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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

SEPTEMBER 2016 TERM 

FILED 

November 30, 2016 No. 16-1040 

released at 3:00 p.m. 

_____________	 RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

WILLIAM DOUGLAS WITTEN,
 

Petitioner,
 

V. 

JOSHUA BUTCHER,
 

Respondent.
 

Appeal from the Special Court Convened Under W. Va. Code § 3-7-3 

AFFIRMED 

Submitted: November 21, 2016
 

Filed: November 30, 2016
 

Harvey D. Peyton	 Michael B. Hissam 

Thomas H. Peyton	 Ryan McCune Donovan 

Peyton Law Firm	 J. Zak Ritchie 

Nitro, West Virginia	 Bailey & Glasser, LLP 

Attorneys for Petitioner	 Charleston, West Virginia 

Attorneys for Respondent 

JUSTICE DAVIS delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. The provision in W. Va. Code § 3-7-3 (1963) (Rep. Vol. 2013), 

requiring oral argument to be held in an appeal of a contested election, is invalid because it 

is in conflict with the oral argument criteria of Rule 18 of the West Virginia Rules of 

Appellate Procedure. 

2. “Failure of all the voters of a precinct, in a primary election, through the 

common error of themselves and the election officials, to sign the poll book, will not justify 

the rejection of the votes of the precinct, in the absence of fraud, if such voters appear to 

have been otherwise qualified.” Syllabus point 3, Funkhouser v. Landfried, 124 W. Va. 654, 

22 S.E.2d 353 (1942). 

3. “In the absence of fraud or misconduct preventing a free expression of 

the will of the voters, failure of commissioners of election and poll clerks to take and 

subscribe the oaths in strict compliance with [the law], will not vitiate an election conducted 

by such officers.” Syllabus, State ex rel. Revercomb v. Sizemore, 124 W. Va. 700, 22 S.E.2d 

296 (1942). 

i 
 

 

 

4. The voters of this State cannot be disenfranchised or criminally 

penalized because of errors by polling officials in demarcating “No Electioneering” zones 

at polling places. 

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Davis, Justice: 

This appeal was brought by the Honorable Judge William Douglas Witten 

(“Judge Witten”) from a decision of a three-member Special Court that denied him relief in 

his contest of the May 10, 2016, nonpartisan election for the Office of Judge of the Seventh 

Judicial Circuit, Logan County, Division 1. In this appeal, Judge Witten argues that the 

Special Court should have declared him the winner of the election because of voting 

irregularities in Lane Precinct 4, Bulwark Precinct 1, and Sharples Precinct 31. After a 

careful review of the briefs and record submitted on appeal, we affirm. 

I.
 

FACTUAL AND PROCEDURAL HISTORY
 

The respondent in this proceeding, Joshua Butcher (“Mr. Butcher”), defeated 

incumbent Judge Witten for the open judicial seat in Division 1 of the Circuit Court of Logan 

County in the May 10, 2016, nonpartisan election. Judge Witten requested a recount of the 

ballots. On May 26, 2016, after a recount by the County Commission of Logan County, 

sitting as a board of canvassers,1 Mr. Butcher was declared the winner by a margin of 59 

votes.2 This result was certified to the Secretary of State. 

1

See W. Va. Code § 3-6-9 (2009) (Repl. Vol. 2013).
 

2

Mr. Butcher received 4,604 votes, and Judge Witten received 4,545 votes.
 

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Judge Witten thereafter timely filed a “Notice of Election Contest” on June 6, 

2016, with the Honorable Earl Ray Tomblin,3 Governor of the State of West Virginia, 

pursuant to the provisions of W. Va. Code § 3-7-3 (1963) (Repl. Vol. 2013).4 The notice of 

contest of election was served on Mr. Butcher. In the notice, Judge Witten requested that a 

Special Court be convened, pursuant to W. Va. Code § 3-7-3, to determine all matters he 

challenged in the election and that he be declared the winner. As required by statute, Judge 

Witten designated John Counts as his choice to serve as a member of the Special Court. 

Booth Goodwin was designated by Mr. Butcher as his selection as a member of the Special 

Court. The Governor appointed James S. Arnold as the third member of the Special Court. 

