast the provisional ballots are known residents of Harpers Ferry, which has a population of less than 300. One of the voters qualified to run as a council candidate, and her name appeared on the ballot she cast that was later rejected. She received 15 certified votes in the election.
Six people stand to win or lose a council seat depending on whether the provisional ballots are counted and how votes on those ballots were cast. The outcome of the town’s council election is considered pivotal to the Hill Top House Hotel redevelopment, a project delayed mostly by slow action by town officials over the past decade.
To jump-start the Hill Top project, one of the hotel property’s owners and developers, Karen Schaufeld of Leesburg, Va., submitted a detailed proposed agreement outlining what town officials could do and not do to achieve the goal of beginning construction on the new hotel by 2020. The $130 million luxury hotel project—envisioned since 2010 to revive a shuttered property that has held a working hotel for more than 130 years—could bring millions in new tax revenues to Harpers Ferry, Jefferson County and West Virginia.
Town officials opposing efforts to count the four disputed votes—Bishop, Johnson, Thompson and Humes—are among a current one-vote majority who have repeatedly delayed decisions to move the Hill Top project forward.
In a legal twist, former council member Midge Flinn Yost is also represented by Ritchie in defending her decisions when she was a council member earlier this year. Mathematically, Yost, who was an incumbent candidate who lost a council seat by three votes, could potentially win a council seat if the provisional ballots are counted. However, as a council member who had advocated for the current Hill Top redevelopment plans to be substantially redrafted, which would scrap months of work on the project, Yost had voted against counting the provisional ballots.
Those seeking to count the votes—including Case, McGee, town Recorder Kevin Carden and current council members Jay Premack and Christian Pechuekonis—want to allow the hotel project to move forward without the interference from the mayor and council.
Last week, McLaughlin ruled that the majority decision of town officials not to count the disputed votes was wrong because state election laws require address errors made during the voter registration process be overlooked.
“The WV Constitution and WV Code, both require this outcome,” the judge wrote.
West Virginia Secretary of State Mac Warner, the state’s highest election authority, submitted a legal opinion advising McLaughlin that state law requires that the provisional ballots be counted.
Ritchie, in the appeal he filed with the state Supreme Court, argues that McLaughlin erred in her interpretation of the facts town officials relied on to reject the provisional ballots. He also maintains that the judge inappropriately usurped the broad authority town officials have to decide such election matters.
In a related issue, McLaughlin did not directly address whether Johnson and Thompson should have participated in the decision made to reject the provisional ballots. Instead, the judge left any sanction or legal action that might be taken against the town council members to the West Virginia Ethics Commission.
On Aug. 29, an ethics commission staff attorney advised Johnson and Thompson, because their decisions over the ballots could influence whether they retained their council seats, not to vote on whether to accept or reject the provisional ballots. Nevertheless, both council members joined a Sept. 11 majority decision with Bishop and Humes to reject the provisional ballots.