Barr v. Gainer

508 S.E.2d 96, 203 W. Va. 379, 1998 W. Va. LEXIS 143
CourtWest Virginia Supreme Court
DecidedJuly 17, 1998
DocketNo. 24815
StatusPublished

This text of 508 S.E.2d 96 (Barr v. Gainer) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barr v. Gainer, 508 S.E.2d 96, 203 W. Va. 379, 1998 W. Va. LEXIS 143 (W. Va. 1998).

Opinion

McCUSKEY, Justice:

This is an appeal from an election contest decision concerning the November 5, 1996 general election for a seat on the Calhoun County Commission. The appellant, Willis “Tom” Gainer (hereinafter “Gainer”), asks us to overrule the June 3,1997 final order of the Circuit Court of Calhoun County. Pursuant to that order, the circuit court disallowed as void all votes cast in the election for County Commissioner in Precinct No. 7 of Calhoun County, where Gainer’s sister served as a poll worker in violation of W.Va.Code § 3-1-28(a)(5) (1993). The practical effect of the lower court’s ruling was to remove the incumbent, Gainer, from his office as county commissioner and elect the appellee, David Barr (hereinafter “Barr”), to that office. The principal issue now before this Court is whether the remedy employed by the circuit judge was appropriate. For the reasons set forth below, we conclude that the remedy was proper, and, accordingly, we affirm the judgment of the circuit court.

I.

FACTUAL BACKGROUND

The November 5, 1996, general election in Calhoun County involved a race for the office of County Commissioner. Gainer, the Democratic nominee, was an incumbent County Commissioner. Barr was the Republican challenger.

Prior to the election, Patty Little, a member of the county Democratic Party Executive Committee, nominated Jackie Robinson as a poll worker for Precinct No. 7 of Calhoun County. Ms. Robinson had served as a poll worker in past.elections. More importantly, Ms. Robinson is Gainer’s biological sister, and Ms. Little was cognizant of that fact when she selected her to work the election. The testimony of Ms. Little suggests that she also knew it was illegal for a family member of a candidate to serve as a poll worker in the election.1 In addition, in the Spring of 1996, Ms. Little had attended a meeting of the Democratic Party Executive Committee during which the subject of candidates’ siblings serving as poll workers was discussed.

In October 1996, the Calhoun County Commission held a meeting at which it appointed as poll workers the nominees on a list submitted by the county Republican Party Executive Committee. At the time of the meeting, the county Democratic Party had not yet submitted its list of poll worker nominees. Consequently, the commission did not appoint Democratic Party poll workers at its October meeting.

After the October 1996 meeting of the county commission, different people on the Democratic Executive Committee submitted the names of the Democratic nominees for poll worker to Richard Kirby, the county clerk. A few weeks before the election, a list of nominees for Precinct No. 7 was delivered to him by Ms. Little. Ms. Robinson’s name was among those on the list. The county commission did not meet to appoint poll [382]*382workers after the Democratic nominees were submitted to Mr. Kirby. Because the Democratic poll worker positions were not filled by the commission, Mr. Kirby, in his capacity as county clerk, filled the vacancies by appointing those persons who had been nominated by the Democratic Party, including Ms. Robinson. Like Ms. Little, Mr. Kirby knew that Gainer and Ms. Robinson were brother and sister.

On November 5, 1996, the general election was held. The election was conducted using paper ballots, and Ms. Robinson worked on the ballot counting board in Calhoun County’s Precinct No. 7. Upon entering the building where the Precinct No. 7 polling was conducted, and prior to casting their ballots, voters could see Ms. Robinson in the “counting room.”

Several voters at Precinct No. 7 noted Ms. Robinson’s presence as a poll worker. These voters knew that she was Gainer’s sister. One such voter indicated that she did not think Ms. Robinson’s service as a poll worker was proper. Another voter expressed her belief that Ms. Robinson would know for whom she had voted. A third voter testified that he specifically recalled seeing Ms. Robinson as he passed the counting room before casting his vote. Ms. Robinson was also observed outside the counting room by voters and fellow poll workers. She was seen in the area where the ballot box was located, getting coffee, walking down the hall to the restroom, and outside the building talking to her daughter.

Gainer was aware that his sister usually serves as an election poll worker. Consequently, according to his affidavit, he was not surprised that she did so in the November 5, 1996 election.

The county-wide, unofficial election results, as computed on November 5, 1996, from the ballot counters’ tally sheets, showed Gainer to be the victor county-wide with 1,313 votes in his favor and 1,289 votes for Barr, a margin of 24 votes. In Precinct No. 7 where his sister served as a poll worker, Gainer’s margin was more substantial with 164 votes for Gainer and 126 votes for Barr, a difference of 38 votes.

On November 12, 1996, the Calhoun County Commission, sitting as the Board of Canvassers, declared the official result for the Commissioner’s race to be 1,323 for Gainer and 1,300 for Barr, a margin of 23 votes. In Precinct No. 7, the count was 164 for Gainer and 130 votes for Barr, a 34 vote difference. Barr filed a demand for a recount, which was held on November 22, 1996, and certified by the Board of Canvassers on December 2, 1996.2 The final certified result was as follows:

Calhoun County: Gainer — 1,325 Barr — 1,298 (Gainer by 27)
Precinct No. 7: Gainer — 167 Barr — 127 (Gainer by 40)

On December 11, 1996, Barr filed objections with the county commission pertaining to the conduct of the election, the results, and the certification of those results. Among other things, he alleged that Ms. Robinson was legally disqualified from serving as a poll worker due to her relation to Gainer.

On January 29, 1997, the county commission conducted a hearing on Barr’s objections. Testimony and other evidence was presented, and a record was prepared. After the hearing, the commission voted on whether to sustain or reject Barr’s objections. Gainer abstained from the vote. The two remaining commissioners were unable to reach agreement. Thus, Barr’s objections were rejected, the recount was allowed to stand, and the results of the election to the Calhoun County Commission were certified.

Barr thereafter appealed to the Circuit Court of Calhoun County. On May 22, 1997, the circuit judge issued a Letter of Opinion, setting forth findings of fact and conclusions of law. Among other things, the circuit [383]*383judge found that Gainer, Ms. Robinson, Ms. Little, and Mr. Kirby "knowingly and intentionally violated the provisions of WV Code § 3-1-28 prohibiting Jackie Robinson's service as a poll worker." On June 3, 1997, the circuit judge entered an order disallowing as void all votes cast for the office of County Commissioner in Calhoun County Precinct No. 7 in the November 5, 1996 election. It is from that order that Gainer appeals to this Court.

II.

STANDARD OF REVIEW

The standard of review on appeal of an election contest proceeding was articulated by this Court in Syllabus Point 6 of Brooks v. Crum, 158 W.Va. 882, 216 S.E.2d 220 (1975):

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Pridemore v. Fox
59 S.E.2d 899 (West Virginia Supreme Court, 1950)
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Brooks v. Crum
216 S.E.2d 220 (West Virginia Supreme Court, 1975)

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Bluebook (online)
508 S.E.2d 96, 203 W. Va. 379, 1998 W. Va. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barr-v-gainer-wva-1998.