            IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               January 2020 Term
                                                                        FILED
                            _____________________
                                                                     June 15, 2020
                                                                        released at 3:00 p.m.
                                 No. 19-1018                        EDYTHE NASH GAISER, CLERK
                                                                    SUPREME COURT OF APPEALS
                            _____________________                        OF WEST VIRGINIA




      HARDWICK SMITH JOHNSON, CHARLOTTE WARD THOMPSON,
          MARJORIE FLYNN YOST, AND BARBARA HUMES,
                    Defendants Below, Petitioners

                                       v.

           NANCY SINGLETON CASE AND DEBORAH A. MCGEE,
                      Plaintiffs Below, Respondents
                   _______________________________

                Appeal from the Circuit Court of Jefferson County
                     Honorable Debra McLaughlin, Judge
                           Civil Action No. 19-P-136

                 AFFIRMED, IN PART, REVERSED, IN PART,
                   AND REMANDED WITH DIRECTIONS

       _________________________________________________________


                            Submitted: May 19, 2020
                              Filed: June 15, 2020




J. Zak Richie, Esq.                                Gregory A. Bailey, Esq.
Ryan McCune Donovan, Esq.                          J. Daniel Kirkland, Esq.
Hissam Forman Donovan                              Arnold & Bailey, PLLC
       Richie, PLLC                                Charles Town, West Virginia
Charleston West Virginia                           Attorneys for Respondents
Attorneys for Petitioners
Patrick Morrisey, Esq.
Attorney General
Curtis R. A. Capehart, Esq.
Deputy Attorney General
Thomas T. Lampman, Esq.
Assistant Solicitor General
Charleston, West Virginia
Attorneys for Amicus Curiae,
       Mac Warner, Secretary of State of WV


JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE WORKMAN did not participate in the decision in this case.
                             SYLLABUS BY THE COURT



              1.     “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.” Syl. Pt. 6, Brooks v. Crum, 158 W.Va. 882,

216 S.E.2d 220 (1975).



              2.     “The statutory law contemplates that an election recount and contest

shall be separate proceedings. The former must terminate and the result be declared before

the latter may commence.” Syl. Pt. 2, in part, Reynolds v. Bd. of Canvassers of Harrison

Cty., 117 W.Va. 770, 188 S.E. 229 (1936).



              3.     “Where a candidate seeks to contest specific ballots cast in an election

pursuant to the provisions of West Virginia Code § 3-7-6 (1999), he must first demand that

the Board of Canvassers conduct a recount of the ballots pursuant to the provisions of West

Virginia Code § 3-6-9 (1999). Where, however, a candidate seeks to contest only such

matters as fraud, an elected candidate’s eligibility, or the legality of the election, the

candidate may proceed directly with an election contest pursuant to the provisions of West

Virginia Code § 3-7-6, thereby omitting the recount procedure set forth in West Virginia

Code § 3-6-9, provided that any recount proceeding which was otherwise initiated has

                                             i
terminated.” Syl. Pt. 5, Miller v. Cty. Comm’n of Boone County, 208 W.Va. 263, 539

S.E.2d 770 (2000).



              4.     “The rule of necessity is an exception to the disqualification of a

judge. It allows a judge who is otherwise disqualified to handle the case to preside if there

is no provision that allows another judge to hear the matter.” Syl. Pt. 7, State ex rel. Brown

v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994).



              5.     “The rule of necessity is an exception to the general rule precluding a

disqualified judge from hearing a matter. Therefore, it is strictly construed and applied only

when there is no other person having jurisdiction to handle the matter that can be brought

in to hear it.” Syl. Pt. 8, State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444 S.E.2d 47

(1994).




                                              ii
HUTCHISON, Justice:

                This case is before this Court upon an appeal of a November 6, 2019, order

of the Circuit Court of Jefferson County that reversed, in part, an order declaring the results

for a town council election that was entered by the Harpers Ferry Election Contest Tribunal

(“Tribunal”) following an election contest trial. The circuit court found that the Tribunal

erred by concluding that four provisional ballots cast during the Harper Ferry municipal

election on June 11, 2019, should not be counted. In this appeal, the petitioners, Hardwick

Smith Johnson, Charlotte Ward Thompson, Marjorie Flynn Yost, and Barbara Humes, who

are the contestees, 1 argue that the circuit court erroneously substituted its view of the

evidence to find that the four provisional ballots should have been counted.              The

respondents, Nancy Singleton Case and Deborah A. McGee, who are the contesters, assert

that the circuit court’s order should be affirmed with respect to the finding regarding the

provisional ballots. However, the respondents cross-assign error 2 to the circuit court’s

decision to uphold the Tribunal’s conclusion that respondent Case lacked standing to

participate in the election contest because she failed to post the requisite bond for the

recount of the votes. The respondents also contend the circuit court erred by failing to rule

that two town council members were disqualified from serving on the Tribunal. 3




       1
        Two other contestees, Christian Pechuekonis and Jay Premack, who won seats on
the town council, did not respond to the Notice of Contest and are not parties in this appeal.
       2
           See W.Va. R. App. Proc. 10(f).
       3
        An amicus brief was filed by Mac Warner, the West Virginia Secretary of State,
on behalf of the respondents.
                                              1
              Having considered the parties’ briefs and oral arguments, the submitted

record, and pertinent authorities, we affirm, in part, and reverse, in part, the circuit court’s

order and remand this case for entry of an order consistent with this opinion.



