As you may be aware, there is currently a contested election proceeding underway regarding the 2019 Town Council election in Harpers Ferry which I have followed with great interest. While true contested elections at any level in our state are relatively rare, the current case in Harpers Ferry provides a good example of why the governing legislation regarding this process should be updated. Even the Secretary of State was compelled to intervene in the case because of the gravity of the procedure and the issues at hand.

At issue in Harpers Ferry is the inclusion or suppression of four provisional ballots cast in the June 2019 municipal election which have the potential to change the outcome of the election of two Town Council seats.

The procedure here is the real cause for concern. The current provisions of the law are archaic, and provide for an election contest procedure which is slow, cumbersome, and filled with unanswered questions. Furthermore, the entire procedure is written with counties in mind, and its application to municipalities is tied in with a one sentence "afterthought" which simply states "The provisions of this section apply to all elections, including municipal elections, except that the governing body of the municipality is the judge of any contest of a municipal election." (Chapter 3, Article 7, Section 6).

As the Harpers Ferry case has proven, municipal councils are wholly unsuited to serve in the role of a trial court for election proceedings; nor should we expect them to do so. The Harpers Ferry election contest has raised several concerns, including:

• Since the state code mandates (especially for Class IV municipalities) that municipal elections take place on the second Tuesday in June, and if newly elected officers take place on July 1, there is no way that an election contest can be completed before the beginning of a new term of office.

• If an election for Town Council is being contested, there may be instances when some or all of the Town Council would be (or should be) disqualified from hearing the initial election contest because they themselves would be contestants or contestees.

• There is no procedure set forth in the Code or the Code of State Rules to guide and/or govern a county commission or municipal council when it is called upon to serve in the role of a trial court for an initial election contest proceeding.

• There is nothing set forth in the Code to guide the depth and breath of the Circuit Court in its role as an appellate court for election contest proceedings.

The timing for the filing of notices, motions, decisions, etc. is so lengthy that it can prolong the final disposition of a contest until months after a term of office begins, and there is nothing to compel any body to act as though “time is of the essence.”

The current code leaves a legal purgatory over who can administer any contested office(s) pending the outcome of an election contest.

All of these are serious concerns, and likely haven’t come up before because election contest proceedings are so rare — but they have certainly become vital issues at hand today. Indeed, the last substantial change to these code sections was in 1995, and that was only to prohibit county commissioners from serving on the election tribunal if they themselves were a party to the contest. These code provisions have been lingering on the books for decades, and hearken back to an era before the Judicial Reorganization Amendment of 1974 when the County Courts (now County Commissions) still possessed some vestiges of the judicial authority that they originally had when the Constitution was adopted in 1872.

It is time to move forward into modernizing this law as it seems both unfair and unwise to vest trial court authority for election contest proceedings with legislative/administrative bodies such as county commissions and municipal councils which are simply not designed to handle such matters. My recommendation is to slightly modify the current election contest proceeding which progresses from county commission/municipal council to circuit court to Supreme Court of Appeals by simply eliminating the first step.

I believe that the best and easiest procedure would be for county commissions/municipal councils to continue performing their appropriate functions as a board of canvassers for election certifications and/or recounts. Then, beyond that point, election contest proceedings should begin in the circuit court, but using a special three-judge circuit court as is the current procedure used in a removal proceeding for a county/municipal official.

This modified procedure would have the desired effect of separating the administrative proceedings (canvassing and recounting) and the judicial one (the contest). Since a contested election is clearly seen as a judicial matter under the code, this places it squarely where it needs to be: in the courts of law, under the supervision of non-partisan judges bound to fairness and impartiality by the Code of Judicial Conduct. Plus, as a legal change, it remains in compliance with Article IX, Section 11 of the state constitution. Furthermore, this would enable those involved in the administrative process to provide records, evidence, or testimony in a contest proceeding in hopes of providing the most transparent and fair case for all involved. In addition, the Supreme Court of Appeals can and should be given rulemaking authority to provide the guidance necessary to govern and fill the gaps of contest proceedings in the courts of law.

The State Election Commission and the Secretary of State already posses the rulemaking authority under the Code to guide canvassing and recounting procedures.

Proudfoot resides in Grafton. He lived in Harpers Ferry for six months after the 2015 fire that devestated parts of downtown Harpers Ferry. He worked for the West Virginia University extension service and served as part of a taskforce aimed at helping the town recover.

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