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WV Supreme Court denies Blankenship's bid to get on US Senate ballot

The West Virginia Supreme Court sided with the Secretary of State’s Office Wednesday, upholding the state’s decision to block Don Blankenship from running for the U.S. Senate with the Constitution Party after losing in the Republican primary.

Five justices — three of whom were tapped from the circuit court level — heard arguments Wednesday regarding whether to compel Secretary of State Mac Warner to place Blankenship on the general election ballot.

The court issued an order several hours after hearing arguments, heeding a request for expedited consideration.

“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,” the order states.

The court will release a detailed opinion “in due course,” according to the order.

The major points of contention in the case were whether “sore loser” laws — which prevent candidates who lose in a primary from running again in the following general election — are constitutional; whether the case should be considered under a new, relevant law that took effect in June; and whether the pre-existing state code actually contained a sore-loser law.

In an emailed statement, Blankenship said he and his attorneys are evaluating their next steps and that he’s disappointed in the decision.

“For those who believe in democracy, it is a frightening decision,” he said. “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. Americans desperately need to pay attention as the politicians continue to move voters to the sidelines and out of the election process.”

Warner issued a statement, as well, calling the ruling a “victory” for the office and commending his legal team for its work.

“This decision puts the issue to rest and allows voters going to the polls to know with certainty who will be on the ballot,” he said. “The Court’s decision also validates the ‘sore loser’ law ending any chance for those candidates thinking they will have endless bites at the same apple.”

West Virginia University law professor Robert Bastress represented Blankenship. He argued that, up until June, West Virginia had a law that prevented “cross-filing,” or appearing on the ballot multiple times with different parties, and not a sore-loser law.

That law states that nonrecognized (i.e. not Democratic, Republican, Mountain or Libertarian) parties “may nominate candidates who are not already candidates in the primary election for public office otherwise than by conventions or primary elections.”

Because candidates like Blankenship “were” candidates in the primary, not “are” candidates in the primary, Bastress argued, Blankenship’s candidacy with the Constitution Party is viable.

Likewise, he said the law that took effect in June should not be used to handle Blankenship’s candidacy, because it took effect after Blankenship secured the Constitution Party’s nomination.

He also noted that two candidates in the state have lost in primaries this year with the Democratic and Republican parties and went on to enter the general election ballot with the Mountain Party. He said that, because this right is not afforded to nonrecognized parties, the law violates constitutional equal-protection laws.

Marc Williams, who Warner’s office retained for this case, argued that the state has an interest in fairly regulating its elections, and sore-loser laws are just one way of protecting that interest.

While he acknowledged the state law prior to June was somewhat unclear, he said it was, in effect, a sore-loser law, and the new law only clarified it.

He, as well as an attorney for the West Virginia Republican Party, noted that, in a dissenting opinion in a different Supreme Court case, former justice Robin Davis referenced the code section, stating (in passing) that it acts to the effect of a sore-loser law. The two attorneys pointed to the dissent as evidence that a plain reading of the code shows it is, in fact, a sore-loser law.

Along with Bastress and Williams, the court allowed two other parties to intervene in the case and offer arguments Wednesday.

Nigel Jeffries, a South Charleston attorney, challenged the viability of the state’s sore-loser law and argued that Blankenship should be allowed to join the ballot with the Constitution Party.

He said West Virginia’s sore-loser law places a burden on voters without sufficiently furthering the state’s interest. Because West Virginia offers semi-closed primary elections, where voters select from a slate of candidates within one party, he said, some voters lose their chance to support certain candidates due to a sore-loser law.

While in an open-primary state, every voter encounters the name of every candidate in the primary, in a closed-primary, this is not the case. He said a sore-loser law strips some voters of the rights to consider certain candidates only because they lost one primary and did not earn a nomination from a recognized party.

“The interest of the state in preventing ballot confusion and ballot overcrowding just logically cannot happen through a ‘sore loser’ law like it would if this law were applied in an open primary state,” he said in an email after the hearing.

Speaking for the state’s Republican Party, Elbert Lin said the old law and the new law should be interpreted to keep Blankenship off the ballot. He conceded that the old law pertains to cross-filing, but said it also acts as a sore-loser law.

Although he said the old law and the new law may be used to deny Blankenship’s filing, he said the new law should apply. He said it doesn’t matter that the campaign was ongoing at the time, because the law refers to the filing itself, thus, there is no retroactive application, as Bastress argued.

Regarding the law’s constitutionality, he said the fact that political parties are treated differently under the law is not, in itself, evidence of discrimination, only that some parties have earned more rights than others by meeting a threshold of voter support.

Several of the lawyers have personal ties to interested parties in this case. Lin previously served as the solicitor general for Attorney General Patrick Morrisey, who won the Republican primary over Blankenship.

Bastress has contributed to campaigns of Sen. Joe Manchin, D-W.Va., in the past. Jeffries was on the state Democratic Party’s payroll several years back.

•••

New faces appeared on the bench Wednesday as the justices navigate a course of articles of impeachment, criminal charges and judicial investigations.Chief Justice Margaret Workman and Justice Beth Walker both heard the case, as did Justice Paul Farrell, who is filling in for Justice Allen Loughry during the latter’s suspension.

Circuit Judges Darrell Pratt and Alan Moats filled the seats of Menis Ketchum, who resigned just before impeachment proceedings began, and Davis, who resigned after the House passed articles of impeachment against her.

Reach Jake Zuckerman at jake.zuckerman@wvgazettemail.com, 304-348-4814 or follow @jake_zuckerman on Twitter.

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