                          I. Facts and Procedural Background

              The town of Harpers Ferry held a municipal election on June 11, 2019.

Among the offices subject to election were five at-large seats on the Harpers Ferry Town

Council. The candidates for the town council seats and the number of votes recorded for

each on election day were as follows: Barbara Humes, 91 votes; Jay Premack, 87 votes;

Hardwick Johnson, 85 votes; Christian Pechuekonis, 84 votes; Charlotte Thompson, 84

votes; Nancy Singleton Case, 82 votes; Deborah McGee, 81 votes; Marjorie Flynn Yost,

81 votes; and Leah Howell, 15 votes. As the vote count illustrates, respondent McGee lost

by three votes and respondent Case lost by two votes. 4 On June 19, 2019, respondent

McGee submitted a letter asking for a recount and tendered a check for the $175.00 bond

that had been set by the Board of Canvassers to cover the cost of any recount. According

to respondent Case, she also requested a recount by email that same day but did not post

the bond. 5




       Although Marjorie Flinn Yost also lost the election, she did not contest the results.
       4

Consequently, she was named as a contestee and is a petitioner herein.
       5
         Respondent Case testified during the proceeding below that she sent an email
requesting a recount. However, it appears that the email was never produced, and it is not
part of the record submitted to this Court. Respondent Case never disputed the fact that
she did not post a bond. She testified that she was out of town during the forty-eight-hour
                                               2
                The recount was held on June 26, 2019, and there was no change in the result.

Only the ballots previously accepted by the Board of Canvassers were recounted; no

provisional ballots were considered. Thereafter, the election results were certified, and on

June 29, 2019, the five incoming members of the town council, including petitioners

Johnson, Thompson, and Humes, were sworn in.



                On July 8, 2019, respondents McGee and Case timely filed a joint petition to

contest the election results alleging that five citizens of Harpers Ferry were denied the right

to vote based upon erroneous records that indicated that they did not reside in Harpers

Ferry. These citizens, Linda McCarty, George McCarty, Adam Hutton, Leah Howell, 6 and

Jane Mumaw, voted by provisional ballot on election day. Subsequently, the petitioners

abandoned their claim with respect to Ms. Mumaw upon receipt of information indicating

she was registered to vote in another county. The other four provisional voters resided on

Washington Street in Harpers Ferry, and the respondents asserted that their votes should

have been counted. The provisional voters had each registered to vote through the West

Virginia Department of Motor Vehicles (“DMV”), 7 which had listed their street address as




period for filing the request for a recount and was told that the check submitted by
respondent McGee to cover the bond was all that was needed for the recount.
       6
           Ms. Howell was also a candidate for the town council seats.
       7
         See W.Va. Code § 3-2-11 (2019) (providing for voter registration in conjunction
with driver licensing).
                                              3
“West Washington Street,” which is located in the neighboring municipality of Bolivar.

Consequently, their names did not appear in the Harpers Ferry poll book on election day.



                An election contest trial was held on August 24, 2019. Pursuant to West

Virginia Code § 3-7-6 (2002), “the governing body of the municipality is the judge of any

contest of a municipal election.” 8 The codified ordinances of Harpers Ferry provide that

the town council is “the governing body of the town” and consists of “five

Councilmembers, plus the Mayor and the Recorder.” 9 Thus, the members of the Tribunal

were the mayor, Wayne Bishop; the recorder, Kevin Carden; and newly elected council

members, Barbara Humes, Hardwick Johnson, Charlotte Thompson, and Jay Premack.

Council member Christian Pechuekonis declined to participate in the election contest.

During the proceeding, the respondents objected to petitioners Johnson and Thompson

serving on the Tribunal because their election to the town council was being contested.

The Tribunal concluded, however, that it “ha[d] no legal authority to compel any one or

more of its members to disqualify themselves from participating in any business that comes

before the Town Council” and that “[d]isqualification is determined and undertaken on an

individual basis.”




       8
         See also Syl. Pt. 1, Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880 (1949) (“The
jurisdiction of the common council of a municipality incorporated under Article 2, Chapter
8, Code, to hear and decide a contested election involving the selection of municipal
officers is original and exclusive.”).
       9
           See Harpers Ferry Codified Ordinances § 111.01 (2011); § 111.02 (2016).
                                             4
              During the election contest trial, the respondents called three of the

provisional voters—Linda McCarty, George McCarty, and Adam Hutton—to testify along

with Nikki Painter, Chief Deputy Clerk of Elections for the Jefferson County Voter

Registration and Elections Office. The McCartys testified that when they registered to vote

at the DMV, they were told that their street address needed to be identified as “West

Washington Street” as opposed to just “Washington Street” because that was the way their

address appeared in the DMV’s electronic system. The McCartys further testified that they

explained to the DMV employee that they did not live on “West Washington Street” but

their efforts to have the correct address put into the system were unsuccessful. The

McCartys stated that they did not understand the importance of the address distinction until

they attempted to vote during the June 11, 2019, election and were told that they were not

listed in the Harpers Ferry poll book. Consequently, they were required to cast provisional

ballots.



