The state Supreme Court ruled today that four votes should count in a Harpers Ferry election that has been contested for more than a year, potentially swaying the makeup of town council and affecting a $139 million development project.
Justice John Hutchison, writing for the court, said a circuit judge was correct when she concluded the votes should count.
“For the reasons set forth above, 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,” Hutchison wrote in an opinion released today.
The four votes have been in limbo for a year.
When the residents of Harpers Ferry finished voting in the town’s election on June 11, 2019, the results were very close in the race for five town council seats:
Barbara Humes received 91 votes; Jay Premack, 87 votes; Hardwick Johnson, 85 votes; Christian Pechuekonis, 84 votes; Charlotte Thompson, 84 votes; Nancy Singleton Case, 82 votes; Deborah McGee, 81 votes; Marjorie Flynn Yost, 81 votes; and Leah Howell, 15 votes.
McGee, who lost by three votes, and Case, who lost by two votes, have been challenging the results based on four provisional ballots cast by voters.
Depending on how those four voted, the results could change.
The election mess began, lawyers for Case and McGee contended, because of an error that occurred when the four citizens 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 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.”
A lawyer representing individual members of Harpers Ferry’s government contended the town followed appropriate rules every step of the way, including during the canvass that initially found the votes should not be counted.
Case and McGee 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.
“We reject the petitioners’ contention that the provisional voters were not duly registered to vote simply because their names were not in the Harpers Ferry poll book on election day,” Justice Hutchison wrote in today’s ruling.
He added, “In this case, the provisional voters’ registrations were called into question on election day because their names were not in the Harpers Ferry poll book. However, the evidence presented during the election contest trial established that these four voters were duly registered to vote and were in fact residents of Harpers Ferry; their names were not listed in the Harpers Ferry poll book simply because of an erroneous designation in their residential addresses.”
The lawyers for some of the current council members who challenged the circuit judge’s earlier ruling said they were disappointed but accepting of the ruling.
“Although the outcome wasn’t what we were hoping for, we are proud to stand behind our clients, who took their jobs seriously and did their level-best to follow the law every step of the way,” stated Zak Ritchie, counsel for the petitioners.
Attorney General Patrick Morrisey and Secretary of State Mac Warner had earlier taken the position that technical errors should not be used to deny someone the right to vote.
“I am pleased the Court upheld our state code that says technical errors shall be disregarded and the votes shall be counted. That was clearly the case here where DMV and Post Office blunders led to the technical error,” Warner stated 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 remained unsettled.
Members of the town’s current governing majority have said they want to see the project go forward under a zoning overlay district established in 2017 — but they contend the developers of the property want to go beyond that.
Four votes cast last year could now determine what happens next.
Harpers Ferry Mayor Wayne Bishop said no matter how the newly-counted votes shape council, he has a lot on his plate. Bishop said he was working on easements and scopes of work for a variety of development.
“We’ve knee deep in projects here,” Bishop said.
“Regardless of whether there are new people or the present people on Council, there’s a large list of work that needs to be completed.”
Councilman Jay Premack, whose seat is not in doubt, emphasized the need for public trust in an upcoming recount.
“It’s my hope and expectation that will be done in the most transparent way possible to ally any concerns anyone might have,” Premack said in a telephone interview.
Premack has believed the votes should have counted all along and that all the members of council who would be affected by the results should have recused themselves.
“Today’s a great day for democracy and long overdue justice was served for the West Virginia Supreme Court. I applaud the correct decision,” Premack said.
“This hopefully is a first step toward healing the town.”
Story by Brad McElhinny