3:06pm: Hotline with Dave Weekley

Justices won’t reverse conclusion that Senate candidate is ineligible over NC residency

In few words, West Virginia Supreme Court justices said they will not reverse an order declaring a state Senate candidate ineligible in a competitive district.

“Upon consideration and review, the Court is of the opinion to and does refuse the motion for temporary stay and the motion for expedited consideration is refused as moot,” justices said in an order filed this afternoon.

That happened as top West Virginia political figures traded shots over the court system’s role in determining a Senate candidate’s eligibility. Political supporters of Republican candidate Andrea Garrett Kiessling had assailed a circuit judge’s ruling on her ineligiblity as evidence of an activist court.

That criticism continued even after a Supreme Court majority that most state residents regard as conservative gave its terse response.

Craig Blair

Senate President Craig Blair, R-Berkeley, issued his second statement of the day, expressing frustration over the whole situation.

“The core issue of this matter is the preservation of election integrity and conducting free and fair elections. The Supreme Court in its decision today provided no direction to achieve this monumental goal. It’s vitally important that the judicial branch provide clarity in its interpretations of the law and constitution, and sadly, we did not receive that,” Blair stated.

“This is not an issue of power. This is an issue of fairness. Nobody would dispute that we have processes in place to challenge issues related to candidates and elections, but we must respect those processes to prevent the disenfranchisement of any voter.

Senate Finance Chairman Eric Tarr, R-Putnam, had been a vocal supporter of Kiessling’s candidacy. In a social media post today, Tarr made no reference to the constitutional residency requirements that were disputed in this case, instead focusing on political partisanship and questioning electoral integrity.

Her lawyers, though, thanked the judges at all levels for their consideration, even while expressing disappointment at the outcome.

“We would like to thank Judge Bloom and the Supreme Court of Appeals for their prompt and professional consideration of the issues relating to Andrea Kiessling’s candidacy for State Senate,” wrote Marc Williams and Zak Ritchie, counsel for Kiessling.

“We are disappointed that Ms. Kiessling will not be on the ballot this Tuesday, but we understand that this is a country of laws and that sometimes the judicial process will result in decisions with which we disagree. But in every case, we respect the process and the judges who make those decisions.”

Andrea Garrett Kiessling

Kiessling, a candidate in a competitive Senate District 8 race, was asking the Supreme Court to halt and then reconsider a lower court’s ruling that she is ineligible to run for the office because of constitutional residency issues.

Supreme Court justices had set a 1 p.m. deadline for the plaintiff questioning Kiessling’s eligibility to file a response. So justices were still considering arguments in the case well into the day, even as early voting continued in the district that includes Clay, Roane and parts of Kanawha, Putnam and Jackson counties.

Election Day is Tuesday.

Signs were posted in precincts in the district to notify voters that Kiessling has been ruled ineligible in court after the Secretary of State and the State Elections Commission agreed to comply. They said, “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.”

The state constitutional standard that Kiessling had 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.”

Until the last couple of years, Kiessling voted, paid her taxes and was licensed to drive in Charlotte, North Carolina.

Kanawha Circuit Judge Duke Bloom, following a hearing where Kiessling testified, agreed those factors point to North Carolina citizenship and concluded the constitutional requirements make her ineligible. 

Lawyers for Kiessling asked the Supreme Court for a stay and for her case to be reconsidered.

“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.”

The final filing today before justices started full consideration of the case was a response on behalf of the petitioner who sought to have Kiessling ruled ineligible. Kanawha County resident Alicia Stine brought the case.

Attorney Tony Majestro wrote in that filing: “The facts and the law are clear. Andrea Kiessling, who for at least four of the past five years was a resident of North Carolina, is not eligible to be elected to the West Virginia Senate in 2022.

“This is not even a close case. Simply put, her actions in North Carolina conclusively establish that she was not a West Virginia citizen for the past five years as is explicitly required by the West Virginia constitution.”

The filing for the plaintiff argued that although ending Kiessling’s candidacy now could disenfranchise district residents who have voted already, even more voters could be affected by deciding the matter after the election.

That’s because ruling her ineligible post-election would not mean a win for the candidate with the second most votes. Instead, the Republican executive committee for the senatorial district would select a candidate to run in the General Election.

“While some voters may have already voted for her in the early voting period, the vast majority of votes remain uncast. Those votes for her as an ineligible candidate will not be counted regardless of whether a stay is granted. Should the stay be granted, however, more voters will likely cast their ballots for a candidate that will ultimately be disqualified, resulting in even more voter disenfranchisement,” Majestro wrote.

“And, if Ms. Kiessling somehow obtains the most votes in the election, all the Republican primary voters in the district will be disenfranchised as the Republican executive committee will be tasked with replacing Kiessling on the ballot.”

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.

Kiessling’s candidacy was supported by prominent Republican political figures, including GOP consultant Greg Thomas and Tarr, the Senate Finance chairman. Over the past few days, they referred to Judge Bloom’s original ruling as an example of liberal activism from the bench.

Senate President Blair issued a statement early today blasting the first circuit court decision.

Of Bloom’s ruling, Blair said: “Like all people who hold their right to vote sacred, I am deeply troubled by the precedent set by this activist judge. A judge has no right to unilaterally decide whether a candidate is fit for office. That is a job for the voters and the voters alone.

“The place for our courts to offer remedy in a dispute such as this is after a lawfully held election takes place, not in the middle of it. Every person who believes that we, the people, hold the final say over our elected representatives should share my disappointment and my outrage.”

Stephen Baldwin

That statement, in turn, drew a rebuke from Senate Minority Leader Stephen Baldwin, D-Greenbrier.

“Instead of permitting this issue to work its way through the Courts and even the West Virginia Supreme Court, Senate President Blair resorts to the name-calling and personal attacks begun by Senator Eric Tarr and Greg Thomas earlier this week. That is not how democracy works,” Baldwin said.

“It is our duty as elected leaders to respect checks and balance, separation of powers, and treat each other with respect. There is no place for intimidation and bullying of one branch by another.”

Baldwin concluded, “It is a dangerous and unacceptable precedent for the Lieutenant Governor of West Virginia to seek to bully and intimate the judicial branch of government into rendering a judgment which he wants.”

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