CHARLESTON – The West Virginia Supreme Court of Appeals has denied Logan Circuit Judge William Douglas Witten’s attempt to remain on the bench following May’s primary election.
Witten lost out to Joshua Butcher by 59 votes and appealed an order that was made by a three-judge panel to the Supreme Court.
The court said that votes cast at three polling places in Logan should not be disregarded because of errors made by poll workers.
Justice Robin Jean Davis authored the Nov. 30 majority opinion in which the court affirmed the order of the three-judge panel.
After it was announced that Butcher had beat Witten, Witten requested a recount of the ballots. On May 26, after a recount by the Logan County Commission, Butcher was again declared the winner by 59 votes.
On June 6, Witten timely filed a notice of election contest with Gov. Earl Ray Tomblin and requested that a special court be convened to determine all matters challenged in the election.
On Aug. 23, the special court convened and the hearing was substantively confined to challenges to voting at Lane Precinct 4, Bulwark Precinct 1 and Sharples Precinct 31.
The special court ruled that the errors by election officials in the three precincts did not rise to the level of demonstrating that their actions amounted to misconduct affecting the result of the election or rendering it unfair.
Witten then appealed the special court’s decision to the Supreme Court.
In Bulwark, ten voters failed to sign the poll book for identification purposes.
“The dispute involved with this issue is the impact this failure should have on all the votes cast at the Bulwark Precinct,” the opinion states. “Judge Witten contends that, because of this irregularity all the votes cast in the Bulwark Precinct ‘must be rejected.’ The Special Court unanimously concluded that this irregularity did not warrant disturbing the votes cast in the Bulwark Precinct. We agree with the Special Court.”
The poll workers in Sharples Precinct were not qualified to carry out their duties because of the absence of evidence that they took the required statutory oath, according to Witten.
“Consequently, Judge Witten argues that this court must ‘reject the entirely of the results from his precinct,’” Davis wrote. “We disagree.”
The Special Court unanimously found that the evidence presented at the hearing established that the poll workers took their required oath and signed an “oath sheet” that was supposed to be returned to the County Clerk’s office.
“There was testimony by the County Clerk, John A. Turner, that the oath sheet was misplaced, but that his investigation revealed that all poll workers took the required oath,” Davis wrote. “Judge Witten contends that, because the oath sheet could not be found, all of the votes in the precinct should be set aside.”
As it pertains to the Lane precinct, Butcher’s wife was told she could stand behind the “No Electioneering” signs and during this time, she never crossed the marked boundary.
The special court found that the poll workers had erroneously cordoned off an area that was only 225 feet from the polling place, instead of 300 feet.
The parties stipulated that there was no evidence that any of the poll workers engaged in any kind of fraud or intentional misconduct.
“We agree with the majority of the special court,” Davis wrote. “The position advocated by Judge Witten, and the dissenting member of the special court, Mr. Counts, would require that voters carry tape measures to voting places to make certain the ‘no electioneering’ signs that they saw were in fact 300 feet away from the polling place.”
Butcher’s wife did nothing “intentionally wrong when she stood behind the ‘No Electioneering’ signs and advocated enthusiastically for her spouse’s campaign,” the majority opinion states.
The Supreme Court denied any relief to Witten and affirmed the panel’s order.
Witten was appointed last year by Tomblin.
