Bowen jotted down notes. “Good choices. I’ll pass the word to Tyson. Hopefully, at least one of these judges will give us another bite at the apple.”
Vincent sighed. “It’ll be tough with just one work day before Thanksgiving. Then the courts are closed until Monday, December 1st. Time is running out.”
Bowen tapped his pen on the scratch pad. “Never say, ‘never.’”
CHAPTER 57
PLEASANTS COUNTY COURTHOUSE
ST. MARYS, PLEASANTS COUNTY, WEST VIRGINIA
TUESDAY, NOVEMBER 25, 4:30 P.M.
“Hey, Rikki … Is your secretary around?”
Rikki looked up and saw Jack in her doorway, clutching a manila folder. His work boots were caked with mud. “Maybe. What nightmare are you dropping on us now?”
“No nightmares from me today. Just an affidavit I need notarized.”
Rikki set aside the West Virginia Code book she was scanning and stood up. “We can help with that. I think she’s across the hallway.”
He cleared a path and followed her next door where three women were quietly gossiping. Jack smiled. “All right, ladies, break it up! What are ya’ll whispering about, anyway?”
The circuit clerk grinned conspiratorially. “I was just saying I’m so glad those lawyers fighting over the election haven’t descended on our courthouse like a plague of locusts. From what I’m hearing, others around the state aren’t so lucky.”
Jack crossed his arms. “Do tell.”
“Well, you know circuit court clerks don’t have to be lawyers or anything. We just process paperwork, stamp everything that’s filed and put documents where they belong. When the judge – or anybody else, for that matter – wants to know what’s going on in a case, we hand him the file and let him figure it out.”
He chuckled. “Makes sense to me.”
“Some types of pleadings we see all the time,” she said. “Complaints, answers, appeals from DMV decisions suspending someone’s driver’s license, etc. That stuff is common. We could process it in our sleep. But occasionally, someone files something we’ve never seen before. In that case, we’ll ask colleagues in other counties for advice. Worst case scenario, we can call the Supreme Court’s administrative office, and they can tell us what to do.”
The woman shook her head like she was whisking eggs with it. “Well, Senator Wilson’s lawyers apparently dumped something on those poor folks in Berkeley County this morning that stumped everyone. Nobody knew what to do with it, not even the folks with the Supreme Court. No one’s ever seen anything like it.”
Rikki’s light green eyes sparkled. “Oooooh. Now you have my attention. What was it?”
“The lawyers called it a ‘Notice of Contested Election Slash Petition For Writ Of Mandamus,’” she carefully replied. “The courts in Morgantown and Princeton received fairly identical documents.”
“State courts?” Rikki asked.
“Yes. Circuit courts in Monongalia, Mercer and Berkeley counties.”
Jack’s brow creased. “So what in the world will they do with those things?”
She shrugged. “No clue. The Berkeley County judge is hearing it tomorrow at ten. The Republican lawyers are up in arms about it, too. They say he doesn’t have jurisdiction.”
“I need to call Dave and get the inside scoop,” Jack said. “That sounds crazy.”
Rikki’s back stiffened, but she tried to act nonplussed. “Well, I for one hope they look into what happened last night in Martinsburg. It sure looked shady the way those votes for Royal materialized at the last second under the watchful eyes of his lapdog, Marcus Boley.”
Jack guffawed. “Yeah, right. And those knuckle-draggin’ redneck Democrats guarding Mingo County’s ballot boxes were sweet little choir boys, huh?”
Rikki glowered at him. “This is why we should never discuss politics, Jack.”
Grinned from ear-to-ear, he chuckled loudly. “Ah, hell, Rikki … You’re the one who started it. I’m just saying the folks on your side ain’t as innocent as you’d like ‘em to be. Lighten up a little!”
Rikki folded her arms over her breasts, clenching her jaw. “Let’s agree to disagree, Jack. I’m still hoping Senator Wilson will find a way to win this thing.”
Jack smirked playfully. “Pardon my French, but if you hope in one hand and shit in the other, which one do you think will fill up first? And besides, the polls are on our side. People are sick of this election. They want it to be over. The polls show 63 percent of the public wants your girl to throw in the towel and let everyone move on.”
