Uncounted ballots discovered in W.Va. election challenge

August 01, 2000

Uncounted ballots discovered in W.Va. election challenge

By ANDREW SCHOTZ / Staff Writer, Martinsburg

photo: KEVIN G. GILBERT / staff photographer

MARTINSBURG, W.Va. - Nine uncounted, unopened absentee ballots were uncovered at the Berkeley County Courthouse Monday, capping the first day of a hearing in a contested judicial race between Gray Silver III and David Camilletti.


Also, 10 ballots previously counted were thrown out, letting Camilletti chip at Silver's 39-vote lead.

The Berkeley County Commissioners and their attorney spent the day hearing legal arguments from lawyers representing Silver and Camilletti, opponents in the May 9 Democratic primary for a new Circuit Court judgeship.

The discovery of the missing ballots ended a 2 1/2-hour debate over discrepancies in precinct 2, a squabble that dominated much of the day.


No one knew how the nine ballots - six cast in the Democratic primary, three from the Republican primary - got lost.

"It was overlooked. We don't know why," Commissioner Robert Burkhart said.

Until that point, Camilletti and his attorney, W. Richard Staton, persisted in finding out why the number of ballots turned in for the primary in the precinct didn't match the number of votes counted. Staton suggested that the entire precinct, or even the primary, could have been voided.

The County Commissioners kept the nine ballots sealed. The votes will not count, as the deadline for tallying new ballots has long since passed, the commission decided.

Silver's lead over Camilletti was 15 votes after the May 9 primary. As absentee and other ballots were counted and recounted in the ensuing months, Silver's margin expanded to 39 votes.

On Monday, Camilletti closed the margin to 37 votes when 10 previously-counted ballots were tossed out. Four of the votes were for Silver, two were for Camilletti and four were for Patrick Henry, who finished third in the primary.

The ballots did not have the signatures of two poll clerks, which are required by West Virginia election law.

"That's the law, even though I don't agree with the law," Burkhart said.

The secretary of state's office had advised localities to count ballots lacking poll clerks' signatures on the night of the primary, during the canvass and during the recount. But election law states that the ballots should be rejected during an election contest, which is currently underway in Berkeley County.

In a petition challenging a number of aspects of the primary, Camilletti alleged that there are over 220 disputed votes in 42 of Berkeley's 46 precincts. Included are ballots missing clerks' signatures.

Also included are ballots challenged for other reasons. The County Commissioners on Monday allowed 10 of those ballots from precincts 1 and 2 to be counted.

Camilletti and Staton objected on the grounds that they were also missing poll clerks' signatures. But Silver's attorney, Douglas S. Rockwell, said a different section of the law prohibits clerks from signing challenged ballots.

As the day wound down, participants in the hearing expressed shock when Duane Foltz, a county employee sworn in to help, retrieved a bag of absentee ballots from a cardboard box of miscellaneous election materials.

Rockwell said afterward that the miscue was isolated and should not affect the results of the primary.

"It's just human error and they got lost in the shuffle," Commission President D. Wayne Dunham said.

The contest hearing was conducted in a judicial fashion, with witnesses called and evidence presented. At times, the proceedings were bogged down by minutiae.

"It appears that this contest is becoming a quagmire," said Commissioner John Wright. "I'm afraid it's going to worsen."

The hearing is expected to last at least a few more days. The commissioners and Bentley will reconvene for another all-day session with Silver, Camilletti and their attorneys today at 9 a.m.

Bentley said the parties should be ready to "work harder" because the County Commissioners got through only two of the 42 precincts in which Camilletti has raised questions.

The County Commission's decision can be appealed to the Circuit Court, then to the state Supreme Court.

Camilletti had initially asked Gov. Cecil Underwood to appoint a special three-person panel to oversee the contest hearing instead of the Berkeley County Commission, but the West Virginia Supreme Court of Appeals rejected his request on July 21.

The winner of the primary will not have a Republican foe in November. The term is eight years.

The 23rd Circuit covers the three Eastern Panhandle counties.

Camilletti won Jefferson County in the primary, but Silver captured Berkeley and Morgan counties.

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