by Ron Gregory
CHARLESTON — Challenger Joshua Butcher moved one step closer to assuming the office of Judge for the Seventh Judicial Circuit (Logan County) today. The move came when a Special Court convened under state law ruled that Butcher legitimately defeated appointed Judge William Douglas Witten in the May 10 primary election. The two were vying for the Division One position in the circuit that is also served by Judge Roger O’Briant.
The court was convened after Witten filed an election contest. This came after a vote recount in which the Logan County Commission declared Butcher the winner by 59 votes, 4,604 to 4,545.
Under West Virginia law, a special court is assembled when demanded by the losing candidate. There are three members of such tribunals. In this case, the judges were Witten’s campaign treasurer, John Counts along with attorneys Jim Arnold and Booth Goodwin.
Attorney Ryan Donovan, representing Butcher, said his client was “very pleased” with the decision. Donovan placed special emphasis on the fact that even Counts, Witten’s treasurer, had agreed with the majority on two of the three allegations. He called the decision “a victory for the people of Logan County.”
The court heard testimony from 17 witnesses when the case was heard August 23. Fifteen exhibits were also admitted to evidence.
In his complaint, Witten allege that the votes in three precincts should be invalidated for various reasons. Those precincts are Bulwark (where Butcher won, 203 to 171); Sharples (where Butcher won, 61 to 32) and Lane (where Butcher’s margin was 274 to 194).
Originally, Witten claimed a vast conspiracy that included the loss of State Senator Art Kirkendoll to challenger Richard Ojeda in the Democrat primary. Witten claimed that he, Witten, was identified with Kirkendoll and since Ojeda was physically beaten prior to the election and some blamed Kirkendoll for the attack, he (Witten) suffered electoral defeat. By the time the hearing was held, however, Witten had generally abandoned that argument and based his challenge on three separate circumstances. Putnam County lawyer Harvey Peyton represented Witten.
The special court’s order, dated October 7, upholds the Logan County Commission’s certification of Butcher’s win. “(E)vidence of the errors by election officials in the … 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,” the court said.
Counts concurred in the finding regarding the Bulwark and Sharples precincts but favored disregarding the votes of the Lane precinct. If the Lane precinct had been tossed out, Witten would have been the winner, 4,351 to 4,320.
With regard to Bulwark, Witten alleged that ten more ballots were voted on election day than the number of voters who appeared and signed the poll books. “(T)here are ten undisputed instances of polling slips being given to prospective voters without first requiring those persons to sign the poll book to verify their identities,” the court wrote in its decision.
The ten who did not sign the book were all identified as registered voters at the precinct and two of them testified that they voted in person that day without signing the book. One of the voters, Robert Leete, said he was distracted by helping wheelchair-bound wife move in and out of the polling place and simply failed to sign the book. Witten stipulated that the other eight voters were testify to similar circumstances.
The parties went on to stipulate, “there is no evidence that any of the poll workers at the Bulwark precinct were engaged in any kind of fraud or intentional misconduct.”
At the Sharples precinct, Witten maintained that the poll workers failed to take their oaths as required by law. “It is undisputed that at the post-election canvass, the signed oath sheet for the Sharples precinct could not be located,” the court wrote. The court said County Clerk John Turner testified his office conducted an investigation and determined that all poll workers had signed the oath but the sheet with their signatures could not be located. Still, the court wrote, there is “no evidence of fraud or misconduct” in this matter either.
Witten’s charges at the Lane precinct were that Butcher’s wife, Jamie, campaigned on election day within the 300-feet area were such electioneering is off limits. Testimony in the case indicated a dispute as to where the 300-feet lines were. However, the court found that there was no evidence that Jamie Butcher campaigned within the “down-sized” 300-foot area alleged to be the correct non-electioneering zone.
The court’s conclusion is that a “number of omissions and errors by certain election officials at the Bulwark and Sharples precincts occurred…. However, we do not conclude that those omissions and errors amounted to misconduct which either prevented the free expression of the voters at the Bulwark and Sharples precincts or affected the result” of the judge election.
Specifically, the court determined that a qualified voter’s failure to sign the poll book — whether it be his or her fault of the poll worker’s — does not invalidate the vote. All three members of the court agreed that the votes at Bulwark should be counted.
Since there was no evidence of fraud, irregularities and omissions at Sharples, the court unanimously ruled that those votes should all be counted as well.
The court ruled, with Counts dissenting, that failure by poll workers to properly post the zone of 300-feet from the Lane precinct did not constitute misconduct. They did acknowledge that designating the wrong space constituted errors and omissions by the poll workers but that is not sufficient to disregard the 468 votes cast at the Lane polling place.
Witten’s only remaining legal recourse is to appeal the special court’s decision to the state Supreme Court.
Donovan said Butcher “certainly hopes Judge Witten will accept this ruling and not prolong this matter any longer.”
The attorney concluded that Butcher’s win “is a victory for the people of Logan County, proving that an outsider in terms of political affiliation can be elected in a fair election.”