Rikki’s pale green eyes flashed. “Maybe the polls from Fox News. But the poll I saw this morning showed half the people are suspicious of West Virginia’s final results. Half!!”
Jack shrugged. “Just shows you can’t please a bunch of granola-crunching Yankees.”
Rikki shut her eyes and shook her head violently. “All right! I’ve had it! We’re going to drop the politics right now, or you can get your affidavit notarized elsewhere!”
He threw his arms up in surrender. “Okay, okay! As soon as Martha notarizes my affidavit, I’ll drag my Cro-Magnon self out of here. I promise.”
Still gritting her teeth, Rikki jabbed her finger at McCallen. “Not another word or I swear I’ll rip the damn thing up.” With that, she stormed across the hall to her office.
Watching her leave, Jack chuckled but said nothing. He knew better than to disregard her warning, and he valued the affidavit too much to push her limits. A minute later, he quietly slipped downstairs with the notarized affidavit, repressing the urge to let out a belly laugh.
CHAPTER 58
CHARLESTON, WEST VIRGINIA
TUESDAY, NOVEMBER 25, 9:15 P.M.
Dave poured over the opposition’s lawsuits to contest the state’s final election results with a chilled pint of Guinness in his hand.
“I thought you said they couldn’t do this,” Gil grumbled.
Dave’s nose turned up. “They can’t. But I never said they couldn’t try.”
Dave’s cell phone rang and he plucked it from Gil’s dining room table. “Anderson here.”
“Hey, Dave. It’s Mack Palmer. Did you get that stuff my office sent you?”
“We’re going through it now, but at first glance, it just looks like a lot of whining to me.”
Laughter reverberated in Dave’s ear. “Good synopsis. Now do you want me to give you my legal opinion or my practical opinion about these pleadings?”
“Both.”
“From a legal standpoint, I don’t think there’s much there. They raise some interesting points, but the fact remains that the statute does not permit them to contest this election. If Melanie Wilson had run for Berkeley County Magistrate, the statute would give her that right and – most importantly – it identifies who has the authority to rule on her case. I mean, even if they’re right and we cheated like hell on Election Day, who would be empowered to take evidence on the voter intimidation they’ve alleged? Hmmm? With all the other offices outlined in the statute, the legislature at least designated somebody to make the final decision. But not when it comes to a presidential election.”
“That was my thought,” Dave said. “The statute gives no one that right, but it doesn’t describe the procedures for contesting a U.S. Senate race either. How does that affect things?”
“I don’t think it does at all,” Palmer replied. “Back when these laws were enacted, the Legislature still appointed our U.S. senators. Individual citizens didn’t have any say in the matter, and that didn’t change until 1913, when the Seventeenth Amendment specifically authorized each state’s voters to directly vote on their senators. And, as you know, individual citizens still don’t get to directly vote in presidential races.”
“Right,” Dave said. “On Election Day, we technically voted for slates of electors nominated by the political parties’ state executive committees last summer. Those five people are the ones who actually elect the president and vice president when they cast
their ballots in the Electoral College on December 15th.”
“Given those facts,” Palmer expounded, “it’s my opinion the Legislature simply dropped the ball here. As far as I know, no U.S. senate race in state history has been close enough to warrant a contest proceeding. Neither has a presidential race. The election contest laws have been on the books for 150 years, and it’s my bet no one ever thought to update those laws to provide a way for losing candidates in those races to contest the results.”
“Unbelievable,” Dave said.
“Now for the practical side of things,” Palmer continued. “Two of the three judges presiding over these cases are, in my opinion, pure sycophants of the governor. He appointed one to the bench and raised gobs of money for the other. The third is fairly well-regarded as both independent and fair-minded, but I’m sure the Dems would agree with the sentiments expressed by that noted philosopher, Meat Loaf … ‘Two out of three ain’t bad.’” Trying to sing, Palmer sounded like a bull that only made it halfway through the castration process.