Accordingly, on August 23, 2016, the Special Court convened at the 

courthouse in Logan County to hold a hearing. The hearing was substantively confined to 

challenges to voting at Lane Precinct 4, Bulwark Precinct 1, and Sharples Precinct 31. The 

record indicates that, during the hearing, seventeen witnesses testified, and exhibits, 

stipulations, and evidentiary depositions were introduced. At the conclusion of the hearing, 

two members of the Special Court found that “the evidence of the errors by election officials 

in the Bulwark, Sharples and Lane precincts did not rise to the level of demonstrating that 

3

Judge Witten designated the notice as a petition. 

4

It appears that Judge Witten twice amended the notice. The initial notice 

contained challenges to at least three precincts that later were dropped. 

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their actions amounted to misconduct affecting the result of the election or rendering it 

unfair.” The third member of the Special Court, John Counts (“Mr. Counts”), concurred with 

the majority as to the findings involving the Bulwark and Sharples precincts. However, Mr. 

Counts dissented from the findings regarding the Lane Precinct. Mr. Counts believed that 

all of the votes in that precinct should be disregarded, which would result in Judge Witten 

being declared the winner of the election. The decision of the Special Court was certified 

to the Governor as required by statute on October 17, 2016. This appeal by Judge Witten was 

thereafter filed. 

II.
 

STANDARD OF REVIEW
 

The standard of review on appeal of an election contest proceeding was 

articulated by this Court in Syllabus point 6 of Brooks v. Crum, 158 W. Va. 882, 216 S.E.2d 

220 (1975): 

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. 

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See also Syl. pt. 1, Tillis v. Wright, 217 W. Va. 722, 619 S.E.2d 235 (2005). Additionally, 

this Court reviews the lower tribunal’s rulings on matters of law de novo. State ex rel. 

Bowling v. Greenbrier Cty. Comm’n, 212 W. Va. 647, 650, 575 S.E.2d 257, 260 (2002). 

III.
 

DISCUSSION
 

Initially, we observe that, in contested election cases, we must “remain ever 

mindful of the paramount principle that election laws are to be construed in favor of 

enfranchisement, not disenfranchisement.” Bowling, 212 W. Va. at 649, 575 S.E.2d at 259. 

See also State ex rel. Sowards v. Cty. Comm’n of Lincoln Cty., 196 W. Va. 739, 750, 474 

S.E.2d 919, 930 (1996) (“[A] mere violation of W. Va. Code, 7-14-15(a), is insufficient to 

set aside an election and, in effect, disenfranchise the voters of a county. The sanctity of the 

ballot, which is the keystone of our democracy, must be preserved.”); Syl. pt. 2, Pridemore 

v. Fox, 134 W. Va. 456, 59 S.E.2d 899 (1950) (“In the absence of a showing of fraud or 

misconduct on the part of election officers, preventing a free expression of the will of the 

voters, and affecting the result of the municipal election, irregularities in the conduct thereof 

by such officers, not shown to have affected its result, will not vitiate such election.”). This 

Court held in Syllabus point 2 of Maynard v. Hammond, 139 W. Va. 230, 79 S.E.2d 295 

(1953), that 

[i]rregularities in the conduct of an election, even though 

they constitute a violation of the election laws, not shown to 

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have affected its result, will not vitiate an election in the absence 

of a showing of fraud or misconduct preventing the free 

expression of the will of the voters. 

In the instant proceeding, Judge Witten has alleged voting irregularities in three 

Logan County precincts: Bulwark, Sharples, and Lane. We will review the allegations of 

irregularities regarding each precinct separately. 

However, before we analyze the substantive issues in this appeal we must first 

address an issue that impacts the scope of our authority to resolve election contest appeals 

under W. Va. Code § 3-7-3. In this proceeding the parties waived oral argument before this 

Court. However, W. Va. Code § 3-7-3 requires oral argument as follows: 

[T]he special court shall file with the clerk of the supreme court 

of appeals all papers, documents, testimony, evidence, and 

records, or certified copies thereof, which were before it at the 

hearing resulting in the final decision from which the petitioner 

appeals, together with a copy in writing of its final decision; 

and, after argument by counsel, the court shall decide the matter 

in controversy, both as to the law and the evidence, as may seem 

to it to be just and right. 