              Similarly, Adam Hutton testified that he used “900 West Washington Street”

when he registered to vote at the DMV because that was the address assigned to him by

the U.S. Postal Service. Like the McCartys, Mr. Hutton only became aware that he was

listed in the poll book for Bolivar, rather than Harpers Ferry, when he attempted to vote on

June 11, 2019. He was also required to cast a provisional ballot.



              Ms. Painter testified that when the matter was brought to her attention, she

investigated to determine why the provisional voters were listed in the poll book for

                                             5
Bolivar, the neighboring municipality. 10 She explained that the “West” designation in the

provisional voters’ addresses was a technical error that caused her to mistakenly list the

provisional voters in the Bolivar poll book. Ms. Painter testified that all four provisional

voters do in fact live in Harpers Ferry, and they should have been listed in the Harpers

Ferry poll book. She indicated that she had corrected the official county voting records to

properly reflect that all four provisional voters are Harpers Ferry residents.



              Following the trial, the Tribunal, by a vote of four-to-two, 11 entered an order

on September 11, 2019, declining to count the provisional ballots and refusing to modify

the election certification. The Tribunal also found that respondent Case lacked standing to

participate in the election contest because she failed to post the bond required for the

recount of the votes. The respondents timely appealed the decision to the circuit court. 12

Following oral arguments, the circuit court entered its November 6, 2019, order reversing

the Tribunal’s decision to not count the provisional ballots. However, the circuit court




       10
          At the outset of her testimony, Ms. Painter explained that her job duties included
registering voters and handling “every aspect of the election from the Clerk’s prospective,
including preparing the poll books.” She further explained, “I work with municipalities to
supply their poll books and to provide whatever other supplies that they would need to
borrow from the county.”
       11
          The majority included the mayor and council members Humes, Johnson, and
Thompson. Recorder Kevin Carden and council member Jay Premack dissented from the
decision.
       12
          See W.Va. Code § 3-7-7 (1963) (allowing for appeal of election contest decision
to circuit court).
                                              6
upheld the Tribunal’s decision that respondent Case lacked standing to participate in the

election contest because she failed to post the requisite bond within forty-eight hours of

filing her request for a recount. Having reached the merits of the case, the circuit court did

not address the respondents’ argument that certain members of the Tribunal were

disqualified because their election to the town council was being contested. Upon entry of

the circuit court’s order, this appeal followed.



                                  II. Standard of Review

              The standard of review for election contests has long been established. In

syllabus point six of Brooks v. Crum, 158 W.Va. 882, 216 S.E.2d 220 (1975), this Court

held:

                      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.

However, with respect to questions of law that arise in election contests cases, our review

is de novo. State ex rel. Bowling v. Greenbrier Cty. Comm’n, 212 W.Va. 647, 650, 575

S.E.2d 257, 260 (2002). With these standards in mind, we consider the parties’ arguments.




                                              7
                                      III. Discussion

              The primary assignment of error in this case concerns whether the circuit

court erred when it found that four provisional ballots cast during the 2019 Harpers Ferry

municipal election should have been counted. We begin our analysis

              ever mindful of the paramount principle that election laws are
              to be construed in favor of enfranchisement, not
              disenfranchisement. See State ex rel. Sowards v. County
              Comm’n of Lincoln County, 196 W.Va. 739, 750, 474 S.E.2d
              919, 930 (1996). See Afran v. County of Somerset, 244
              N.J.Super. 229, 232, 581 A.2d 1359, 1361 (1990) (“[E]lection
              laws must be liberally construed to effectuate the overriding
              public policy in favor of the enfranchisement of voters.”); see
              also James Appeal, 377 Pa. 405, 407, 105 A.2d 64, 65 (1954)
              (In construing election laws, while courts must strictly enforce
              all provisions to prevent fraud, an overriding concern must be
              to be flexible in order to favor the right to vote.).

State ex rel. Bowling, 212 W.Va. at 649, 575 S.E.2d at 259. In other words, “[a] liberal

application of any statute should be made so as to afford the citizens of this State or any

political subdivision thereof an opportunity to vote for the persons of their choice.”

MacCorkle v. Hechler, 183 W.Va. 105, 106, 394 S.E.2d 89, 90 (1990), quoting State ex

rel. Lockhart v. Rogers, 134 W.Va. 470, 477, 61 S.E.2d 258, 262 (1950).



