CHARLESTON – A county official says a former state senator’s attempt to appear on the ballot as an independent candidate for Kanawha County clerk is nothing more than a “statutory scheme.”

In a response brief filed Aug. 24 with the state Supreme Court, Kanawha County Prosecuting Attorney Charles Miller also calls Wells’ effort “too little, too late.”

“Now, Erik Wells, a registered Democrat, seeks to render the statutory scheme regarding nominations and primaries irrelevant by seeking inclusion on the general election ballot as an Independent,” Miller wrote in the brief. “To permit one who is affiliated with a major party to ignore the requirements of the West Virginia Code regarding the nomination and primary process for major party candidates and run as an Independent simply because he feels like it would render the primary process meaningless.”

In his appeal filed Aug. 23 to the state Supreme Court, Erik Wells also argues that the nearly 1,000 voters who signed a petition to get him on the ballot are being denied their rights. He says the 1st and 14th amendments to the U.S. Constitution are being violated.

Wells appealed to the Supreme Court after Kanawha Circuit Judge Charlie King issued an order Aug. 18 saying the petition process Wells used isn’t meant for people affiliated with a political party. Wells says he decided to seek the position currently held by Vera McCormick after news reports showed that hundreds of voters in the 35th district have been voting in the wrong district for the past four years.

On Aug. 19, the Justices granted Wells' motion for appeal and his motion for expedited relief. The general election is Nov. 8. McCormick is a Republican who currently is unopposed on the November ballot.

"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.

Before King’s ruling, Kanawha County Prosecuting Attorney Charles Miller sought a hearing to determine if McCormick was required to put Wells on the ballot. Miller said Wells was attempting to skip the traditional Democratic primary process and just get on the ballot.

Wells says he didn’t run in the Democratic primary or ask the county Democratic Executive Committee to put him on the ballot because 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 the Uniform Code of Military Justice.

Miller previously has said Wells’ appearance on the ballot could lead to confusion and election fraud. He gave the example of one major party setting up an independent candidate to siphon votes away from the candidate of the other major party.

In his brief with the Supreme Court, Miler notes that when Wells filed to run as an independent, he did say he is a member of the Democratic Party, which is asked on the form.

“As for the petitioner’s excuse that he was, in essence, given permission to break the law by the Deputy clerk who accepted the incomplete form, no individual — not the clerk, not the Governor, and not the President of the United States — can give anyone permission not to follow the law,” Miller said in the response. “We are all required to follow the law and its dictates when it comes to living our own lives, including filing for political office.

“The bank teller can’t give the robber permission to take money from the bank. The store clerk can’t give permission for one to walk out the doors without paying at Kroger. And a deputy clerk can’t give permission for a prospective candidate to fail to comply with the mandatory statutory directives for completing the certificate.”

West Virginia Supreme Court of Appeals case number 16-0779 (Kanawha Circuit Court case number 16-P-364)




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