IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term FILED _____________________ June 15, 2020 released at 3:00 p.m. No. 19-1018 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS _____________________ OF WEST VIRGINIA
HARDWICK SMITH JOHNSON, CHARLOTTE WARD THOMPSON, MARJORIE FLYNN YOST, AND BARBARA HUMES, Defendants Below, Petitioners
v.
NANCY SINGLETON CASE AND DEBORAH A. MCGEE, Plaintiffs Below, Respondents _______________________________
Appeal from the Circuit Court of Jefferson County Honorable Debra McLaughlin, Judge Civil Action No. 19-P-136
AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED WITH DIRECTIONS
_________________________________________________________
Submitted: May 19, 2020 Filed: June 15, 2020
J. Zak Richie, Esq. Gregory A. Bailey, Esq. Ryan McCune Donovan, Esq. J. Daniel Kirkland, Esq. Hissam Forman Donovan Arnold & Bailey, PLLC Richie, PLLC Charles Town, West Virginia Charleston West Virginia Attorneys for Respondents Attorneys for Petitioners Patrick Morrisey, Esq. Attorney General Curtis R. A. Capehart, Esq. Deputy Attorney General Thomas T. Lampman, Esq. Assistant Solicitor General Charleston, West Virginia Attorneys for Amicus Curiae, Mac Warner, Secretary of State of WV
JUSTICE HUTCHISON delivered the Opinion of the Court. JUSTICE WORKMAN did not participate in the decision in this case. SYLLABUS BY THE COURT
1. “While the appellate court may examine the record in the review of
election contests in order to reach an independent conclusion, it merely determines whether
the conclusions of law are warranted by the findings of fact, and it will not, as a general
rule, disturb findings of fact on conflicting evidence unless such findings are manifestly
wrong or against the weight of the evidence.” Syl. Pt. 6, Brooks v. Crum, 158 W.Va. 882,
216 S.E.2d 220 (1975).
2. “The statutory law contemplates that an election recount and contest
shall be separate proceedings. The former must terminate and the result be declared before
the latter may commence.” Syl. Pt. 2, in part, Reynolds v. Bd. of Canvassers of Harrison
Cty., 117 W.Va. 770, 188 S.E. 229 (1936).
3. “Where a candidate seeks to contest specific ballots cast in an election
pursuant to the provisions of West Virginia Code § 3-7-6 (1999), he must first demand that
the Board of Canvassers conduct a recount of the ballots pursuant to the provisions of West
Virginia Code § 3-6-9 (1999). Where, however, a candidate seeks to contest only such
matters as fraud, an elected candidate’s eligibility, or the legality of the election, the
candidate may proceed directly with an election contest pursuant to the provisions of West
Virginia Code § 3-7-6, thereby omitting the recount procedure set forth in West Virginia
Code § 3-6-9, provided that any recount proceeding which was otherwise initiated has
i terminated.” Syl. Pt. 5, Miller v. Cty. Comm’n of Boone County, 208 W.Va. 263, 539
S.E.2d 770 (2000).
4. “The rule of necessity is an exception to the disqualification of a
judge. It allows a judge who is otherwise disqualified to handle the case to preside if there
is no provision that allows another judge to hear the matter.” Syl. Pt. 7, State ex rel. Brown
v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994).
5. “The rule of necessity is an exception to the general rule precluding a
disqualified judge from hearing a matter. Therefore, it is strictly construed and applied only
when there is no other person having jurisdiction to handle the matter that can be brought
in to hear it.” Syl. Pt. 8, State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47
(1994).
ii HUTCHISON, Justice:
This case is before this Court upon an appeal of a November 6, 2019, order
of the Circuit Court of Jefferson County that reversed, in part, an order declaring the results
for a town council election that was entered by the Harpers Ferry Election Contest Tribunal
(“Tribunal”) following an election contest trial. The circuit court found that the Tribunal
erred by concluding that four provisional ballots cast during the Harper Ferry municipal
election on June 11, 2019, should not be counted. In this appeal, the petitioners, Hardwick
Smith Johnson, Charlotte Ward Thompson, Marjorie Flynn Yost, and Barbara Humes, who
are the contestees, 1 argue that the circuit court erroneously substituted its view of the
evidence to find that the four provisional ballots should have been counted. The
respondents, Nancy Singleton Case and Deborah A. McGee, who are the contesters, assert
that the circuit court’s order should be affirmed with respect to the finding regarding the
provisional ballots. However, the respondents cross-assign error 2 to the circuit court’s
decision to uphold the Tribunal’s conclusion that respondent Case lacked standing to
participate in the election contest because she failed to post the requisite bond for the
recount of the votes. The respondents also contend the circuit court erred by failing to rule
that two town council members were disqualified from serving on the Tribunal. 3
1 Two other contestees, Christian Pechuekonis and Jay Premack, who won seats on the town council, did not respond to the Notice of Contest and are not parties in this appeal. 2 See W.Va. R. App. Proc. 10(f). 3 An amicus brief was filed by Mac Warner, the West Virginia Secretary of State, on behalf of the respondents. 1 Having considered the parties’ briefs and oral arguments, the submitted
record, and pertinent authorities, we affirm, in part, and reverse, in part, the circuit court’s
order and remand this case for entry of an order consistent with this opinion.