(Emphasis added). The statute’s apparent mandatory requirement that oral argument be held 

in an appeal of a contested election is in direct conflict with Rule 18 of our Rules of 

Appellate Procedure. Specifically, Rule 18(a) provides as follows: 

(a) Criteria for oral argument – Oral argument is unnecessary 

when: 

(1) all of the parties have waived oral argument; or 

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(2) the appeal is frivolous; or 

(3) the dispositive issue or issues have been authoritatively 

decided; or 

(4) the facts and legal arguments are adequately presented in the 

briefs and record on appeal, and the decisional process would 

not be significantly aided by oral argument. 

See also W. Va. R. App. P. 19 & 20 (discussing oral argument procedures for cases under 

these rules). 

It is clear that, under Rule 18(a), oral argument in an appeal to this Court is 

discretionary; however, through W. Va. Code § 3-7-3, the Legislature has required this Court 

to hold oral argument in election appeals. The Legislature does not have the authority to 

impose such a requirement. We have made clear on numerous occasions that this Court has 

the exclusive constitutional “power to promulgate rules for all cases and proceedings, civil 

and criminal, for all of the courts of the state relating to writs, warrants, process, practice and 

procedure, which shall have the force and effect of law.” W. Va. Const. art. VIII, § 3. See 

also Syl. pt. 6, State Farm Fire & Cas. Co. v. Prinz, 231 W. Va. 96, 743 S.E.2d 907 (2013) 

(“Because it addresses evidentiary matters that are reserved to and regulated by this Court 

pursuant to the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution, 

West Virginia Code § 57-3-1 (1937), commonly referred to as the Dead Man’s Statute, is 

invalid, as it conflicts with the paramount authority of the West Virginia Rules of 

Evidence.”); Syl. pt. 3, Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005) (“The 

provisions contained in W. Va. Code § 55-7B-6d (2001) (Supp. 2004) were enacted in 

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violation of the Separation of Powers Clause, Article V, § 1 of the West Virginia 

Constitution, insofar as the statute addresses procedural litigation matters that are regulated 

exclusively by this Court pursuant to the Rule-Making Clause, Article VIII, § 3 of the West 

Virginia Constitution. Consequently, W. Va. Code § 55-7B-6d, in its entirety, is 

unconstitutional and unenforceable.”); Syl. pt. 6, Mayhorn v. Logan Med. Found., 193 

W. Va. 42, 454 S.E.2d 87 (1994) (“Rule 702 of the West Virginia Rules of Evidence is the 

paramount authority for determining whether or not an expert is qualified to give an opinion. 

Therefore, to the extent that Gilman v. Choi, 185 W. Va. 177, 406 S.E.2d 200 (1990) 

indicates that the legislature may by statute determine when an expert is qualified to state an 

opinion, it is overruled.”). 

In view of our constitutional Rule-Making authority, we now hold that the 

provision in W. Va. Code § 3-7-3, requiring oral argument to be held in an appeal of a 

contested election, is invalid because it is in conflict with the oral argument criteria of Rule 

18 of the West Virginia Rules of Appellate Procedure. As previously mentioned, based upon 

the application of Rule 18(a)(1), the parties waived oral argument. 

A. Bulwark Precinct 

The first issue we address involves ten voters at the Bulwark Precinct who did 

not sign the poll book for identification purposes. All parties agree that ten voters failed to 

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sign the poll book. The dispute involved with this issue is the impact this failure should have 

on all the votes cast at the Bulwark Precinct. Judge Witten contends that, because of this 

irregularity all of the votes cast in the Bulwark Precinct “must be rejected.”5 The Special 

Court unanimously concluded that this irregularity, did not warrant disturbing the votes cast 

in the Bulwark Precinct. We agree with the Special Court. 

We begin by observing that W. Va. Code § 3-1-34(a) (2016) (Supp. 2016) 

requires voters to sign the poll book.6 This statute provides in relevant part: 

If that person is found to be duly registered as a voter at that 

precinct, he or she shall sign his or her name in the designated 

location provided at the precinct. If that person is physically or 

otherwise unable to sign his or her name, his or her mark shall 

be affixed by one of the poll clerks in the presence of the other 

and the name of the poll clerk affixing the voter’s mark shall be 

indicated immediately under the affixation. No ballot may be 

given to the person until he or she signs his or her name on the 

designated location or his or her signature is affixed thereon. 

