Don Blankenship may have gathered enough petition signatures to qualify for access to the November General Election ballot, but he faces two significant legal hurdles that he must overcome before he can be an official candidate.
The former Massey Energy CEO, who spent a year in federal prison for a mine safety violation conviction resulting from the investigation into the Upper Big Branch Mine disaster, finished third in the race for the Republican nomination for the U.S. Senate seat now held by Democratic Senator Joe Manchin.
Blankenship then switched to the Constitution Party as its U.S. Senate candidate and began gathering the signatures necessary under state law provisions for how a “minor party” candidate gets on the ballot. The state has a “sore loser” law which is aimed at preventing just what Blankenship is trying to do—flip parties after the Primary to run in the General Election.
One issue is which version of the state’s “sore loser” law actually applies.
Blankenship said during his filing Tuesday at the Secretary of State’s Office that the updated “sore loser” law went into effect June 5, after the Primary, and therefore the older law, which he says is flawed, should apply. However, attorney Marc Williams, who is representing the state, argues that Blankenship is covered by the updated law since the key date is when he actually filed his certificate of candidacy, which was Tuesday.
The next question is whether a “sore loser” law is constitutional. Blankenship will argue that such laws violate the equal protection and due process clauses of the U.S. Constitution and discriminate against so-called minor party candidates. If Blankenship is denied a position on the ballot, then it’s unfair to the Constitution Party.
The state will point out that historically the courts have upheld “sore loser” laws, while giving deference to state legislatures to adopt the rules for elections.“It’s pretty common for states to have provisions in their laws that have different sets of rules for minor parties that are more restrictive than for major parties,” Williams said.
Williams said there are no West Virginia cases that are exactly like the Blankenship issue, but there is case law from other states and at the federal level.
“Essentially we’ve had for about a hundred years various forms (of law) that limit ballot access in cases where you were a candidate in the primary then tried to switch parties and run for the same office,” Williams said. “I think Mr. Blankenship has an uphill battle.”
And beyond the legal question is a practical one; Blankenship took his best shot during the Primary Election campaign. He received 20 percent of the vote, compared with 29 percent for Evan Jenkins and 35 percent for the nominee, Patrick Morrisey.
Blankenship received just over 27,000 votes compared with nearly 48,000 for Morrisey from Republican and independent voters. The results indicate West Virginia voters have already made their decision about candidate Blankenship.