I. Facts and Procedural Background
The town of Harpers Ferry held a municipal election on June 11, 2019.
Among the offices subject to election were five at-large seats on the Harpers Ferry Town
Council. The candidates for the town council seats and the number of votes recorded for
each on election day were as follows: Barbara Humes, 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. As the vote count illustrates, respondent McGee lost
by three votes and respondent Case lost by two votes. 4 On June 19, 2019, respondent
McGee submitted a letter asking for a recount and tendered a check for the $175.00 bond
that had been set by the Board of Canvassers to cover the cost of any recount. According
to respondent Case, she also requested a recount by email that same day but did not post
the bond. 5
Although Marjorie Flinn Yost also lost the election, she did not contest the results. 4
Consequently, she was named as a contestee and is a petitioner herein. 5 Respondent Case testified during the proceeding below that she sent an email requesting a recount. However, it appears that the email was never produced, and it is not part of the record submitted to this Court. Respondent Case never disputed the fact that she did not post a bond. She testified that she was out of town during the forty-eight-hour 2 The recount was held on June 26, 2019, and there was no change in the result.
Only the ballots previously accepted by the Board of Canvassers were recounted; no
provisional ballots were considered. Thereafter, the election results were certified, and on
June 29, 2019, the five incoming members of the town council, including petitioners
Johnson, Thompson, and Humes, were sworn in.
On July 8, 2019, respondents McGee and Case timely filed a joint petition to
contest the election results alleging that five citizens of Harpers Ferry were denied the right
to vote based upon erroneous records that indicated that they did not reside in Harpers
Ferry. These citizens, Linda McCarty, George McCarty, Adam Hutton, Leah Howell, 6 and
Jane Mumaw, voted by provisional ballot on election day. Subsequently, the petitioners
abandoned their claim with respect to Ms. Mumaw upon receipt of information indicating
she was registered to vote in another county. The other four provisional voters resided on
Washington Street in Harpers Ferry, and the respondents asserted that their votes should
have been counted. The provisional voters had each registered to vote through the West
Virginia Department of Motor Vehicles (“DMV”), 7 which had listed their street address as
period for filing the request for a recount and was told that the check submitted by respondent McGee to cover the bond was all that was needed for the recount. 6 Ms. Howell was also a candidate for the town council seats. 7 See W.Va. Code § 3-2-11 (2019) (providing for voter registration in conjunction with driver licensing). 3 “West Washington Street,” which is located in the neighboring municipality of Bolivar.
Consequently, their names did not appear in the Harpers Ferry poll book on election day.
An election contest trial was held on August 24, 2019. Pursuant to West
Virginia Code § 3-7-6 (2002), “the governing body of the municipality is the judge of any
contest of a municipal election.” 8 The codified ordinances of Harpers Ferry provide that
the town council is “the governing body of the town” and consists of “five
Councilmembers, plus the Mayor and the Recorder.” 9 Thus, the members of the Tribunal
were the mayor, Wayne Bishop; the recorder, Kevin Carden; and newly elected council
members, Barbara Humes, Hardwick Johnson, Charlotte Thompson, and Jay Premack.
Council member Christian Pechuekonis declined to participate in the election contest.
During the proceeding, the respondents objected to petitioners Johnson and Thompson
serving on the Tribunal because their election to the town council was being contested.
The Tribunal concluded, however, that it “ha[d] no legal authority to compel any one or
more of its members to disqualify themselves from participating in any business that comes
before the Town Council” and that “[d]isqualification is determined and undertaken on an
individual basis.”
8 See also Syl. Pt. 1, Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880 (1949) (“The jurisdiction of the common council of a municipality incorporated under Article 2, Chapter 8, Code, to hear and decide a contested election involving the selection of municipal officers is original and exclusive.”). 9 See Harpers Ferry Codified Ordinances § 111.01 (2011); § 111.02 (2016). 4 During the election contest trial, the respondents called three of the
provisional voters—Linda McCarty, George McCarty, and Adam Hutton—to testify along
with Nikki Painter, Chief Deputy Clerk of Elections for the Jefferson County Voter
Registration and Elections Office. The McCartys testified that when they registered to vote
at the DMV, they were told that their street address needed to be identified as “West
Washington Street” as opposed to just “Washington Street” because that was the way their
address appeared in the DMV’s electronic system. The McCartys further testified that they
explained to the DMV employee that they did not live on “West Washington Street” but
their efforts to have the correct address put into the system were unsuccessful. The
McCartys stated that they did not understand the importance of the address distinction until
they attempted to vote during the June 11, 2019, election and were told that they were not
listed in the Harpers Ferry poll book. Consequently, they were required to cast provisional
ballots.