              The petitioners in this case argue that the circuit court, acting in this instance

as an appellate court, exceeded its scope of review when it found that the respondents

satisfied their burden of proving that the provisional voters were residents of Harpers Ferry

and were duly registered to vote in the municipality on election day. The petitioners

maintain that the circuit court erroneously substituted its own findings of fact for those of


                                              8
the Tribunal to find that the provisional votes should have been counted. Upon review, we

find that the circuit court did not err in concluding that the Tribunal’s findings were

manifestly wrong and against the clear weight of the evidence presented during the election

contest trial.



                 With respect to the residency requirement, 13 the petitioners argue that the

evidence presented at the election contest trial was insufficient to establish that the

provisional voters were residents of Harpers Ferry. Specifically, the petitioners contend

that because Ms. Howell never appeared to testify at the election contest trial, there was no

evidence that she resided in Harpers Ferry on the date of the election. Although Ms. Howell

was a candidate for the town council seats, the petitioners assert that there was no evidence

presented that Ms. Howell was “certified” to be a candidate in the election and that even if

such certification existed, it would not satisfy the legal requirement of residency to count

her vote. The petitioners also claim that Ms. Howell intentionally withdrew her candidacy

prior to the election, which further calls into question her alleged residency in Harpers

Ferry. 14 Petitioners maintain that Ms. Painter’s testimony that she “changed” Ms. Howell’s


       13
         See W.Va. Code § 3-1-3 (entitling citizens of West Virginia to vote in all elections
held within precincts of counties and municipalities where they respectively reside); W.Va.
Code § 3-2-5(c) (specifying information required on application to be duly registered to
vote includes applicant’s legal name, date of birth, and residential address), discussed infra.
       14
         To support this claim, the petitioners submitted a copy of an email wherein Ms.
Howell, responding to a request from the Town Clerk for a statement regarding why she
was running for town council, replied, “I will not be running.” Notably, the town council,
which also served as the Board of Canvassers, certified fifteen votes in favor of Ms. Howell
when it declared the results of the election.
                                               9
registration to reflect that Ms. Howell resides in Harpers Ferry was insufficient to establish

the residency requirement because Ms. Painter acknowledged that she had not personally

spoken to Ms. Howell.



              As for the other three provisional voters, the petitioners maintain that the

evidence regarding their actual residency in Harpers Ferry was insufficient because there

was no testimony from a DMV employee regarding the actual source or cause of the alleged

voter registration errors. Petitioners point out that the only evidence regarding the alleged

DMV error came through the testimony of Ms. Painter, who admittedly lacked personal

knowledge of exactly how this alleged error occurred. Thus, the petitioners reason the

Tribunal properly found that the residency requirement for the provisional voters was not

established by competent evidence at the election contest trial.



              Contrary to the petitioners’ assertions, the record shows that Ms. Painter

explained the exact nature of the error regarding the provisional voters’ addresses when

she testified during the election contest trial. Moreover, Ms. Painter provided detailed

testimony as to how she investigated the matter and confirmed that the provisional voters

were actual residents of Harpers Ferry and should have been included in the municipality’s

poll book. Explaining that Washington Street runs through both Harpers Ferry and Bolivar,

Ms. Painter testified, “We wanted to find out where the street numbers stopped for Harpers

Ferry and where they began for Bolivar.” Ms. Painter stated that she consulted maps of

Harpers Ferry and contacted the Jefferson County GIS/Addressing Office, which assigns

                                             10
addresses for the county’s 911 system. Ms. Painter testified that she verified which street

numbers fall within each municipality and that the street address numbers of the four

provisional voters were within the boundaries of Harpers Ferry. Characterizing the error

as an “oversight,” Ms. Painter explained that she had simply looked at the street name,

instead of the house number, and had erroneously listed the voters in the Bolivar poll book

based on the “West” designation. Ms. Painter further testified that once she determined

the provisional voters’ residences were within the corporate bounds of Harpers Ferry, she

corrected the poll books. 15



              Having reviewed the testimony presented at the election contest trial, we are

unable to find that the circuit court erred when it concluded that

              [t]he evidence presented by Ms. Painter was clear and
              undisputed that Voter G. McCarty, Voter L. McCarty, Voter
              Howell and Voter Hutton were each duly registered voters in
              the State of West Virginia. It was clearly against the weight of
              the evidence and manifestly wrong for the Tribunal to have
              listened to the undisputed testimony of the Chief Deputy Clerk
              of Elections and not to have reached this conclusion.

                      The Tribunal mistakenly focused on a need to hear from
              a DMV representative as to the cause of having included the
              word “West” in these voters’ addresses. The Tribunal ignored
              the totality of the circumstances, that all four voters registered
              to vote while at the DMV and all [sic] three of the four testified
              that the DMV added the word “West” to their address. There
              was no evidence presented to contradict the testimony of Ms.
              Painter or the three voters who testified.


