The next stop in resolving a dispute over Erik Wells' eligibility to run as an independent candidate for Kanawha County clerk in the Nov. 8 general election is likely to be a hearing before a circuit judge.
In a letter Monday responding to questions raised by County Clerk Vera McCormick on Friday, the Secretary of State's Office advised that West Virginia election law provides for the county prosecutor to call a "quo warranto" circuit court hearing to resolve issues of candidates' eligibility in county races.
McCormick said Monday afternoon that she already has requested a meeting with Kanawha County Prosecutor Charles Miller to set up the hearing.
"Hopefully, that's very soon, because we're running close to out of time here," McCormick said, referring to the deadline to have November ballots certified and sent to the printer before the end of the month.
McCormick, who otherwise would be unopposed in her re-election bid, sent a letter Friday to Secretary of State Natalie Tennant's office raising six questions about whether Wells can be certified on the Nov. 8 ballot as an independent candidate for county clerk. Tennant and Wells are married to each other.
The key issue is whether Wells, a former state senator, can run for county clerk as a nonaffiliated independent candidate while he is still a registered Democrat.
Timothy Leach, assistant counsel to Tennant, advised McCormick on Monday that the Secretary of State's Office does not have authority to issue advisory opinions that public officials, candidates and citizens could rely on as legally binding.
"Furthermore, I am unaware of any Supreme Court case addressing the question," said Leach, who specializes in election law as counsel to the secretary of state.
He advised McCormick that state election law does provide for quo warranto - a legal proceeding to determine if a person is eligible to run for or hold the public office in question.
"Quo warranto is a legal proceeding that allows all parties, including the candidate, an opportunity to present arguments and facts for a ruling on eligibility by a circuit judge," Leach stated. "I am sure a motion to expedite would be entertained by the court, given that the ballots must be certified to the printer in approximately three weeks."
In the hearing, Wells - who could not be reached for comment Monday - would have the opportunity to argue why he should be certified as an independent candidate for county clerk.
Wells announced July 7 that he was running as an independent, saying he wanted to assure that voters would have a choice in what otherwise would be an unopposed election for county clerk.
He also cited issues with McCormick's tenure as clerk, including confusion over the May primary elections that resulted in a number of residents voting in the wrong delegate districts, and with her objections to implementation of a new statewide online voter registration system that had been championed by Tennant.
Additionally, McCormick filed an election law complaint against Tennant, for allegedly staging a brief campaign rally outside of the county Voter Registration Office prior to early voting in the 2014 general election. To date, there has been no formal resolution of that complaint.
Wells formally filed as a candidate on July 18, submitting a nominating petition with about 1,000 signatures, or about 400 more than needed to represent the 1 percent of the votes cast in the previous county clerk's election, as required by law.
McCormick has raised questions about whether voters with party affiliations could sign Wells' nominating petition, or if the signatures should be limited to voters registered as independents or with no party affiliation.
"It's the first time this has come up for us," McCormick, who has been clerk since 2005, said of the issues raised by Wells' candidacy.
She noted that election law requires that candidates running for party nominations must be registered with that party at least 60 days prior to the election. However, the law is not clear whether people running as independent candidates have the same deadline to change their registration to unaffiliated.
"I hope we can get this all straightened out quickly," McCormick said Monday. "Then, maybe, we can get changes made in the [state] code next year."
Reach Phil Kabler at philk@wvgazettemail.com, 304-348-1220 or follow @PhilKabler on Twitter.