Justices say replacement candidate should be on ballot

CHARLESTON – The state Supreme Court has ruled that a replacement House of Delegates candidate will be on the Nov. 4 general election ballot in Kanawha County.

The Justices ruled Wednesday that Marie Sprouse-McDavid should be on the ballot for the 35th House district after sitting Delegate Suzette Raines withdrew as a candidate this summer.

The Kanawha County Republican Executive Committee and Sprouse-McDavid had filed a petition with the court last week to hear the case. Because of the impending election, the case was heard Tuesday and ruled upon quickly.

In Wednesday's decision, the Justices rule that the KCREC "has demonstrated sufficient grounds to warrant issuance of the requested writ of mandamus."

Wednesday's memorandum decision was signed by Chief Justice Robin Jean Davis, Justice Brent Benjamin and Justice Margaret Workman. Justice Allen Loughry and Justice Menis Ketchum also signed it and submitted concurring opinions.

Citing a 1992 state Supreme Court ruling Cravotta v. Hechler, the Justices said this case was essentially "the reincarnation" of that 22-year-old case.

It "suggests that the commission (SEC) still does not fully comprehend the ramifications of its actions: here, the same fact pattern has once again given rise to the same decision by the commission to accept the prior candidate's withdrawal but to refuse to authorize the appointment of a replacement candidate because it does not feel sufficient 'extenuating personal circumstances' have been presented to warrant such appointment," according to the decision.

"Once the commission accepted Delegate Raines' withdrawal, it was statutorily required to permit the Republican Committee to appoint a replacement candidate to fill this vacancy. ...

"This methodology employed by the commission is not the law of this state; is directly contrary to both this court's prior decision (in Cravotta) ... and is indicative of gross misinterpretation and misapplication of the election laws of this state by the elected and appointed officials charged with their administration and enforcement."

During Tuesday’s arguments, Mark Carter, representing McDavid and the KCREC, 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.

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 the Cravotta ruling, 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, 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.

His concurring opinion Wednesday bolstered that thought.

The SEC's "actions in this case reflect either an inexplicable ignorance of the laws they are sworn to uphold or a brazen refusal to abide by them," Loughry wrote. "Seldom is this court confronted with a case of which the outcome is so plainly dictated by existing precedent.

"The fact that this court's previous ruling on this precise issue was disregarded by the statutory body charged with oversight of our electoral process, as well as the state's chief election official (Tennant), is both disturbing and unconscionable."

With only about five weeks before the election, new ballots will have to be printed to put Sprouse-McDavid on the ballot. That will cost about $25,000, officials have said.

"The practical effect of the commission and Secretary Tennant's abject failure to be knowledgeable of and to comply with this state's election laws has serious consequences," Loughry wrote. "Military and overseas ballots have already been printed and mailed; these ballots must now be reprinted and re-sent to those voters t considerable cost.

"The respondents' failure to comply with the clear mandate of this court, at considerable taxpayer expense, simply defies belief. ... The State Election Commission and Secretary Tennant have utterly failed in their duty to be knowledgeable of and to uphold the state's election laws at considerable, and perhaps immeasurable, cost to the citizens of the 35th District."

Ketchum wrote that the SEC "blatantly ignored both a black-letter election law and a 22-year-old case interpreting that law."

"The decision process is a simply choice of one or the other," Ketchum wrote. "The Legislature crafted election laws that attempt to be fair to both sides. Sauce for the goose, as they say, is sauce for the gander."

West Virginia Republican Party Chairman Conrad Lucas said the ruling showed that the SEC and Tennant were committing a "frivolous and embarrassing" election challenge.

"We are very excited for citizens of the 35th District and for Marie Sprouse-McDavid," Lucas said. "Today's decision is a victory for democracy and the principles of our republic. The West Virginia Democrat Party cannot win at the polls, so they've chosen to enter the courts.

"For the second time during this election cycle, Democrats have lost a frivolous challenge.  The Supreme Court's decision in particular shows that the electoral process is alive and well in West Virginia.  People should be able to determine their own representation and I'm very proud to say the Republican Party fought to defend that right at the highest level. Democracy has prevailed."

Lucas was referring to another House of Delegates ballot case last month in Preston County when the state Democratic Party dismissed its complaint against Melissa Lewis, who it was trying to have removed from the ballot.

Tennant spokeswoman Amber Epling issued the following statement:

"The State Election Commission (SEC) appreciates the Supreme Court’s guidance clarifying the law in this case and will take steps to update ballots immediately. Our first priority is always ensuring the voting rights of West Virginians, especially the military men and women deployed overseas.  The Secretary of State's Office will work with the SEC and the Kanawha County Clerk to get ballots reprinted quickly and notify all voters whose ballots have already gone out that a new ballot is on its way.

"The Secretary of State’s Office will also expedite shipping for all voters whose ballots have already gone out to ensure the prompt delivery and return of new ballots. The State Election Commission and the Secretary of State’s office will absorb the cost of reprinting and expedited shipping into its existing office budget and none of this will cost taxpayers additional money.”

The campaign for Shelley Moore Capito, Tennant's opponent for the U.S. Senate this fall, also issued a statement about the ruling.

“Today’s Supreme Court ruling proves Natalie Tennant isn’t qualified for the job she has, let alonethe U.S. Senate position she is desperately seeking," campaign spokeswoman Amy Graham said. "For too long West Virginia voters have paid the price for Natalie Tennant’s incompetence while her only care has been furthering her political career.

"First, West Virginians were forced to pay for a $475,000 conference call bill and a $200,000 ballot printing error. Then, Tennant’s Secretary of State office posted social security numbers online. And now, ballots will have to be reprinted and redistributed at a cost of $25,000. Before asking for a promotion, Natalie Tennant needs to do a better job at the one she has."

West Virginia Supreme Court of Appeals case number 14-0939