Kanawha County's prosecuting attorney asked a circuit judge today to determine if former state senator Erik Wells can run as an independent candidate for Kanawha County clerk in November's election.
Wells' application doesn't meet the requirements of state law, Prosecuting Attorney Charles Miller wrote in the "quo warranto" petition filed Wednesday morning. The filing is a legal proceeding to determine if a person is eligible to run for or hold the public office in question.
Miller argues that Wells cannot run for county clerk as a non-affiliated independent candidate while he is still a registered Democrat. The deadline for him to change affiliation and get on the ballot has passed.
Kanawha Circuit Judge Charles King has been assigned the petition, which asks for an expedited hearing. West Virginia judges are now elected in non-partisan races; before that, King ran as a Democrat.
Ballots are set to be printed in two or three weeks, said Miller, who is a Republican.
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.
Most of those signatures are from registered Democrats, Miller told the Gazette-Mail. "A group of citizens in a county, not affiliated with any major political parties, may put forth a candidate," according to state law, Miller told the Gazette-Mail. "Unfortunately, his registration is Democrat.
"Can he be a registered Democrat and be placed on the ballot as an independent? Keep in mind the process is meticulously described in [state law]," said Miller. "Can a Democratic candidate circumvent the process?"
Miller represents incumbent County Clerk Vera McCormick, who would be unopposed for re-election if Wells isn't allowed on the ballot.
McCormick sent a letter last week 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.
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.
During a hearing, Wells 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.
Also, 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.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow
@KateLWhite on Twitter.