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Appeals court issues stay in West Virginia ballot case

CHARLESTON — An effort by the West Virginia Democratic Party leadership to overturn a law passed more than 30 years ago when Democrats had control of state government to determine ballot placement of political parties is on hold.

The U.S. Court of Appeals for the Fourth Circuit issued a stay Wednesday of a lower court decision that rendered a 1991 law unconstitutional in how the order of political parties on ballots is determined. The stay came less than a week before the Tuesday, Aug. 25, deadline to draw for order of names on the ballot.

Dakota Nelson, a Democratic candidate for the House of Delegates in the 16th District in Cabell County, state Democratic Party Chairwoman Belinda Biafore and Kanawha County Democratic Executive Committee Chairwoman Elaine Harris filed suit last December against Secretary of State Mac Warner and Kanawha County Clerk Vera McCormick, both Republicans.

The Democrats allege State Code 3-6-2-c3 passed by the Democratic majority in the West Virginia Legislature in 1991 and signed into law by former Gov. Gaston Caperton is unconstitutional and unfair to Democratic candidates running for office.

That section of code states “The party whose candidate for president received the highest number of votes at the last preceding presidential election is to be placed in the left, or first column, row or page, as is appropriate to the voting system. The party which received the second highest vote is to be next and so on.”

In West Virginia, the last Democratic candidate for president to carry the majority of votes was Bill Clinton. Republican candidates have won the majority of votes since 2000, giving Republican candidates a better ballot position from 2004 until today.

The case was filed in the U.S. District Court for the Southern District of West Virginia. Judge Robert Chambers issued a ruling Aug. 10 siding with the Democrats, ruling that the 1991 law was unconstitutional, ordering the state and county not to enforce it, and ordering state and county election officials to develop a new constitutional ballot system in time for the Tuesday, Nov. 3 general election.

In his ruling, Chambers said the law violates the 1st and 14th amendments of the U.S. Constitution because “…the Statute dilutes votes for candidates whose political party is not favored by the Statute.”

“…the Statute affects the individual plaintiffs’ right to vote under the First and Fourteenth Amendments because, by awarding the benefit of the primacy effect to one party’s candidates based on partisan affiliation, the Statute dilutes votes for candidates whose party the Statute disfavors,” Chambers wrote.

“…the Statute implicates the Fourteenth Amendment right to equal protection because it treats one major political party (and its candidates, members, constituencies, and supportive voters and organizations) differently from the other major party by granting an electoral advantage based solely on the party’s performance in the last presidential election,” Chambers continued.

Melody Potter, chairwoman of the West Virginia Republican Party, issued a statement last week decrying Chambers’ ruling and calling the lawsuit “liberal amnesia” because the original law was the idea of Democratic lawmakers at the time.

“This policy has been in state code for the past 29 years, without objection from either political party or any elected official,” Potter said. “Democrats had no problem with this policy from 2000 to 2010 when they held the majority. Now that President Donald J. Trump will be on the General Election ballot, they are trying to circumvent their legislation to give themselves an advantage. What hypocrisy.”

According to the Secretary of State’s Office, county clerks are required to have their absentee ballots printed and delivered by Sept. 18 and start mailing the absentee ballots to voters. Sample ballots are to be published in certified newspapers no earlier than Thursday, Oct. 8.

The Secretary of State’s Office directed all requests for comment to the state Attorney General’s Office, which did not return a request for comment. A request for comment from the West Virginia Democratic Party was not returned.

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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