State ex rel. Blankenship v. Mac Warner, 18-0712

• Decision Date: 05 October 2018
• Docket Number: No. 18-0712,18-0712
• Citation: 825 S.E.2d 309
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia EX REL. Donald L. BLANKENSHIP and The Constitution Party of West Virginia, Petitioners v. Mac WARNER, in His Official Capacity as West Virginia Secretary of State, Respondent

825 S.E.2d 309

STATE of West Virginia EX REL. Donald L. BLANKENSHIP and The Constitution Party of West Virginia, Petitioners

v.Mac WARNER, in His Official Capacity as West Virginia Secretary of State, Respondent

No. 18-0712

Supreme Court of Appeals of West Virginia.

Submitted: August 29, 2018

Filed: October 5, 2018

Robert M. Bastress, Jr., Esq., Morgantown, West Virginia, Counsel for Petitioners

Nigel E. Jeffries, Esq., South Charleston, West Virginia, Counsel for Intervenor Nigel E. Jeffries

Marc E. Williams, Esq., Melissa Foster Bird, Esq., Christopher Smith, Esq., Anna C. Majestro, Esq., Nelson Mullins Riley & Scarborough LLP, Huntington, West Virginia, Counsel for Respondent

Elbert Lin, Esq., Hunton Andrews Kurth LLP, Richmond, Virginia, J. Mark Adkins, Esq., Richard R. Heath, Jr., Esq., Bowles Rice LLP, Charleston, West Virginia, Counsel for Intervenor The West Virginia, Republican Party, Inc.

FARRELL, Justice:

On August 9, 2018, the petitioners, Donald Blankenship and the Constitution Party of West Virginia, petitioned this Court requesting the issuance of a writ of mandamus directing the respondent, Mac Warner, West Virginia Secretary of State, to list Mr. Blankenship as a candidate for the United States Senate on the general election ballot as the Constitution Party’s nominee.

Secretary Warner subsequently filed a response to the petition. Intervenor briefs were filed by the The West Virginia Republican Party, Inc., and Nigel E. Jeffries.

On August 23, 2018, this Court issued a rule to show cause and ordered Secretary Warner to show cause, if any, why a writ of mandamus should not be awarded as requested by the petitioners. Oral argument was conducted on August 29, 2018.¹ For the reasons set forth herein, we deny the writ.

I. Factual and Procedural Background

In the May 2018 primary election, Mr. Blankenship sought but failed to win the Republican Party’s nomination for the United States Senate. Thereafter, on May 21, 2018, Mr. Blankenship changed his party registration to the Constitution Party. On July 17, 2018, the Constitution Party notified the Secretary of State that Mr. Blankenship would be that party’s nominee for the United States Senate.² On July 24, 2018, Mr. Blankenship filed with the Secretary of State’s office his "Candidate’s Certificate of Announcement for 2018 Elections" indicating his intention to run as a Constitution Party candidate. Mr. Blankenship paid the required filing fee and presented the signatures of a sufficient number of registered voters as specified by West Virginia Code § 3-5-23 (2018) the statute that governs certificate nominations.³

In a letter dated July 26, 2018, Secretary Warner denied Mr. Blankenship’s certification as a Constitution Party candidate based upon West Virginia Code § 3-5-23, explaining that the statute precludes him from utilizing the nomination-certificate process to become a candidate in the general election because he lost the Republican Party Primary. Upon receipt of Secretary Warner’s letter, Mr. Blankenship and the Constitution Party filed this petition for a writ of mandamus.

II. STANDARD OF REVIEW

It is axiomatic that "[m]andamus is a proper remedy to require the performance of a nondiscretionary duty by various governmental agencies or bodies." Syl. Pt. 1, State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist. , 151 W.Va. 207, 151 S.E.2d 102 (1966). Generally,

A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought, (2) a legal duty on the part of the respondent to do the thing which the petitioner seeks to compel, and (3) the absence of another adequate remedy.

Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling , 153 W.Va. 538, 170 S.E.2d 367 (1969).

