Logan County Circuit judge who lost May's election by 59 votes has asked the state Supreme Court to decide whether he should remain on the bench.
Logan Circuit Judge Douglas Witten is appealing last month's order by a three-judge panel, which found that votes cast at three polling places in Logan County shouldn't be discarded because of irregularities at the polls.
The panel last month also certified the nonpartisan election results from May, declaring Joshua Butcher the newest Logan Circuit judge. He is set to take office in January.
Witten, through his lawyer Harvey Peyton, filed a notice with the Supreme Court last week stating he plans to appeal the panel's ruling.
"How many times does Mr. Butcher have to win this election before Judge Witten faces facts and stops wasting public resources?" Butcher's lawyer, Ryan Donovan, said this week about the filing of Witten's notice of appeal.
Peyton has said that state law requires the Supreme Court to give Witten's appeal precedent over other matters on their docket.
After losing his bid to remain a judge, Witten filed a seldom-used petition with the Clerk of the West Virginia House of Delegates, in an attempt to overturn the election results.
The "evidence of the errors by election officials in the Bulwark, Sharples and Lane 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 order filed with Gov. Earl Ray Tomblin's office stated.
Witten was appointed last year by Tomblin, who is from Logan County, when then-Circuit Judge Roger Perry retired. Butcher is Perry's former law clerk.
Tomblin, Witten and Butcher each got to choose someone to serve as judge on a three-member special court to decide the petition. The panel heard arguments in August in Logan.
Charleston lawyer James S. Arnold was chosen by Tomblin to serve on the panel; Witten chose John Counts, who had served as treasurer of Witten's campaign; and Butcher chose Booth Goodwin, who stepped down as U.S. attorney at the end of 2015 to run for governor in the Democratic primary.
The panel found that while some election laws had been violated, those violations weren't bad enough to void any votes.
Witten has asked the justices to reconsider the panel's findings and answer whether votes should be thrown out if there is a violation of the 300-foot law, which prohibits electioneering within 300 feet of a polling place; if there is a violation of statutes regarding voter identification at polling places, and if there is a failure by an election poll worker to return an executed written oath swearing to perform their duties
At the Lane precinct, the panel found that a poll worker didn't quite meet the 300-foot requirement when he hung a "no electioneering" sign on election day. Butcher's wife, while she stayed beyond the signs hung by poll workers, campaigned for her husband for about five hours outside the precinct on election day.
The panel decided, though, that the burden was on poll workers, not citizens, to measure and mark the boundaries of the no electioneering zone. The majority of the panel, Arnold and Goodwin, voted not to void votes from Lane because of the poll workers' error. Counts, however, would have thrown out those votes, the panel's order stated.
At the Sharples precinct, copies of the signed oath poll workers are required to turn in couldn't be located. Logan County's clerk has said that the poll workers did sign and orally take the oath and the panel found that, despite the absence of the paperwork, there is no evidence of fraud or misconduct on the part of any voter or poll worker.
At the Bulwark precinct, Witten argues there are 10 instances where poll workers allowed people to vote without first having them to sign the poll book. The panel found that this omission didn't disenfranchise voters or result in any fraud.
Reach Kate White at
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