Supreme Court issues opinion in Blankenship's denial

By Kyla Asbury | Oct 11, 2018

CHARLESTON — The West Virginia Supreme Court of Appeals issued its opinion on its order denying Don Blankenship's writ of mandamus to appear on the November ballot as the Constitution Party's nominee.

While the court issued the order back in August, the opinion was not filed until Oct. 5.

Justice Paul T. Farrell is sitting by temporary assignment and authored the opinion. He was joined by Justices Alan D. Moats and Darrell Pratt, who are also sitting by temporary assignment.

Blankenship petitioned the Supreme Court to issue a writ of mandamus on Aug. 9 so that he could be on the November ballot in the general election for the Constitution Party. Secretary of State Mac Warner filed a response to the petition and several intervenors, including the West Virginia Republican Party, filed briefs in the case.

The Supreme Court denied the writ on Aug. 29.

Farrell wrote that the court concluded that the prohibition in West Virginia Code § 3-5- 23(a) is "not limited to the pendency of the primary election but also includes those candidates who ran in the primary election."

Because of that, the court held that that code prevents unsuccessful candidates from running in the general election as "nomination-certificate" candidates.

"In sum, we believe that someone interested in third-party candidates and 'nomination certificates' would know to read West Virginia Code § 3-5-23(a) as amended by H.B. 2981," Farrell wrote. "Therefore, we hold that the title to H.B. 2981 (2009), an act to amend and reenact West Virginia Code §§ 3-5-7, 3-5-23, and 3-5-24, is constitutionally sufficient under Article VI, Section 30 of the West Virginia Constitution."

Farrell wrote that West Virginia Code prohibits candidates that lost in the primary to run in the general and that that code does not violate the constitutional guarantees of freedom of association and equal protection.

Farrell noted that the ballot access restriction in West Virginia Code is reasonable and nondiscriminatory.

"Therefore, because Mr. Blankenship unsuccessfully ran in the 2018 Republican primary election, he is now prohibited from gaining access to the 2018 general election ballot for the same office by means of a nomination-certificate candidacy," Farrell wrote.

Back in August, Blankenship provided The West Virginia Record with a statement regarding the denial of the writ.

"For those who believe in democracy, it is a frightening decision," Blankenship said. "Essentially, the Republican Party can now slander a candidate throughout the Primary, effectively denying that candidate an equal opportunity to win the nomination, and simultaneously pass a law in the middle of an election cycle which prohibits the slandered person from being on the General election ballot."

Warner said in a statement provided to The West Virginia Record at the same time that the decision was a victory for his office and all the state’s local election officials preparing for the November election.

"This decision puts the issue to rest and allows voters going to the polls to know with certainty who will be on the ballot. The Court’s decision also validates the ‘sore loser’ law ending any chance for those candidates thinking they will have endless bites at the same apple."

In March, the West Virginia Legislature passed a bill that was dubbed the "sore loser" law. It went into effect in June.

Blankenship was represented by Robert M. Bastress Jr.

Warner was represented by Marc E. Williams, Melissa Foster Bird, Christopher Smith and Anna C. Majestro of Nelson Mullins Riley & Scarborough.

West Virginia Supreme Court of Appeals case number: 18-0712

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