CHARLESTON, W.Va. — A small town West Virginia election dispute that has gone on for months took a new twist when a circuit judge ruled that four contested votes should be included in a recount.
That could be enough to turn a Harpers Ferry Town Council election, where only a handful of votes separated winners from losers as balloting first ended June 11.
Even at that, though, the matter still isn’t decided.
Lawyers for members of Harpers Ferry Town Council have already filed notice to appeal to the state Supreme Court, just hours after the circuit judge’s ruling came out.
So, for a town of less than 300 people, Harpers Ferry has more than enough electoral drama to go round.
Five council positions were up for grabs when citizens voted this past summer.
Initially, the results showed five incumbents were the top vote getters. The top candidate got 90 votes and the fifth candidate got 83.
The candidates initially in sixth and seventh place got 82 and 81 votes.
Those candidates, Nancy Case and Deborah McGee, have been challenging the results ever since.
In particular, they are contesting rulings that four provisional ballots would not be counted.
Those ballots were initially considered to be cast by voters who lived outside the municipal limits. But Case and McGee contend those voters were mistakenly listed in the nearby Bolivar voting district, not Harpers Ferry.
That happened, they contend, because of an error that occurred when the four residents registered to vote through the state Division of Motor Vehicles. The mistake placed their home addresses outside the municipality.
The Harpers Ferry Board of Canvassers first took a look at the ballots and declined to count them. Case and McGee then appealed to Harpers Ferry Town Council, serving as an election tribunal. That meant two of the incumbents who could lose their seats heard the appeal.
The Council voted to leave the disputed ballots uncounted, with the town recorder and a councilman dissenting and contending that the situation was being guided by “conflict of interest and political gaming.”
So the two candidates took their case to circuit court in Jefferson County.
The case drew some high profile attention from Secretary of State Mac Warner and Attorney General Patrick Morrisey, who filed a motion weighing in on the side of the two candidates challenging the election results.
Judge Debra McLaughlin heard the case Oct. 28 and today issued a 15-page ruling mostly in favor of Case and McGee.
The judge ruled against Case on one aspect of the case. She concluded that case had properly requested a recount in writing but had not posted a required bond.
But on the broader issue of whether the votes should have been counted, Judge McLaughlin agreed they should have.
Her decision heavily weighed testimony by Nikki Painter, the chief deputy clerk of elections who was responsible for preparing the Harpers Ferry Poll Book.
Painter agreed that the four voters had all registered at the DMV and were listed as living on West Washington Street, which indicated Bolivar. But she said the “West” was misleading and that the house numbers clearly indicated Harpers Ferry addresses.
“She did not include these names because she was misled by the word “West” in the street address, rather than relying on the house numbers that were included,” Judge McLaughlin wrote.
So McLaughlin ruled that the four ballots should be counted.
The Secretary of State’s Office applauded her ruling.
“The Court’s decision was based on the well-settled principle that the election of public officials shall be determined by all qualified voters who participate in the election process,” stated Deak Kersey, general counsel with the Secretary of State’s Office.
But it’s not over yet.
Lawyers for the incumbent council members intend to appeal.
“We applaud the Circuit Court’s conclusion that Nancy Case lacked standing to bring this election contest from the beginning, a decision that has significant consequences for the ultimate resolution of this matter,” stated J. Zak Ritchie, a lawyer for the council members.
“Although we respectfully disagree with other parts of the Circuit Court’s order, we have already filed our notice of appeal with the Supreme Court of Appeals, which we are confident will correct the legal errors and restore the Town Council’s original decision.”
The notice of appeal says the circuit court decision would not be enforceable until the Supreme Court acts. That would again hold up any recount and delay a final election outcome.
So in Harpers Ferry, five months after voters cast their ballots, politics rolls on.