        Ms. Painter testified that she did not have to correct the poll books for the
       15

McCartys because after they were required to cast provisional ballots, they went to the
DMV and were able to have their address corrected before she completed her investigation.
                                             11
              We reject the petitioners’ contention that the provisional voters were not duly

registered to vote simply because their names were not in the Harpers Ferry poll book on

election day. To support this argument, the petitioners rely upon Galloway v. Common

Council of the City of Kenova, 133 W.Va. 446, 57 S.E.2d 881 (1949), which held:

                      When the permanent registration system created by
              statute has been adopted by a municipality for an election of
              municipal officers, ballots cast in such election by voters
              whose names did not appear upon the permanent registration
              records procured from the municipal precinct file in the office
              of the clerk of the county court, as provided by Section 13-a,
              Article 5, Chapter 44, Acts of the Legislature, 1941, Regular
              Session, are not valid and can not be counted.

Id. at 446, 57 S.E.2d 881, syl. pt. 2. The petitioners’ reliance upon Galloway is misplaced.

The voter registration system in West Virginia was significantly different in 1949 than it

is today. At that time, there were two separate and distinct voter registration lists, one for

the county and state elections and one for municipal elections. Id. at 449-50, 57 S.E.2d at

883. In Galloway, the voters were registered for the county and state elections but were not

registered for the municipal election.      It was the voters’ failure to register in the

municipality that caused their votes to not to be counted. Id. That is not what happened

here. Moreover, we no longer have a dual voter registration system.



              In 1994, the Legislature enacted West Virginia Code § § 3-2-1 to -37, known

as the “Permanent Voter Registration Law,” to establish “a permanent voter registration

system . . . uniform in its requirements throughout the state and all of its subdivisions.”

W.Va. Code § 3-2-1 (1994). Under this law, “[n]o voter so registered shall be required to


                                             12
register again for any election while continuing to reside with the same county, unless the

voter’s registration is cancelled as provided in this article.” Id. Following the passage of

the Help America Vote Act of 2002, 42 U.S.C. § 15301, et seq., the Legislature mandated

that the Secretary of State, as the chief election official of the state, “implement and

maintain a single, official, statewide, centralized, interactive computer voter registration

database of every legally registered voter[.]” W.Va. Code § 3-2-4a (2016). This database

is now “the official voter registration list for conducting all elections in the state.” Id. The

database contains “the name, registration information and voter history of every legally

registered voter in the state.” Id. The clerk of the county commission in each county and

any authorized designee of a county clerk has “immediate electronic access to the

information contained in the statewide voter registration database.” Id.



              Article IV, § 1 of the West Virginia Constitution provides that “the citizens

of the state shall be entitled to vote at all elections held within the counties in which they

respectively reside[.]” In addition, West Virginia Code § 3-1-3 (2013) provides that

“[c]itizens of the state shall be entitled to vote at all elections held within the precincts of

the counties and municipalities in which they respectively reside. But no person who has

not been registered as a voter as required by the law . . . shall be permitted to vote[.]” To

be duly registered to vote under the Permanent Voter Registration Law, an applicant must

complete an application and, under oath, provide the following information:

              (1) The applicant’s legal name, including the first name,
              middle or premarital name, if any, and last name;
              (2) The month, day, and year of the applicant’s birth;

                                              13
               (3) The applicant’s residence address including the number and
               street or route and city and county of residence:
                       (A) In the case of a person eligible to register under the
               provisions of 42 U. S. C. § 1973ff, et seq., the Uniformed and
               Overseas Citizens Absentee Voting Act, the address at which
               he or she last resided before leaving the United States or
               entering the uniformed services, or if a dependent child of such
               a person, the address at which his or her parent last resided;
                       (B) In the case of a homeless person having no fixed
               residence address who nevertheless resides and remains
               regularly within the county, the address of a shelter, assistance
               center or family member with whom he or she has regular
               contact or other specific location approved by the clerk of the
               county commission for the purposes of establishing a voting
               residence; or
                       (C) In the case of a participant in the Address
               Confidentiality Program administered by the Secretary of State
               in accordance with section one hundred three, article twenty-
               eight (a), chapter forty-eight of this code, the designated
               address assigned to the participant by the Secretary of State;
               and
               (4) The applicant’s signature, under penalty of perjury as
               provided in section thirty-six of this article, to the attestation of
               eligibility to register to vote and to the truth of the information
               given. The clerk may accept the electronically transmitted
               signature kept on file with another approved state database for
               an applicant who applies to register to vote using an approved
               electronic voter registration system in accordance with
               procedures promulgated by the Secretary of State.