Dave winced and held the phone from his ear. “Mack, I respect the hell out of you, but please don’t sing near me again. That made me want to jam an ice pick in my ear.”
“Sorry. Nevertheless, even though the law might not be on their side, the lay of the judicial landscape is. I’d assume at least one of those judges will find some basis for giving Wilson a chance to contest the results.”
Dave sighed. “I agree. In that case, go ahead and prepare the paperwork to get this thing in front of the state Supreme Court ASAP. Time is of the essence, and money is no option.”
Palmer laughed. “That’s my kind of client! And that’s why I have four lawyers hyped up on Red Bull and NoDoz, plus three very surly paralegals, working on it right now. Once we receive a judge’s order directing that a contest proceeding be commenced, we’ll tweak our paperwork accordingly. Within an hour of receiving such an order, our appeal will be filed.”
Dave smiled. “That’s music to my ears, Mack.”
“And that’s why you guys pay me the big bucks.”
CHAPTER 59
BERKELEY COUNTY JUDICIAL CENTER
MARTINSBURG, BERKELEY COUNTY, WEST VIRGINIA
WEDNESDAY, NOVEMBER 26, 10:05 A.M.
Judge Olivia Barkwell’s cherry wood dais sat in front of an old brick wall that had been incorporated into her thoroughly modern courtroom. “So what are you saying?” she asked pointedly. “Do you mean that citizens who were disenfranchised by illegal intimidation on Election Day have no recourse under the law?”
The young female attorney representing Royal shook her head. “Not at all. The persons responsible for such threats could be prosecuted criminally for their actions, or the victims could file civil suits to recover monetary damages for their emotional pain and suffering. But state law does not permit them to contest the results of an election on those grounds. Under the law, only the candidates for certain offices – not including candidates for president – have standing to contest an election result. And if the Legislature had intended to provide either presidential candidates or individual voters with such a remedy, it could have done so.” The woman shifted her weight to her right foot. “Senator Wilson bears the burden of proof here, Your Honor. She must identify some legal basis for this Court to determine both who is entitled to contest a presidential election in West Virginia and what entity has the authority to hear that evidence. Unfortunately, she can do neither.”
The attorney sat down and Judge Barkwell turned to opposing counsel. “Any rebuttal?”
A sharply-dressed African American man in his early forties stood up, deftly tugging his French cuffs. “Very briefly, Judge. Senator Wilson and 53 registered voters of this county have laid out a compelling factual basis for their claims. Our affidavits show many voters were harassed and intimidated on Election Day. Moreover, the circumstances surrounding Governor Royal’s last-minute gains during Monday’s recount seem questionable at best. All-in-all, Shakespeare’s line from Hamlet probably best summarizes this situation:
“‘Something is rotten in the state of Denmark.’”
He paused, giving the judge a moment to digest his words. “The Legislature never intended to deny presidential candidates like Senator Wilson the same right to contest an election that it has given candidates for other offices. Any such oversight would be unconstitutional, and to the extent state law does not provide Senator Wilson with an adequate remedy to address these issues, we’d urge this court to use its inherent powers in equity to create one.” He then sat down.
Judge Barkwell slowly rotated her chair, rocking it slightly in the process. Her eyes were fixed on the courtroom’s rear wall. “This is a very peculiar case,” she said. “On the one hand, I’m troubled the Legislature has not given us much guidance here. On the other hand, I am deeply troubled that West Virginians’ constitutional rights may have been infringed on Election Day. Just holding individual wrongdoers responsible for their actions, either criminally or civilly, does not seem likely to deter such illegal acts in the future. To minimize the chance this will ever happen again, this court’s ruling must remove the temptation to tamper with our election results. And those other remedies would not accomplish that goal.”
Judge Barkwell shuffled and restacked the papers on her desk. “Accordingly, I find that Senator Wilson may prosecute her contest of this election. But because the Legislature did not identify what particular entity should conduct such a contest, this court will use its powers in equity to convene such a proceeding itself.”
Governor Royal’s lawyer stood up, her mouth open.
“The court notes your objections, counsel,” the Judge added.
