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Federal judge keeps 17 independents on WV ballot

CHARLESTON, W.Va. — A federal judge ruled Thursday that 17 independent candidates must remain on November’s general election ballot in West Virginia.

Chief U.S. District Judge Robert Chambers heard arguments in Huntington on Thursday after two minor-party candidates filed a lawsuit Monday, claiming that Secretary of State Natalie Tennant had violated their constitutional rights by tossing them off the ballot because of a state Supreme Court ruling that barred a registered Democrat from getting on the ballot as an independent.

Darrell Castle, a Tennessee man who is the Constitution Party’s nominee for president, and Naomi Spencer Daly, a Cabell County resident running for the House of Delegates as a member of the Socialist Equality Party, filed their lawsuit Monday in federal court against Tennant.

The minor-party candidates then filed a motion Tuesday asking for an emergency ruling to temporarily restrict the secretary of state from removing them from the ballot.

Tennant’s office had notified the plaintiffs and 15 other candidates on Sept. 16 that they were being removed from November’s ballot based on a decision by the Supreme Court in a case involving former state senator Erik Wells. The court decided that Wells, who is married to Tennant, couldn’t be on the ballot as an independent candidate for Kanawha County clerk because he is a registered Democrat.

“The notification,” the lawsuit filed Monday reads, “stated that the Wells decision meant that independent candidates must have filed a certificate of announcement no later than January 30, 2016, in order to appear on the general election ballot in November.”

Based on the advice of counsel, Tennant, the plaintiffs argue, interpreted the Supreme Court’s decision to impose a January filing deadline on independent candidates seeking to appear on the November ballot, and she, therefore, applied that interpretation retroactively.

Tennant issued an emailed statement after Thursday’s hearing saying she was delighted by Chambers ruling.

“I am delighted by the court’s ruling today because these candidates will be able to be on the ballot,” Tennant said in the statement. “I have always fully supported ballot access for independent candidates and respect the wishes of the groups of citizens that support them.

“The court also acknowledged that the Secretary of State’s Office was compelled to follow the Supreme Court’s ruling when we removed six candidates from the ballot. With this ruling, the court has brought clarity in time for us to move forward and focus on providing a safe and efficient general election.”

 In a 4-1 decision, earlier this month, justices upheld a ruling by Kanawha Circuit Judge Charles King, which found that it would “be inaccurate and create voter confusion” to allow Wells on the ballot as an independent.

No Democrats filed to run for Kanawha clerk in this year’s primary election but, after the primary, Wells used a procedure for independent candidates to try to get on the ballot. Several other candidates, Democrats and Republicans, had used the process to get on the ballot and had their efforts thwarted by the Supreme Court ruling.

“To suggest that this would create voter confusion is putting it mildly,” Justice Margaret Workman wrote for the majority. Justice Robin Davis dissented.

The lawsuit by the minor-party candidates was filed by attorneys Bryan Sells, of Atlanta, and Anthony Majestro, of Charleston.

The West Virginia Chapter of the American Civil Liberties Union filed a brief Tuesday supporting the minor-party candidates’ claim that Tennant’s interpretation of the Supreme Court’s ruling is unconstitutional.

“The fact that this deadline was retroactively created and applied to plaintiffs makes it not just suspect, but clearly unconstitutional,” the amicus brief filed by head ACLU attorney Jamie Lynn Crofts states.

Chambers allowed D.W. “Peachie” Arthur, who filed to run in June as an independent candidate for Putnam County Commission, to intervene in the lawsuit and add Putnam Clerk Brian Wood as a defendant.

Arthur said he received notice earlier this month from Wood that he was being removed from the ballot, based on the Wells case. Attorney Harvey Peyton wrote to the judge that Arthur wasn’t represented in the original complaint, as those plaintiffs are candidates for national and statewide offices.

Chambers also ordered Thursday that Arthur, who changed his party affiliation from Republican to independent in March, be returned to the general election ballot.

Reach Kate White at [email protected], 304-348-1723 or follow @KateLWhite on Twitter.

See more from the Charleston Gazette-Mail.

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