William Douglas Witten v. Joshua Butcher
238 W. Va. 323
| W. Va. | 2016Background
- May 10, 2016 nonpartisan judicial election in Logan County, Division 1: Joshua Butcher defeated incumbent Judge William D. Witten by 59 votes after a recount.
- Witten filed an election contest under W. Va. Code § 3-7-3; a three-member Special Court heard challenges to results from Bulwark Precinct 1, Sharples Precinct 31, and Lane Precinct 4.
- Special Court found election official errors in each precinct but concluded errors did not constitute fraud or misconduct that affected the election; one member dissented as to Lane Precinct.
- County evidence: 10 Bulwark voters failed to sign poll book; Sharples poll workers’ oath sheet was misplaced though testimony supported that oaths were taken; Lane poll workers marked a 225-foot no-electioneering zone (not 300 feet) and Mrs. Butcher campaigned behind the posted signs.
- Special Court denied relief; Witten appealed. Parties waived oral argument before this Court.
Issues
| Issue | Plaintiff's Argument (Witten) | Defendant's Argument (Butcher) | Held |
|---|---|---|---|
| Validity of statute requiring mandatory oral argument in § 3-7-3 | § 3-7-3 mandates oral argument on appeal of contested elections | Rule-making power vests in the Court; oral argument may be waived under Rule 18 | Court: statutory mandate invalid as conflicting with Rule 18; waiver effective |
| Bulwark Precinct — voters failed to sign poll book | All votes must be rejected because statute requires signatures before ballot issuance | Failure was mutual/innocent error; voters were qualified and no fraud; votes should stand | Court: follow Funkhouser/Heavener — technical failure alone, absent fraud, does not justify disenfranchisement; votes upheld |
| Sharples Precinct — poll workers’ oaths not evidenced | Votes void because poll workers did not properly subscribe or documentation missing | Testimony showed oaths were taken; absent fraud, technical oath defects do not vitiate returns | Court: Revercomb controls — absent fraud, failures re: oath do not invalidate election; votes upheld |
| Lane Precinct — campaign activity within 300 feet | All Lane votes void because Mrs. Butcher campaigned within 300 feet | Poll workers mistakenly marked only ~225 feet; Mrs. Butcher stayed behind posted signs; voters shouldn’t be penalized for officials’ error | Court: voters cannot be disenfranchised or criminally punished for polling officials’ erroneous demarcation; votes upheld |
Key Cases Cited
- Funkhouser v. Landfried, 124 W. Va. 654, 22 S.E.2d 353 (1942) (failure of voters to sign poll book due to mutual error does not justify rejecting votes absent fraud)
- State ex rel. Heavener v. Perry, 155 W. Va. 353, 184 S.E.2d 136 (1971) (voter’s failure to perform statutory act will not void vote unless statute plainly so provides)
- State ex rel. Revercomb v. Sizemore, 124 W. Va. 700, 22 S.E.2d 296 (1942) (absence of strict oath compliance by election officers, without fraud, will not vitiate election)
- Maynard v. Hammond, 139 W. Va. 230, 79 S.E.2d 295 (1953) (irregularities violating election laws do not vitiate election unless shown to have affected result or prevented free expression of the voters)