State of ex rel. Bowling v. Greenbrier County Commission

575 S.E.2d 257, 212 W. Va. 647, 2002 W. Va. LEXIS 197
CourtWest Virginia Supreme Court
DecidedDecember 2, 2002
DocketNos. 30876, 30877
StatusPublished
Cited by4 cases

This text of 575 S.E.2d 257 (State of ex rel. Bowling v. Greenbrier County Commission) 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
State of ex rel. Bowling v. Greenbrier County Commission, 575 S.E.2d 257, 212 W. Va. 647, 2002 W. Va. LEXIS 197 (W. Va. 2002).

Opinion

PER CURIAM:

This is an opinion setting forth the Court’s reasoning in connection with an October 22, 2002 order reinstating an election contest ruling of the Greenbrier County Commission.

I.

In the instant case, we affirm, in part, and reverse, in part, an October 9, 2002 decision of the Circuit Court of Greenbrier County, which reversed an August 2, 2002 decision by the County Commission of Greenbrier County (“Commission”) in an election contest proceeding. The Commission decided that the Democratic nomination for a seat on the Greenbrier County Commission had been won in the May 2002 primary by John Bowling, by a one-vote margin over his closest opponent in the primary, Clark Thacker.

Mr. Thacker appealed the Commission’s decision to the circuit court; Mr. Bowling intervened and cross-appealed certain rulings. The circuit court heard argument based upon the record before the Commission and reversed several rulings and findings of the Commission, the details of which we discuss below. The overall effect of the circuit court’s order was to establish Mr. Thacker as the candidate who had received the most votes in the primary election.

Upon Mr. Bowling’s appeal of the circuit court’s ruling, we granted expedited review. After receiving briefs and hearing oral argument, we issued an order on October 22, 2002, that reversed the circuit court and reinstated the decision of the Commission, with an opinion to follow. This is that opinion.

II.

Initially, we observe that we must in cases like the instant one remain 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). Thus, in the absence of evidence of patent error or of fraud, courts should be cautious about “monkeying” with the reasoned determinations of designated election officials— particularly when judicial intervention would result in the disenfranchising of voters.

The county commission sits as the trial court in an election contest proceeding for a county commission seat. W.Va.Code, 3-7-6 [2002]. The circuit court sits as an appellate court in such cases. W.Va.Code, 3-7-7 [1963]; Evans v. Charles, 133 W.Va. 463, 474, 56 S.E.2d 880, 885 (1949) (“The law does not confer upon a circuit court original jurisdiction of an election contest but only appellate jurisdiction which may be invoked in the manner provided by law.”).

Thus, in reviewing the results of an election contest pursuant to W.Va.Code, 3-7-7 [1963], the circuit court acting as an appellate body must give the county commission’s factual determinations the same sort of deference that appellate courts generally give to fact-finder tribunals- — disturbing such determinations only when they are arbitrary, capricious, or clearly wrong.

With respect to this point — a point that is central to our resolution of the instant case — Syllabus Point 6 of Brooks v. Crum, 158 W.Va. 882, 216 S.E.2d 220 (1975) states:

While the appellate court may examine the record in the review of election con[650]*650tests 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.

Additionally, this Court reviews the Commission’s and the circuit court’s rulings on matters of law de novo.

We review below seriatim the circuit court’s pertinent rulings.

A.

The first ruling that we address relates to the issue of poll clerk signatures on ballots used in connection with electronic voting. The ballots used in the election in question have an oval by the name of each candidate. A voter indicates their choice of a candidate by darkening the oval beside the candidate’s name. When voting is completed, the ballots are read by an optical scanning machine. Each ballot has places for the signatures of two poll clerks, which are to be affixed before the ballot is given to the voter.

The circuit court reversed the County Commission’s ruling as to the counting of one ballot (in favor of Mr. Bowling) that was not signed by any poll clerk. The Commission counted the ballot; the circuit court disagreed and held that the ballot could not legally be counted. However, the circuit court agreed with the Commission’s ruling that five ballots that had only one poll clerk’s signature (also in favor of Mr. Bowling) should be counted.

Mr. Thacker contends that if a ballot does not have the signature of two poll clerks, then the ballot may not be counted in an election contest proceeding. Mi'. Thacker therefore contends that the circuit court was correct in reversing the Commission on the one “no-signature” ballot, and wrong on allowing the five “one-signature” ballots to be counted. Mr. Bowling contends that all of the ballots were properly counted by the Commission.

Prior to 2002, W.Va.Code, 3-4A-19a [2001], relating to procedures for electronic voting (including the electronic tabulation of ballot cards), stated in pertinent part:

The requirement that two poll clerks sign a ballot according to this subsection is a mandatory duty and is not to be construed as merely directory.... In the course of an election contest, if it is established that a ballot does not contain the two [poll clerks’] signatures required by this section, the ballot is null, void, and of no effect, and may not be counted. The requirement that a ballot not be counted if it does not meet the requirements of this section is mandatory and not to be construed as merely directory.

W.VaCode, 3-4A-19a(c) [2001] (emphasis added).

In 2002, the Legislature rewrote this section, inter alia omitting the italicized language that is quoted above, so that this section in its entirety now reads:

(a) Where applicable, every ballot utilized during the course of any electronic voting system election conducted under the provisions of this article is to have two lines for the signatures of the poll clerks.

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Bluebook (online)
575 S.E.2d 257, 212 W. Va. 647, 2002 W. Va. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-ex-rel-bowling-v-greenbrier-county-commission-wva-2002.