Former state senator Erik Wells, a Democrat, has a constitutional right to appear on November's general election ballot as an independent candidate for county clerk, according to his appeal of a lower court's ruling finding him ineligible to run.
Wells is appealing Kanawha Circuit Judge Charles King's order last week concluding that the petition process to appear on the ballot as an independent or non-party affiliated candidate is not available to people affiliated with political parties, who can get on the ballot through the primary election process.
Attorney Pat Maroney, who is representing Wells, said it is clear the 1st and 14th amendments to the U.S. Constitution protect Wells' right to appear on the ballot.
King's ruling didn't address constitutional issues regarding ballot access, Wells previously said, and that's what Wells' appeal focuses on.
Not only does Wells have a constitutional right to appear on the ballot, Maroney argues in the filing with the Supreme Court on Tuesday, but voters also have the right to have a candidate of their choosing on the ballot.
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.
In an Aug. 12 "quo warranto" hearing in King's courtroom, 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. 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.
Kanawha Prosecuting Attorney Charles Miller has until Friday to respond to the appeal.
"It has the potential to create confusion and fraud in an election," Miller has said about allowing Wells' argument to stand.
One scenario, Miller previously said, is that a major party could set up an independent candidate to aid the party's nominee in the general election, such as the Democratic Party running a member as a "conservative independent" candidate, in hopes of siphoning votes away from the Republican challenger.
Miller filed the petition that was before King on behalf of McCormick, who will be running unopposed if Wells isn't on the ballot.
After King's ruling, she issued a statement that she has "considerable experience in election matters and I believe Judge King's ruling is not only correct, but the right thing to do."
Wells and Maroney have asked the Supreme Court to schedule oral arguments.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.