CHARLESTON – The state Supreme Court swiftly refused the motion for stay from a state Senate candidate who had been ruled ineligible to be on the May 10 primary ballot.
Attorneys for Andrea Garrett Kiessling filed a motion for stay and a notice of appeal May 5, a day after Kanawha Circuit Judge Duke Bloom issued an order granting an emergency writ of mandamus saying Kiessling, a Republican, is ineligible to run for a seat in the 8th District, which includes Roane, Clay and parts of Kanawha, Putnam and Jackson counties.
The Justices had given respondent Alicia Stine until Friday afternoon to submit a response to Kiessling’s stay request. Soon thereafter, the court issued an order refusing the motion for temporary stay, making the motion for expedited consideration moot.
Majestro
Stine’s response was succinct.
“The facts and the law are clear,” it states. “Andrea Kiessling, who for at least four of the past five years was a resident of North Carolina, is not eligible to be elected to the West Virginia Senate in 2022.
“This is not even a close case. Simply put, her actions in North Carolina conclusively establish that she was not a West Virginia citizen for the past five years as is explicitly required by the West Virginia Constitution.
“The motion is devoid of any discussion of the merits of the challenge to Kiessling’s candidacy.”
Bloom’s “unprecedented order will almost certainly result in the disenfranchisement of voters in the 8th senatorial district who have already cast ballots,” Kiessling’s attorneys wrote in their May 5 motion. “The Circuit Court’s order was entered on May 4 — a full week after the start of early voting on April 27. Equity does not support such a result, particularly given voter Stine’s unreasonable delay, and a stay from this court is justified on this basis alone. …
“The risk of voter disenfranchisement is patent and immediate. Early voting is well underway, and Election Day is only days away on May 10. Expedited relief is desperately needed to avoid the irreparable harm that will now surely follow the Circuit Court’s unprecedented and erroneous intervention in an ongoing election.”
Stine’s response says Kiessling emphasized voter disenfranchisement in her filings.
“Voter disenfranchisement is precisely why the stay should be rejected,” Stine’s response states. “While some voters may have already voted for her in the early voting period, the vast majority of votes remain uncast.
“Those votes for her as an ineligible candidate will not be counted regardless of whether a stay is granted. Should the stay be granted, however, more voters likely will cast their ballots for a candidate that will ultimately be disqualified, resulting in even more voter disenfranchisement.
“And, if Ms. Kiessling somehow obtains the most votes in the election, all the Republican primary voters in the district will be disenfranchised as the Republican executive committees will be tasked with replacing Kiessling on the ballot.”
Stine’s attorney, Tony Majestro, said his client was pleased with the result.
“For my part, I am glad that all five Supreme Court justices vindicated Judge Bloom’s opinion,” Majestro told The West Virginia Record. “Social media has been replete with personal attacks on the integrity of both Judge Bloom and me. I can defend myself. Judge Bloom cannot.
“The unanimous opinion of our Supreme Court shows that Judge Bloom’s decision upheld the rule of law. We all can be happy about that.”
On social media, Majestro added more context.
“None of the five justices were in favor of Kiessling’s request for a stay,” he wrote on Twitter. “Four of the five were appointed by our conservative Republican governor.”
Keissling’s attorneys also issued a statement.
“We would like to thank Judge Bloom and the Supreme Court of Appeals for their prompt and professional consideration of the issues relating to Andrea Kiessling’s candidacy for State Senate,” Marc Williams and J. Zak Ritchie said in a joint statement provided to The Record. “We are disappointed that Ms. Kiessling will not be on the ballot this Tuesday, but we understand that this is a country of laws and that sometimes the judicial process will result in decisions with which we disagree.
“But in every case, we respect the process and the judges who make those decisions.”x`
During a May 3 hearing before Bloom, Majestro focused his questions on Kiessling’s voting history. Kiessling currently is listed as an active voter in North Carolina, and she most recently voted there in the 2020 election.
Stine had filed a petition April 29 against Kiessling and Secretary of State Mac Warner regarding the issue.
In a video she posted on social media after Bloom’s ruling, Kiessling said she will continue to fight to keep her spot on the ballot.
“It’s a difficult time to be a conservative,” Kiessling says in the video. “Opposing forces do whatever is possible to keep someone like me from holding an office. …
“Protecting conservative, Christian values and doing what is right is never easy, but it’s always worth it. I’m willing to do the work to fight as hard as I can for as long as I can because my children and your children’s futures are worth it.”
In a court filing, Warner said it was too late to remove Kiessling from the ballot. He said possible solutions would be to tell county officials to not count votes cast for Kiessling and for county clerks to post signs saying she is ineligible to run.
Also, absentee ballots were mailed March 25, and early voting began April 27.
Campaign finance reports show Kiessling has spent more than $31,000 on her campaign. In addition to her and Higginbotham, others on the GOP primary ballot in the 8th District are Mark Hunt of Charleston and Mark Mitchem of Clay. Hunt is an attorney, a former Democrat and delegate. Higginbotham is a former member of the House of Delegates.
The Supreme Court has ruled on similar issues before.
In 2018, it ruled Mountain Party candidate Jesse Johnson was ineligible for a House race even though he already was listed on the ballot. In 1992, Democrat Herbert Russell was ruled ineligible for a Senate seat. That opinion cited the five-year citizenship rule.
“The five-year citizenship requirement under article IV, section 4 of our Constitution serves the principal state interests of ensuring that the candidate is familiar with his constituency and aware of the needs and problems of both the State and its people,” it stated. “The durational citizenship requirement also makes certain that the voters are familiar with the candidate’s character, reputation, integrity and intelligence.
“Finally, the five-year citizenship requirement prevents frivolous candidacies by people who are only interested in holding public office and not genuinely concerned with the difficult issues facing this State and its people.”
Kiessling is being represented by Ritchie and Andrew Robey of Hissam Forman Donovan Ritchie in Charleston as well as by Williams and Shaina Massie of Nelson Mullins in Huntington. Stine is being represented by Majestro of Powell & Majestro in Charleston.
West Virginia Supreme Court of Appeals case number 22-0353