W.Va. Code § 3-2-5(c) (2013). 16



               If a voter’s eligibility or registration to vote is called into question on the date

of an election, our statutory law allows the voter to cast a “provisional” or “challenged”




      16
           Effective June 1, 2020, this statute was amended, but this subsection was not
changed.
                                                14
ballot. W.Va. Code § 3-2-1. The statute further provides that “such ‘provisional’ or

‘challenged’ ballot may be counted only if a positive determination of the voter’s eligibility

and proper registration can be ascertained.” Id. In this case, the provisional voters’

registrations were called into question on election day because their names were not in the

Harpers Ferry poll book. However, the evidence presented during the election contest trial

established that these four voters were duly registered to vote and were in fact residents of

Harpers Ferry; their names were not listed in the Harpers Ferry poll book simply because

of an erroneous designation in their residential addresses. With respect to provisional

ballots, West Virginia Code § 3-1-41(e) (2016) clearly provides that “technical errors,

omissions, or oversights” shall be “disregarded” and the votes “shall be counted” if “it can

be reasonably ascertained that the challenged voter was entitled to vote.” Here, the

evidence showed that the provisional voters were all duly registered voters who resided in

Harpers Ferry on the date of the election. The provisional voters timely registered to vote

through the DMV and Ms. Painter explained how the “West” designation in their addresses

caused the provisional voters names to be placed in the wrong poll book. Ms. Painter

testified that she corrected the error as soon as it was brought to her attention. Contrary to

petitioners’ assertions, 17 the provisional voters were completely unaware of the error until

they attempted to cast their votes on election day. Because the evidence established that




       17
          The petitioners argue in their brief that the provisional voters were aware that
their addresses were wrong and suggest that they had a duty to correct the error prior to
election day. Upon review of the record, we were unable to find evidence to support this
contention.
                                             15
all the provisional voters were duly registered voters who resided at addresses falling

within the boundaries of Harpers Ferry, the circuit court properly found that the Tribunal

erred by ruling that their votes should not be counted.



              We now turn to the cross-assignment of error concerning respondent Case’s

“standing” to participate in the election contest. “Standing” is defined as “[a] party’s right

to make a legal claim or seek judicial enforcement of a duty or right.” Findley v. State Farm

Mut. Auto Ins. Co., 213 W.Va. 80, 94, 576 S.E.2d 807, 821 (2002) (quotations and citation

omitted). Both the Tribunal and the circuit court found that Ms. Case did not have standing

to participate in the election contest because she failed to post the bond required for the

recount of the votes.



              As set forth above, the record indicates that respondents McGee and Case

separately requested a recount of the votes after the election but only respondent McGee

paid the bond set by the Board of Canvassers. 18 West Virginia Code § 3-6-9(h) (2009)

provides:




       18
           The “Order Declaring Election Results” entered by the Tribunal contains
conflicting findings of fact regarding whether respondent Case requested a recount. In that
regard, the Tribunal made a finding that the respondents presented “no evidence that Nancy
Singleton Case provided any written request for a recount within 48 hours of the
declaration of election.” However, the Tribunal also made a finding that “[t]he Board [of
Canvassers] met . . . on June 19, 2019 to certify the election results. At this meeting,
Recorder Kevin Carden asserted that two losing candidates had made a recount request.”
Noting the conflicting findings, the circuit court concluded that respondent Case’s email
                                             16
                      Every candidate who demands a recount shall be
              required to furnish bond in a reasonable amount with good
              sufficient surety to guarantee payment of the costs and the
              expenses of the recount in the event the result of the election is
              not changed by the recount; but the amount of the bond shall
              in no case exceed three hundred dollars.

The respondents contend that the bond requirement was satisfied when respondent McGee

posted the bond for the recount because West Virginia Code § 3-6-9(f) provides that “there

shall be only one recount in each precinct, regardless of the number of requests for a

recount of any precinct.” In other words, they maintain that only one bond was required

because there could only be one recount of the votes.



              Conversely, the petitioners argue that every candidate who seeks to

participate in an election contest must request a recount of the votes and post the required

bond. They contend that the right to vie for votes in an election contest is strictly

circumscribed by statute and is an individual right. Therefore, they reason that respondent

Case did not have standing to participate in the election contest because she did not adhere

to the mandatory requirements for requesting a recount, which includes the posting of the

bond. To support their argument, the petitioner rely upon Miller v. County Comm’n of

Boone County, 208 W.Va. 263, 539 S.E.2d 770 (2000).




satisfied the requirement of a written request for a recount but that she failed to post the
required bond.
                                             17
                In Miller, Roger L. Weaver, a candidate for the Democratic nomination for

the Assessor of Boone County, appealed a circuit court order which granted a writ of

prohibition that precluded the county commission from hearing his protest of the results of

the primary election. The circuit court found that Mr. Weaver’s failure to file a request to

recount the votes prevented him from contesting the election results. Id. at 266, 539 S.E.2d

at 773. Prior to Miller, this Court had not considered whether a candidate must demand a

recount as a prerequisite to filing an election contest, but had long recognized that “[a]

contest and a recount . . . are very distinct procedures under our election laws.” State ex

rel. Booth v. Bd. of Ballot Comm’rs of Mingo Cty., 156 W.Va. 657, 672, 196 S.E.2d 299,

309 (1972). Indeed, “[t]he statutory law contemplates that an election recount and contest

shall be separate proceedings. The former must terminate and the result be declared before

the latter may commence.” Syl. Pt. 2, in part, Reynolds v. Bd. of Canvassers of Harrison

Cty., 117 W.Va. 770, 188 S.E. 229 (1936).



