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Counting them in: W.Va. Supreme Court of Appeals rules on provisional ballots

By Staff | Jun 19, 2020

HARPERS FERRY – In unanimous agreement, members of the West Virginia Supreme Court of Appeals ruled Monday that four provisional ballots from the 2019 municipal election in Harpers Ferry must be counted.

The election in Harpers Ferry, held just shy of one year ago, has been extended through multiple layers 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 voters in question were not listed as eligible voters in the Harpers Ferry poll book. 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 ballots be counted, contesting the reason the voters in question were not in the town’s poll book was due to a technical error.

The Supreme Court upheld the order issued by Circuit Court Judge Debra McLaughlin.

“We affirm the circuit court’s order to the extent that it concludes that the four provisional ballots cast by Linda McCarty, George McCarty, Leah Howell and Adam Hutton in the 2019 Harpers Ferry municipal election should be counted,” read the order.

McGee, in a telephone interview on Monday, praised the court’s decision.

“What I have said the entire time is that I just want the votes counted,” McGee said. “These are legitimate ballots by citizens of Harpers Ferry and I’m very happy their votes will be counted.”

McGee believes the recount will be sent back to the town’s canvassing board by the Circuit Court and should be within the next 30 days.

“The canvassing board will look a little different than before,” McGee said.

Her comments on the board come as the High Court also gave their opinion that two members of the council, Hardwick Johnson and Charlotte Thompson, participated in the canvassing when their seats were in contention.

“In sum, council members Johnson and Thompson should not have participated in the election contest trial as members of the tribunal. The rule of necessity did not require their participation because there were members of the town council who were not impacted by the election contest available to serve on the tribunal,” the court ruled.

One final matter addressed by the court was the claim that Case did not have standing in the case, because she had not personally paid a recount bond.

“Given that West Virginia Code 3-6-9(f) only authorizes one recount in each precinct; that respondents Case and McGee were candidates in the same town council election; and that the bond, which covers the cost of the recount, was paid by respondent McGee, we find the circuit court erred by affirming the tribunal’s finding that respondent Case lacked standing to participate in the election contest. . . . We reverse the final order of the circuit court insofar as it finds that respondent Case does not have standing to participate in the election contest of the 2019 Harpers Ferry town council election,” the order read.

The Supreme Court has remanded the case back to circuit court for entry of a new order.