Consent decree issued in federal suit against W.Va. over absentee ballots

David Yates Nov. 29, 2014, 6:00pm

CHARLESTON, W.Va. (Legal Newsline) – On Monday, a day before Election Day, a federal judge issued a consent decree allowing resubmitted absentee ballots to be counted in the race for House District 35.

A few days earlier, on Friday, Booth Goodwin, U.S. attorney for the Southern District of West Virginia, filed suit against the state and Secretary of State Natalie Tennant, asserting the defendants failed to comply with the Uniformed and Overseas Citizens Absentee Voting Act.

The act requires that states transmit validly requested absentee ballots at least 45 days in advance of an election, unless the state receives a waiver.

According to the federal suit, on Sept. 22 a petition for writ of mandamus was filed seeking to require the State Election Commission and Tennant to allow a candidate for the West Virginia State House of Delegates District 35 to be placed on the Nov. 4 ballot to replace one of the incumbent delegates who withdrew from the race.

As previously reported by the West Virginia Record, on Oct. 1 the state Supreme Court ruled that Republican Marie Sprouse-McDavid be added to the ballot for the 35th district after sitting Delegate Suzette Raines withdrew as a candidate this summer.

Justices ordered that corrected ballots be transmitted to all absentee voters in that district, including the UOCAVA voters to whom ballots had already been transmitted on or before Sept. 20.

Under the act, the defendants applied for the 45-day waiver twice and were denied both times, prompting the U.S. attorney to file the suit in order to require Tennant and the state to take corrective action to protect the rights of absentee voters.

On the same day the suit was filed, the parties also filed a joint motion requesting expedited entry of a consent decree, which was granted by U.S. District Judge John Copenhaver, Jr. three days later, court records show.

The decree calls upon the defendants to notify all UOCAVA voters of the court’s order and to resubmit a corrected ballot. 

According to the office of the secretary of state, there were 30 UOCAVA voters in the 35th district sent corrected ballots, and 17 of them have voted on the corrected ballots.

The Board of Canvassers will decide whether to count the ballot for federal or state elections if the incorrect first ballot is returned but not the second corrected ballot. 

The issue of absentee ballots cast before the Supreme Court’s ruling remains unresolved. 

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