                After examining the pertinent statutes governing the procedure for

recounting votes and contesting election results, 19 this Court determined that

                        [w]here a candidate seeks to contest specific ballots cast
                in an election pursuant to the provisions of West Virginia Code
                § 3-7-6 (1999), he must first demand that the Board of
                Canvassers conduct a recount of the ballots pursuant to the
                provisions of West Virginia Code § 3-6-9 (1999). Where,
                however, a candidate seeks to contest only such matters as
                fraud, an elected candidate’s eligibility, or the legality of the
                election, the candidate may proceed directly with an election


       19
            See W.Va. Code § 3-6-9; W.Va. Code § 3-7-6.
                                               18
              contest pursuant to the provisions of West Virginia Code § 3-
              7-6, thereby omitting the recount procedure set forth in West
              Virginia Code § 3-6-9, provided that any recount proceeding
              which was otherwise initiated has terminated.

Miller, 208 W.Va. at 264-65, 539 S.E.2d at 771-72; syl. pt. 5.



              In finding that a recount is required when specific ballots cast during an

election are being contested, this Court explained:

                      We have also previously recognized that the limited
              function of an election recount to decide matters which can be
              resolved intrinsically from the plain face of the actual ballot
              serves to “lay the basis for a[n] [election] contest[,]” because
              there are “many irregularities and illegalities discoverable in
              the course of a recount that cannot be corrected in that
              proceeding.” Brawley v. County Court, 117 W.Va. 691, 694,
              187 S.E. 417, 418 (1936). Another important facet of a recount
              is that it places all candidates who filed for the office in which
              the recount has been demanded on notice that problems may
              exist with specific votes cast in the election. See W. Va. Code
              § 3-6-9(a). Thus, where a candidate is disputing certain votes
              or ballots cast in an election, a recount gives all interested
              candidates in that particular race an opportunity: 1) to observe
              the manner in which the Board of Canvassers conducts the
              recount; 2) “to notify the board, in writing, of their intention to
              preserve their right to demand a recount of precincts not
              requested to be recounted by the candidate originally
              requesting a recount of ballots cast[;]” and 3) to identify votes
              cast which may be challenged as irregular or illegal in an
              election contest. See W. Va. Code § 3-6-9(b).

                     Inherent in the recount procedure is the concept of
              fairness to all interested candidates in an election. The recount
              procedure is the only mechanism available in an election
              dispute which gives the interested candidates a chance to
              identify and define problematic votes, thereby establishing the
              parameters for an election contest. The elimination of this
              procedure where specific votes are in dispute would
              necessarily result in a lopsided and unfair playing field upon

                                              19
              which to base an election contest. It is, therefore, evident that
              where the challenge to election results stems from specific
              votes cast, a recount plays an integral and indispensable role
              tantamount to fundamental principles of due process, which
              cannot be ignored or omitted. To allow a candidate in such a
              case to bypass the recount procedure and proceed directly to an
              election contest would thwart the legislative purpose of the
              recount statute and essentially render such statute irrelevant.
              See W. Va. Code § 3–6–9 and § 3–7–6.

Miller, 208 W.Va. at 269, 539 S.E.2d at 776.



              Unlike Miller, where the contester failed to timely request a recount before

attempting to contest the election results, in this case, there was a recount of the votes

pursuant to the timely request and payment of the bond by respondent McGee. Critically,

the legislative purpose of the recount was not impeded. The “problematic votes,” i.e., the

provisional ballots, were identified and the parameters of the election contest were

established as a result of respondent McGee’s request for a recount. Accordingly, the

requirements of Miller were satisfied. Given that West Virginia Code § 3-6-9(f) only

authorizes one recount in each precinct; that respondents Case and McGee were candidates

in the same town council election; and that the bond, which covers the cost of the recount,

was paid by respondent McGee, we find the circuit court erred by affirming the Tribunal’s

finding that respondent Case lacked standing to participate in the election contest. Because

of the unique circumstances presented in this case and the fact that the legislative purpose

of the recount statute was achieved, we reverse the final order of the circuit court insofar




                                             20
as it finds that respondent Case does not have standing to participate in the election contest

of the 2019 Harpers Ferry town council election. 20



              Finally, we consider the respondents’ cross-assignment of error concerning

the refusal of council members Johnson and Thompson, who are also petitioners in this

case, to disqualify themselves from participating in the election contest trial as members of

the Tribunal. The respondents contend these council members obviously should not have

judged their own election contest and that the circuit court should have ruled that they were

disqualified. As noted above, the circuit court declined to address this matter having

reached the merits of the case and concluded that the provisional ballots should have been

counted. While the issue is technically moot given our decision to affirm the circuit court’s

determination that the provisional ballots should be counted, we are compelled to address

the matter because the issue is clearly capable of repetition and involves a vital public

function—declaring the results of an election. See Syl. Pt. 1, Israel by Israel v. W. Va.