Similarly, Adam Hutton testified that he used “900 West Washington Street”
when he registered to vote at the DMV because that was the address assigned to him by
the U.S. Postal Service. Like the McCartys, Mr. Hutton only became aware that he was
listed in the poll book for Bolivar, rather than Harpers Ferry, when he attempted to vote on
June 11, 2019. He was also required to cast a provisional ballot.
Ms. Painter testified that when the matter was brought to her attention, she
investigated to determine why the provisional voters were listed in the poll book for
5 Bolivar, the neighboring municipality. 10 She explained that the “West” designation in the
provisional voters’ addresses was a technical error that caused her to mistakenly list the
provisional voters in the Bolivar poll book. Ms. Painter testified that all four provisional
voters do in fact live in Harpers Ferry, and they should have been listed in the Harpers
Ferry poll book. She indicated that she had corrected the official county voting records to
properly reflect that all four provisional voters are Harpers Ferry residents.
Following the trial, the Tribunal, by a vote of four-to-two, 11 entered an order
on September 11, 2019, declining to count the provisional ballots and refusing to modify
the election certification. The Tribunal also found that respondent Case lacked standing to
participate in the election contest because she failed to post the bond required for the
recount of the votes. The respondents timely appealed the decision to the circuit court. 12
Following oral arguments, the circuit court entered its November 6, 2019, order reversing
the Tribunal’s decision to not count the provisional ballots. However, the circuit court
10 At the outset of her testimony, Ms. Painter explained that her job duties included registering voters and handling “every aspect of the election from the Clerk’s prospective, including preparing the poll books.” She further explained, “I work with municipalities to supply their poll books and to provide whatever other supplies that they would need to borrow from the county.” 11 The majority included the mayor and council members Humes, Johnson, and Thompson. Recorder Kevin Carden and council member Jay Premack dissented from the decision. 12 See W.Va. Code § 3-7-7 (1963) (allowing for appeal of election contest decision to circuit court). 6 upheld the Tribunal’s decision that respondent Case lacked standing to participate in the
election contest because she failed to post the requisite bond within forty-eight hours of
filing her request for a recount. Having reached the merits of the case, the circuit court did
not address the respondents’ argument that certain members of the Tribunal were
disqualified because their election to the town council was being contested. Upon entry of
the circuit court’s order, this appeal followed.
II. Standard of Review
The standard of review for election contests has long been established. In
syllabus point six of Brooks v. Crum, 158 W.Va. 882, 216 S.E.2d 220 (1975), this Court
held:
While the appellate court may examine the record in the review of election contests in order to reach an independent conclusion, it merely determines whether the conclusions of law are warranted by the findings of fact, and it will not, as a general rule, disturb findings of fact on conflicting evidence unless such findings are manifestly wrong or against the weight of the evidence.
However, with respect to questions of law that arise in election contests cases, our review
is de novo. State ex rel. Bowling v. Greenbrier Cty. Comm’n, 212 W.Va. 647, 650, 575
S.E.2d 257, 260 (2002). With these standards in mind, we consider the parties’ arguments.
7 III. Discussion
The primary assignment of error in this case concerns whether the circuit
court erred when it found that four provisional ballots cast during the 2019 Harpers Ferry
municipal election should have been counted. We begin our analysis
ever mindful of the paramount principle that election laws are to be construed in favor of enfranchisement, not disenfranchisement. See State ex rel. Sowards v. County Comm’n of Lincoln County, 196 W.Va. 739, 750, 474 S.E.2d 919, 930 (1996). See Afran v. County of Somerset, 244 N.J.Super. 229, 232, 581 A.2d 1359, 1361 (1990) (“[E]lection laws must be liberally construed to effectuate the overriding public policy in favor of the enfranchisement of voters.”); see also James Appeal, 377 Pa. 405, 407, 105 A.2d 64, 65 (1954) (In construing election laws, while courts must strictly enforce all provisions to prevent fraud, an overriding concern must be to be flexible in order to favor the right to vote.).
State ex rel. Bowling, 212 W.Va. at 649, 575 S.E.2d at 259. In other words, “[a] liberal
application of any statute should be made so as to afford the citizens of this State or any
political subdivision thereof an opportunity to vote for the persons of their choice.”
