Following a circuit judge’s order that votes for a state Senate candidate shouldn’t be counted because she doesn’t meet constitutional residency requirements, the candidate’s lawyers are asking the state Supreme Court for a stay because early voting has already begun and could be disrupted.
Lawyers for Andrea Garrett Kiessling, a candidate in a competitive Republican primary, filed the motion for stay and notice of appeal today. They asked for swift consideration by justices.
“The risk of voter disenfranchisement is patent and immediate,” her lawyers wrote. “Early voting is well- underway, and election day is only days away, on May 10. Expedited relief is desperately needed to avoid the irreparable harm that will now surely follow the Circuit Court’s unprecedented and erroneous intervention in an ongoing election.”
Justices have asked for a response to the stay request by 1 p.m. Friday.
Kanawha Circuit Judge Duke Bloom ruled Wednesday afternoon that Kiessling is ineligible because she just recently moved back to West Virginia after many years out of state.
The judge based that on a state constitutional requirement that political candidates be residents of the state five years prior to running for office. Until the last couple of years, Kiessling voted, paid her taxes and was licensed to drive in Charlotte, North Carolina.
Bloom ordered the Secretary of State to withdraw Kiessling’s certificate of candidacy and for votes for Kiessling not to be counted. Clerks in the district are supposed to post signage in polling place doors stating that Kiessling isn’t eligible.
The Secretary of State’s Office intends to adhere to the ruling, said Mike Queen, spokesman for the office. An emergency meeting of the State Elections Commission directed the office to move ahead with compliance. Shortly after that, the Secretary of State’s Office distributed an order reflecting that.
The Secretary of State’s order says clerks in the district are supposed to put up signs saying “Republican Party candidate Andrea Kiessling is not an eligible candidate for the office of Senate in District 8 in the primary election. Votes cast for Andrea Kiessling will not be counted.”
So far, Kiessling’s filings with the Supreme Court focus more on the extremely challenging timing of how to treat her candidacy while many voters have already cast ballots and as Election Day lies straight ahead.
Early voting is ongoing in West Virginia, and primary elections are next Tuesday, May 10. So Kiessling is already on ballots for a competitive Republican primary in Senate District 8. Finance reports show the campaign for the 35-year-old political newcomer has spent more than $31,000 on the race so far.
The district covers includes Roane and Clay counties and parts of Kanawha, Putnam and Jackson. A resident of that part of Kanawha County, Alicia Stine, is the petitioner in a case filed late last week.
The residency issues were raised initially last week by rival GOP candidate Joshua Higginbotham, a former state delegate now living in Cross Lanes. Other Republican candidates in the race are Mark Hunt, a former Democratic delegate from Charleston; and Mark Mitchem from Clay.
The state constitutional standard that Kiessling has to meet is being a citizen in West Virginia for five years and one year in the district she seeks to represent prior to being elected.
The West Virginia Constitution says elected officeholders including senators “must have been citizens of the state for five years next preceding their election or appointment, or be citizens at the time this constitution goes into operation.”
The Supreme Court has addressed that issue for some candidates in the past. For example, in 2018, Mountain Party candidate Jesse Johnson was ruled ineligible for a House of Delegates race, even though his name was already on ballots.
Justices also took up similar issues in 1992 when a Democratic candidate, Herbert Russell, was ruled ineligible for a Senate seat representing Eastern Panhandle counties. In that case, the court majority wrote that the five-year standard for West Virginia citizenship leading up to election exists for good reasons.
Justices wrote, “The five-year citizenship requirement under article IV, section 4 of our Constitution serves the principal state interests of ensuring that the candidate is familiar with his constituency and aware of the needs and problems of both the State and its people.
“The durational citizenship requirement also makes certain that the voters are familiar with the candidate’s character, reputation, integrity and intelligence. Finally, the five-year citizenship requirement prevents frivolous candidacies by people who are only interested in holding public office and not genuinely concerned with the difficult issues facing this State and its people.”
In a hearing earlier this week, Kiessling testified that she purchased a home and farm in Roane County in November, 2021. She testified that she bought and titled vehicles in West Virginia in 2019. She got a West Virginia drivers license in August 2021. Her drivers license reflected North Carolina residency from 2012 to 2021.
She filed West Virginia income tax returns the past two years and filed in North Carolina the years prior to that. Her voting record shows participation in North Carolina elections from 2012 to 2020.
After Judge Bloom issued the ruling that she is ineligible, Kiessling recorded a video to encourage her supporters and indicating she considers herself a West Virginia resident.
“I am a proud West Virginian. And I returned to West Virginia to raise my children, to help start a Christian school, to bring jobs to West Virginia, to preserve West Virginia values and most importantly to serve the state I love. And I intend to do just that.”
One of her biggest supporters, political consultant Greg Thomas, argued today that the deck has been stacked against Kiessling. Thomas said he believes the situation will change at the Supreme Court.
“Liberal activist judges are something that we’ve had in West Virginia for decades. This is nothing more than the Charleston liberals’ last minute attempt to stop a conservative woman from representing the 8th District, which encompasses downtown Charleston,” he said.
“And that’s why they were willing to go to this extreme last-minute attempt to get her off the ballot.”
.@gregthomaswv reacts to Kanawha County Circuit Judge Duke Bloom declaring Andrea Kiessling ineligible to run for the State Senate. Greg joins @HoppyKercheval to discuss. WATCH: https://t.co/yCFQ3nDJuy pic.twitter.com/FzfTcRt35A
— MetroNews (@WVMetroNews) May 5, 2022