Morrisey, Warner file brief in Harpers Ferry election case
CHARLESTON — The attorney general and secretary of state of West Virginia have gotten involved in the recent Harpers Ferry election.
Attorney General Patrick Morrisey, as counsel for Secretary of State Mac Warner, filed a friend of the court brief with Jefferson County Circuit Court Judge Debra McLaughlin Thursday in support of a petition filed by two candidates in the Harpers Ferry municipal election held June 11.
Deputy Attorney General Curtis Capehart, on behalf of Warner, said the Harpers Ferry Town Council, acting as a board of canvassers, refused to consider six provisional ballots cast during the election.
Of those provisional ballots, four were cast by residents of Washington Street in Harpers Ferry who had registered to vote through the state Division of Motor Vehicles. Due to a mistake in the DMV addressing system, the voters were registered as residents of nearby Bolivar instead of Harpers Ferry.
Capehart argues those ballots should have been counted.
“(State) Code strongly favors counting ballots,” Capehart wrote in his brief. “Section 3-1-41(e) directs that voters not be disenfranchised for technical errors, omissions, or oversights ‘if it can reasonably be ascertained that the challenged voter was entitled to vote.'”
“The allegedly incorrect address of a voter’s home is clearly a technical issue, particularly where the entry of a voter’s municipal precinct into the system was the result of another state agency’s record-keeping apparatus, and a citizen’s knowledge or lack of knowledge of the error prior to an election is immaterial under the Code,” Capehart said.
Two candidates in the municipal election, Nancy Case and Deborah McGee, asked for a recount, which was held June 26. Case lost the election by two votes while McGee lost by three votes.
The Harpers Ferry Town Council rejected the provisional ballots due to the names of the voters not being in the poll book, even though one of the four voters, Leah Powell, also was a certified candidate on the ballot. Council members Charlotte Thompson and Harwick Johnson won re-election on the June ballot,
On July 8, Case and McGee contested the election, with the town council acting as tribunal during an Aug. 24 hearing. Case and McGee made a motion for Thompson and Harwick to recuse themselves, but only Christian Pechuekonis voluntarily recused himself. As part of its Sept. 11 ruling, the tribunal said it had no legal authority to require Thompson and Harwick to step aside.
Jefferson County Clerk Nikki Painter testified had it been a county election, the four provisional ballots would have been accepted by the county board of canvassers because they registered in time and they were placed in the wrong town’s poll book.
“Based on their address, they should have been in the Harpers Ferry poll book,” Painter testified, according to a transcript of the hearing. “If they were registered within the county, within Jefferson County, and it was left out through an error, clerical error, the (Jefferson County Board of Canvassers) have not denied that vote since I have been there.”
In the Sept. 11 ruling, the town council argued that since the four voters didn’t show up as registered voters in the Harpers Ferry poll book at the time of the election, they were not duly registered voters and their votes could not be counted regardless of addressing errors by the DMV.
“Even assuming sufficient, competent evidence was presented at trial to allow the town council to conclude that the registration information of the provisional voters in fact contained incorrect address information caused by individuals or policy at the DMV that caused those voters not to appear in the Harpers Ferry poll book at the time of the election, such incorrect registration errors do not constitute the type of technical error that may be disregarded under law,” according to the town council’s ruling.
The town council tribunal, comprised of council members, the mayor and town recorder, released its ruling Sept. 11. Mayor Wayne Bishop and Johnson, Thompson and Barbara Humes voted to reject the petition from Case and McGee. Town Recorder and council member Jay Premack and council member Kevin Carder dissented.
Oral arguments in the case will be heard 2 p.m. Oct. 28.
Steven Allen Adams can be reached at email@example.com.