West Virginia voter, ACLU file lawsuit after Democrat state senate candidate left off ballot

By LEAH WILLINGHAM and JOHN RABY The Associated Press

CHARLESTON, W.Va. (AP) — A voter filed a lawsuit against a county in ruby-red West Virginia on Tuesday calling for a special election after close to 700 people cast erroneous ballots that omitted the name of a Democratic state senate candidate.

Mingo County voter James Williamson and the American Civil Liberties Union of West Virginia are seeking a special election in the race between Republican Craig Hart and Democrat Jeff Disibbio, according to the lawsuit filed Tuesday in Mingo County Court.

The lawsuit was filed before polls were closed and the race’s outcome announced. The Associated Press declared Hart an easy winner Tuesday night.

A total of 678 in-person ballots were cast in Mingo County, including 624 in the Senate race, during the first five days of the early voting period before the omission was discovered on Monday. Early voting in West Virginia began Oct. 23 and ended Saturday. Senate District 6 includes parts of four counties.

Instead of Disibbio’s name on the ballots, a completely different name was listed as the district’s Democratic state senate candidate.

“It is a clear, unalienable right of eligible West Virginians to cast a ballot in a free and fair election,” reads the lawsuit. “To exercise this right, West Virginians are entitled to vote on a ballot that accurately reflects the candidates and issues which they are tasked with deciding.”

The lawsuit goes on to say that this right to cast a ballot for the candidate of your choosing “is not abrogated by your chosen candidate’s likelihood of winning.”

Once discovered, the county election process was temporarily stopped and the problem was fixed within two hours through a reprogramming of the county’s voting machines. But whether Disibbio’s case was an accidental slip remains to be determined. He was told about the ballot omission last week by the Mingo County clerk’s office.

“People didn’t have the right option on the ballot,” said Deak Kersey, the West Virginia secretary of state office’s chief of staff. “All of the buzz words about election integrity could be used here.”

Disibbio “missed out on an opportunity to receive votes from all those people. And the inverse is true as well: All of those voters missed out on an opportunity to have a chance to vote for the true slate of candidates in that race,” Kersey said.

Local officials told voters who were given an erroneous ballot that they could cast a revised vote on a provisional ballot, according to the lawsuit. However, Williamson and the ACLU said that it is impossible for those provisional ballots to be counted because the ballots already cast are confidential.

“Therefore, there would be no way to know which ballots should be canceled out in favor of the new provisional ballot,” the ACLU said in a news release. “This will unfairly disadvantage Disibbio because votes that may have been intended for him will not be counted, while votes for his opponent will count.”

ACLU-West Virginia Staff Attorney Nick Ward said the issue isn’t partisan, but one of “ballot integrity.”

“Now more than ever we need to ensure that our elections are fair and that everyone’s vote is counted, regardless of who they vote for or how likely that candidate is to win,” he said in a statement. “That right is fundamental to our democracy.”

Mingo County Clerk Yogi Croaff didn’t immediately return a telephone message seeking comment.