CHARLESTON – The state Supreme Court soon will hear an appeal from a former Kanawha County state senator who wants to appear on the November ballot as an independent candidate for county clerk.
On Aug. 19, the Justices granted Erik Wells' motion for appeal and his motion for expedited relief. The general election is Nov. 8.
"The Court is mindful of the fact that prepared ballots and voting machines must be delivered the Clerk of the County Commission 46 days prior to the election, and will therefore promptly consider and decide this matter," the Aug. 19 scheduling order states.
The deadlines in the appeal are listed. Aug. 23 is when the appeal must be perfected as well as the response to the motion to stay. The respondent's brief must be filed by Aug. 25, and the reply brief by Aug. 26.
On Aug. 18, Kanawha Circuit Judge Charles King ruled Wells couldn't be on the November general election ballots as an independent candidate in the county clerk race.
King decided that Wells, who is registered as a Democrat, is ineligible to run as an Independent in the race.
Kanawha County Clerk Vera McCormick, a Republican who currently is unopposed on the November ballot, said she was grateful for King’s prompt decision on the matter.
“I have had considerable experience in election matters and I believe Judge King’s ruling is not only correct, but the right thing to do,” McCormick said in an Aug. 18 statement. “Should my opponent decide to appeal this decision, which is his right, I hope he will not ask the tax payers to pay for his appeal in this matter.”
McCormick said due to the limited time available in finalizing the ballot, she will be calling for a meeting of the Board of Ballot Commissioners early next week to review the current situation and proceed with the process of preparing the ballot for printing.
The Quo Warranto hearing was held Aug. 12. King concluded that the petition process to appear on the ballot as an Independent or non-party affiliated candidate ins not available to people affiliated with political parties, who have ballot access through the primary election process.
Wells believed he has a legal right to petition to appear on the ballot as an Independent, regardless of his actual party affiliation, which his attorney argued at last week’s hearing.
Kanawha County Prosecuting Attorney Charles Miller called for the hearing to determine if McCormick was required to put Wells on the ballot in November. Miller argued that Wells was attempting to skip the traditional Democratic primary process and just get on the ballot.
Pat Maroney, who represented Wells, said the First and 14th Amendments to the U.S. Constitution protect Wells’ right to appear on the ballot. Maroney is a partner at Maroney Williams Weaver & Pancake PLLC in Charleston.
When asked why Wells did not run in the Democratic primary or request that the county’s Democratic Executive Committee put him on the ballot to fill the vacancy after no Democrats ran in the primary and Wells testified that he was overseas, on active duty with the U.S. Navy Reserve, at the time.
He said he could not have filed the paperwork to run in the May primary because of rules for active-duty personnel in the Uniform Code of Military Justice. Wells also said he had no intention to run for any office until late June or early July.
In his Aug. 19 appeal to the state Supreme Court, Wells says his rights as well as the rights of the 900 voting citizens who signed a petition to put him on the ballot are being violated.
Wells has said he decided to run against McCormick after learning that hundreds of people in the 35th district have been voting in the wrong district for the past four years.
West Virginia Supreme Court of Appeals case number 16-0779 (Kanawha Circuit Court case number 16-P-364)