Secondary Schools Activities Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989) (setting

forth factors courts consider in deciding to address technically moot issues).



       20
          We note that our decision today should not be construed to mean that a candidate
for an elected office can participate in the recount process without paying the required bond
as that was not the issue presented in this case. Having failed to pay such bond at the
initiation of the recount, respondent Case would not have been authorized to determine
which precinct(s) were to be reviewed, nor would she have been able to stop the recount
or require it to proceed further if respondent McGee decided to stop it. However, as
discussed above, the recount process is a separate proceeding from an election contest. Our
decision today is based on the narrow set of facts presented and concerns only the right of
respondent Case to participate in the election contest.
                                             21
              The respondents assert that the participation of council members Johnson and

Thompson as members of the Tribunal “ran afoul of common sense, logic, statutory law,

and the West Virginia Ethics Code governing elected officials.” We agree. It is axiomatic

that “a judge should disqualify himself or herself from any proceeding in which his or her

impartiality might reasonably be questioned.” Tennant v. Marion Health Care Foundation,

Inc., 194 W.Va. 97, 108, 459 S.E.2d 374, 385 (1995). With regard to judging election

contests, West Virginia § 3-7-6 provides:

                     In all cases of contested elections, the county
              commission shall be the judge of the election, qualifications
              and returns of their own members and of all county and district
              officers: Provided, That a member of the county commission
              whose election is being contested may not participate in
              judging the election, qualifications and returns.

(Emphasis supplied). This provision applies equally to municipal elections as the statute

expressly states: “The provisions of this section apply to all elections, including municipal

elections, except that the governing body of the municipality is the judge of any contest of

a municipal election.” Id.



              In this case, the respondents were clearly contesting the election of council

members Johnson and Thompson. The certified election results indicated that respondents

Case and McGee lost by two and three votes, respectively. There were four provisional

ballots at issue.   As such, council members Johnson and Thompson and Christian

Pechuekonis, the other newly elected council member who received votes within the


                                             22
margin of error, were subject to losing their seats on the town council depending upon the

outcome of the election contest. Mr. Pechuekonis voluntarily disqualified himself from

the Tribunal and did not participate. Council members Johnson and Thompson refused to

disqualify themselves, maintaining that the rule of necessity required them to participate

as members of the Tribunal even though their election to the town council was being

contested.



              “The rule of necessity is an exception to the disqualification of a judge. It

allows a judge who is otherwise disqualified to handle the case to preside if there is no

provision that allows another judge to hear the matter.” Syl. Pt. 7, State ex rel. Brown v.

Dietrick, 191 W.Va. 169, 444 S.E.2d 47 (1994). The petitioners argue that all council

members who were named as contestees were disqualified in this matter and a quorum to

judge the election contest did not exist. Therefore, they reason that the rule of necessity

required their participation as members of the Tribunal. However, the petitioners have

overlooked the fact that council member Jay Premack was not impacted by the election

contest because he won his seat on the town council with 87 votes. Likewise, council

member Humes was elected with 91 votes and was not at risk of losing her seat as a result

of the election contest. With the addition of the other two members of the Tribunal who

were not candidates in the town council election, there was a quorum of four persons on

the Tribunal to decide the election contest absent council members Johnson and

Thompson’s participation.



                                            23
              This Court has explained that “the rule of necessity is an exception to the

general rule precluding a disqualified judge from hearing a matter. Therefore, it is strictly

construed and applied only when there is no other person having jurisdiction to handle the

matter that can be brought in to hear it.” Id. at 171, 444 S.E.2d at 49; syl. pt. 8. While the

rule of necessity required the participation of council members Premack and Humes to

provide a quorum to judge the election contest, it did not require the participation of council

members Johnson and Thompson. The Ethics Commission so advised when it responded

to council member Jay Premack’s request for an opinion on the matter. The Ethics

Commission opined:

                      It is the general opinion of Ethics Commission staff that
              [if] there is a reasonable probability that the tribunal’s decision
              on the election contest could impact whether a council
              member, who is also a member of the tribunal, may keep his or
              her City Council seat, then that council member may not
              participate as a member of the tribunal because he or she has
              financial interest in holding the elected position in question.

In sum, council members Johnson and Thompson should not have participated in the

election contest trial as members of the Tribunal. The rule of necessity did not require their

participation because there were members of the town council who were not impacted by

the election contest available to serve on the Tribunal.



                                      IV. Conclusion

              For the reasons set forth above, we affirm the circuit court’s order to the

extent that it concludes that the four provisional ballots cast by Linda McCarty, George

McCarty, Leah Howell, and Adam Hutton in the 2019 Harpers Ferry municipal election

                                              24
should be counted. We reverse the circuit court’s order insofar as it affirms the Tribunal’s

decision that Nancy Singleton Case lacked standing to participate in the election contest.

This case is remanded to the circuit court for entry of a new order consistent with this

opinion.

                      Affirmed, in part, Reversed, in part, and Remanded with directions.




                                            25
