Almost a year after disputed election, Supreme Court justices hear the saga of Harpers Ferry

Today — May 19, 2020 — West Virginia’s Supreme Court justices heard the saga of the still-disputed June 11, 2019, election in the Town of Harpers Ferry.

Four votes have been in dispute in the historic town of about 280 people, possibly swaying a town council election. The council majority, in turn, could settle the fate of a $139 million development project.

Two candidates who narrowly lost seats when votes were first counted took the case to the Supreme Court. Their lawyer argued that four citizens who should have had their ballots counted were ruled ineligible because of an address mixup.

Another lawyer representing the current government of Harpers Ferry contended the town followed appropriate rules every step of the way, including during a canvass that initially found the votes should not be counted.

It’s a big, longstanding tangle.

But at the end of a video hearing that lasted close to an hour, justices could agree that each side its case well.

“No questions, and a very well-argued case,” Justice Evan Jenkins said.

“I likewise thank counsel for a very well-argued case,” added Justice John Hutchison.

And Chief Justice Tim Armstead chimed in, “I agree this has been a very well-argued case.”

Each justice, including Beth Walker, appeared from off-site via teleconferencing technology. Justice Margaret Workman did not participate and there was no judge sitting in for her, but court officials said the four who participated constituted a quorum.

A very close town council election in Harpers Ferry has been up in the air since last summer.

Five council positions were up, and the results showed a narrow gap among the final few. 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.

“What they know is if they count these ballots, it’s going to change the results of this election, very likely,” their lawyer, Greg Bailey, said today.

There’s a lot at stake.

Both candidates are viewed as in favor of expediting the Hill Top House project, a longstanding hotel development that has divided the community.

The developers of Hill Top House have said the town of Harpers Ferry isn’t a trustworthy partner, in part because the election remains unsettled.

The election mess began, Case and McGee contend, because of an error that occurred when the four residents registered to vote through the state Division of Motor Vehicles.

Somehow, the residents were registered with addresses on “West” Washington Street, which placed them in neighboring Bolivar, rather than the appropriate Washington Street in Harpers Ferry.

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 lawyer for several of the town’s current officials, Ryan Donovan, today said that process might not seem perfect but it’s by the book.

“They followed the rules,” he said, “odd and archaic though they may be.”

Justice Hutchison asked if the addresses were actually within the confines of Harpers Ferry.

Donovan acknowledged that the addresses were within the town limits, but that the citizens didn’t meet a second standard of appropriately registering to vote. There remained questions, he said, about the true residency of one of the four.

“The issue is, that is one of two requirements,” he said. “The second is that they be duly registered to vote in Harpers Ferry.”

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. Judge Debra McLaughlin heard the case Oct. 28, 2019, and later issued a 15-page ruling mostly in favor of Case and McGee. The judge ordered a recount, including the disputed ballots.

The same day her decision was reached, lawyers for the majority of council members filed notice of appeal to the state Supreme Court.

That finally led to today.

Donovan argued that the original election results shouldn’t be thrown out. The town’s elected leaders have followed the rules at every step, he said.

“Following these rules is critical in keeping these contests out of our courts and secondly, maintaining the integrity of our votes and our ballot boxes,” Donovan said.

Bailey argued that the law calls for erring on the side of allowing people to vote.

“They completely ignore the enfranchisement principle – that our election laws are to be construed to franchise our voters not disenfranchise them,” Bailey said.

“They’re using these technicalities for the purposes of disenfranchising the voters.”

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