The statute clearly and unambiguously requires voters to sign the poll book prior to being 

given a ballot. It is well settled that “[w]here the language of a statute is plain and 

unambiguous, there is no basis for application of rules of statutory construction; but courts 

5

The record indicates that Judge Witten received 171 votes from the Bulwark 

Precinct, and Mr. Butcher received 203 votes. 

6

This statute was amended in 2016. However, the amendment did not affect the 

relevant language in W. Va. Code § 3-1-34(a) (2008) (Repl. Vol. 2013). 

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must apply the statute according to the legislative intent plainly expressed therein.” Syl. pt. 

1, Dunlap v. State Comp. Dir., 149 W. Va. 266, 140 S.E.2d 448 (1965). 

Both the Special Court and Mr. Butcher relied upon two of our cases 

addressing the issue of voters failing to sign voting documents: Funkhouser v. Landfried, 124 

W. Va. 654, 22 S.E.2d 353 (1942), and State ex rel. Heavener v. Perry, 155 W. Va. 353, 184 

S.E.2d 136 (1971). 

In Funkhouser, the petitioner was a losing candidate in the primary election for 

the Republican nomination for the United States Senate. The petitioner filed a petition for 

a writ of mandamus in this Court to compel the Board of Canvassers of Jackson County to 

reject all the votes cast in Precinct 39, because none of the voters signed the poll book as 

required by statute.7 This Court denied the requested writ based upon the following 

reasoning: 

We conclude, therefore, that the failure of all the voters in 

precinct No. 39 in Jackson County to sign the poll book, in the 

absence of fraud or proof that the votes are otherwise illegally 

cast, is not sufficient ground for disregarding these votes. This 

conclusion must not be understood to imply that the statutory 

requirement that persons offering to vote shall sign the poll book 

is nullified or rendered futile. This signing is one of the means 

of identifying voters, perhaps the most important, and should be 

rigorously enforced by election officials. But, where the failure 

7

The evidence revealed that the voters’ names were signed by a poll clerk. 

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to sign the poll book resulted from an innocent and mutual 

mistake by both voters and the officials, and the voters were 

otherwise qualified, the ballots of such voters will not be held to 

be invalid for that reason alone. 

Funkhouser, 124 W. Va. at 661-62, 22 S.E.2d at 357. The opinion went on to set out the 

following principle of law in Syllabus point 3 of Funkhouser: 

Failure of all the voters of a precinct, in a primary 

election, through the common error of themselves and the 

election officials, to sign the poll book, will not justify the 

rejection of the votes of the precinct, in the absence of fraud, if 

such voters appear to have been otherwise qualified. 

124 W. Va. 654, 22 S.E. 2d 353. 

The decision in Heavener involved the failure of absentee voters to sign a 

declaration as required by law. The declaration was not provided to the absentee voters. The 

challenged voting in Heavener concerned ballots voted at a special school board levy 

election. The petitioners filed for a writ of mandamus to require the Board of Canvassers of 

Monroe County to reject all the absentee votes. This Court denied the writ based upon the 

following: 

Here the absentee ballots which under the applicable statute 

were subject to challenge, were not challenged, and there is no 

showing of fraud in connection with the preparation of the 

ballots or the carrier envelopes or the manner in which the 

ballots were voted by each voter. Also, there is no showing that 

any of the voters of the ballots was not a qualified voter or that 

any of them was in any manner disqualified or was not entitled 

to cast an absentee ballot in the election. There is likewise no 

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showing or even any intimation that the school board levy 

election was not a fair election. 

It is manifest and it is not disputed that the absence of the 

required declaration from the carrier envelope was due to the 

failure of the Circuit Clerk to comply with that requirement of 

the statute and that the failure of the voter of each absentee 

ballot to sign the declaration as required by the statute was 

caused primarily by the mistake or failure of the Circuit Clerk to 

prepare the declaration and place it upon the carrier 

envelope. . . . 

. . . . 

