by Ron Gregory
LOGAN — An appointed Logan County circuit judge who lost in the May 10 primary election is asking a three-judge panel to declare him the election winner despite a canvass and recount that gave his opponent a 59-vote victory.
Governor Earl Ray Tomblin appointed William Douglas Witten to the vacancy created when longtime Judge Roger Perry retired. Witten was challenged in the May 10 primary by Joshua Butcher, a former clerk for Judge Perry.
The campaign became a war of words when Witten questioned, in advertising, the religious values of Butcher. In one radio spot, Witten claimed that those like Butcher “wore their religion on their sleeve.” In his advertising, Butcher talked about starting every court day with a prayer.
Incredibly, Witten’s petition to challenge the election results, concludes that the widely-publicized beating of State Senate candidate Richard Ojeda played a role in Witten’s defeat. Ojeda successfully challenged State Senator Art Kirkendoll in the May 10 Democrat primary and won after being severely beaten at a picnic on Sunday before the election. Photos and video of Ojeda lying in his hospital room with visible injuries were featured on local and national media news outlets.
The judge makes an argument in his petition for a special court to consider his challenge, that he (Witten) was associated with a political faction opposite Ojeda. He says the publicity that accompanied Ojeda’s attack not only defeated Kirkendoll but those associated with the Senator suffered the loss of election votes as well.
While Witten’s petition, filed by Nitro attorney Harvey Peyton, actually gives no evidence to support the theory of association, Witten maintains that he would have been elected if not for the “dissemination of materially false information regarding an allegedly politically motivated assault on a candidate for the Democrat nomination for West Virginia State Senate, which information was deliberately and falsely disseminated, published throughout Logan County for the purpose of influencing the opinion of county voters in a manner contrary to a candidate named Art Kirkendoll, a man with whom William Douglas Witten was identified as” Witten’s fellow supported candidate.
After making that overall assertion, Witten then singles out alleged in precincts that he says would make him the winner, if the precinct votes were discounted. He claims that in Precinct One (Bulwark) should be discounted because ten more votes were counted in the precinct that voters who signed the poll book.
Witten asserts that ballot commissioners for Precinct Two (Striker) had “election irregularities,” although they are not listed. Peyton’s petition maintains that if the two precincts (Bulwark and Sharples) were eliminated from the count, Witten would win by a margin of 4,342 to 4,340.
In Precinct Four at Lane, Witten says Butcher’s wife, Jamie, violated the 300-foot from precinct rule and held campaign signs and greeted people on behalf of her husband. If that precinct was eliminated, the petition says Witten would win by 21 votes. The petition also alleges non-specific “election violations” at the Switzer and Verdunville precincts.
The petition cites a rarely-used section of the West Virginia Code as the basis for convening a “special court” to consider his contest. According to records, the petition was filed with Steve Harrison, clerk of the state House of Delegates. The petition says Witten and Butcher are to name one member each to the tribunal with Governor Tomblin choosing the third hearing official.
In a telephone interview, Butcher’s attorney Ryan Donovan did not dispute the process. He said Witten has already designated John Counts as his representative. Donovan said he and Butcher have ten days to respond and name their designee. After Tomblin appoints the third member, Donovan said there is a provision for 40 days of “discovery” in which both sides can gather evidence before the panel convenes to hear the case.
According to Donovan, the sole recourse for either candidate if he is not satisfied with the result is to appeal to the state Supreme Court. Judge-elect Butcher is scheduled to replace Witten on January 1, 2017.
Donovan called the petition “frivolous” and said he and his client will respond “vigorously” to it.
Peyton, whose mother recently passed away, was not contacted due to those circumstances.
A Logan courthouse official, who asked not to be identified, expressed concern about the petition. “Judge Witten clearly wants to overturn the will of the people,” he said. “It is unbelievable that a sitting judge could get beat and not accept the will of the people who don’t want him in that office.”
The official expressed concern that “Witten is a part of the same faction with Earl Ray (Governor Tomblin), so all that has to happen is for Witten to appoint his man and Earl Ray appoint his and they have a majority to just change the result.”
Donovan said he fears this “completely frivolous challenge may cause the taxpayers to pay for overturning their own decision.” Butcher was dismissed from the judge’s office soon after Witten assumed the position. He now works for Mingo County Circuit Judge Miki Thompson.
Donovan said he is “confident Governor Tomblin will do the right thing” and appoint an impartial judge to the panel. “We firmly believe the Governor would never help stack the deck,” he said.
In regard to some of the specific allegations made by Witten, Donovan said he believes the County Clerk will testify that the poll workers at Sharples signed their oaths but the paperwork simply has not been located.
Donovan said he plans to file a response “quickly.” He added that his client “wants to get this over.”
Apparently some Logan voters feel the same way. A petition on change.org (www.change.org/p/doug-witten-needs-to-concede-the-election-to-butcher) has surfaced on the Internet. Donovan said neither he nor his client have anything to do with that site.