MacCorkle v. Hechler, 183 W.Va. 105, 106, 394 S.E.2d 89, 90 (1990), quoting State ex
rel. Lockhart v. Rogers, 134 W.Va. 470, 477, 61 S.E.2d 258, 262 (1950).
The petitioners in this case argue that the circuit court, acting in this instance
as an appellate court, exceeded its scope of review when it found that the respondents
satisfied their burden of proving that the provisional voters were residents of Harpers Ferry
and were duly registered to vote in the municipality on election day. The petitioners
maintain that the circuit court erroneously substituted its own findings of fact for those of
8 the Tribunal to find that the provisional votes should have been counted. Upon review, we
find that the circuit court did not err in concluding that the Tribunal’s findings were
manifestly wrong and against the clear weight of the evidence presented during the election
contest trial.
With respect to the residency requirement, 13 the petitioners argue that the
evidence presented at the election contest trial was insufficient to establish that the
provisional voters were residents of Harpers Ferry. Specifically, the petitioners contend
that because Ms. Howell never appeared to testify at the election contest trial, there was no
evidence that she resided in Harpers Ferry on the date of the election. Although Ms. Howell
was a candidate for the town council seats, the petitioners assert that there was no evidence
presented that Ms. Howell was “certified” to be a candidate in the election and that even if
such certification existed, it would not satisfy the legal requirement of residency to count
her vote. The petitioners also claim that Ms. Howell intentionally withdrew her candidacy
prior to the election, which further calls into question her alleged residency in Harpers
Ferry. 14 Petitioners maintain that Ms. Painter’s testimony that she “changed” Ms. Howell’s
13 See W.Va. Code § 3-1-3 (entitling citizens of West Virginia to vote in all elections held within precincts of counties and municipalities where they respectively reside); W.Va. Code § 3-2-5(c) (specifying information required on application to be duly registered to vote includes applicant’s legal name, date of birth, and residential address), discussed infra. 14 To support this claim, the petitioners submitted a copy of an email wherein Ms. Howell, responding to a request from the Town Clerk for a statement regarding why she was running for town council, replied, “I will not be running.” Notably, the town council, which also served as the Board of Canvassers, certified fifteen votes in favor of Ms. Howell when it declared the results of the election. 9 registration to reflect that Ms. Howell resides in Harpers Ferry was insufficient to establish
the residency requirement because Ms. Painter acknowledged that she had not personally
spoken to Ms. Howell.
As for the other three provisional voters, the petitioners maintain that the
evidence regarding their actual residency in Harpers Ferry was insufficient because there
was no testimony from a DMV employee regarding the actual source or cause of the alleged
voter registration errors. Petitioners point out that the only evidence regarding the alleged
DMV error came through the testimony of Ms. Painter, who admittedly lacked personal
knowledge of exactly how this alleged error occurred. Thus, the petitioners reason the
Tribunal properly found that the residency requirement for the provisional voters was not
established by competent evidence at the election contest trial.
Contrary to the petitioners’ assertions, the record shows that Ms. Painter
explained the exact nature of the error regarding the provisional voters’ addresses when
she testified during the election contest trial. Moreover, Ms. Painter provided detailed
testimony as to how she investigated the matter and confirmed that the provisional voters
were actual residents of Harpers Ferry and should have been included in the municipality’s
poll book. Explaining that Washington Street runs through both Harpers Ferry and Bolivar,
Ms. Painter testified, “We wanted to find out where the street numbers stopped for Harpers
Ferry and where they began for Bolivar.” Ms. Painter stated that she consulted maps of
Harpers Ferry and contacted the Jefferson County GIS/Addressing Office, which assigns
10 addresses for the county’s 911 system. Ms. Painter testified that she verified which street
numbers fall within each municipality and that the street address numbers of the four
provisional voters were within the boundaries of Harpers Ferry. Characterizing the error
as an “oversight,” Ms. Painter explained that she had simply looked at the street name,
instead of the house number, and had erroneously listed the voters in the Bolivar poll book
based on the “West” designation. Ms. Painter further testified that once she determined
the provisional voters’ residences were within the corporate bounds of Harpers Ferry, she
corrected the poll books. 15
Having reviewed the testimony presented at the election contest trial, we are
unable to find that the circuit court erred when it concluded that
[t]he evidence presented by Ms. Painter was clear and undisputed that Voter G. McCarty, Voter L. McCarty, Voter Howell and Voter Hutton were each duly registered voters in the State of West Virginia. It was clearly against the weight of the evidence and manifestly wrong for the Tribunal to have listened to the undisputed testimony of the Chief Deputy Clerk of Elections and not to have reached this conclusion.