The statute which required the signature of the voter to 

the declaration contained no express provision that the failure to 

comply with that requirement shall render a ballot void or direct 

that it shall not be counted. . . . 

If the Legislature had intended to render void and prevent 

the count of an absentee voter’s ballot in the absence of the 

signed declaration required by the statute, the Legislature could 

and presumably would have made the signing of the declaration 

a condition precedent to the right to cast such ballot and would 

have provided that such ballot shall be void and not be 

counted[.] 

Heavener, 155 W. Va. at 356-59, 184 S.E.2d at 138-40. This Court set out the following 

general principle of law in Syllabus point 2 of Heavener: 

The failure of a voter to perform an act prescribed by an 

election statute will not deprive him of the privilege of voting 

unless the statute plainly and clearly, by express provision or 

necessary implication, requires that result. 

155 W. Va. 353, 184 S.E.2d 136. 

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Although the statutes reviewed in Funkhouser and Heavener are worded 

differently than W. Va. Code § 3-1-34(a), the underlying policy considerations of both cases 

inform our decision in resolving the signature irregularity in this case. Both Funkhouser and 

Heavener stand for the proposition that the voters of this State will not be disenfranchised 

merely upon a showing that they failed to comply with a signature requirement for voting.8 

In the instant proceeding, the Special Court found “that ten qualified voters 

merely failed to sign the poll book as a result of their own and poll worker error.” The 

Special Court also found that “the parties have stipulated that no evidence of poll worker 

fraud or misconduct exists.” The record additionally shows that the Special Court was 

apparently prepared to have all ten voters testify. However, as a result of two of the voters, 

Amanda Dillon and Robert Leete, testifying that they voted but forgot to sign the poll book, 

Judge Witten stipulated that the remaining eight voters would testify similarly–therefore, the 

remaining eight voters did not have to testify.9 Thus the record reflects that the ten voters 

8

Judge Witten cited, without any discussion, three cases that have no 

application to this issue. See Brooks v. Crum, 158 W. Va. 882, 216 S.E.2d 220 (1975) 

(involving improperly assisting voters to cast vote and voting after poll closed); Terry v. 

Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969) (voting after poll closed); State ex rel. 

Dotson v. VanMeter, 151 W. Va. 56, 150 S.E.2d 604 (1966) (addressing former version of 

W. Va. Code § 3-6-7 requiring voiding ballots not signed by poll clerks; remedy removed 

from statute in 2003). 

9

Judge Witten has set out the following sentence in his brief: “Postelection 

parol evidence is not an accepted method for voter identification.” Insofar as this statement 

(continued...) 

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who failed to sign the poll book were qualified to vote and, in fact, voted. Judge Witten has 

offered no evidence that voter fraud or intentional misconduct was involved with the failure 

of the ten voters to sign the poll book.10 Although this Court recognizes the importance of 

9

(...continued) 

was not developed, we will not consider it. See Covington v. Smith, 213 W. Va. 309, 317 n.8, 

582 S.E.2d 756, 764 n.8 (2003) (stating that casual mention of an issue in a brief is 

insufficient to preserve the issue on appeal). We will note in passing that our cases have 

recognized that a tribunal “sitting as an election contest court, may take evidence, consider 

and make determination of matters extrinsic to the election returns.” Miller v. County 

Comm’n of Boone Cty., 208 W. Va. 263, 268, 539 S.E.2d 770, 775 (2000). “Evidence of 

fraud or misconduct extrinsic to the election returns . . . is properly cognizable in an election 

contest proceeding.” Syl. pt. 7, Maynard v. Hammond, 139 W. Va. 230, 79 S.E.2d 295 

(1953). 

10During the direct and cross-examination of voter Robert Leete, the following 

was brought out: 

[DIRECT EXAMINATION] 

[Counsel for Mr. Butcher]: That’s fine. That’s fine. It is. Was 

there anything going on on Election Day that could have caused 

you to potentially forget to sign the poll book when you were 

there at the precinct? 

[Witness]: Unless it would be my wife has emphysema and 

she’s confined to a scooter and oxygen and I spend a lot of time 

when we’re out making sure that she’s got room and room to 

maneuver and such as that, I might have been distracted by that. 

[Counsel for Mr. Butcher]: Thank you. 

