West Virginia Supreme Court Bars Third-Party Candidate From Ballot

The West Virginia Supreme Court has ruled that a candidate who lost the GOP primary for Senate cannot run as the nominee of another party due to the state's "sore loser" law.

The Supreme Court of West Virginia has dismissed a lawsuit filed by Don Blankenship, a candidate who lost the GOP primary for Senate earlier this year and is seeking to get on the ballot as the candidate of the Constitution Party, thus seemingly putting his third-party bid to an end:

The West Virginia Supreme Court denied former coal company executive Don Blankenship’s bid to get on the ballot this November as a Constitution Party candidate after he lost the Republican primary earlier this year.

Blankenship’s effort could have shaken up the battleground race between Democratic Sen. Joe Manchin and state Attorney General Patrick Morrisey, the Republican nominee, siphoning critical votes from Morrisey as he seeks to oust the incumbent.

But West Virginia has a “sore loser” law preventing major-party primary losers from running on another ticket in November. Because of that, Republicans expressed little concern throughout the summer that Blankenship’s efforts to make the ballot would be successful, and the state Supreme Court shot down Blankenship’s appeal after the secretary of state denied his petition to be listed on the general election ballot.

“The West Virginia Secretary of State is ordered to take whatever measures are necessary to ensure that Donald L. Blankenship does not appear on the 2018 General Election Ballot for the Office of United States Senator for the State of West Virginia,” the court’s ruling read.

Morrisey has trailed Manchin in polling and fundraising in the race — one of five featuring Democratic incumbents in states that President Donald Trump won by double digits in 2016. But Republicans believe Morrisey can close the gap and keep the race competitive going into the fall.

Morrisey celebrated the decision Wednesday as the welcome end of a potential distraction.

“No more distractions to hide lying liberal Joe Manchin’s record of supporting pro-abortion policies, gun control and Hillary Clinton’s campaign against coal miners,” Morrisey said in a statement.

Blakenship came in third-place behind Attorney General Patrick Morrisey and Congressman Evan Jenkins in the Republican primary back in May, which was largely consistent with how he had been performing in the pre-election polling. Despite the fact that he was polling so low, and motivated in no doubt in part due to memories of last year’s candidacy of Roy Moore in Alabama, Blankenship had become the focus of a rather intense effort to block his campaign in the face of what appeared to have been a rise in the polls. Prior to running for Senate, Blankenship was best known as the CEO of Massey Energy, the owners of the Upper Big Branch Mine, the site of a 2010 mining disaster that led to the death of 29 out of 31 miners who were on site at the time of a devasting explosion. That explosion was later found to be due to massive violations of mine safety laws on the part of Massey, and it led to Blankenship being charged with multiple crimes and convicted on one charge that resulted in him serving a year in Federal prison, a sentence he finished serving less than a year ago. (Source) Needless to say, this is something that national Republicans saw as problematic in a potential nominee in a state that is still heavily dependent on mining as a source of income and employment. This was especially true given the fact that West Virginia was, and is, a target of Republican efforts to hold on to the Senate due in no small part to the fact that the President had won the state by an overwhelming margin two years ago.

During the campaign, Blankenship made a name for himself thanks largely to a brazenly racist attack against Senate Majority Leader Mitch McConnell and his family that was based primarily on the fact that McConnell is married to Secretary of Transportation Elaine Chao, who happens to be Chinese-American. In the closing weeks of the campaign, Blankenship released a video that was intended to run as a campaign ad during the final weekend of the campaign in which he makes reference to McConnell’s “China person” family, an apparent reference to Chao and her father both of whom are American citizens. Additionally, during interviews leading up to the release of the video, Blankenship referred to Chao’s father, who was born in China and is Chairman of the Board of an international shipping company as a “wealthy China-person.” He also implied that because of this alleged connection to China, McConnell and Chao could not be trusted to put American interests first. He also made some rather bizarre references to McConnell as “Cocaine Mitch,” apparently claiming that he is a drug kingpin or something. In any case, Republican voters rejected him rather overwhelmingly, but apparently, that’s not enough for Blankenship. Even during the primary campaign, though, Blankenship refused to rule out running as an independent in the General Election and within weeks after the campaign, he had announced that he would seek the nomination of the Constitution Party. Late last month, Blakenship was informed by the West Virginia Secretary of State that he would not appear on the ballot due to the state’s “sore loser” law, which prevents someone who lost a party primary from running as the nominee of another party. In response, Blankenship filed a lawsuit earlier this month and the state Supreme Court, which had original jurisdiction over the case due to the nature of the suit, heard oral argument and issued its order yesterday. The order, which I have embedded below, does not include a detailed analysis of the sore loser law but that will apparently be included in an opinion to be handed down in the near future. This would appear to end Blankenship’s bid to get on the ballot. He could appeal the matter to the U.S. Supreme Court, but the Justices are unlikely to take the case and unlikely to overturn the state Supreme Court on what is clearly an issue of the interpretation of state law.

As for the underlying election, things continue to look good for incumbent Senator Joe Manchin but the chances of Republican nominee Patrick Morrisey should not be dismissed. Several of the top political analysts, such as Stuart Rothenberg, Larry Sabato, Fox News, and RealClearPolitics, have the race as either “Likely Democratic” or “Leans Democratic,” although it’s worth noting that Charlie Cook, Daily Kos, and CNN continue to list the race as a “Toss-up.” In the polls, Manchin holds anywhere from a single digit to a ten-point lead or better over his Republican opponent. If that holds out, then Republican hopes of flipping this seat could be slipping through their fingers.

