CHARLESTON — Don Blankenship will not be on the November General Election ballot for U.S. Senate in West Virginia after the state Supreme Court denied his attempt in an order handed down Wednesday afternoon.
The order came about three hours after oral arguments concluded before the court in which Blankenship’s attorney argued the state’s Sore Loser Law shouldn’t apply to his client’s case because it took effect after Blankenship became a candidate representing the Constitution Party, and the law itself violates the Equal Protection Clause of the Constitution.
Blankenship came in third in the Republican Primary in May in the race for U.S. Senate.
In its one-page order, the court said it “thoroughly reviewed the appendix record and the arguments set forth in the briefs of the parties. After careful consideration of all filings and oral argument by the parties, the court is of the opinion that the writ shall be, and it hereby is, denied.”
The court said it acted quickly because of approaching deadlines associated with the November election.
Blankenship issued a statement following the ruling calling it a “frightening decision.”
“Essentially, the Republican Party can now slander a candidate throughout the Primary, effectively denying that candidate an equal opportunity to win the nomination, and simultaneously pass a law in the middle of an election cycle, which prohibits the slandered person from being on the General election ballot,” Blankenship said. “Americans desperately need to pay attention as the politicians continue to move voters to the sidelines and out of the election process.”
Blankenship said his attorneys would be evaluating his next step.
WVU College of Law professor Bob Bastress, representing Blankenship and the Constitution Party, told justices the “sore loser” law, as written, is unfair.
“For on the one hand, permitting the major parties, Democrats and Republicans, and other recognized parties, in this case the Libertarians and the Mountain Party, to run sore losers but preclude the party like the Constitution from doing so,” Bastress said.
But attorney Marc Williams, representing Secretary of State Mac Warner, who denied Blankenship ballot access, countered Battress telling the court the state is allowed to draw a distinction between recognized and unrecognized political parties.
“The policy reason is simple. Recognized political parties have earned that right at the ballot box,” Williams said.
Bastress also argued Blankenship should be on the ballot because the latest provisions of “sore loser” didn’t go into effect until after Blankenship was nominated by the Constitution Party to be its candidate in November. Williams disagreed, saying Blankenship didn’t become a candidate until the required signatures were handed in, which came after the new provisions of the law took effect.
“It went into effect in June. He submitted his materials in July, and under those circumstances, it’s not retroactive,” Williams said.
Taylor County’s Alan Moats, sitting on the case by temporary assignment, asked Bastress why Blankenship didn’t choose one of the recognized parties for his fall run.
“What the law says as I understand it, Mr. Blankenship could do now what he is wanting to do if he would have gone to one of the recognized parties because he could have been put on the ballot through the convention process,” Moats said.
Former state Solicitor General Elbert Lin, arguing on behalf of the West Virginia Republican Party, told the court the “sore loser” law is clear.
“He is ‘already a candidate in the primary election.’ There’s no ambiguity there. There is only one way to read that statute,” Lin argued.
Secretary of State Warner said the court’s decision validates the law.
“Today’s decision is a victory for our office and all the state’s local election officials preparing for the November election. This decision puts the issue to rest and allows voters going to the polls to know with certainty who will be on the ballot,” Warner said.
The Supreme Court, which was made up of Chief Justice Margaret Workman, Justice Beth Walker, Moats and temporary assignment justices Paul Farrell and Darrell Pratt, promised a longer explanation of its decision to be filed at a later date.
The general election ballots are scheduled to go to the printer by the end of next week.
The arguments were interrupted for about an hour Wednesday morning when a fire alarm went off in the capitol. The marshal of the court told Workman it was a legitimate alarm.
“Does that mean we have to get up and leave?” Workman asked. She then dismissed those in the court. They spent several minutes outside after a fire in the capitol restaurant was extinguished.