[CROSS-EXAMINATION] 

[Counsel for Judge Witten]: Actually, Mr. Leete, that’s probably 

what did happen, isn’t it? I mean, your wife signed the book. 

(continued...) 

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complying with the signature requirement imposed by W. Va. Code § 3-1-34(a), we are 

equally mindful of the constitutional right of the voters of this State to cast their vote and 

have their vote counted. See W. Va. Const. art. IV, § 1 (“The citizens of the state shall be 

entitled to vote at all elections held within the counties in which they respectively reside.”). 

We will not allow a technical error, without more, to override this constitutional right. Thus 

10(...continued) 

[Witness]: Yes.
 

[Counsel for Judge Witten]: Right before you did. I mean, you
 

were the 279th (sic) voter. Let me just see here. It’s L-e-e-t-e,
 

isn’t it?
 

[Witness]: Yes, sir.
 

[Counsel for Judge Witten]: Stella is your wife?
 

[Witness]: Right.
 

[Counsel for Judge Witten]: So you were voter 379 and she was
 

voter 380, and you were just tending to your wife, who’s ill with 

emphysema– 

[Witness]: Uh-huh 

[Counsel for Judge Witten]: –and moved on without getting 

signed? 

[Witness]: Yes, sir.
 

[Counsel for Judge Witten]: But your wife signed?
 

[Witness]: Right.
 

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we find no reason to disturb the Special Court’s ruling on the votes cast at the Bulwark 

Precinct. 

B. Sharples Precinct 

The next issue raised by Judge Witten is that the poll workers at the Sharples 

Precinct were not qualified to carry out their duties because of the absence of evidence that 

theytook the required statutoryoath. Consequently, Judge Witten argues that this Court must 

“reject the entirety of the results from this precinct.”11 We disagree. 

The requirement that poll workers take an oath before carrying out their duties 

is set out under W. Va. Code § 3-1-30a(a) (1993) (Repl. Vol. 2013) as follows: 

Each commissioner of election and poll clerk, as defined in this 

article, before entering upon his or her duties, shall take orally 

and subscribe to the appropriate oath, as prescribed herein. Such 

oath may be taken before and administered by one of the 

election commissioners or poll clerks, who in turn may take the 

same before another election commissioner or poll clerk. For the 

purposes of this article, all election commissioners and poll 

clerks, having first been sworn, are authorized to administer 

oaths. 

This statute is clear and unambiguous in its requirement that poll workers take an oath. See 

Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 

11The record indicates that Judge Witten received 32 votes from the Sharples 

Precinct, and Mr. Butcher received 61 votes. 

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353 (1959) (“When a statute is clear and unambiguous and the legislative intent is plain, the 

statute should not be interpreted by the courts, and in such case it is the duty of the courts not 

to construe but to apply the statute.”). The Special Court unanimously found that the 

evidence presented at the hearing established that the poll workers took their required oath 

and signed an “oath sheet” that was supposed to be returned to the County Clerk’s office. 

There was testimony by the County Clerk, John A. Turner, that the oath sheet was 

misplaced, but that his investigation revealed that all poll workers took the required oath. 

Judge Witten contends that, because the oath sheet could not be found, all of the votes in the 

precinct should be set aside. 

In rejecting Judge Witten’s argument, the Special Court cited to the decision 

in State ex rel. Revercomb v. Sizemore, 124 W. Va. 700, 22 S.E.2d 296 (1942), as support 

for its decision. In Revercomb, the petitioner was the winning candidate in the primary 

election for the Republican nomination for the United States Senate. The petitioner filed a 

petition for a writ of mandamus in this Court to compel the board of canvassers of Clay 

County to reinstate all the votes cast in seven precincts in that county. The votes in the seven 

precincts were rejected because poll workers in the precincts did not properly take the oath 

for election officers. This Court granted the requested writ based upon the following 

reasoning: 

The votes cast in the seven questioned precincts were fairly and 

correctly counted and tabulated upon the recount and no fraud 

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or misconduct has been shown. To exclude such returns from 

the canvass of the vote cast in said election in Clay County 

would, in effect, disfranchise the voters in such precincts, solely 

because of the participation of election officers, some of whom 

were not properly sworn and others who did not properly 

subscribe to the oath taken . . . . We do not believe that an 

election should be vitiated by reason of the fact that election 

officers acted, under color of authority, without the required 

qualifications as to taking and subscribing the statutory oath, 

where no fraud or misconduct is imputed. 

