CHARLESTON – In her dissenting opinion regarding the Erik Wells case, West Virginia Supreme Court of Appeals Justice Robin Jean Davis says the other Supreme Court justices have swept Wells’ freedom of association “under the rug.”
Davis said Wells is entitled to run as an independent candidate because of his constitutional right to freedom of association.
“ While the majority attempts to sweep this inherent freedom under the rug, simply minimizing its existence does not obviate the importance of this fundamental constitutional right,” she wrote in the Sept. 22 opinion.
Davis said the case is not a difficult case to decide, as the state’s statutes, as well as the court’s prior cases interpreting those statutes, clearly address the issues raised in the Wells proceedings and lead to the inevitable conclusion that Wells had satisfied the requirements to run as an independent candidate for the office of Clerk of Kanawha County in the November election.
“Be that as it may, my colleagues nevertheless have convoluted the issues in this case by doggedly deciding that Mr. Wells is not a proper candidate for office despite his satisfaction of all of the statutory requirements that entitle him to have his name placed on the 2016 General Election ballot,” Davis wrote.
In reaching this conclusion, Davis wrote, the majority has determined to ignore the express statutory language and the Supreme Court’s established precedent.
“Because the majority’s opinion is wholly unsupported by the applicable law and completely fails to follow the express statutory language governing these proceedings, I emphatically dissent,” she wrote.
As a registered Democrat, Wells was ineligible to petition to get on the November general election ballot, the high court ruled earlier this month, concluding that the petition process is available only to persons who have no party affiliation.
The majority of justices upheld Kanawha Circuit Judge Charles E. King’s decision that allowing Wells on the ballot would create voter confusion.
“Simply put, the petitioner is a registered Democrat, and any attempt to otherwise identify himself or ‘disaffiliate’ with the Democratic Party can only be accomplished by changing his registration; to permit otherwise would perpetrate a fraud on the public,” Chief Justice Margaret Workman wrote in the majority opinion on Sept. 15.
Wells was appealing King’s Aug. 18 ruling saying that the petition process he used was not meant for people affiliated with a political party.
Wells, who is a registered Democrat, did not note that on his petition to run as an independent.
Wells said that he decided to seek the position of Clerk of Kanawha County after news reports showed that hundreds of voters in the 35th District have been voting in the wrong district for the past four years, which was after the May primary and the deadline for the Kanawha County Democratic Executive Committee to fill the spot on the ballot.
When asked why Wells did not run in the Democratic primary or request that the county’s Democratic Executive Committee put him on the ballot to fill the vacancy after no Democrats ran in the primary, Wells testified that 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 rules for active-duty personnel in the Uniform Code of Military Justice. Wells also said he had no intention to run for any office until late June or early July.
W.Va. Supreme Court of Appeals case number: 16-0779