Fate of 35th District ballot rests with Justices

By Chris Dickerson | Sep 30, 2014

CHARLESTON – The question of whether a replacement House of Delegates candidate will be on the ballot in Kanawha County now rests with the state Supreme Court.

The Justices heard oral arguments Tuesday regarding the placement of Marie Sprouse-McDavid on the ballot for the 35th House district after sitting Delegate Suzette Raines withdrew as a candidate this summer.

During Tuesday’s arguments, Mark Carter, representing McDavid and the Kanawha County Republican Executive Committee, said the State Election Commission was wrong in not allowing the KCREC to fill the vacancy created when Raines, a Republican, withdrew as a candidate. He said the SEC was “legally obligated” to accept the KCREC’s suggestion of a candidate.

Last week, the KCREC and McDavid filed their petition with the Supreme Court to allow her to be placed on the ballot for the Nov. 4 general election.

The named defendants are the SEC, Natalie Tennant as Secretary of State and as a member of the SEC and fellow SEC members Robert Rupp, Gary Collias, Taylor Downs and Vincent Cardi. Because of a 30-day statutory notice requirement when suing state agencies, Sept. 22 was the first day such a petition could be filed legally because the State Election Commission chose not to waive the notice requirement.

Citing a 1992 state Supreme Court ruling Cravotta v. Hechler, Carter said Tuesday the matter “is a very simple case.”

“This court widely held in Cravotta that if the State Election Commission accepts the withdrawal of a candidate post-primary, then the State Election Commission shall authorize the executive committee’s ability to appoint a replacement candidate,” said Carter, an attorney with Dinsmore & Shohl.

However, the deputy Attorney General representing the SEC and Tennant said Raines withdrew unilaterally and never appeared before the SEC to ask permission.

“The candidate did not request anything from the commission,” Laura Young argued. “The executive committee asked that a replacement go on the ballot.”

Young said the only thing the the SEC had to decide was whether Raines left the race for “extenuating personal circumstances” that would have kept her from serving if she did win the election.

In not moving to fill the vacancy left by Raines’ withdrawal, Young said the SEC decided she had not met that standard. When Raines withdrew in August, she cited personal reasons that included the death of her mother and the end of a long-term relationship. She also was facing two civil lawsuits, one regarding her failure to file candidate financial disclosure forms.

During Tuesday’s arguments, Justice Allen Loughry seemed dumbstruck by the actions of Tennant and the SEC.

“I would hope to goodness that the State Election Commission and secretary of state, charged with enforcing the election laws of the state, would understand what the laws are,” he said.

With only about five weeks before the election, new ballots would have to be printed if the Court says Sprouse-McDavid can be put on the ballot. That would cost about $25,000.

West Virginia Supreme Court of Appeals case number 14-0939


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