The Kanawha County prosecutor called Erik Wells' attempt to get on November's general election ballot as an independent candidate for county clerk, even though he's a democrat, a "statutory scheme."
Kanawha Prosecuting Attorney Charles Miller filed his brief Thursday in response to Wells' appeal of an order last week that called his attempt to run as an independent "too little, too late."
"Now, Erik Wells, a registered Democrat," Miller wrote, "seeks to render the statutory scheme regarding nominations and primaries irrelevant by seeking inclusion on the general election ballot as an Independent. To permit one who is affiliated with a major party to ignore the requirements of the West Virginia Code regarding the nomination and primary process for major party candidates and run as an Independent simply because he feels like it would render the primary process meaningless."
Wells is appealing Kanawha Circuit Judge Charles King's order 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, argues that the 1st and 14th amendments to the U.S. Constitution protect Wells' right to appear on the ballot. Not only does Wells have a constitutional right to appear on the ballot, but voters also have the right to have a candidate of their choosing on the ballot, Wells' appeal states.
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. Wells could have requested that the Kanawha County Democratic Executive Committee place his name on November's ballot as a Democrat - but he didn't, Miller noted. A county party executive committee may nominate an individual to a vacant slot by acting within 30 days after the last date an individual may file. Therefore, the Kanawha Democratic Executive committee could have proffered a name for the vacant county clerk's slot before March 1.
Wells testified during a hearing in front of King that he decided in late June that he wanted to run against incumbent County Clerk Vera McCormick, a Republican. It as well past the May primary elections, and past the deadline for county Democratic Executive Committee to file the ballot vacancy for the office.
Miller pointed out in his response Thursday, that, when Wells filed to run as an independent, he did not reveal that he was a member of the Democratic party, as the form asks.
"As for the petitioner's excuse that he was, in essence, given permission to break the law by the Deputy clerk who accepted the incomplete form, no individual - not the clerk, not the Governor, and not the President of the United States - can give anyone permission not to follow the law," Miller wrote.
"We are all required to follow the law and its dictates when it comes to living our own lives, including filing for political office. The bank teller can't give the robber permission to take money from the bank. The store clerk can't give permission for one to walk out the doors without paying at Kroger. And a deputy clerk can't give permission for a prospective candidate to fail to comply with the mandatory statutory directives for completing the certificate," Miller's response states.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.