Revercomb, 124 W. Va. at 703, 22 S.E.2d at 298 (citations omitted). This Court went on to 

set out the following general principle of law in the single Syllabus of Revercomb: 

In the absence of fraud or misconduct preventing a free 

expression of the will of the voters, failure of commissioners of 

election and poll clerks to take and subscribe the oaths in strict 

compliance with [the law], will not vitiate an election conducted 

by such officers.[12] 

124 W. Va. 700, 22 S.E.2d 296 (footnote added). See State ex rel. Watts v. Kelly, 140 W. Va. 

177, 83 S.E.2d 465 (1954) (applying Revercomb). 

As pointed out in the brief of Mr. Butcher, the decision in Revercomb is 

controlling in this case. Even if the record had shown that the poll workers failed to properly 

take the required oath, Revercomb would not permit rejecting the ballots cast in the Sharples 

Precinct merely because of this defect. However, we need not go that far, because the only 

evidence on this issue proves that the poll workers did, in fact, take the required oath. 

12The Syllabus point referred to a now-repealed statute. 

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Therefore, we find no reason to disturb the Special Court’s ruling on the votes cast at the 

Sharples Precinct. 

C. Lane Precinct 

The final issue raised by Judge Witten is that the wife of Mr. Butcher was 

unlawfully campaigning in a restricted area at the Lane Precinct.13 Consequently, Judge 

Witten argued before the Special Court that all of the votes cast in the Lane Precinct should 

be rejected.14 We need not belabor this argument.15 

It is clear that W. Va. Code § 3-1-37(a) (1999) (Repl. Vol. 2013) prohibits 

campaigning or electioneering within 300 feet of a polling place when the polls are open.16 

This statute states the following: 

Except as otherwise provided in this section, no person, other 

than the election officers and voters going to the election room 

13The record indicates that another person also was campaigning in the same 

area, but for a nonjudicial office. 

14In his brief before this Court, Judge Witten appears to argue, as a remedy, that 

the election should be voided, and a new election ordered. 

15The record indicates that Judge Witten received 194 votes from the Lane 

Precinct, and Mr. Butcher received 274 votes. 

16“Electioneering means anything which aids or promotes the success or defeat 

of any candidate or ballot issue, such as displaying of signs, distribution of campaign 

literature, cards or handbills, or the solicitation of voters for or against any candidate or 

question on the ballot.” 153 W. Va. C.S.R. § 8-2 (1985). 

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to vote and returning therefrom, may be or remain within three 

hundred feet of the outside entrance to the building housing the 

polling place while the polls are open. This subsection does not 

apply to persons who reside or conduct business within such 

distance of the entrance to the building housing the polling 

place, while in the discharge of their legitimate business, or to 

persons whose business requires them to pass and repass within 

three hundred feet of such entrance. 

W. Va. Code § 3-1-37(a). This statute is clear in setting out the conduct it prohibits. See Syl. 

pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language 

of a statute is free from ambiguity, its plain meaning is to be accepted and applied without 

resort to interpretation.”). The decision of the Special Court set out the following findings 

on how polling workers carry out the intent of W. Va. Code § 3-1-37(a): 

To maintain the integrity of each polling place, election day 

workers are provided a precinct kit to set up each voting precinct 

in Logan County. The kit includes a 100-foot string which is 

intended to be extended three times from the door of the polling 

place. This measurement establishes the restricted “no 

electioneering” area from the polling place. Signs are to be 

erected by poll workers clearly marking the restricted area in 

which loitering and electioneering is proscribed. Both the 

training video and written manual produced by the West 

Virginia Secretary of State and used to train Logan County 

election workers instruct prospective poll workers on the 

measurement of the restricted area. In addition to the mandatory 

duty to properly establish the “no electioneering” zone, it is the 

further responsibility of election officials at the polling place to 

remove any unauthorized persons who may be present in the 

restricted area. 

