WV: Can’t Change Your Stripes, At Least Not For 60 Days

By: Brooke Hannah

Everyone knows that anxious feeling that starts to creep in as an upcoming deadline gets closer and closer. Everyone also knows the dread and panic that takes over upon realizing a deadline has passed. If you are fortunate, maybe someone will be willing to provide an extension. Or perhaps there is an alternative way to obtain your goal. Unfortunately for Erik Patrick Wells (“Wells”), the Supreme Court of Appeals of West Virginia did not provide him the relief he had hoped for after he sought an alternative way to obtain candidacy after missing a deadline.

On September 15, 2016, the Supreme Court of Appeals of West Virginia entered a judgment that resulted in the denial of candidacy to Wells for the office of Kanawha County Clerk. Wells’ critical flaw was that he failed to properly complete the candidacy certificate forms by leaving a blank as to his party affiliation.

Under West Virginia Code § 3-5-7(a), a person who seeks to hold an elected office must file a certificate of announcement declaring his candidacy for nomination or election to the office.  Pursuant to W. Va. Code § 3–5–7(c), this certificate must be filed no later than the last Saturday in January before the primary election day. Wells did not file his “Candidate’s Certificate of Announcement for 2016 Partisan Elections” until July 18, 2016. However, there was another option available. Under W. Va. Code § 3-5-23, groups of citizens that do not have a party organization may nominate candidates who are not already candidates in the primary election. Candidates are then subject to the provisions of W. Va. Code §§ 3-5-23 and 3-5-24. Under W. Va. Code 3-5-24, candidates can file the certificates until August 1 preceding the November general election. Therefore, Wells decided to file a “Minor Party or Independent Candidate Nomination Petition.”  However, Wells still had another issue to overcome.

West Virginia Code 3-5-7(d)(6) states that a candidate must provide a statement that he “(A) Is a member of and affiliated with that party; and (B) has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing the announcement.”

Based on W. Va. Code § 3-5-7(d)(6), the respondent (State of West Virginia) filed a petition for writ of quo warranto. During a hearing conducted by the circuit court on August 12, 2016, Wells testified that he was and remained a registered Democrat. Additionally, Wells testified that he had voted in the Democratic primary on May 10, 2016. However, Wells also testified that he was running as an “independent” for the office of Kanawha County Clerk.

Although Wells tried to argue that § 3-5-7(d)(6) did not apply to him based on the Court’s decision in State ex rel. Browne v. Hechler, the Court decided that the Browne decision was no longer valid because of the amendments to § 3-5-7 in 2015.  Consequently, the Court looked to the plain language of §3-5-7 and determined that it was very clearly applicable to all candidacies, including certificate nomination candidacies.

Wells also tried to argue that § 3-5-7 was not applicable because a candidacy of a certificate nomination candidate is governed exclusively by West Virginia Code § 3–5–23, which does not require an announcement. The Court reasoned that § 3-5-7’s requirements promote political stability, preserve party integrity, and prevent voter confusion. The Court further determined that the legislative intent was that voters and candidates should know who is running for elected office. Therefore, the Court held that W. Va. Code § 3-5-7’s requirement to file a certificate of announcement does apply to any person who seeks to hold an elected office in any primary or general election.

Additionally, Wells argued that the circuit court erred when it decided that he could not take advantage of the certificate nomination process by W. Va. Code § 3-5-23 because he is a registered Democrat. The Court held that the circuit court did not err and that a candidate who is registered and affiliated with a recognized political party may not become a candidate for political office using the nomination certificate process described in § 3-5-23.

Wells’ final argument was that his First and Fourteenth Amendment rights were violated because he was denied ballot access through the denial of his candidacy. Additionally, he argued that his rights under the West Virginia Constitution were violated under Article III, Sections 7, 16, and 17 and Article IV, Sections 1 and 4. The Court held that this was not a ballot access case. Furthermore, the Court found that Wells, by way of W. Va. Code §3-5-7, had the opportunity to seek ballot access as a registered Democrat. However, Wells simply missed the deadline and therefore could not use this path.

In the end, Wells, although creative, was not successful and will have to wait six years to run for the office of Kanawha County Clerk. Hopefully next time Wells will complete his certificate of nomination thoroughly, file it in a timely manner, and enjoy a more favorable outcome.

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