WILLIAMSON – The ACLU of West Virginia has filed a petition claiming nearly 700 Mingo County residents were denied their fundamental right to vote because of an erroneous ballot.
The American Civil Liberties Union of West Virginia filed the petition on Election Day on behalf of James Williamson against Mingo County Clerk Larry Croaff.
The complaint says Williamson is a 55-year-old lifelong Mingo County resident and Democrat who voted early on a ballot that listed the incorrect Democratic candidate in the race for the 6th state Senate District.
Williamson and the ACLU want a court order requiring Croaff to correct the mistake and conduct a fair election for the seat.
During the first days of early voting, voters in the district used a ballot with Randy Fowler listed as the Democratic nominee for the seat. Fowler, however, was ruled ineligible after he won the May primary. But Jeff Disibbio, the correct nominee, was left off of the general election ballot. About 700 people, including Williamson, cast votes using the incorrect ballot.
The ACLU says Mingo County officials then told voters who were given an erroneous ballot they could cast a revised vote on a provisional ballot. However, the ACLU says state election officials say this is not a proper remedy.
The ACLU says it is impossible for provisional ballots to be counted because the ballots already cast are confidential. It says there is no way to know which ballots should be canceled out in favor of the new provisional ballot. This will unfairly disadvantage Disibbio because votes that may have been intended for him will not be counted, while votes for his opponent will count.
“This isn’t a partisan issue, this is an issue of ballot integrity,” ACLU-WV attorney Nick Ward said in a press release. “Now more than ever we need to ensure that our elections are fair and that everyone’s vote is counted, regardless of who they vote for or how likely that candidate is to win. That right is fundamental to our democracy.
“Races have been decided on far fewer than 700 votes. In a democracy, the voters choose their leaders, not the other way around. That’s why we’re asking the court to order that the Mingo County Clerk do whatever it takes to make this right, and make sure every eligible West Virginian in their community can meaningfully exercise their right to vote.”
There were issues in the same race in Mingo County in the primary election.
Incumbent state Sen. Chandler Swope had challenged the results of the Republican primary after losing to opponent Craig Hart, who is from Mingo County.
Swope took the majority of votes in Mercer County and the parts of McDowell and Wayne counties in the district. But Hart won Mingo County by a vote of 2,151to 364, giving him a 463-vote victory overall.
Swope’s challenge claimed the “extraordinarily high Republican turnout in some precincts was the product of some registered Democrats voting in the Republican primary” and Swope wanted the results of those precincts excluded entirely, which would have changed the outcome of the election.
Swope dropped his challenge in August, saying the legal burden to exclude the totals from those precincts would be too high.