CHARLESTON – The state Supreme Court has upheld a Kanawha County judge's ruling, meaning Erik Wells can not appear on the November ballot as an independent candidate for Kanawha County Clerk.
On Sept. 7, the Justices heard arguments in the case. They issued their order on Sept. 12. The order said a more detailed opinion will follow. Justice Robin Jean Davis dissented and reserved the right to file a dissenting opinion later.
"The Court has thoroughly reviewed the appendix record and the arguments set forth in
the briefs of the parties," the order states. "After careful consideration of all filings and oral argument by the parties, the Court is of the opinion that the August 18, 2016 order entered in the Circuit Court of Kanawha County shall be, and it hereby is, affirmed.
"Accordingly, it is hereby ordered that the candidacy of Erik Patrick Wells for the office of County Clerk of Kanawha County is hereby disallowed. The Kanawha County Clerk is ordered to take whatever measures are necessary to ensure that Erik Patrick Wells does not appear on the 2016 General Election Ballot for the Office of County Clerk of Kanawha County."
Kanawha County Commissioner Kent Carper praised the speedy work of the court.
"I'm just glad the Supreme Court ruled so swiftly," he said. "We’ve got to get the ballots printed.
"We don’t know the basis of the opinion, but I’ve followed it carefully. I think this case was never about access. It was whether the rules were reasonable.
You couldn’t lose on this one. You’d have two excellent candidates if Mr. Wells were on the ballot. He'd be a great county clerk. But, the primaries are the opportunities for voters to vet candidates. With this, you'd have no primary, no debate. You’re just on the ballot.
"I think the forms from the Secretary of State's office are terribly misleading. I’d be surprised if that’s not in the opinion."
Last week during oral arguments, Wells' attorney Pat Maroney 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, said 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 was 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. King said Wells being on the ballot as an independent “would be inaccurate and create voter confusion.”
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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 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.”
After the order was released, McCormick issued a statement.
"I respect the judgment of the Supreme Court and I am pleased with their decision today," she said. "This issue was not about having a candidate running against me, but rather I was seeking to clarify State Code.
"I want to thank the Supreme Court for their decision and I promise to continue to serve the people of Kanawha County honorably in the office of their County Clerk."
During arguments, 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)