“Thank you,” the attorney said. But she looked like someone had poured vinegar in her mouth. “When does the court propose to start the contest proceeding?”
The Judge sighed. “We’re in uncharted waters here, folks. The statute requires losing candidates to provide a detailed description of the basis for the contest within 10 days of the election’s certification. The winning candidate would then have 10 days to respond to that notice. But we simply don’t have that kind of time.”
Wilson’s lawyer stood again. “We can give you our information by the end of the day, Judge, along with a proposed order reflecting your rulings from today’s hearing.”
The Judge nodded. “Good. Governor Royal must provide a written response no later than noon on Monday, which is December 1st. The contest proceeding will begin at 8:30 the following morning. Any witnesses you wish to call and any exhibits you want to introduce as evidence will need to be here then.”
“Which brings me to the last issue raised in our petition,” Wilson’s attorney said. “Custody of the ballot boxes, the poll books, and the optical scan ballots themselves.”
Sitting in the third row of the courtroom, Monica Boley’s heart skipped a beat. Oh, God. Please don’t let this be happening. Please.
The Judge rubbed her chin. “I understand why you want the Sheriff to seize those items and preserve them for the contest. But West Virginia Code section three dash four-a dash ten vests the county clerk with custody of those materials ‘except when in use at an election or when in custody of a court or court officers during contest proceedings.’
“The contest begins at 8:30 sharp on Tuesday December 2nd,” Judge Barkwell continued. “Mr. Boley shall maintain custody of the election materials until that time when he shall deliver them to my courtroom. From that time until the contest is over, whenever that may be, my bailiffs will exercise responsibility for safekeeping those items.”
Monica felt a wave of relief wash over her. You have six days to figure out a way to dispose of the incriminating evidence in those ballot boxes. You can do it.
Wilson’s lawyer wrinkled his nose. “I’ll include that language in my order, Judge.”
“And make sure you give it to opposing counsel and obtain her signature before sending it to me,” Barkwill said. “I want everyon
e to sign that order before I enter it.”
The lawyer nodded. “I have my laptop with me, Judge. If opposing counsel can stick around, I’ll pound out an order in no time.”
The Republican lawyer stood up. “I’ll remain here as long as necessary, Judge. We want that order signed and entered as soon as possible.”
The Judge barked a short laugh. “I’m sure you do. The sooner it’s entered, the sooner you can race down to Charleston to file an appeal with the Supreme Court.”
Royal’s attorney smiled pleasantly. “We all do what we have to do, Judge. If you had ruled the other way, I’m sure my worthy opponent would be doing the same thing.”
CHAPTER 60
WEST VIRGINIA REPUBLICAN HEADQUARTERS
CHARLESTON, WEST VIRGINIA
WEDNESDAY, NOVEMBER 26, 12:15 P.M.
Dave slid his pizza bread to the side. “I’m too nauseous to eat,” he announced in a disgusted tone. “I swear to God, this election is going to be the death of me.”
Gil smirked. “What’s the matter, Dave? Too much excitement for ya?”
“My idea of excitement is riding a roller coaster: You know how long it will last, and the whole thing is on rails so no matter how fast it goes, you know it’s under control. Neither of which is true here.”
Gil chuckled. “Just sit back and enjoy the ride. This amusement park will close soon and you can get back to your mundane life inside the Beltway.”
“That day can’t come soon enough for me.”
The door swung open, and Mack Palmer charged through it. “The judge in Mercer County ruled against us, too. That makes us oh-for-three today.”
Gil pounded the desk. “Great. Do you have any good news to offer?”
Palmer clenched one eye shut and bobbed his head from shoulder-to-shoulder, processing the question. “If there’s a silver lining, the judge in Monongalia County didn’t convene his own contest. He said the presidential election was analogous to a statewide race like attorney general instead of other positions elected by residents of individual counties. Thus, he ordered a three-member ‘special court’ be convened next Tuesday to conduct the contest. That panel will consist of one person designated by each of the two candidates and a third appointed by the governor.”
The Dirty Secret Page 21