Here’s the Court Order:

blankenship v…. by Doug Mataconis on Scribd

FILED UNDER: Campaign 2018, Congress, Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    What’s to prevent Blankie from doing a write-in campaign?

  2. Joe says:

    What West Virginia Supreme Court? I thought they all just got impeached.

  3. HarvardLaw92 says:

    To be honest about it, Joe Manchin is already a Republican in everything but name. Aside from the desirable consequence of a victory for him making Democratic control of the Senate (slightly) more likely, he is of no real benefit to the party on the Senate floor.

  4. HarvardLaw92 says:

    @Joe:

    One (Davis) has resigned and will be replaced in the 2018 election. (She resigned on the last day that her resignation would force her interim replacement to face the voters in 2018 instead of 2020, presumably to flip WV House Republicans off).

    The other three (Loughry, Walker, and Workman) are temporarily suspended pending the outcome of their trials in the WV Senate.

    This order was delivered by three judges who are sitting on temporary assignment to the WV Supreme Court pending that outcome.

  5. Kylopod says:

    @HarvardLaw92:

    To be honest about it, Joe Manchin is already a Republican in everything but name. Aside from the desirable consequence of a victory for him making Democratic control of the Senate (slightly) more likely, he is of no real benefit to the party on the Senate floor.

    That is demonstrably untrue. By every single metric–538’s “Trump score” (how often he votes with Trump), his relative ranking by the Americans for Democratic Action–he is to the left of every Republican in the Senate, and way to the left of any Republican who would replace him in West Virginia. (In 538’s ranking, he has a Trump score of 60.5%; however, that’s 32.4% below what would be expected based on the partisan lean of the state he represents. Most Republican Senators have Trump scores of over 90%.) He voted against every incarnation of Obamacare repeal and the tax bill.

    Now I’m not saying I’m his #1 fan or that he’s some great liberal. But your argument that it’s of no consequence to the Democratic Party whether he wins or loses is nothing more than purity-troll bullshit.

  6. Mister Bluster says:

    The other three (Loughry, Walker, and Workman) are temporarily suspended pending the outcome of their trials in the WV Senate.
    This order was delivered by three judges who are sitting on temporary assignment to the WV Supreme Court pending that outcome.

    Don’t recall that anyone sat in on temporary assignment between Dec. 19, 1998 the date of Bad Boy Bill’s impeachment and Feb. 12, 1999 when he was acquitted.
    It was more than a few years ago so if President Clinton did anything more significant than light up the White House Christmas Tree and usher in 1999 in those 8 weeks my memory of it is lost.
    It is noted here that on January 6, 1999 Dennis Hastert replaced Newt as Speaker of the United States House of Representatives.

  7. HarvardLaw92 says:

    But your argument that it’s of no consequence to the Democratic Party whether he wins or loses is nothing more than purity-troll bullshit.

    I didn’t say that it was of no consequence at all. His simply being a Democrat aids in the party’s quest to retake the Senate. The fact remains that he is to the right of every single Democrat in the Senate.

    Assuming Democrats do retake the Senate, is he subsequently going to vote with them or is he going to vote with Trump? Get back to me with a realistic answer to that question before you start lobbing pejoratives at anyone.

    I’m willing to bet he votes with Trump, and in the combative atmosphere that will be in place if Democrats do retake the Senate, that is of no use to us.

    While we’re on the subject of “purity-trolling”, however, I will say that I’ve noticed a decided trend to attack anybody who says anything in contravention to the groupthink around here. Pot, meet Kettle.

  8. HarvardLaw92 says:

    Of course, when we have idiots like Chuck Schumer rolling over and handing Trump 19 far-righter judicial confirmations on a silver platter, for essentially nothing in return, it doesn’t matter much how useful someone like Manchin may or may not be. 🙄

  9. Mister Bluster says:

    …the groupthink around here.

    goddamn Borg.
    I refuse to be assimilated.

  10. Kylopod says:

    @HarvardLaw92:

    Assuming Democrats do retake the Senate, is he subsequently going to vote with them or is he going to vote with Trump?

    It’s not a binary choice. As you note, he currently votes with Trump more often than any other Democrat in the Senate (though not substantially more than Heitkamp, Donnelly, or Jones). But he votes with Trump less often–substantially less often–than every single Republican in the Senate. If he loses his seat this year, it’s a virtual certainty he’ll be replaced by a Senator who’s light-years more Trump-friendly. This isn’t Delaware we’re talking about, it’s West Virginia, Trump’s best state in 2016, where Trump currently enjoys sky-high approval ratings. Not surprisingly, the state’s other Senator, Shelley Moore Caputo, has a Trump score of 96%–a good 35% higher than Manchin’s, and almost certainly in the territory of where Manchin’s replacement will vote if he wins this year. In light of that, to suggest Manchin is “of no real benefit to the party” is to suggest half a loaf really is no better than none.

    It’s also exactly the type of thinking that will guarantee Dems remain in the minority for the foreseeable future. If Dems are to win–and retain power–in red states, by definition that means they’re going to be running candidates who are going to vote like Republicans a lot of the time–though not all the time. The value they provide isn’t that they’re all clones of Ted Kennedy, but that they are noticeably less extreme, less right-wing, than their Republican counterparts. That may not be the most inspiring message, but it’s the way politics works, and has always worked, and it is absolutely essential to creating majority coalitions, especially with a state map that is so heavily skewed against our party.

  11. rachel says:

    @HarvardLaw92: Yeah, what the heck could Schumer have possibly been thinking?