AG: Tebay withdrawal not allowed

CHARLESTON – According to an opinion from West Virginia Attorney General Patrick Morrisey, Bob Tebay’s attempt to withdraw from the May primary for Wood County commissioner must be disallowed and votes for him must be counted.

Morrisey stated in a letter to Wood County Prosecutor Jason Wharton that the attempt to withdraw from the race must be disallowed because Tebay was attempting to withdraw more than two months after the Feb. 11 deadline.

“The West Virginia Code provides that a candidate who has previously filed for a valid certificate of announcement for a primary can withdraw his name from the ballot, as long as the candidate does so sufficiently in advance of the primary election,” Morrisey wrote on Wednesday.

Morrisey said the notice to withdraw must be filed in the form of a signed and notarized statement.

“Given the specifically enumerated timeframe for withdrawing a candidate’s name from the ballot under section 3-5-11(a), we conclude that any untimely attempt to withdraw must be disallowed,” Morrisey wrote.

On April 14, Tebay announced he wished to withdraw from the May 13 Republican county commission primary, stating a recent illness made it necessary for him to withdraw.

“I do not feel it would be fair to other Republican candidates to remain on the ticket since I cannot devote a full out effort to the campaign,” Tebay said in a prepared statement.

Other Republican candidates for the District C county commission seat are Roger Brown, Raymond Jones and Sam Baker. Incumbent commissioner Wayne Dunn is the only candidate on the Democratic side.

Morrisey said the conclusion that a untimely withdrawal must be disallowed is reinforced by the absence of a procedure to handle the withdrawal such as the one set forth in the event of the candidate’s death.

Morrisey said the same conclusion has been reached in states with similar laws. In 1992 the Ohio Supreme Court of Appeals stated the “board of elections was duty-bound to count all ballots cast for primary candidates who had filed an untimely statement to withdraw and to certify the results.”

Morrisey said votes for Tebay must be counted.

“Having concluded that a candidate’s untimely notification of withdrawal must be rejected we further conclude West Virginia law required that votes for such a candidate be treated as if no attempt to withdraw had been made,” Morrisey wrote. “Accordingly, it is mandatory that all votes must be counted for a candidate who attempts, but fails, to withdraw and if the candidate receives the requisite number of votes to be declared the winner, that candidate must be certified as the winner.”

Morrisey stated if the candidate wins and reaffirms a desire to withdraw, the code outlines the procedure for filling the vacancy. In Tebay’s case, Morrisey said, he should not be replaced, but should be required to take the nominal post-election step of reasserting the intent to withdraw.

“If and when the candidate does so, the vacancy in the nomination could then be filled pursuant to the procedures in state code,” Morrisey wrote.

According to the code, the party executive committee will nominate a replacement for the candidate. Morrisey said the “American Rule” for counting votes of candidates who are dead, ineligible or disqualified adopted by the West Virginia Supreme Court of Appeals in 1969 would not apply.

Under the “American Rule” the votes are not treated as void but are counted as votes creating a vacancy, he said.

“Given the analysis above that an untimely withdraw must be rejected, the candidate seeking an untimely withdrawal is not ‘ineligible’ or ‘disqualified,'” Morrisey wrote. “Nevertheless, where the candidate wins the election and simply reasserts his desire to withdraw, the outcome would not be significantly different than the creation of a vacancy.”

While Wood County Commission candidates serve countywide, they are elected one each from the three districts every six years. The district up for election this year is District C.

Tebay served 12 years on the Wood County Commission, leaving in 2009 after he was defeated by Dunn in the 2008 general election.