HUNTINGTON – Two third-party candidates who were knocked off the ballot after the Erik Wells ruling have filed a lawsuit against the Secretary of State.

Naomi Spencer Daly, a Cabell County woman running for the House of Delegates as a member of the Socialist Equality Party, and Darrell Castle, a man from Tennessee who is running as the Constitution Party’s presidential nominee, filed the lawsuit against Natalie Tennant on Sept. 19 in the U.S. District Court for the Southern District of West Virginia.

Daly and Castle claim West Virginia law creates a two-tiered ballot-access scheme for candidates seeking to run in the general election for partisan offices: one for candidates of recognized parties and one for all other candidates.

“Recognized parties may nominate their candidates for the general election ballot by convention or primary election,” the complaint states.

The plaintiffs claim they submitted nominating petitions containing a sufficient number of signatures, a certificate of announcement and filing fee to the Secretary of State before Aug. 1.

Each of the plaintiffs received notice on Aug. 25 that they were qualified for the general election ballot, however, on Sept. 15, the West Virginia Supreme Court released its opinion in Wells v. State ex rel. Miller, and, the following day, they were noticed by Tennant’s office that they were being removed from the general election ballot based on the Wells decision, according to the suit.

The plaintiffs claim the notification stated that the Wells decision meant that independent candidates must have filed a certificate of announcement no later than Jan. 30, in order to appear on the general election ballot in November, which none of the plaintiffs had done.

West Virginia’s ballot access scheme for independent candidates, as applied to the plaintiffs, violates rights guaranteed to the plaintiffs by the First and Fourteenth Amendments to the U.S. Constitution, according to the suit.

The plaintiffs claim the Secretary of State’s retroactive application of her interpretation of the Wells decision violates rights guaranteed to the plaintiffs by the Due Process Clause of the Fourteenth Amendments to the U.S. Constitution.

The plaintiffs are seeking a temporary restraining order. They are represented by Bryan Sells of the Law Office of Bryan Sells; and Anthony Majestro of Powell & Majestro PLLC.

District Judge Robert C. Chambers has scheduled a hearing for Thursday at 1 p.m.

Tennant’s decision removed 17 independent candidates from the general election ballot.

In August, the West Virginia Supreme Court of Appeals issued an opinion, upholding the decision from Kanawha Circuit Court that Wells, a registered Democrat, was not permitted to appear on the ticket as an independent candidate because it would create voter confusion.

U.S. District Court for the Southern District of West Virginia case number: 3:16-cv-08981

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