The Tribunal mistakenly focused on a need to hear from a DMV representative as to the cause of having included the word “West” in these voters’ addresses. The Tribunal ignored the totality of the circumstances, that all four voters registered to vote while at the DMV and all [sic] three of the four testified that the DMV added the word “West” to their address. There was no evidence presented to contradict the testimony of Ms. Painter or the three voters who testified.
Ms. Painter testified that she did not have to correct the poll books for the 15
McCartys because after they were required to cast provisional ballots, they went to the DMV and were able to have their address corrected before she completed her investigation. 11 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. To support this argument, the petitioners rely upon Galloway v. Common
Council of the City of Kenova, 133 W.Va. 446, 57 S.E.2d 881 (1949), which held:
When the permanent registration system created by statute has been adopted by a municipality for an election of municipal officers, ballots cast in such election by voters whose names did not appear upon the permanent registration records procured from the municipal precinct file in the office of the clerk of the county court, as provided by Section 13-a, Article 5, Chapter 44, Acts of the Legislature, 1941, Regular Session, are not valid and can not be counted.
Id. at 446, 57 S.E.2d 881, syl. pt. 2. The petitioners’ reliance upon Galloway is misplaced.
The voter registration system in West Virginia was significantly different in 1949 than it
is today. At that time, there were two separate and distinct voter registration lists, one for
the county and state elections and one for municipal elections. Id. at 449-50, 57 S.E.2d at
883. In Galloway, the voters were registered for the county and state elections but were not
registered for the municipal election. It was the voters’ failure to register in the
municipality that caused their votes to not to be counted. Id. That is not what happened
here. Moreover, we no longer have a dual voter registration system.
In 1994, the Legislature enacted West Virginia Code § § 3-2-1 to -37, known
as the “Permanent Voter Registration Law,” to establish “a permanent voter registration
system . . . uniform in its requirements throughout the state and all of its subdivisions.”
W.Va. Code § 3-2-1 (1994). Under this law, “[n]o voter so registered shall be required to
12 register again for any election while continuing to reside with the same county, unless the
voter’s registration is cancelled as provided in this article.” Id. Following the passage of
the Help America Vote Act of 2002, 42 U.S.C. § 15301, et seq., the Legislature mandated
that the Secretary of State, as the chief election official of the state, “implement and
maintain a single, official, statewide, centralized, interactive computer voter registration
database of every legally registered voter[.]” W.Va. Code § 3-2-4a (2016). This database
is now “the official voter registration list for conducting all elections in the state.” Id. The
database contains “the name, registration information and voter history of every legally
registered voter in the state.” Id. The clerk of the county commission in each county and
any authorized designee of a county clerk has “immediate electronic access to the
information contained in the statewide voter registration database.” Id.
Article IV, § 1 of the West Virginia Constitution provides that “the citizens
of the state shall be entitled to vote at all elections held within the counties in which they
respectively reside[.]” In addition, West Virginia Code § 3-1-3 (2013) provides that
“[c]itizens of the state shall be entitled to vote at all elections held within the precincts of
the counties and municipalities in which they respectively reside. But no person who has
not been registered as a voter as required by the law . . . shall be permitted to vote[.]” To
be duly registered to vote under the Permanent Voter Registration Law, an applicant must
complete an application and, under oath, provide the following information:
(1) The applicant’s legal name, including the first name, middle or premarital name, if any, and last name; (2) The month, day, and year of the applicant’s birth;
13 (3) The applicant’s residence address including the number and street or route and city and county of residence: (A) In the case of a person eligible to register under the provisions of 42 U. S. C. § 1973ff, et seq., the Uniformed and Overseas Citizens Absentee Voting Act, the address at which he or she last resided before leaving the United States or entering the uniformed services, or if a dependent child of such a person, the address at which his or her parent last resided; (B) In the case of a homeless person having no fixed residence address who nevertheless resides and remains regularly within the county, the address of a shelter, assistance center or family member with whom he or she has regular contact or other specific location approved by the clerk of the county commission for the purposes of establishing a voting residence; or (C) In the case of a participant in the Address Confidentiality Program administered by the Secretary of State in accordance with section one hundred three, article twenty- eight (a), chapter forty-eight of this code, the designated address assigned to the participant by the Secretary of State; and (4) The applicant’s signature, under penalty of perjury as provided in section thirty-six of this article, to the attestation of eligibility to register to vote and to the truth of the information given. The clerk may accept the electronically transmitted signature kept on file with another approved state database for an applicant who applies to register to vote using an approved electronic voter registration system in accordance with procedures promulgated by the Secretary of State.
