Supreme Court hears Blankenship's case to be on U.S. Senate election ballot

By Chris Dickerson | Aug 29, 2018

CHARLESTON – Don Blankenship took his fight to appear as a candidate for U.S. Senate on the November ballot to the state Supreme Court.

The former Massey Energy CEO finished third in May in the Republican primary, losing to current Attorney General Patrick Morrisey. Shortly after the primary, Blankenship said he planned to run in the general election as the Constitution Party candidate. Two days later, Secretary of State Mac Warner’s office denied that request to run two days after Blankenship filed to run July 24.

The court heard oral arguments Aug. 29. The hearing lasted more than two hours, mostly because of a fire alarm going off that took the parties away from the Supreme Court chambers for nearly an hour.

“According to the plain language of the law, which controls my decision, a candidate who loses the Primary Election cannot use the nomination-certificate process to run another campaign in the General Election,” Warner said. “Any other decision would be contrary to the law.”

Blankenship is challenging the state’s so-called “sore loser” law. Warner’s office says ballot printing has to be approved by Sept. 7 for county clerks across the state to have absentee ballots ready by Sept. 21.

Robert Bastress Jr., who is representing Blankenship, said his campaign met all requirements to run on the ballot before changes to the “sore loser” law were made during this year’s legislative session.

“Elections do not occur in one day, but in cycles,” Bastress wrote in his petition. “For this reason, as a general principle, laws enacted during an election cycle should apply in the next cycle. …

“There was a law in place at the time of the primary, and that law would be the one they have to depend on, which is extremely flawed.”

In March, the state Legislature passed a bill addressing ambiguities in that law. It went into effect June 5, which is after the Constitution Party named Blankenship as its Senate nominee.

Bastress, a constitutional law professor at West Virginia University, argues that a law passed during an election cycle should apply to the next election cycle. He compared it to changing the rules for a sport in the middle of a game.

Marc Williams, an attorney for Nelson Mullins Riley & Scarborough in Huntington, is representing Warner’s office. He argues that the Constitution Party simply “is trying to bootstrap its way to recognized party status by using a particularly noteworthy primary loser to bolster its votes.”

“In short, Mr. Blankenship's sore loser candidacy commandeers a process reserved for independent and small party candidates seeking to bypass the primary election and uses the nomination-certificate process to thwart the will of Republican voters,” Blankenship wrote in a response. “Not only that, it opens the door for political chaos by creating splinter factions of the Republican Party, potentially artificially elevating the Constitution Party to recognized party status.

“Fortunately, West Virginia law has long prohibited Mr. Blankenship's conduct. Moreover, a recent amendment to West Virginia's election law – further clarifies that sore losers may not commandeer the nomination-certificate process to claw their way back onto the ballot after a losing effort in a recognized party's primary.”

The state Republican Party filed a motion to intervene in the matter as well.

“Disgruntled by the result, Mr. Blankenship announced two weeks later that he would run as a ‘third-party candidate’ for the United States Senate in the 2018 General Election,” the GOP response, written by former state solicitor general Elbert Lin, states. “A long-time Republican, Mr. Blankenship then changed his party registration to the ‘Constitution Party.

“The problem for Mr. Blankenship, however, is that the West Virginia Legislature has enacted laws, consistent with the state and federal constitutions, to prohibit precisely this kind of sore-loser candidacy.”

South Charleston attorney Nigel Jeffries also intervened, arguing that the “sore loser” law needs to be invalidated and saying the court should allow Blankenship to be on the ballot.

Hearing the case were Chief Justice Margaret Workman, Justice Beth Walker, appointed Justice Paul Farrell as well as Wayne Circuit Judge Darrell Pratt and Circuit Judge Alan Moats from Barbour and Taylor counties.

Farrell is sitting on the court in place of suspended Justice Allen Loughry, and Workman appointed Pratt and Moats to hear the case after the retirements of Justice Menis Ketchum and Justice Robin Jean Davis.

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Nelson Mullins Riley & Scarborough West Virginia Supreme Court of Appeals

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