Arguments have been set for later this month in an attempt by a Logan County Circuit judge to overturn election results and remain on the bench.
Gov. Earl Ray Tomblin set a hearing Aug. 23 for the petition filed by Logan Circuit Judge Douglas Witten challenging his loss to Joshua Butcher. Witten, who was appointed by Tomblin, who is from Logan County, last year when former Logan Circuit judge Rodger Perry retired, lost the election to Butcher by 59 votes. Butcher is Perry's former law clerk. The hearing will be held at the Logan County Courthouse.
The petition will be ruled on by a panel of three people - one chosen by Witten, one by Butcher and one by Tomblin.
Tomblin has chosen Charleston lawyer James S. Arnold to serve on the panel. Witten chose John Counts, who served as treasurer of Witten's campaign, and Butcher chose Booth Goodwin, who stepped down as U.S. attorney at the end of 2015 to run for governor in the Democratic primary.
Witten filed the contest, a seldom-used procedure, with the clerk of the House of Delegates after Logan County commissioners conducted a recount at Witten's request on May 27. Judicial elections in West Virginia are non-partisan for the first time this year, meaning the winner is elected in the primary.
Between Witten and Butcher, more than 50 witnesses could be called during the hearing, according to documents disclosed by lawyers. Witten is represented by Nitro lawyer Harvey Peyton.
Butcher and his lawyer, Ryan Donovan, of the Charleston law firm Bailey & Glasser, have called the petition frivolous and say it's an attempt to disenfranchise Logan County residents.
Witten argues, among other reasons, that the results should be overturned because voters were wrongly influenced by an attack on a state Senate candidate in the days before the election.
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.
The petition claims 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. The petition alleges that votes cast at a precinct in Sharples shouldn't be valid since poll workers didn't take an oath before working the election.
Also, Witten alleges Butcher's wife, Jamie Butcher, stood within 300 feet of the entrance to the polling place at Lane and intimidated voters, which is prohibited.
Jamie Butcher told the Gazette-Mail those allegations aren't true. Logan County Clerk John Turner has also said Witten's claims are false. He acknowledged some mishaps but said none would be enough to overturn the election.
Since filing his petition, Witten has amended it twice. The first amended petition dropped allegations of unspecified "election irregularities" at the Striker, Switzer and Verdunville precincts. The next amendment added allegations of poll workers at the Lane precinct failing to accurately measure the distance from the polling place to the "no electioneering" sign.
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.