W.Va. Code § 3-2-5(c) (2013). 16
If a voter’s eligibility or registration to vote is called into question on the date
of an election, our statutory law allows the voter to cast a “provisional” or “challenged”
16 Effective June 1, 2020, this statute was amended, but this subsection was not changed. 14 ballot. W.Va. Code § 3-2-1. The statute further provides that “such ‘provisional’ or
‘challenged’ ballot may be counted only if a positive determination of the voter’s eligibility
and proper registration can be ascertained.” Id. 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. With respect to provisional
ballots, West Virginia Code § 3-1-41(e) (2016) clearly provides that “technical errors,
omissions, or oversights” shall be “disregarded” and the votes “shall be counted” if “it can
be reasonably ascertained that the challenged voter was entitled to vote.” Here, the
evidence showed that the provisional voters were all duly registered voters who resided in
Harpers Ferry on the date of the election. The provisional voters timely registered to vote
through the DMV and Ms. Painter explained how the “West” designation in their addresses
caused the provisional voters names to be placed in the wrong poll book. Ms. Painter
testified that she corrected the error as soon as it was brought to her attention. Contrary to
petitioners’ assertions, 17 the provisional voters were completely unaware of the error until
they attempted to cast their votes on election day. Because the evidence established that
17 The petitioners argue in their brief that the provisional voters were aware that their addresses were wrong and suggest that they had a duty to correct the error prior to election day. Upon review of the record, we were unable to find evidence to support this contention. 15 all the provisional voters were duly registered voters who resided at addresses falling
within the boundaries of Harpers Ferry, the circuit court properly found that the Tribunal
erred by ruling that their votes should not be counted.
We now turn to the cross-assignment of error concerning respondent Case’s
“standing” to participate in the election contest. “Standing” is defined as “[a] party’s right
to make a legal claim or seek judicial enforcement of a duty or right.” Findley v. State Farm
Mut. Auto Ins. Co., 213 W.Va. 80, 94, 576 S.E.2d 807, 821 (2002) (quotations and citation
omitted). Both the Tribunal and the circuit court found that Ms. Case did not have standing
to participate in the election contest because she failed to post the bond required for the
recount of the votes.
As set forth above, the record indicates that respondents McGee and Case
separately requested a recount of the votes after the election but only respondent McGee
paid the bond set by the Board of Canvassers. 18 West Virginia Code § 3-6-9(h) (2009)
provides:
18 The “Order Declaring Election Results” entered by the Tribunal contains conflicting findings of fact regarding whether respondent Case requested a recount. In that regard, the Tribunal made a finding that the respondents presented “no evidence that Nancy Singleton Case provided any written request for a recount within 48 hours of the declaration of election.” However, the Tribunal also made a finding that “[t]he Board [of Canvassers] met . . . on June 19, 2019 to certify the election results. At this meeting, Recorder Kevin Carden asserted that two losing candidates had made a recount request.” Noting the conflicting findings, the circuit court concluded that respondent Case’s email 16 Every candidate who demands a recount shall be required to furnish bond in a reasonable amount with good sufficient surety to guarantee payment of the costs and the expenses of the recount in the event the result of the election is not changed by the recount; but the amount of the bond shall in no case exceed three hundred dollars.
The respondents contend that the bond requirement was satisfied when respondent McGee
posted the bond for the recount because West Virginia Code § 3-6-9(f) provides that “there
shall be only one recount in each precinct, regardless of the number of requests for a
recount of any precinct.” In other words, they maintain that only one bond was required
because there could only be one recount of the votes.
Conversely, the petitioners argue that every candidate who seeks to
participate in an election contest must request a recount of the votes and post the required
bond. They contend that the right to vie for votes in an election contest is strictly
circumscribed by statute and is an individual right. Therefore, they reason that respondent
Case did not have standing to participate in the election contest because she did not adhere
to the mandatory requirements for requesting a recount, which includes the posting of the
bond. To support their argument, the petitioner rely upon Miller v. County Comm’n of
Boone County, 208 W.Va. 263, 539 S.E.2d 770 (2000).
