Justices: Wells appearing as independent on ballot would be 'fraud'

By Jessica Karmasek | Sep 16, 2016

CHARLESTON – The state Supreme Court declared Erik Wells a registered Democrat and said any attempt to “otherwise identify himself” or “disaffiliate” with the state Democratic party can only be accomplished by changing his registration.

CHARLESTON – The state Supreme Court declared Erik Wells a registered Democrat and said any attempt to “otherwise identify himself” or “disaffiliate” with the state Democratic party can only be accomplished by changing his registration.

“... to permit otherwise would perpetuate a fraud on the electorate,” Justice Margaret Workman wrote for the majority in the full opinion, which was released Sept. 15. Justice Robin Jean Davis dissented and most likely will file a separate opinion.

On Sept. 12, the court issued an order upholding a Kanawha County judge’s ruling that Wells can not appear on the November ballot as an independent candidate for Kanawha County Clerk. The full opinion was released Sept. 15.

“The Legislature has made clear in enacting the requirements of West Virginia Code § 3-5-7(d)(6) that voters are entitled to know with which political party, if any, a candidate is affiliated and that the candidate has not been otherwise affiliated in the preceding 60 days,” Workman wrote in the majority’s full opinion. “The substantial ends of these disclosures is clear: voters are entitled to know the party or principles for which a candidate stands, to the extent a candidate has so affiliated himself or herself, such that they can make a knowledgeable decision in casting their votes.

“This statute seeks to prevent candidates from engaging in chicanery regarding their political affiliations, if any, designed to inure entirely to their individual political benefit and mislead the electorate.”

The justices said Wells offered “absolutely no argument or rationale” as to why requiring the certificate of announcement is “impractical, impossible, or inequitable.”

“Indeed he likely cannot inasmuch as, despite his insistence that he was not required to complete a certificate of announcement, it was he who took it upon himself to file one, albeit incomplete and untimely,” Workman wrote in the 35-page opinion.

“The critical importance of the frank disclosure of a candidate’s party affiliation is well-illustrated in the case at bar.”

Wells was appealing a 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.”

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.

State code requires that Wells declare his party affiliation, if any, and aver that he has not otherwise been affiliated in the 60 days preceding the filing.

“However, upon filing his certificate of announcement – six months late – petitioner failed or refused to identify his political party, thereby wholly usurping the paramount purpose of the nomination certificate,” Workman wrote. “On the nomination certificate and in sworn testimony, petitioner purported to identify as having no party affiliation or ‘independent,’ all while maintaining his registered Democrat status.”

To run as unaffiliated or “independent,” Wells may not merely declare himself so; he must change his registration, the justices noted in their ruling.

“As we have previously stated, ‘the State’s interests in preserving the integrity of the political process… are put at risk by candidates who skip from one party to another just prior to an election campaign to take advantage of a political opportunity,’” Workman wrote for the court.

“If ‘skipping’ from party to party to take advantage of a political opportunity puts the State’s election interests at risk, it is fairly inarguable that allowing a candidate to masquerade as something he is not makes an utter mockery of those interests.”

McCormick issued a statement following the release of the full opinion.

"I was very pleased to read the opinion of the Supreme Court," she said. "I brought the petition to the Court for clarification of the statute, and this opinion does just that. It is now time to move forward with the General Election."

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Kanawha Circuit Court West Virginia Supreme Court of Appeals

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