The Dirty Secret (27 page)

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.”