Today my attorneys filed a petition with the Supreme Court of Appeals of West Virginia and requested that the Court order the West Virginia Secretary of State to correct its recent decision to deny me access to the 2018 General Election ballot as the Constitution Party’s candidate for U.S. Senate. The petition makes clear that the law relied upon by the Secretary of State in denying my ballot access is flawed in multiple ways and violates the Constitutions of both West Virginia and the United States.
The following is a layman explanation of some of the flaws of the law being relied upon:
First, even if the law were not otherwise flawed, it did not take effect until June 5, 2018—after the May Primary election and half-way through an election cycle. Generally, laws are rarely applied retroactively and, for obvious reasons, it is even more rare when the law relates to elections. Former United States Supreme Court Justice Antonin Scalia wrote “as a general rule, almost invariably, a legislation makes law for the future, not for the past.” Simply put, the Secretary of State declaring that I am impacted by any so-called “sore loser law” for a primary election loss prior to the law being enacted is nonsensical.
Further, the West Virginia Constitution specifically prevents a law from being enforced retroactively by expressly prohibiting “passage of a law depriving any right or privilege because of any act prior to the passage of such law.” This too clearly means that even if the law were otherwise valid, which it is not, it would not apply to this situation because my Primary election loss occurred in May—before the law was even enacted.
The petition also points out that the West Virginia Constitution requires that the title of every law passed include an accurate description of the law, including any major things the law intends to do. The law relied upon to deny me access to the General election ballot contains no reference whatsoever to the preclusion of a candidate who loses a primary election from gaining access to the ballot in the General election of the same year. This may seem petty, but the Constitutional requirement that the bill’s title state what the law is intended to do is for good reason. If someone is searching the law books to find laws that are relevant to an action someone is contemplating—like running for the US Senate, for example—then proper titling is critical to making the search effective and easy.
The petition also makes the point that the Secretary of State has allowed other candidates to be on the ballot this Fall who similarly lost in this year’s Primary election. These individuals are allowed to have their name on the ballot simply because they are members of the Mountain Party, which received more than one-percent of the vote in the 2016 Governor’s race. Accordingly, the Mountain Party has a right to select a “sore loser” to run as its nominee under the same rationale. But since the Constitution Party did not have a candidate in the 2016 Governor’s race (and therefore did not receive greater than one-percent of the vote), the Constitution Party does not have that same right.
The Secretary of State is taking this position despite the fact that a Political Party can earn an equal right to place candidates on the ballot by getting a petition signed by voters. We have completed and submitted such a petition with my name on it. The State denying the Constitution Party the same right as other parties is a violation of the Party’s equal rights as guaranteed under the Constitution and, therefore, the law must be invalid. Also, not allowing me on the ballot, while simultaneously allowing others who lost in the Primary election this year, is a violation of my personal guarantee of equal rights under the Constitutions of both West Virginia and the United States.
The conclusion of the filed Petition is that I have a fundamental right to be on the ballot as the Constitution Party nominee unless the government demonstrates a compelling state interest that I should not be. The state has not stated a compelling reason because there is not one—only the interests of the political parties and politicians are served by my not being on the ballot and those interests are not to be considered in determining who is and who is not on the ballot this Fall.
In summary, the law being relied upon by the Secretary of State to prevent my being on the ballot violates my equal rights as an individual, the Constitution Party’s equal rights, and attempts to apply a new law retroactively that is not properly titled, and for which there is no compelling state interest for keeping my name off the ballot. The bottom line is that if the West Virginia Supreme Court rules that I cannot be on the ballot, it will be reversible error.