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Election Commission counsel to prepare defense

After an hour and twenty minutes in closed session, the State Election Commission Tuesday authorized counsel to prepare a defense in the event the commission is sued for failing to allow the Republican Party to fill a ballot vacancy in the House 35th District race.

Commissioners also called for the matter to be resolved as expeditiously as possible — after determining the commission does not have legal authority to waive a 30-day notice requirement before state agencies or officials can be sued.

“We don’t have the ability to do that. Only the [state] Supreme Court can do that,” said Secretary of State Natalie Tennant, an ex officio member of the Election Commission.

In a letter to GOP attorneys, counsel for the Election Commission advised the party to petition the state Supreme Court for a court order waiving the 30-day notice requirement.

“We all want a decision from the Supreme Court as soon as possible,” Commission Chairman Robert Rupp said.

On Aug. 25, the Republican Party submitted its 30-day notice of intent to sue to require the Election Commission to allow the party to fill the vacancy on the 35th District ballot created when Delegate Suzette Raines, R-Kanawha, withdrew as a candidate.

Under the law, Republicans cannot file suit to order the Election Commission to allow the vacancy to be filled until Sept. 24 — five days after the last day for absentee ballots to be delivered for November’s general election.

Tennant said the commission wants to have the hearing expedited, so if there is a court order to fill the ballot vacancy, it can take place before that deadline.

“That’s so we don’t slow the process in election administration for this particular district in Kanawha County and we can get the ballots printed in a timely manner,” she said.

On Aug. 13, the five-member bipartisan commission failed to act on a request from the Kanawha County Democratic Executive Committee for permission to fill Raines’ spot on the ballot in the four-member 35th Delegate District.

Commissioners concluded that Raines’ withdrawal did not meet standards for extenuating circumstances in order to allow her to be replaced on the ballot.

State election law requires compelling evidence that the candidate who withdrew would have been unable to serve in office if elected. Commissioners cited several factors, including the fact Raines is continuing to serve out her current term as a delegate.

Subsequently, Kanawha Republicans selected Marie Sprouse-McDavid — the fifth-place finisher in the 35th District Republican primary — to fill the vacancy, but her candidacy has not been certified, pending a court order compelling the Election Commission to act.

Barring a court order, voters in the 35th District — made up of southwestern Kanawha County, including the cities of St. Albans, Dunbar, South Charleston and part of Charleston — will have four Democrats and three Republicans on the general election ballot.

State Republican Party Chairman Conrad Lucas could not be reached for comment Tuesday.

Also in a related matter Tuesday, The Associated Press reported that the state Democratic Executive Committee has dropped a lawsuit in Preston County to remove Republican House candidate Melissa Lewis from the ballot in the single-member 52nd District.

Democrats had alleged Lewis failed to meet the one-year residency requirement, as well as at least 60 days’ party registration, in order to be a House candidate. Lewis faces Delegate Larry Williams, D-Preston in the general election.

Reach Phil Kabler at philk@, 304-348-1220 or follow @PhilKabler on Twitter.

CORRECTION: An earlier version of this story misidentified the Sept. 19 deadline for absentee ballots to be delivered.

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