Link to PDF file
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2002 Term
STATE OF WEST VIRGINIA EX REL.
JOHN H. BOWLING, JR., Candidate for
Greenbrier County Commission,
GREENBRIER COUNTY COMMISSION,
sitting as the Board of Ballot Commissioners;
B. J. LIVESAY, Clerk of the Greenbrier County Commission;
CLARK THACKER, Candidate for the Greenbrier County Commission;
and the HONORABLE GEORGE SCOTT, Special Judge of the
Circuit Court of Greenbrier County,
CLARK THACKER and VERNON HAYSLETT,
President, on Behalf of Greenbrier County Citizens for Fair
and Open Government,
Petitioners Below, Appellants
COUNTY COMMISSION OF GREENBRIER COUNTY,
BETTY CROOKSHANKS, JOE FEAMSTER,
STEVE MALCOLM, Commissioners, and
B. J. LIVESAY, in his capacity as
Clerk of the County Commission of Greenbrier County,
Respondents Below, Appellees
Intervenor Below, Appellee
Appeal from the Circuit Court of Greenbrier County
Hon. George M. Scott, Special Judge
Case No. 02-C-138
Submitted: October 17, 2002
Filed: December 2, 2002
R. Brandon Johnson, Esq.|
Stroebel & Johnson
Lewisburg, West Virginia
Attorney for Petitioner and Appellants
Barry L. Bruce, Esq.|
Barry L. Bruce & Associates
Lewisburg, West Virginia
Attorney for Respondents and Appellees
The Opinion of the Court was delivered PER CURIAM.
While the appellate court may examine the record in the review of election
contests in order to reach an independent conclusion, it merely determines whether the
conclusions of law are warranted by the findings of fact, and it will not, as a general rule,
disturb findings of fact on conflicting evidence unless such findings are manifestly wrong
or against the weight of the evidence. Syllabus Point 6, Brooks v. Crum
, 158 W.Va. 882,
216 S.E.2d 220 (1975).
This is an opinion setting forth the Court's reasoning in connection with an
October 22, 2002 order reinstating an election contest ruling of the Greenbrier County
In the instant case, we affirm, in part, and reverse, in part, an October 9, 2002
decision of the Circuit Court of Greenbrier County, which reversed an August 2, 2002
decision by the County Commission of Greenbrier County (Commission) in an election
contest proceeding. The Commission decided that the Democratic nomination for a seat on
the Greenbrier County Commission had been won in the May 2002 primary by John
Bowling, by a one-vote margin over his closest opponent in the primary, Clark Thacker.
Mr. Thacker appealed the Commission's
decision to the circuit court; Mr. Bowling intervened and cross-appealed certain
rulings. The circuit court heard argument based upon the record before the Commission
and reversed several rulings and findings of the Commission, the details of
which we discuss below. The overall effect of the circuit court's order was
to establish Mr. Thacker as the candidate who had received the most votes in
the primary election.
Upon Mr. Bowling's appeal of the circuit court's ruling, we granted expedited
review. After receiving briefs and hearing oral argument, we issued an order on October 22,
2002, that reversed the circuit court and reinstated the decision of the Commission, with an
opinion to follow. This is that opinion.
Initially, we observe that we must in cases like the instant one remain ever
mindful of the paramount principle that election laws are to be construed in favor of
enfranchisement, not disenfranchisement. See State ex rel. Sowards v. County Comm'n of
Lincoln County, 196 W.Va. 739, 750, 474 S.E.2d 919, 930 (1996). See Afran v. County of
Somerset, 244 N.J. 229, 232, 581 A.2d 1359, 1361 (1990) ([E]lection laws must be liberally
construed to effectuate the overriding public policy in favor of the enfranchisement of
voters.); see also James Appeal, 377 Pa. 405, ____ 105 A.2d 64, 65 (1954) (In construing
election laws, while courts must strictly enforce all provisions to prevent fraud, an overriding
concern must be to be flexible in order to favor the right to vote). Thus, in the absence of
evidence of patent error or of fraud, courts should be cautious about monkeying with the
reasoned determinations of designated election officials _ particularly when judicial
intervention would result in the disenfranchising of voters.
