PARKERSBURG -Wood County commissioners will ask state Attorney General Patrick Morrisey for direction on how to handle votes cast for a candidate who has withdrawn.
Bob Tebay, a former county commissioner who was running for re-election has withdrawn his name from the Republican primary. The deadline to withdraw was Feb. 11, so his name cannot be removed from the ballot of the May 13 primary election.
Prosecutor Jason Wharton and County Clerk Mark Rhodes told the commissioners there is no statute addressing this situation, so the commissioners don't know what procedure to follow with regard to any votes cast for Tebay in the primary.
Photo by Pamela Brust
Wood County Prosecutor Jason Wharton hands over a draft copy of a request for an attorney general’s opinion. The county commissioners decided Thursday they will ask the attorney general how to handle votes cast in the primary for Bob Tebay, who has withdrawn from the election. Tebay withdrew after the deadline so his name cannot be removed from the primary ballot.
"Besides seeking an attorney general's opinion, another option would be to seek a declaratory action in circuit court. That would provide a ruling of law on the question prior to the election," Wharton told the commissioners Thursday.
Wharton said the attorney general's office has been alerted an opinion may be sought and if the commission agrees to ask for such an opinion, he would electronically send the request for opinion on Thursday.
"We should hopefully have an answer within a week, they know time is of the essence," Wharton said.
Early voting begins April 30 and absentee ballots are already going out for the election.
Commission President Wayne Dunn recused himself from Thursday's discussion and left the room during the meeting since he is a candidate. Dunn is the sole Democratic candidate running for the county commission seat which he now occupies.
Wharton told the commissioners he and Rhodes met earlier with the other three Republican commission candidates and it was agreed they would abide by whatever procedure was decided upon.
Options available include naming the second highest vote-getter as the nominee if Tebay wins the primary, or throwing out the votes cast for Tebay if he wins, declaring a vacancy in the nomination and asking the Republican Executive Committee, with permission of the State Elections Commission, to name a nominee.
"The theory behind not counting the votes is they are treated like unauthorized write-ins. Write-in votes for individuals who have not filed to run as a write-in candidate are disregarded," Wharton said. "By withdrawing he is no longer an official candidate."
"This would only be an issue if he wins the primary anyway," Commissioner Steve Gainer said. "I feel the majority would not vote for him and if they did, we could just declare the second top vote-getter."
"It's important the voters are informed that he has withdrawn, but because it was too late, his name cannot be removed from the ballot," the prosecutor said. "But statistically there is a greater chance in multiple candidate races there could be an issue," Wharton said.
"Personally I prefer getting an attorney general's opinion on the procedure to follow," Commissioner Blair Couch said.
"The Legislature really needs to add language to establish a clear statute to deal with this," the prosecutor said.
"I favor an informed electorate. I don't like the idea of not counting votes," Couch said.
"That's not for us to decide," Gainer said. "The simplest thing is to just have the second place vote getter win if Tebay gets the highest number of votes, but I don't think Tebay would with the information provided to the voters that he has withdrawn."
The two commissioners agreed to have Wharton seek the legal opinion from the attorney and general and recommend Legislators address the issue by statute. They plan to keep the matter on the active commission agenda and may call a special or emergency session depending on when the attorney general's opinion is received.
As for providing voters with notice of Tebay's status, Wharton told the commissioners Thursday there is no provision to allow placing a notice of Tebay's withdrawal at the polling places. The secretary of state's office has expressed concern about doing that, Rhodes said.
Rhodes said there is a recommendation that such a notice be placed on the sample ballot which will appear in The Parkersburg News and Sentinel, the notice would state that Tebay has withdrawn his candidacy.
"The ballot commissioners are in favor of attaching the notice to the sample ballot that will appear in the newspaper," Rhodes said.
Wharton said the attorney general might also be asked for an opinion about putting the notice on the sample ballot.
Tebay was one of four Republican candidates for the District C commission seat. In his statement, Tebay said he withdrew his candidacy for health reasons.
The other Republican candidates are Roger Brown, Raymond Jones and Sam Baker.
County commission candidates serve countywide, but are elected one each from the three districts every six years. Tebay served 12 years on the county commission leaving in 2008 after being defeated by Dunn in that year's general election.