satisfied the requirement of a written request for a recount but that she failed to post the required bond. 17 In Miller, Roger L. Weaver, a candidate for the Democratic nomination for
the Assessor of Boone County, appealed a circuit court order which granted a writ of
prohibition that precluded the county commission from hearing his protest of the results of
the primary election. The circuit court found that Mr. Weaver’s failure to file a request to
recount the votes prevented him from contesting the election results. Id. at 266, 539 S.E.2d
at 773. Prior to Miller, this Court had not considered whether a candidate must demand a
recount as a prerequisite to filing an election contest, but had long recognized that “[a]
contest and a recount . . . are very distinct procedures under our election laws.” State ex
rel. Booth v. Bd. of Ballot Comm’rs of Mingo Cty., 156 W.Va. 657, 672, 196 S.E.2d 299,
309 (1972). Indeed, “[t]he statutory law contemplates that an election recount and contest
shall be separate proceedings. The former must terminate and the result be declared before
the latter may commence.” Syl. Pt. 2, in part, Reynolds v. Bd. of Canvassers of Harrison
After examining the pertinent statutes governing the procedure for
recounting votes and contesting election results, 19 this Court determined that
[w]here a candidate seeks to contest specific ballots cast in an election pursuant to the provisions of West Virginia Code § 3-7-6 (1999), he must first demand that the Board of Canvassers conduct a recount of the ballots pursuant to the provisions of West Virginia Code § 3-6-9 (1999). Where, however, a candidate seeks to contest only such matters as fraud, an elected candidate’s eligibility, or the legality of the election, the candidate may proceed directly with an election
19 See W.Va. Code § 3-6-9; W.Va. Code § 3-7-6. 18 contest pursuant to the provisions of West Virginia Code § 3- 7-6, thereby omitting the recount procedure set forth in West Virginia Code § 3-6-9, provided that any recount proceeding which was otherwise initiated has terminated.
Miller, 208 W.Va. at 264-65, 539 S.E.2d at 771-72; syl. pt. 5.
In finding that a recount is required when specific ballots cast during an
election are being contested, this Court explained:
We have also previously recognized that the limited function of an election recount to decide matters which can be resolved intrinsically from the plain face of the actual ballot serves to “lay the basis for a[n] [election] contest[,]” because there are “many irregularities and illegalities discoverable in the course of a recount that cannot be corrected in that proceeding.” Brawley v. County Court, 117 W.Va. 691, 694, 187 S.E. 417, 418 (1936). Another important facet of a recount is that it places all candidates who filed for the office in which the recount has been demanded on notice that problems may exist with specific votes cast in the election. See W. Va. Code § 3-6-9(a). Thus, where a candidate is disputing certain votes or ballots cast in an election, a recount gives all interested candidates in that particular race an opportunity: 1) to observe the manner in which the Board of Canvassers conducts the recount; 2) “to notify the board, in writing, of their intention to preserve their right to demand a recount of precincts not requested to be recounted by the candidate originally requesting a recount of ballots cast[;]” and 3) to identify votes cast which may be challenged as irregular or illegal in an election contest. See W. Va. Code § 3-6-9(b).
Inherent in the recount procedure is the concept of fairness to all interested candidates in an election. The recount procedure is the only mechanism available in an election dispute which gives the interested candidates a chance to identify and define problematic votes, thereby establishing the parameters for an election contest. The elimination of this procedure where specific votes are in dispute would necessarily result in a lopsided and unfair playing field upon
19 which to base an election contest. It is, therefore, evident that where the challenge to election results stems from specific votes cast, a recount plays an integral and indispensable role tantamount to fundamental principles of due process, which cannot be ignored or omitted. To allow a candidate in such a case to bypass the recount procedure and proceed directly to an election contest would thwart the legislative purpose of the recount statute and essentially render such statute irrelevant. See W. Va. Code § 3–6–9 and § 3–7–6.
Miller, 208 W.Va. at 269, 539 S.E.2d at 776.
Unlike Miller, where the contester failed to timely request a recount before
attempting to contest the election results, in this case, there was a recount of the votes
pursuant to the timely request and payment of the bond by respondent McGee. Critically,
the legislative purpose of the recount was not impeded. The “problematic votes,” i.e., the
provisional ballots, were identified and the parameters of the election contest were
established as a result of respondent McGee’s request for a recount. Accordingly, the
requirements of Miller were satisfied. Given that West Virginia Code § 3-6-9(f) only
authorizes one recount in each precinct; that respondents Case and McGee were candidates
in the same town council election; and that the bond, which covers the cost of the recount,
was paid by respondent McGee, we find the circuit court erred by affirming the Tribunal’s
finding that respondent Case lacked standing to participate in the election contest. Because
of the unique circumstances presented in this case and the fact that the legislative purpose
of the recount statute was achieved, we reverse the final order of the circuit court insofar
20 as it finds that respondent Case does not have standing to participate in the election contest
of the 2019 Harpers Ferry town council election. 20
Finally, we consider the respondents’ cross-assignment of error concerning
the refusal of council members Johnson and Thompson, who are also petitioners in this
case, to disqualify themselves from participating in the election contest trial as members of
the Tribunal. The respondents contend these council members obviously should not have
judged their own election contest and that the circuit court should have ruled that they were
disqualified. As noted above, the circuit court declined to address this matter having
reached the merits of the case and concluded that the provisional ballots should have been
counted. While the issue is technically moot given our decision to affirm the circuit court’s
determination that the provisional ballots should be counted, we are compelled to address
the matter because the issue is clearly capable of repetition and involves a vital public
function—declaring the results of an election. See Syl. Pt. 1, Israel by Israel v. W. Va.