The county commission sits as the trial court in an election contest proceeding
for a county commission seat. W.Va. Code, 3-7-6 . The circuit court sits as an appellate court in such cases. W.Va. Code, 3-7-7 ; Evans v
Charles, 133 W.Va. 463, 474, 56 S.E.2d 880, 885 (1949) (The law
does not confer upon a circuit court original jurisdiction of an election
contest but only appellate jurisdiction which may be invoked in the manner
provided by law.).
Thus, in reviewing the results of an election contest pursuant to W.Va. Code,
3-7-7 , the circuit court acting as an appellate body must give the county commission's
factual determinations the same sort of deference that appellate courts generally give to fact-
finder tribunals _ disturbing such determinations only when they are arbitrary, capricious, or
With respect to this point _ a point that is central to our resolution of the instant
case _ Syllabus Point 6 of Brooks v. Crum, 158 W.Va. 882, 216 S.E.2d 220 (1975) states:
While the appellate court may examine the record in the review
of election contests in order to reach an independent conclusion,
it merely determines whether the conclusions of law are
warranted by the findings of fact, and it will not, as a general
rule, disturb findings of fact on conflicting evidence unless such
findings are manifestly wrong or against the weight of the
Additionally, this Court reviews the Commission's and the circuit court's
rulings on matters of law de novo.
We review below seriatim
the circuit court's pertinent rulings.
The first ruling
that we address relates to the issue of poll clerk signatures on ballots used
in connection with electronic voting. The ballots used in the election in question
have an oval by the name of each candidate. A voter indicates their choice of
a candidate by darkening the oval beside the candidate's name. When voting is
completed, the ballots are read by an optical scanning machine. Each ballot
has places for the signatures of two poll clerks, which are to be affixed before
the ballot is given to the voter.
The circuit court reversed the County Commission's ruling as to the counting
of one ballot (in favor of Mr. Bowling) that was not signed by any poll clerk. The
Commission counted the ballot; the circuit court disagreed and held that the ballot could not
legally be counted. However, the circuit court agreed with the Commission's ruling that five
ballots that had only one poll clerk's signature (also in favor of Mr. Bowling) should be
Mr. Thacker contends that if a ballot does not have the signature of two poll
clerks, then the ballot may not be counted in an election contest proceeding. Mr. Thacker
therefore contends that the circuit court was correct in reversing the Commission on the one
no-signature ballot, and wrong on allowing the five one-signature ballots to be counted.
Mr. Bowling contends that all of the ballots were properly counted by the Commission.
Prior to 2002, W.Va. Code
, 3-4A-19a , relating to procedures for
electronic voting (including the electronic tabulation of ballot cards), stated in pertinent part:
The requirement that two poll clerks sign a ballot according to
this subsection is a mandatory duty and is not to be construed as
merely directory. . . . In the course of an election contest, if it is
established that a ballot does not contain the two [poll clerks']
signatures required by this section, the ballot is null, void, and
of no effect, and may not be counted. The requirement that a
ballot not be counted if it does not meet the requirements of this
section is mandatory and not to be construed as merely
W.Va. Code, 3-4A-19a(c)  (emphasis added).
In 2002, the Legislature rewrote this section, inter alia omitting the italicized
language that is quoted above, so that this section in its entirety now reads:
(a) Where applicable, every ballot utilized during the course of
any electronic voting system election conducted under the
provisions of this article is to have two lines for the signatures
of the poll clerks. Both of the signature lines are to be printed on
a portion of the ballot where votes are not recorded by
perforation or marking, but which portion is an actual part of the
ballot deposited in the ballot box after the voter has perforated
or marked his or her ballot and after the ballot stub has been
removed. Each of the two poll clerks shall sign his or her name
on one of the designated lines provided on each ballot before
any ballot is distributed to a voter.
(b) After a voter has signed the pollbook, as required in section
nineteen of this article, the two poll clerks shall deliver a ballot
to the voter, which ballot has been signed by each of the two
poll clerks as provided in this section: Provided, That where an
electronic voting system that utilizes screens upon which votes
may be recorded by means of a stylus or by means of touch, an
election commissioner shall accompany the voter to the voting
device and shall activate the device for voting.
(c) Any ballot which does not contain the proper signatures
shall be challenged. If an accurate accounting is made for all
ballots in the precinct in which the ballot was voted and no other
challenge exists against the voter, the ballot shall be counted at
W.Va. Code, 3-4A-19a .