Because of the need for promptness in cases affecting the right to political office, this Court has recognized that "[i]n West Virginia a special form of mandamus exists to test the eligibility to office of a candidate in either a primary or general election." Syl. Pt. 5, in part, State ex rel. Maloney v. McCartney , 159 W.Va. 513, 223 S.E.2d 607 (1976). "Because there is an important public policy interest in determining the qualifications of candidates in advance of an election, this Court does not hold an election mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus case." Syl. Pt. 2, State ex rel. Bromelow v. Daniel , 163 W.Va. 532, 258 S.E.2d 119 (1979). We have explained that "when a writ of mandamus has been invoked to preserve the right to vote or to run for political office ... this Court has eased the requirements for strict compliance for the writ’s preconditions, especially those relating to the availability of another remedy." Syl. Pt. 3, in part, State ex rel. Sowards v. County Comm’n of Lincoln Cty. , 196 W.Va. 739, 474 S.E.2d 919 (1996).

Having set forth the proper standards governing our review of this case, we now turn to a discussion of the parties’ arguments and the substantive law.

III. DISCUSSION

The petitioners argue that West Virginia Code § 3-5-23(a) does not disqualify Mr. Blankenship because he is now not a candidate in any primary election for public office. The petitioners further aver that the purpose of the statute is to prevent the practice of "cross filing," whereby a person may appear on the general ballot not only as the nominee of a recognized party but also as an independent candidate or as a candidate of an unrecognized party. The petitioners assert both statutory and constitutional challenges to the Secretary of State’s action.

Before we reach the issues in this case, we note that the West Virginia Constitution authorizes the Legislature to make laws concerning the election of public officials. This Court has held that "[t]he Constitution, in article IV, section 11, gives wide powers to the legislature to make all reasonable regulations and restrictions as to preparation of ballots and the conduct and returns of elections." Syl. Pt. 4, Morris v. Bd. of Canvassers of City of Charleston, 49 W.Va. 251, 38 S.E. 500 (1901). Specifically, Article IV, Section 8 provides that "[t]he legislature, in cases not provided for in this Constitution, shall prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed." Article IV, Section 11 provides that

[t]he legislature shall prescribe the manner of conducting and making returns of elections, and of determining contested elections, and shall pass such laws as may be necessary and proper to prevent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the vote, ascertaining or declaring the result, or fraud in any manner, upon the ballot.

Finally, this Court is mindful that the Legislature "inevitably must[ ] enact reasonable regulations of parties, elections, and ballots to reduce election-and campaign-related disorder." Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (citations omitted). Against this backdrop, we proceed to address the parties’ arguments.

A. The Meaning of West Virginia Code § 3-5-23(a)

Secretary Warner determined that West Virginia Code § 3-5-23(a) renders Mr. Blankenship ineligible to run as a Constitution Party candidate in the general election. The statute provides in relevant part:

Groups of citizens having no party organization may nominate candidates who are not already candidates in the primary election for public office otherwise than by conventions or primary elections. In that case, the candidate or candidates, jointly or severally, shall file a nomination certificate in accordance with the provisions of this section and the provisions of § 3-5-24 of this code.

It is Secretary Warner’s position that the words "who are not already candidates in the primary election" in West Virginia Code § 3-5-23(a) constitute a "sore loser" or "sour grapes" law. Secretary Warner contends that the law prohibits a candidate affiliated with a recognized political party who ran for election in a primary election and lost, from changing his or her voter registration to a minor party organization or becoming an unaffiliated candidate to take advantage of the later filing deadline for nomination-certificate candidates and have his or her name on the subsequent general election ballot.

Conversely, the petitioners contend that the words "who are not already candidates in the primary election" apply only during the pendency of the primary election. Because Mr. Blankenship filed to run as a nomination-certificate candidate after he lost the Republican primary election, the petitioners maintain that he is not prevented from utilizing the nomination-certificate process to run in the general election as the Constitution Party candidate. The petitioners assert that Secretary Warner’s interpretation of West Virginia Code § 3-5-23(a) is without support from the text of the statute, the explanatory notes, and the title of the bill as introduced and as finally passed. The petitioners contend that the purpose of West Virginia Code § 3-5-23(a) is to prevent "cross filing." Moreover, the petitioners point out that this Court’s recent opinion Wells v. Miller , 237 W.Va. 731, 791 S.E.2d 361 (2016), which discussed the statute at length, did not refer to the statute as a "sore loser law."⁴

In determining the meaning of West Virginia Code § 3-5-23(a), we are mindful that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. Pt. 1, Smith v. State Workmen’s Compensation Commissioner , 159 W.Va. 108, 219 S.E.2d 361 (1975). In addition, this Court has held that

A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and

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