West Virginia Supreme Court denies Blankenship access to November ballot

Sought placement as Constitution Party candidate after losing as a Republican

Photo by Steven Allen Adams Bob Bastress, attorney for Constitution Party candidate Don Blankenship, argues his case at the podium before the West Virginia Supreme Court of Appeals Wednesday.

CHARLESTON — The West Virginia Supreme Court of Appeals Wednesday denied a petition to order the Secretary of State to place Constitution Party candidate Don Blankenship on the November ballot for U.S. Senate.

The high court heard arguments Wednesday morning between Blankenship’s attorney, West Virginia University professor Bob Bastress, and Marc Williams, who represented the Secretary of State.

“After careful consideration of all filings and oral argument by the parties, the Court is of the opinion that the writ shall be, and it hereby is, denied,” the court said in an order issued Wednesday afternoon, mere hours after first hearing arguments. “The West Virginia Secretary of State is ordered to take whatever measures are necessary to ensure that Donald L. Blankenship does not appear on the 2018 General Election Ballot for the Office of United States Senator for the State of West Virginia.”

Blankenship issued a statement Wednesday afternoon saying he and his attorneys are evaluating their next steps.

“For those who believe in democracy, it is a frightening decision. Essentially, the Republican Party can now slander a candidate throughout the primary, effectively denying that candidate an equal opportunity to win the nomination, and simultaneously pass a law in the middle of an election cycle which prohibits the slandered person from being on the general election ballot,” Blankenship said. “Americans desperately need to pay attention as the politicians continue to move voters to the sidelines and out of the election process.”

Hearing the case were Chief Justice Margaret Workman and Justice Beth Walker — the last remaining Supreme Court justices who haven’t resigned or been suspended. Walker appointed Wayne County Circuit Judge Darrell Pratt and Barbour/Taylor County Judicial Circuit Judge Alan Moats to sit on the bench in place of former justices Menis Ketchum and Robin Davis.

They joined Cabell County Circuit Court Judge Paul Farrell, who was appointed by Workman to fill in for Justice Allen Loughry. Loughry is suspended without pay pending the outcome of a federal trial. Loughry is charged in a 25-count federal indictment.

The jurists peppered Bastress with questions regarding Blankenship’s petition requesting the court order Secretary of State Mac Warner to place Blankenship on the ballot for U.S. Senate with the Democratic candidate, Sen. Joe Manchin, and Attorney General Patrick Morrisey, the Republican who bested Blankenship in the May 8 primary.

The focus was on State Code 3-5-23, or the “Sore Loser” law. The law prevents candidates who were previously candidates in the primary for a major party nomination from switching to independent or a minor party to get on the general election ballot after losing the primary. Blankenship came in third in the May 8 Republican primary.

State Code 3-5-23 was amended in March to add a subsection clarifying that the code section applies to losers of major party primaries, preventing them from using the signature certificate process and using a minor party to get on the general election ballot.

Moat pointed out to Bastress that the Secretary of State’s Office published a manual for candidates in December 2017 that spelled out the specifics for the “Sore Loser” law. It also was pointed out to Bastress by the justices that Blankenship could have filed as a write-in candidate and still has time to do so, or he could have run as another major party candidate, such as the Libertarian or Mountain parties, which nominate their candidates by convention instead of a primary election.

Bastress argued that the March amendment to the code, which when into effect June 5, was being used retroactively by the Secretary of State and that the original wording of the code section didn’t prevent his client from seeking a minor party nomination and seeking ballot access.

“When Mr. Blankenship filed to run for the Republican Party, he had then under the pre-existing law a right to run after the primary, regardless of whether he won or lost, to be nominated by one of the other parties. That was cut off…so he lost the pre-existing right that he had.”

Williams, who was hired as outside counsel for the Secretary of State after Morrisey recused his office from representing the state in the case, argued that state code already prevented Blankenship from using the minor party nomination and signature process. The March amendment merely clarified the existing code section. Since Blankenship filed his signatures and certificate of candidacy after the updated code section took effect, it wasn’t a retroactive move to deny Blankenship’s candidacy.

“The actual defining event that is being regulated by the ‘Sore Loser’ provision is his attempt to get on the ballot under the nomination certificate process,” Williams said. “Under those circumstances, all of that happened subsequent to the enactment and passage of the bill. Under those circumstances, there is no retroactivity.”

Also appearing before the court were former state solicitor general Elbert Lin, representing the West Virginia Republican Party, and Nigel Jeffries, a voter representing himself. Lin argued that the “Sore Loser” law is both a cross-filing prohibition as well as a sore loser prohibition.

“Imagine yourself as an individual in the Secretary of State’s Office who is receiving a nomination certificate filing around Aug. 1,” Lin said. “That individual has to apply the statute, and the question that individual asks him or herself is is this individual seeking a nomination certificate of candidacy quote ‘already a candidate in the primary election?’ The answer to that, in the case of Mr. Blankenship, is unequivocally yes.”

Jeffries argued that preventing Blankenship’s name from being placed on the November ballot prevents voters affiliated with the Constitution Party who didn’t get to vote in the Republican primary from being free to choose Blankenship.

“‘Sore Loser’ laws and closed primaries don’t make any sense,” Jeffries said. “You are saying a very small select preference of the Republican Party is now dictating the associational rights of not just the Constitution Party, but everyone else who didn’t vote in the Republican Party primary.”

County clerks have until Sept. 21 to have absentee ballots printed and delivered to counties.


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