WEST VIRGINIA RECORD

CHARLESTON – A divided state Supreme Court has upheld the results of a disputed election in Preston County.

The Court on Nov. 16 voted 3-2 to affirm Judge Lawrence S. Miller’s decision denying incumbent Rowlesburg Mayor Barbara Banister’s challenge of the June 2011 mayoral election certification. The Court’s majority, with little comment in a memorandum opinion, said Miller was correct to leave undisturbed the town council’s certification that resulted in Banister losing to her opponent, Barbara Schollar, by three votes.

Memorandum opinions are issued by the Court in cases that would not be significantly aided by oral arguments, and present no new or significant questions of law.

Justices Brent Benjamin and Robin Jean Davis cast the dissenting votes.

According to court records, the town municipal election was held June 14, 2011, and pitted Banister against Schollar for mayor. It is unclear as to what were the unofficial election results.

However, after conducting the required canvass a week later, which resulted in the denial of five provisional ballots, the town council declared Schollar the winner 59 to 56. Instead of asking for a recount within 48 hours of the canvass, Banister filed a notice of contested election three days later.

According to court records, Banister alleged four non-residents were able to cast ballots. After conducting a hearing on July 21, the town council, after meeting in executive session, voted unanimously to reconvene four days later to remove the disputed ballots, and recount the remaining ones.

However, upon reconvening and opening the ballot box, the council determined the disputed ballots could not be distinguished from the other ones. After meeting again in executive session with their lawyer to discuss their options, the council voted to deny Banister’s challenge, and declared Schollar the winner.

A month later, Banister filed an appeal of the election certification to circuit court. After conducting a hearing on Oct. 23, 2011, Miller 12 days later rendered his decision upholding the certification.

In his decision, Miller cited the Court’s ruling in Miller v. County Commission of Boone County, which upheld a judge’s decision granting a writ of prohibition that halted the Commission from hearing a candidate’s challenge certifying the results of the 2000 Democratic primary for assessor on the grounds he didn’t ask for a recount within the 48-hour window. The proper manner for Banister to contest the disputed ballots, Miller said, would’ve been for her to ask for a recount instead of contesting the validity of the election, which is reserved for potential fraud or disputing a candidate’s qualifications.

“The language of the above-cited West Virginia Code provisions and the West Virginia Supreme Court decision in the case of Miller v. County Commission of Boone County are persuasive authority for the proposition that because Ms. Banister did not timely request a recount within the 48-hour window by W. Va. Code 3-6-9, she is precluded from initiating an election contest under W. Va. Code 3-7-6 where she seeks to contest four specific ballots cast in the Rowlesburg mayoral election,” Miller said.

Banister was represented by C. Paul Estep and Steven L. Shafer while the town and Schollar were represented by Shelia Kae Williams and Neil A. Reed, respectively.

West Virginia Supreme Court of Appeals, case number 11-1655

Preston Circuit Court, case number 11-C-167