HARPERS FERRY – If the West Virginia Supreme Court rules that four potentially decisive ballots cast in last summer’s municipal election in Harpers Ferry should be counted, the court will be asked to consider whether the ballots were tampered with, according to an attorney involved in litigation over the contested election.

“In the unlikely event that some or all of the four provisional ballots subject to

the election contest are to be opened, it must first be determined whether their integrity was compromised before they were seized by the [Jefferson County] Sheriff,” reported Zak Ritchie, a Charleston attorney representing three current and a former Harpers Ferry council members who are fighting to keep the ballots from being counted.

Ritchie referred to an investigation Harpers Ferry Mayor Wayne Bishop initiated Nov. 12 into the security and integrity of the disputed ballots after the mayor summoned the town’s police after allegedly discovering the ballots had been moved outside of a locked file cabinet — a cabinet located inside the town Recorder Kevin Carden’s locked office at Town Hall.

Carden later said the ballots appeared not to have been opened or tampered with. Sheriff Pete Dougherty, Jefferson County Prosecuting Attorney Matt Harvey and West Virginia Secretary of State General Counsel Donald Kersey also said the ballots remained sealed inside a series of different sealed envelops — and that any tampering would have been apparent and wasn’t.

During a council meeting on Nov. 21, Bishop made a point to say “an investigation” into the moved ballots was underway. “I just wanted the community to know that and I will not comment anymore on that,” he said.

The previous week, Dougherty, Harvey said they were not aware of any ongoing investigation into whether the ballots were tampered with. The ballots are being held in the sheriff’s office’s secure evidence room, awaiting instructions from a judge on what to do with them, Dougherty said.

Bishop’s discovery occurred the day after Carden, the town’s official keeper of

election documents, said the town’s office staff had access to a second key to his Town Hall office where the ballots were stored. The mayor’s discovery also occurred the same day Carden called on Bishop and three council members to resign for failing to attend a formal Nov. 11 meeting to count the provisional ballots as ordered by Jefferson County Circuit Court Judge Debra McLaughlin.

Bishop called police and Carden shortly after the town’s contract attorney, Effie Kallas of Shepherdstown, participated in a conference call with McLaughlin about legal issues involving the ongoing election fight. During the call, Kallas voiced a concern about whether the ballots were secure and where they might be.

“At this point, I’m not sure anyone knows where they are right now,” she said.

“They should be in the ballot box at the night of the recount back in July,” she

continued. “Those ballots were sealed, double sealed, put in the ballot box ... into the private office of the recorder. If I understand, right now that ballot box is not there and the recorder made representations that the four ballots have been taken out and they're put in some sort of strongbox somewhere, and I don't know who authorized such a thing or who allowed such a thing."

Ritchie has maintained that an appeal he filed with the Supreme Court automatically stopped any enforcement of McLaughlin’s decision to count the ballots. He also said counting the ballots — which do not identify the voter who cast them — before the high court’s decision could hinder the court’s legal options.

Charles Town attorney Greg Bailey, who is representing two candidates who are challenging the election outcome, argued that it was appropriate to pursue

McLaughlin’s order to count the votes until a court directed otherwise.

Kallas has declined to comment on the legal challenge to the town’s decision to reject the provisional ballots. During McLaughlin’s conference call, she described the previous night’s meeting to count the provisional ballots as “a show.”

The recount meeting was recorded live on a Facebook page titled “Support Harpers Ferry Hill Top House Hotel.” The $140 million proposal by SWaN Investors of Leesburg, Va., to rebuild the long-shuttered Hilltop House is now more than a decade old and was a central issue in the municipal election.

Six people could either win or lose a council seat if the provisional ballots are

counted and what votes those ballots contained. It has been six months since the election. The town’s mayor and council serve two-year terms.

Without notice, Bishop and council members Hardy Johnson, Charlotte Thompson and Barbara Humes did not attend the Nov. 11 assembly to formally open and count the provisional ballots. Also without notice, the mayor and council members — all of whom oppose counting the contested ballots — also failed to show without notice for a regularly scheduled council meeting that was to happen after the vote-count meeting.

Although about 40 town residents assembled to witness the publicly posted recount at City Hall, the proceeding never occurred because only three town officials showed up. At least four town officials were needed to form a quorum.

On Monday, Ritchie said that comments made by the town officials who attended the aborted recount — Carden and council members Jay Premack and Christian Pechuekonis — would be part of any investigation into whether the ballots were tampered with. “The recordings of the attempted illegal meeting by a rogue group of Town Council on November 11 contain very disturbing comments that will be evidence in this investigation,” he wrote in an email.

Carden, Premack and Pechuekonis want to accept the ballots, which were denied because of clerical voter registration errors. West Virginia Secretary of State Mac Warner, the state’s top election authority, said state law requires that the errors be overlooked and the ballots included in the town’s election results.

On Monday, Ritchie said he plans to file a brief by Friday to meet a deadline that will allow the West Virginia Supreme Court to make an “expedited” final decision over whether the disputed ballots should be allowed.

Jefferson County Circuit Court Judge Debra McLaughlin, noting how the town’s

election results have remained in doubt for months, also said she would consider taking action if Friday’s filing deadline wasn’t met. She did not specify what action she might take.

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