The term canvas[s]
that is used in the last sentence of the foregoing statutory language refers
to testing, by a sampling procedure, of the accuracy of the totals that are
obtained through electronic vote tabulating devices. W.Va. Code, 3-4A-28
. See Ohio County Comm'n v. Manchin, 171 W.Va. 552, 301
S.E.2d 183 (1983).
Mr. Thacker contends that because only the canvas[s] is specified in this last
sentence of the 2002 version of 3-4A-19a -- that therefore, in any proceedings subsequent
to the canvass (such as a recount or an election contest), a strict two-signature requirement
for ballot validity applies _ despite the language change in 2002.
In Syllabus Point 6 of State
ex rel. Baumgardner v. Mills, 132 W.Va. 580, 53 S.E.2d 416 (1949), this
Court held that the provisions in our general election law that call for the
signatures of two poll clerks on a ballot are mandatory and not directory, and
that any ballot not so endorsed with the names of such poll clerks, other than
the ballot of a challenged voter, is void and cannot be counted.
However, in Manchin v. Dunfee,
174 W.Va. 532, 536, 327 S.E.2d 710, 714 (1985), this Court subsequently held
that the provisions of our general election law are not to be automatically
read in pari materia with the provisions of law governing electronic
(See footnote 1)
As previously noted, in 2002 the Legislature removed from W.Va. Code, 3-4A-
19a the null, void, and of no effect and mandatory, not directory language with respect
to the two-signature requirement on ballots used in connection with electronic voting. We
view this action by the Legislature as creating an ambiguity in the statutory language, calling
into serious question the continued validity of an absolute two-signature requirement for
ballots used in connection with electronic voting systems.
Although the statute now specifies that ballots without two poll clerk signatures
may be counted at the canvass, the statute is entirely silent on the validity of such ballots at
later stages; whereas before it was explicit on this subject. If the Legislature had intended
to continue to have a two-signature requirement be mandatory, not directory, so that a
ballot without two signatures was in all cases but the canvass null and void _ then the
removal of the statutory language in question to that effect, in three separate instances, would
simply not make any sense.
This statutory ambiguity must be viewed in the light of our holding in Manchin,
supra, to the effect that the in pari materia principle does not automatically apply between
our laws governing electronic voting systems and our other election statutes. This principle,
applied to the instant case, further supports the view that under the 2002 changes, the two-
signature requirement that we recognized in State ex rel. Baumgardner v. Mills, supra does
not have mandatory rather than directory application to ballots used in connection with
electronic voting procedures.
Additionally, the record
in the instant case indicates that during the election contest, the Commission
was advised by the Office of the West Virginia Secretary of State that the
2002 changes in the law governing electronic voting permitted the counting
of ballots that did not have the signatures of two poll clerks;
(See footnote 2) and
that no party has suggested at any time that the lack of poll clerk signatures
on the ballots in question was the result of fraud; and further that it was
stipulated that an accurate accounting was made for all ballots in the precincts
in which the ballots were voted and no other challenges existed against the
voters, as required by W.Va. Code, 3-4A-19  for the counting
of ballots that do not have two signatures at the canvas[s]. Id.
In light of all of the foregoing, we conclude that the Commission did not
exceed their legal prerogative in determining in the election contest proceeding that the
ballots that lacked poll clerk signatures could be legally counted. Consequently, the circuit
court's reversal of the Commission's determination on this issue was erroneous.
The second issue that we address relates to improperly marked ballots.
In the primary race in which Mr. Bowling and Mr. Thacker were the two top
vote getters, there were a total of five candidates for one spot on the general election ballot,
and voters were instructed on the ballot to vote for one person. In the election contest, the
Commission decided not
to count two ballots on which the voter had filled in the ovals
beside two candidates' names, instead of beside only one name. In each case, the voter
apparently placed a handwritten X over (or possibly under) one of the two filled-in ovals.
On one of these ballots, the non-X-ed oval was a vote for Mr. Thacker; on the other, the
non-X-ed oval was for another candidate (not Mr. Bowling). The circuit court reviewed
the two ballots and determined that it was clear that the voter had chosen the person whose
oval was not also X-ed; the circuit court therefore reversed the Commission's
determination on this issue and counted the votes.
