CHARLESTON, W.Va. — The West Virginia Supreme Court will hear arguments Wednesday regarding former Massey Energy CEO Don Blankenship’s bid for U.S. Senate.
Blankenship, who finished third in this year’s Republican primary for Senate, is challenging the state’s “sore loser” law in an attempt to appear on the ballot as the Constitution Party’s candidate.
West Virginia Attorney General Patrick Morrisey won the May 8 election and the opportunity to challenge Democratic Sen. Joe Manchin in November.
The former coal executive announced in late May his intent to run in the general election, filing to run in the contest on July 24.
The West Virginia Secretary of State’s Office denied the request two days later.
“According to the plain language of the law, which controls my decision, a candidate who loses the Primary Election cannot use the nomination-certificate process to run another campaign in the General Election,” Secretary of State Mac Warner said. “Any other decision would be contrary to the law.”
Counsel representing the Secretary of State’s Office doubled down in a brief filed Aug. 21, adding the process is also a longshot attempt by the Constitution Party to gain state recognition.
“In short, Mr. Blankenship’s sore loser candidacy commandeers a process reserved for independent and small party candidates seeking to bypass the primary election and uses the nomination-certificate process to thwart the will of Republican voters,” the brief says. “Not only that, it opens the door for political chaos by creating splinter factions of the Republican Party, potentially artificially elevating the Constitution Party to recognized party status.”
The office added ballot printing must be approved by Sept. 7 in order for county clerks to have absentee ballots by Sept. 21.
According to a June poll from Monmouth University, a Blankenship candidacy would impact Morrisey’s Senate chances more than Manchin’s efforts, but not by an amount enough to change the outcome of the race; Manchin leads Morrisey by 7 points in a two-way race compared to 9 points if Blankenship is an option.
Attorneys with Nelson Mullins Riley and Scarborough LLP are representing the Secretary of State’s Office due to Morrisey’s involvement in the Senate contest.
Blankenship counsel Robert Bastress Jr. said the campaign met the requirements to run on the ballot, arguing changes to the state’s “sore loser” law made during the legislative session cannot apply to the current election cycle.
Legislators passed a resolution in March to address ambiguities in the statute. The law went into effect June 5, after the Constitution Party named Blankenship as its nominee.
“Allowing HB 4434 to govern the 2018 election constitutes changing the rules in the middle of the game — a practice to which fair-minded people object, even in sports,” Bastress states in the petition. “Elections do not occur in one day, but in cycles … For this reason, as a general principle, laws enacted during an election cycle should apply in the next cycle.”
Bastress also serves as a constitutional lawyer at the West Virginia University College of Law.
Blankenship said after he filed in July the change in the law is a constitutional violation.
“There was a law in place at the time of the primary, and that law would be the one they have to depend on, which is extremely flawed,” he said.
The West Virginia Republican Party, represented by Morrisey’s former solicitor general Elbert Lin and Bowles Rice LLP, filed a motion to intervene in addition to a response to Blankenship’s petition.
“Disgruntled by the result, Mr. Blankenship announced two weeks later that he would run as a ‘third-party candidate’ for the United States Senate in the 2018 General Election. A long-time Republican, Mr. Blankenship then changed his party registration to the ‘Constitution Party,'” the response states. “The problem for Mr. Blankenship, however, is that the West Virginia Legislature has enacted laws, consistent with the state and federal constitutions, to prohibit precisely this kind of sore-loser candidacy.”
Lin stepped away from the state Attorney General’s Office in September 2017 after spending four years overseeing lawsuits and issuing opinions.
The hearing comes following significant changes on the state Supreme Court; Chief Justice Margaret Workman and Justice Beth Walker will hear the case, as will appointed Justice Paul Farrell, Judge Darrell Pratt of Wayne County and Judge Alan Moats, whose court includes Barbour and Taylor counties.
Justice Allen Loughry remains suspended from the state Supreme Court following charges of judicial misconduct from the state Judicial Investigation Commission. Justices Menis Ketchum and Robin Davis retired from the court amid questions and proceedings regarding actions by the justices.
Arguments are scheduled to begin at 10 a.m.