Pat Maroney, attorney for Erik Wells, said the case isn’t just about Wells’ right to be on the ballot as an independent candidate for the job, even though he is a registered Democrat.
“We’re also talking about voters’ rights,” he told the five Justices on Sept. 7. “That’s as big of a consideration as candidate rights under the First and 14th Amendments.”
Kanawha County’s prosecuting attorney, however, says Wells’ efforts are nothing more than a sham.
“He’s simply a major party candidate trying to camouflage himself as a third-party candidate,” Charles Miller argued. “Otherwise, the voters don’t know what he stands for.”
Wells is appealing an August ruling by Kanawha Circuit Judge Charles King, who issued an order Aug. 18 saying the petition process Wells used isn’t meant for people affiliated with a political party.
Wells is a registered Democrat, but he didn’t note that on his petition to run as an independent. Wells says he decided to seek the position currently held by Vera McCormick, a Republican, after news reports showed that hundreds of voters in the 35th district have been voting in the wrong district for the past four years. That was after the May primary and the deadline for the Kanawha County Democratic Executive Committee to fill the spot on the ballot.
Maroney argued that the nearly 1,000 voters who signed a petition to get him on the ballot are being denied their rights.
Miller also 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.
“The rights of voters and the rights of candidates are tied extremely tightly together,” Maroney told the Justices. “Why it’s so important here in this case is the petitions signed by the voters. …
“These are a group of voters whose rights need to be protected.”
Chief Justice Menis Ketchum asked Maroney if Wells is guilty of constructive fraud to be listed as having no party affiliation when he’s a Democrat and doesn’t want to give up being a Democrat. Maroney said it wasn’t.
“Voters to come together in a cross section and say we want this person on the ballot,” he said. “Ballot access by this court and by the United States Supreme Court cannot be severely limited.
“(The state statute) allows a group of citizens to come together, gather petitions nominating a person of their choice – whether that person is a Democrat, a Republican, a member of the Mountain Party or a Libertarian – to get on the ballot because they want somebody on the ballot that they agree with their point of view.”
Miller argued that the statute is designed specifically for third-party candidates who have no other method of getting on the ballot.
“What he (Wells) is asking this court to do is put a stamp of approval on him not giving up his party affiliation and waving the flag of being an independent on the ballot,” Miller said.
West Virginia Supreme Court of Appeals case number 16-0779 (Kanawha Circuit Court case number 16-P-364)