City of Point Pleasant, WV

SPECIAL MEETING
CITY COUNCIL
CITY OF POINT PLEASANT

June 3, 2003

The Common Council of the City of Point Pleasant, a municipal corporation in Mason County, West Virginia, met in Special session at the City Building, 400 Viand Street, at 6:00 P.M. on Tuesday, June 3, 2003, as a Board of Canvassers for the City Election held on May 17, 2003.

The following were found present:

            Marilyn L. McDaniel - Certified Municipal Clerk   
            James M. Casey - City Attorney

and the following members of City Council:

William H. Wallace
M. Leota Sang     

James H. Wilson    
Kevin R. Nott           
Elaine G. Hunt     
Carol L. Jones
Robert C. Doeffinger    
Ronald R. Kapp

Absent were

Mayor C. Edward Woomer
and Council Members
James W. Fetty and
Robert A. Messick.

A Waiver of Notice is attached to this set of minutes.  The purpose of the meeting was (1) TO ACT IN YOUR CAPACITY AS A BOARD OF CANVASSERS TO COMMENCE THE RECOUNT FOR THE MAYOR’S OFFICE OF THE CITY ELECTION HELD ON MAY 17, 2003.

The meeting was called to order by City Clerk Marilyn L. McDaniel who led Council in the Pledge of Allegiance to the Flag.  Councilwoman M. Leota Sang led Council in prayer.

City Attorney James M. Casey introduced Raymond G. Musgrave representing Marilyn L. McDaniel and C. Dallas Kayser representing James H. Wilson candidates for the Mayor’s Office.

Attorney Casey presented PROCEDURES FOR RECOUNT OF ELECTION RESULTS, West Virginia Code of State Rules 153-20-2, to each Council Member.

Elaine Hunt moved that the ballots for each ward be counted by hand by the Board of Canvassers for the recount.  Leota Sang seconded.  Elaine Hunt, Leota Sang and Carol Jones voted FOR.  William Wallace, Kevin Nott, Ronald Kapp and James Wilson voted AGAINST.  The motion was defeated with a vote of 3-4.

City Attorney Casey advised that the question is, and one concern raised previously, that there appeared to be some ballots that were unsigned and if the machine counted those that were unsigned what would be the mechanism today.  The authority that I have had on that today is a 2002 Supreme Court of Appeals opinion that dealt with the same situation on electronic optical scanner in Greenbrier County.  A copy is hereby attached to and made a part of these minutes.  The Secretary of State’s Office advised that if the number of ballots in that particular precinct (ward) matched up with the number of ballots that were actually counted in the canvass, then they should be counted.  Toward that end what I brought down the last time from the County Commission were the rules they adopted for recounts and canvass - if the ballot does not contain proper signatures and the ballots in the precinct (ward) can be accounted for they are counted.  The Board of Canvassers accounted for all ballots on May 23 and 27, 2003.  By the rules of the Secretary of State and the Supreme Court of Appeals Case (Bowling vs Greenbrier County Commission) you count those ballots because there does not appear to be any variance in the ballots issued.  All ballots were accounted for in the canvass.  By the County Commission rules and the Secretary of State rules there is a difference in electronic voting mechanisms as opposed to paper ballots and that is what this case is decided on because the Legislature changed the law and it was under the new law that is the principle here.  The Legislature even went further this year and clarified with changes made that don’t apply to this election because it didn’t go into effect until Monday.

Raymond G. Musgrave replied that is all well and good toward the canvassers which is the City Council and permit them to check over the number of ballots cast and does satisfy the requirements of the West Virginia Code on being able to vote.  In 2003 there was such a controversy over this particular issue in a 1984 case that had about the same issue, can you count a ballot that has not been signed by the poll clerk?  The Supreme Court of Appeals said yes and no and whatever; then in 2001 there was a special election out of Greenbrier County as Mr. Casey mentioned, it was of the opinion when it came to the mandatory provision; does there have to be a signature during the canvass and during a recount; which is why we are here tonight.  The Supreme Court of Appeals said no there doesn’t have to be both of the poll clerks sign.  That is not where it stops.  It is complicated where the third portion of the election - the voting, the canvassing, the recount, and then what if someone of the two candidates didn’t like the outcome and contested the election to the courts.  So the 2003 Legislature in its session prepared instruction of the West Virginia Code Section 3-4A-19 was the Legislature rewriting the statutory section involving whether the poll clerks were required to sign the ballots to make them valid from language that two such signatures were mandatory to the language that ballots in connection with the voting process could be counted even if the signatures were absent - means that the County Commission in this case could not err in the rules that the ballots lacked the poll clerks signature and could be counted.  However, it is mandated that it is mandatory later on if this matter goes on to a court that those ballots be signed by the poll clerks.  Now I ask you a question for your own good reasoning:  How in the world can you let that go and say fine you have to count those ballots tonight whether the poll clerk did sign or didn’t sign; but what we are going to do is leave it up to the courts.  Ronald Kapp said that we are not here for a contested election, we are here for a recount.  Attorney Musgrave said my position, however is this, that under the Supreme Court and Legislature will try to dwindle this down to see whether or not if it is going to be mandatory.  My question is why do we have to force the candidates to go to court when we can do the same thing by the Board of Canvassers and take a look and see if the ballots are or are not signed by the poll clerks.  The question is how can you take it on to a circuit court and say judge there were so many of those ballots that were not signed, how does a candidate have that right to know that, they don’t.  So they have been cut out of that right to take it on to jurisdiction of the courts.  If they don’t know whether there was a signature or not, you go ahead and count them, but if you don’t read those whether they have been signed or not and be able to make a notation whether there is a signature or not, then I think that person, be it Mr. Wilson or be it Ms. McDaniel, something is taken away from them.  None of them ought to be counted tonight, I agree 100% that’s the law; Mr. Casey interpreted that perfect.  But what I am saying to you, how do you know whether or not someone does not have that right as a matter of appeal to go to the circuit court?  So I am asking with recognition on behalf of Ms. McDaniel, that is the law that the backs of the ballots or fronts where ever the signatures are located that they be reviewed in order to allow either candidate whether or not they want to take it to judicial review of what happens here this evening.  It’s that simple.  That is fair.  It is not a one way situation.

Attorney C. Dallas Kayser had a couple of comments:  The overall procedure of the recount at this point I think the evidence as I hear it and know it is very clear that the ballots were not sealed after the canvass.  The West Virginia law is very clear that if there is evidence showing that the ballots were not sealed then they are no longer the best evidence at a recount and cannot be considered.  So I will go one step further, Mr. Musgrave, which is that this entire recount, although you may proceed with it tonight,