CHARLESTON — Constitution Party U.S. Senate candidate Don Blankenship is expected to file his certificate of nomination with the West Virginia Secretary of state on Tuesday July 24.
Then the question of whether he can really run under the state’s “sore loser” law is likely to be settled in court, said Steve Connolly, legal counsel for the secretary of state’s office, and Phil Hudok, state Constitution Party vice chair.
Because the Constitution Party isn’t a recognized party — it hasn’t — gained enough votes in previous elections to qualify — candidates have to gather signatures and file certificates.
Hudok said Blankenship expected to have already filed his certificate, but they had a lower percentage of validated signatures than expected — they need 6,600 valid signatures — so he’ll be filing “a little later than anticipated.” Hudok wouldn’t specify a day but Connolly said they expect it to be Tuesday.
Once Blankenship files, Connolly said, the secretary of state will likely deny the candidacy, leading to a lawsuit to settle the question of the recently revised sore loser law, which prohibits a primary election loser from filing with another party to re-run in the general.
Blankenship came in third in the May 8 Republican primary, garnering 19.97 percent of the GOP vote, compared to 29.21 percent for Rep. Evan Jenkins and 34.9 percent for winner Attorney General Patrick Morrisey.
Morrisey will challenge and Blankenship hopes to challenge Democrat Sen. Joe Manchin in November.
The sore loser law comes in state code 3-5-23.
Paragraph (a) of that section says, “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.”
Many felt that the paragraph is unclear concerning the time between the primary and the general, because it says “are not already candidates.”
So the Legislature passed HB 4434 last session. Sponsored by House Judiciary chair John Shott, R-Mercer, and vice-chair Roger Hanshaw, R-Clay, and amended during its passage through both chambers, it adds paragraph (g).
The new paragraph clarifies the confusion by saying: “For the purposes of this section, any person who was a candidate for nomination by a recognized political party as defined in §3-1-8 of this code may not, after failing to win the nomination of his or her political party, become a candidate for the same political office by virtue of the nomination-certificate process as set forth in this section.”
HB 4434 passed on March 7, was signed by the governor March 22 and took effect June 5 – after the May 8 primary.
Connolly said they expect to challenge the law for unconstitutionally depriving Blankenship of ballot access by retroactively applying the new law to the May primary.
The secretary of state will counter that Blankenship couldn’t have filed any earlier than Friday, and was in effect before he filed.
“We believe that the law is fairly settled and clear in this regard,” he said. “We believe that the law is pretty clear in not only West Virginia but in other states, that the legislature is given the authority and the mandate to regulate the elections process, to prevent chaos.”
(Only three states lack some type of sore loser law, according to a study published by professors from the University of Wisconsin and Emory University in Georgia.)
This isn’t an antagonistic situation, Connolly said. Blankenship’s campaign has been openly talking with the office.
The secretary wants a juridical determination on the constitutionality of the law, he said. “If a judge comes down on his side, then we’re going to put him on the ballot. If a judge comes down on our side, then we’re not.”
Morrisey can’t represent the state because he’s running for the office in question, so the secretary will be represented by outside counsel. Once Blankenship files suit, they expect to file a response and a request for an expedited hearing within a week.
The Constitution Party announced Blankenship’s nomination for the candidacy in May, and said this at the time: “We look forward to Mr. Blankenship overturning the state’s poorly drafted ‘sore loser’ law and being on the ballot so that the West Virginia people – not the Establishment – are able to choose their Senator.”
Asked about a lawsuit, Hudok said on Friday, “I would say that’s pretty certain.”
When Blankenship ran in May, he said, only Republican voters got a say. “When the Constitution Party runs a candidate, everyone in the state gets to express their feelings.”
He said it’s unfair to call 3-5-23 a sore loser law. What it does is restricts the democratic process and what the people as a whole would like.
Hudok also objected that only Republicans and Democrats had a hand in shaping a law that affects all the other parties. “We had no say in that.”
The general speculation has been that a Blankenship candidacy would serve as a spoiler – draining off votes from Morrisey and assuring Manchin’s re-election.
“I don’t believe that’s why he’s running,” Hudok said. “I know that’s not why we nominated him.”
Hudok has run for office twice: U.S. Senate in 2014 and governor in 2016. He’s seen how the establishment impedes third parties — denying them spots in debates and on the ballots.
“History has shown if you battle, if you don’t give up, you can persevere and be successful.”
