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State Supreme Court hears Harpers Ferry case

By Staff | May 29, 2020

"Count the Votes" signs are visible throughout Harpers Ferry and beyond the town. The West Virginia Supreme Court of Appeals will likely rule on the issue before they adjourn their current session. Toni Milbourne

CHARLESTON – Nearly one year after the Harpers Ferry municipal election that resulted in court case after court case over counting provisional ballots, the final outcome now lies in the hands of the West Virginia Supreme Court of Appeals who heard oral arguments on May 19.

The case before the court was broadcast via livestream, as attorneys for both sides made what will be their final arguments in the ongoing saga.

The election in Harpers Ferry extended far beyond the timing of most elections, with a recount called for and held; a tribunal of the canvassing board held and conclusion reached; a filing in circuit court on the tribunal results and an order given; and then an appeal to the West Virginia Supreme Court of Appeals.

The contention in the election revolves around four provisional ballots the canvassing board chose not to count because the ballots were from voters not listed as eligible voters in the Harpers Ferry poll book. Arguments have been made the addresses of the four voters, all of whom registered to vote at the Department of Motor Vehicles, were listed incorrectly due to a technical error on the part of the DMV. The tribunal held in August upheld the finding of the canvassing board and chose not to count the ballots.

Nancy Case and Deborah McGee, two unsuccessful candidates in the Harpers Ferry election, filed an appeal in Jefferson County Circuit Court, requesting the four provisional ballots be counted, contesting the reason the voters in question were not in the town’s poll book was due to a technical error.

McLaughlin agreed with the plaintiffs in the case and ruled on Nov. 6 that the Harpers Ferry Town Council would open the four ballots and do a recount of the election results. An appeal to the state Supreme Court was immediately filed by Zak Ritchie, attorney for the respondents in the case.

Supreme Court justices asked multiple questions about the error in addressing that arose from the four individuals registering to vote at the West Virginia DMV. Each of the four had the word “West” added to their address by the DMV, which caused their names to be entered into poll books for the neighboring town of Bolivar, rather than the correct book for Harpers Ferry.

The fact that the voters were listed in the wrong poll book has been the center of the debate over whether they were “duly registered” to vote.

Ryan Donovan, who represents current council members Hardwick Johnson, Barbara Humes, Charlotte Thompson and former member Midge Flinn-Yost, argued the voters were not duly registered, hence their votes should not be counted.

Chief Justice Tim Armstead questioned whether the case would be before the high court if the error with the address had not been made. ?

“If the word ‘West’ had not been includedwe probably wouldn’t be here, would we,” Armstead asked, stressing that laws and court rulings typically tip in favor of enfranchising voters over disenfranchising them.

Greg Bailey, who represents McGee and Case, maintained that state law requires election officials to overlook technical errors that would deny votes cast by otherwise valid voters. He argued once again that the addressing error made at the DMV was a technical error and that the four voters, without a doubt, resided in Harpers Ferry at the time of the election.

“They [Harper Ferry officials] are going to do everything they can, even though they know these people are citizens, not to count the votes,” Bailey said.

The justices thanked both sides for their concise arguments. No ruling was immediately given and could take as long as a month to receive. It is the hope of both sides the court rule before their adjournment for the summer.