Secondary Schools Activities Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989) (setting
forth factors courts consider in deciding to address technically moot issues).
20 We note that our decision today should not be construed to mean that a candidate for an elected office can participate in the recount process without paying the required bond as that was not the issue presented in this case. Having failed to pay such bond at the initiation of the recount, respondent Case would not have been authorized to determine which precinct(s) were to be reviewed, nor would she have been able to stop the recount or require it to proceed further if respondent McGee decided to stop it. However, as discussed above, the recount process is a separate proceeding from an election contest. Our decision today is based on the narrow set of facts presented and concerns only the right of respondent Case to participate in the election contest. 21 The respondents assert that the participation of council members Johnson and
Thompson as members of the Tribunal “ran afoul of common sense, logic, statutory law,
and the West Virginia Ethics Code governing elected officials.” We agree. It is axiomatic
that “a judge should disqualify himself or herself from any proceeding in which his or her
impartiality might reasonably be questioned.” Tennant v. Marion Health Care Foundation,
Inc., 194 W.Va. 97, 108, 459 S.E.2d 374, 385 (1995). With regard to judging election
contests, West Virginia § 3-7-6 provides:
In all cases of contested elections, the county commission shall be the judge of the election, qualifications and returns of their own members and of all county and district officers: Provided, That a member of the county commission whose election is being contested may not participate in judging the election, qualifications and returns.
(Emphasis supplied). This provision applies equally to municipal elections as the statute
expressly states: “The provisions of this section apply to all elections, including municipal
elections, except that the governing body of the municipality is the judge of any contest of
a municipal election.” Id.
In this case, the respondents were clearly contesting the election of council
members Johnson and Thompson. The certified election results indicated that respondents
Case and McGee lost by two and three votes, respectively. There were four provisional
ballots at issue. As such, council members Johnson and Thompson and Christian
Pechuekonis, the other newly elected council member who received votes within the
22 margin of error, were subject to losing their seats on the town council depending upon the
outcome of the election contest. Mr. Pechuekonis voluntarily disqualified himself from
the Tribunal and did not participate. Council members Johnson and Thompson refused to
disqualify themselves, maintaining that the rule of necessity required them to participate
as members of the Tribunal even though their election to the town council was being
contested.
“The rule of necessity is an exception to the disqualification of a judge. It
allows a judge who is otherwise disqualified to handle the case to preside if there is no
provision that allows another judge to hear the matter.” Syl. Pt. 7, State ex rel. Brown v.
Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994). The petitioners argue that all council
members who were named as contestees were disqualified in this matter and a quorum to
judge the election contest did not exist. Therefore, they reason that the rule of necessity
required their participation as members of the Tribunal. However, the petitioners have
overlooked the fact that council member Jay Premack was not impacted by the election
contest because he won his seat on the town council with 87 votes. Likewise, council
member Humes was elected with 91 votes and was not at risk of losing her seat as a result
of the election contest. With the addition of the other two members of the Tribunal who
were not candidates in the town council election, there was a quorum of four persons on
the Tribunal to decide the election contest absent council members Johnson and
Thompson’s participation.
23 This Court has explained that “the rule of necessity is an exception to the
general rule precluding a disqualified judge from hearing a matter. Therefore, it is strictly
construed and applied only when there is no other person having jurisdiction to handle the
matter that can be brought in to hear it.” Id. at 171, 444 S.E.2d at 49; syl. pt. 8. While the
rule of necessity required the participation of council members Premack and Humes to
provide a quorum to judge the election contest, it did not require the participation of council
members Johnson and Thompson. The Ethics Commission so advised when it responded
to council member Jay Premack’s request for an opinion on the matter. The Ethics
Commission opined:
It is the general opinion of Ethics Commission staff that [if] there is a reasonable probability that the tribunal’s decision on the election contest could impact whether a council member, who is also a member of the tribunal, may keep his or her City Council seat, then that council member may not participate as a member of the tribunal because he or she has financial interest in holding the elected position in question.
In sum, council members Johnson and Thompson should not have participated in the
election contest trial as members of the Tribunal. The rule of necessity did not require their
participation because there were members of the town council who were not impacted by
the election contest available to serve on the Tribunal.
IV. Conclusion
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
24 should be counted. We reverse the circuit court’s order insofar as it affirms the Tribunal’s
decision that Nancy Singleton Case lacked standing to participate in the election contest.
This case is remanded to the circuit court for entry of a new order consistent with this
opinion.
Affirmed, in part, Reversed, in part, and Remanded with directions.