by Ron Gregory
LOGAN — A tentative date has been set for the hearing in a Logan County election case where the losing candidate alleges he suffered defeat because of the perception that he was the “Kirkendoll” candidate in the race.
The case filed by appointed Circuit Judge William Douglas Witten is set for an August 23 hearing, according to documents filed with the Clerk of the state House of Delegates. No specific time or location has been set, according to records on file.
In an unusual election maneuver, Witten asked for the appointment of a three-person panel to hear his election dispute. At the end of the normal election process in Logan County, Witten trailed challenger Joshua Butcher by 59 votes.
Governor Earl Ray Tomblin appointed Witten to a vacancy created when longtime Judge Roger Perry retired. Butcher had worked as a law clerk for Perry but Witten fired him when he assumed the office, courthouse sources said.
Witten argued in his challenge to the election results that the widely-publicized beating of State Senate candidate Richard Ojeda caused everyone on the “Kirkendoll ticket” to lose on election day. Ojeda had allegedly been attacked on Sunday before the May primary election. He went on to defeat Art Kirkendoll, the incumbent Senator and longtime Logan County Commissioner. Many felt the attack, which some blamed on supporters of Kirkendoll, actually propelled Ojeda to victory since there was little Kirkendoll could do to combat the image of his opponent lying with bruised marks in a local hospital. Both Ojeda and Kirkendoll are Democrats; judges run on non-partisan ballots.
There had been some concern among Butcher supporters that the three-member panel would be “tilted” toward Witten since one member is appointed by each party in the suit and the third is named by the Governor. Since Tomblin appointed Witten, it was feared that he would appoint a biased panelist.
But most now agree that the Governor’s choice for the board, Charleston attorney Jim Arnold, will be fair and impartial. Witten named his campaign treasurer, John Counts, to the board and Butcher appointed former U.S. Attorney Booth Goodwin. “There will be a fair decision from that group,” said one courthouse observer who had earlier expressed concern about the neutrality of the three.
Witten is being represented in the case by Nitro attorney Harvey Peyton while Butcher has employed Charleston lawyer Ryan Donovan as his counsel.
Two depositions have been taken since the case was filed, according to the records. Any decision by the panel is final unless appealed to the state Supreme Court of Appeals.
Witten also alleges, in his complaint, that ten more votes were counted in Precinct One (Bulwark) than people who signed the poll books. The poll workers in Precinct Two (Striker) committed “election irregularities,” but the suit is not specific as to what those were.
In Precinct Four at Lane, Witten alleges that Butcher’s wife, Jamie, violated the 300-foot rule by holding a sign too close to the polling place. Video of that precinct on election day has apparently been entered into evidence.
Witten’s deposition, taken by Donovan, should soon be available at the House Clerk’s office, a source said. It reportedly lasted for five hours.
The judge apparently believes that only early voting should be counted in the primary, since the attack on Ojeda occurred just days before the primary but after early voting ended. If the panel were to rule for that, it is understood that Witten gained more votes in the earky voting than Butcher. Likewise, Kirkendoll is said to have outdistanced Ojeda in early voting.
The Chronicle will alert readers when the hearing is scheduled. It will apparently be open to the public.