A Logan County judge who lost his seat in May's primary election claimed this week that he should get to keep it because, among other reasons, voters were wrongly influenced by an attack on a state Senate candidate in the days before the election.
In a seldom-used procedure, Circuit Judge Douglas Witten filed a petition Monday with the clerk of the state House of Delegates in an attempt to overturn the election results. Witten lost his re-election bid by 59 votes to Joshua Butcher.
"Election Day voting was influenced in its entirety by the dissemination of materially false information regarding an allegedly politically motivated assault on a candidate for the Democratic nomination for West Virginia State Senate," according to Witten's petition.
Richard Ojeda, who was running for the seat held by Sen. Art Kirkendoll, D-Logan, was beaten at a cookout two days before the May 10 election. Ojeda was knocked unconscious and his face was fractured in eight places. He said he believed the attack came because he had spoken out against corruption in Logan County, and he defeated Kirkendoll - who was a county commissioner for 30 years before moving to the Senate.
Information "was deliberately and falsely disseminated and published throughout Logan County for the purpose of influencing the opinion of County voters in a manner contrary to a candidate named Art Kirkendall [sic], a man with whom Judge William Douglas Witten was identified," Witten's petition states.
Witten couldn't be reached for comment. His attorney, Harvey Peyton, said the petition speaks for itself.
Butcher and his attorney, Ryan Donovan, of the Charleston law firm Bailey and Glasser, called the filing frivolous.
As part of the procedure to contest the election, Butcher will respond and, after time for discovery, the petition will be ruled on by a panel of three people - one chosen by Witten, one by Butcher and one by Gov. Earl Ray Tomblin. The governor, who is from Logan County, appointed Witten to the bench last year after former circuit judge Roger Perry retired.
Donovan said Witten has already chosen his member of the panel: John Counts, who served as treasurer of Witten's campaign.
"The fact that Judge Witten has selected his own campaign treasurer to be a judge on the special court speaks for itself. It's a strategy that exposes the petition for what it really is: a baldly political maneuver designed to thwart the will of the voters," Donovan said. "Judge Butcher intends to select a judge who will be objective and disinterested, and we're certain Governor Tomblin will do the same."
Last month, Witten demanded a recount. Logan County commissioners conducted it May 27, which still resulted in Butcher taking the election.
Judicial elections in West Virginia are non-partisan for the first time this year, meaning the winner is elected in the primary.
Witten also claims in his petition that 10 more ballots were cast on May 10 at the Bulwark precinct than the number of voters who actually showed up to vote and signed the poll books. He says votes cast at a precinct in Sharples shouldn't be valid since poll workers didn't take an oath before working the election.
Also, at a precinct in Lane, Witten alleges Butcher's wife, Jamie Butcher, stood within the prohibited 300 feet entry to the polling place at Lane and intimidated voters. Jamie Butcher told the Gazette-Mail those allegations aren't true.
If votes Witten challenges are disregarded, his petition states that the final vote would end up in his favor with 4,351 for him and 4,330 for Butcher.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.