The election contest laws, as previously noted, designate the county
commission as the trial court and finder of fact in an election contest proceeding. In the
instant case, the record shows that the Commission carefully examined a number of ballots
that raised voter choice or intent issues. The Commission determined that the voter's intent
for these two particular ballots could not be clearly ascertained. This determination _ in the
absence of a statute or other principle of law requiring a particular determination to be made
as a matter of law, if certain objective facts are present _ was a question of fact: i.e.
did the voter intend, or was it impossible to ascertain that intent with reasonable certainty?
A question about a matter of fact _ the ascertainability of the voter's intent,
and what that intent, if ascertainable, was _ is squarely within the province of the finder of
fact, the Commission. Brooks v. Crum
. While we recognize that in the instant case
reasonable minds can certainly differ on the answer to this question, that disagreement serves
nicely to make the point that a court should not in such a case say that the Commission was
clearly wrong in making its factual determination. Accordingly, we find that the circuit court
erred in reversing the Commission on this issue.
The third issue that we address relates to the disqualifying of certain challenged
ballots. The circuit court reversed the Commission's decision to count a number of ballots
_ approximately 75 _ that had been challenged at the polls. In resolving the challenges,
these ballots were checked against computerized voter registration records that were
maintained at the courthouse, and not directly against the hard copy original voter
registration books. It appears that the challenged ballots were thereafter erroneously co-
mingled with other ballots, in such a way as to prohibit identifying them for further
The circuit court, reasoning that the checking of the ballots against the
computer records raised a substantial possibility that the challenges had not been correctly resolved, disallowed the counting of these challenged ballots. As a result
of the circuit court's ruling, the vote totals of the candidates were adjusted
downward by the amounts that they had been increased by the inclusion of the
challenged ballots _ reducing Mr. Bowling's total by 11 votes and Mr. Thacker's
by 6 votes. (See footnote 3)
While the parties focus their argument on the legal propriety of the
Commission's checking the ballots against the computer records, we do not think that issue
is dispositive. We will assume arguendo
that the Commission should have checked the
challenged ballots against the original voter registration books, and should have thereafter
segregated the challenged ballots so that they could be individually reviewed.
However, under the facts of the instant case, any such assumed errors were not
sufficient to discount the entire group of challenged ballots. No showing was made at the
contest hearing that there were other than minor irregularities in the computer records, or that
there was substantial error in the checking process. We are not pointed to any place in the
record where a contemporaneous objection was lodged to the use of the computer records;
presumably the original records were available in the event such a challenge had been made.
The standard for review of challenged ballots is set forth at W.Va. Code
, which states in pertinent part (with emphasis added):
In such determinations the county court [now commission] shall
disregard technical errors, omissions or oversights, if it can be
that the challenged voter was entitled to
In light of this reasonableness standard, and the foregoing-referenced principle
of law favoring enfranchisement, and the fact that no suggestion of fraud has been made in
the instant case, we conclude that the Commission acted reasonably with respect to its review
of the challenged ballots, and that its decision on this issue should not have been overturned
by the circuit court.
There are two additional issues that we address briefly. On two other
challenges to its election contest rulings, the circuit court upheld the Commission's ruling.
Mr. Thacker challenged the counting of absentee ballots on the grounds of alleged
irregularities in the absentee voting procedures. Mr. Bowling challenged the counting of two
precincts on the grounds that in those precincts a member of one party voted a primary ballot
for another party. We have reviewed the circuit court's affirmance of the Commission on
these two issues and conclude that these rulings were correct.
For the foregoing reasons, the order of the Circuit Court of Greenbrier County
is reversed, and the election results certification of the Greenbrier County Commission is
further held in Manchin v. Dunfee that _ under the then-existing language
of W.Va. Code, 3-4A-19a , stating that a lack of two poll clerk
signatures made a ballot
null and void, and that this rule was mandatory not directory _ that a ballot used in
connection with electronic voting systems could not be challenged in a canvass or a recount,
but only in a subsequent election contest proceeding. We also said in Manchin v. Dundee that . . . when the legislature enacted W.Va. Code, 3-4A-19a, it intended that ballot cards
used in electronic voting systems are required to be signed by the two poll clerks. 327 W.
Va. at 713, 174 S.E.2d at 535.
the ambiguity that we have noted in the statute as a result of the changes made
in 2002, the Secretary of State may wish to submit proposed clarifying language
to the Legislature in either a statutory or regulatory form.
Due to uncertainty in the record before us, these figures
may be slightly inexact; but any inexactitude is not of substantive significance.