See 153 W. Va. C.S.R. § 8-3.3.2 (1985) (“The officers of election shall, prior to the opening 

of the polls, measure from the outside door of the building housing the voting place along 

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access walkways and/or roadways to determine the three hundred foot (300’) distance and 

shall clearly mark the boundary of the restricted area in at least two (2) places.”). 

The Special Court found that the poll workers at the Lane Precinct erroneously 

cordoned off an area of about 225 feet and designated it with signs as the “No 

Electioneering” area. This was not in compliance with the 300 foot requirement of W. Va. 

Code § 3-1-37(a). The evidence at the hearing established that Mr. Butcher’s wife engaged 

in campaigning activity outside the area cordoned off as the “No Electioneering” area. In 

fact, the parties stipulated that Mrs. Butcher “never crossed the marked ‘No electioneering’ 

boundary.” The parties also stipulated that there was “no evidence that any of the poll 

workers at the [Lane] precinct were engaged in any kind of fraud or intentional misconduct.” 

In view of this evidence, the majority of the Special Court held as follows: 

The majority of the special Court concludes that the Lane poll 

workers’ failure to correctly establish the appropriate size of the 

restricted area around the Lane precinct that resulted in 

electioneering activity within 300 feet of the Lane polling place 

was not misconduct which warrants vitiation of the election 

results at the Lane precinct. An act of electioneering within the 

restricted area near voting polls can be regulated by imposition 

of the criminal penalties contained in W. Va. Code § 3-9-6. The 

majority would not disenfranchise the voters who cast 468 votes 

in the Lane precinct when the electioneering at issue occurred 

outside of the boundaries of the incorrectly drawn, restricted 

area. 

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We agree with the majority of the Special Court. The position advocated by 

Judge Witten, and the dissenting member of the Special Court, Mr. Counts, would require 

that voters carry tape measures to voting places to make certain the “No Electioneering” 

signs that they saw were in fact 300 feet away from the polling place.17 Mrs. Butcher did 

nothing intentionally wrong when she stood behind the “No Electioneering” signs and 

advocated enthusiastically for her spouse’s campaign. See Cullen v. Fliegner, 18 F.3d 96, 

103 (2d Cir. 1994) (“In short, Appellee did not violate § 2031–a because the School District 

did not provide the notice required by that statute. Holding otherwise would infringe upon 

Appellee’s First Amendment (and statutory) right to electioneer 100 feet from the polling 

place and make possible the selective enforcement of the prohibition on electioneering.” 

(footnote omitted)). The blame in this situation rested exclusivelywith the poll workers who, 

through the erroneous placement of the signs, told Mrs. Butcher and all other voters that it 

was lawful to campaign immediately behind those signs. In the final analysis, and we so 

17Judge Witten and Mr. Counts, in his dissent, cite the decision in Ellis v. 

Meeks, 957 S.W.2d 213 (Ky. 1997), as authority for invalidating the votes in the Lane 

Precinct. The decision in Ellis is distinguishable because it did not involve polling workers 

placing “No Electioneering” signs at the wrong distance. Judge Witten also cited, without 

any discussion, three cases that have no application to the issue of electioneering near polls. 

See Brooks v. Crum, 158 W. Va. 882, 216 S.E.2d 220 (1975) (involving improperly assisting 

voters to cast vote and voting after poll closed); State ex rel. Patrick v. County Court of 

Hancock Cty., 152 W. Va. 592, 165 S.E.2d 822 (1969) (addressing whether ballots signed 

by correct poll clerks under former version of W. Va. Code § 3-6-7 that required voiding 

ballots not signed by poll clerks; remedy removed from statute in 2003); State ex rel. Dotson 

v. VanMeter, 151 W. Va. 56, 150 S.E.2d 604 (1966) (addressing former version of W. Va. 

Code § 3-6-7 requiring voiding ballots not signed by poll clerks; remedy removed from 

statute in 2003). 

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hold, the voters of this State cannot be disenfranchised or criminally penalized because of 

errors by polling officials in demarcating “No Electioneering” zones at polling places. 

IV.
 

CONCLUSION
 

In view of the foregoing, the decision of the Special Court dated October 17, 

2016, denying relief to Judge Witten, is affirmed. 

Affirmed. 

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