A Kanawha County judge has determined that former state senator Erik Wells, a Democrat, cannot appear on November's general election ballot as an independent candidate for county clerk.
Circuit Judge Charles King ruled Thursday that Wells is ineligible to run as an independent.
Wells said Thursday afternoon that he will appeal the decision to the West Virginia Supreme Court.
"I always felt, from the very beginning, this would be an issue that would ultimately go to the Supreme Court," he said.
King's order, issued six days after a "quo warranto" hearing on Aug. 12, concludes that the petition process to appear on the ballot as an independent or nonparty affiliated candidate is not available to people affiliated with political parties, who can get on the ballot through the primary election process.
"This is not a case of ballot access, but a case of too little, too late," King stated in the order. "When the respondent decided he wanted to run for office, after the primary election, it was too late to get on the ballot as a Democrat, so he was forced to try to go through the back door when, legally, he could not go through the front door."
Allowing Wells to appear on the November ballot as an independent, King ruled, "would be inaccurate and create voter confusion."
In the Aug. 12 hearing, Wells testified that he opted to use the petition process to appear on the general election ballot as an independent, saying he did not intend to run for county clerk until events in the news in May and June changed his mind.
He testified that, by the time he decided in late June that he was compelled to run against incumbent County Clerk Vera McCormick, a Republican, it was well past the May primary elections, and past the deadline for the county Democratic Executive Committee to fill the ballot vacancy for the office.
"It was only because of what took place in the news about this office that spurred me to run," Wells testified, referring to coverage first reported in the Gazette-Mail of confusion in McCormick's office over the redrawing of precinct maps that caused hundreds of May primary voters to end up voting in the wrong delegate or senatorial districts.
Also, earlier this year, McCormick was one of two county clerks statewide who refused to fully implement a new online voter-registration system championed by Secretary of State Natalie Tennant, Wells' wife.
Wells said Thursday that King's order does not address constitutional issues regarding ballot access.
"He never addressed the constitutional issues of the 1st and 14th amendments, but only interpreted sections of [state] code that clearly need to be clarified by the state Supreme Court," Wells said.
McCormick - who will be running unopposed for re-election if Wells isn't on the ballot - issued a statement Thursday afternoon saying she is "grateful for Judge King's prompt decision in this matter."
"I have considerable experience in election matters," McCormick said, "and I believe Judge King's ruling is not only correct, but the right thing to do."
McCormick said she will call an emergency meeting of the Kanawha Board of Ballot Commissioners early next week to proceed with the process of certifying the November ballot for printing.
Reach Phil Kabler at philk@wvgazettemail.com, 304-348-1220 or follow @PhilKabler on Twitter.