West Virginia Supreme Court Denies Blankenship Ballot Bid

Former coal executive Don Blankenship waits outside the West Virginia Capitol on Wednesday, Aug. 29, 2018, after the Capitol was evacuated due to a fire alarm in Charleston, W.Va. The alarm interrupted Blankenship's hearing in the state Supreme Court.

The state Supreme Court on Wednesday denied a last-minute bid by former coal CEO Don Blankenship to get his name on the ballot in November’s U.S. Senate race in West Virginia.

The court upheld a decision by the secretary of state denying Blankenship’s application for a third-party candidacy.

“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 decision said.

Blankenship has said he could go to a federal appeals court if his bid was denied. He did not immediately comment on the court’s decision Wednesday.

The court itself is in a state of upheaval. One of the judges hearing the case Wednesday was filling in for a suspended justice, and two sat in for judges who retired after lawmakers voted to impeach them.

Secretary of State Mac Warner had blocked Blankenship’s bid to run as the Constitution Party’s nominee, based on the state’s “sore loser” law. It prohibits major-party primary candidates who lose from switching to a minor party. Blankenship finished third in the Republican primary in May.

“The state of West Virginia has the right to draw reasonable restrictions to regulate elections,” said Marc Williams, who represented the secretary of state’s office at the hearing.

Blankenship argued the sore loser law was applied to him retroactively. He said lawmakers clarified the law earlier this year and it didn’t become effective until June, after he had begun the process of running as a candidate for the Constitution Party.

The secretary of state’s office said Blankenship didn’t file a certificate of candidacy until late July.

West Virginia University law professor Robert Bastress, who represented Blankenship, said Blankenship met the requirements to run on the ballot and that any election-related statutes enacted during the election cycle “are essentially changing the rules of the game.”

Attorney Elbert Lin, representing the state Republican Party, which intervened in the case, asked the court to keep Blankenship off the ballot.

The justices asked several questions, including about previous case law. One noted that Blankenship could have simply run as a write-in candidate after losing in the primary.

The Supreme Court’s fall term doesn’t start until early October but scheduled Blankenship’s hearing because the case must be expedited to enable ballot printing to be approved by an early September deadline. The Senate race features incumbent Democratic Sen. Joe Manchin; Republican nominee Patrick Morrisey, who is the state attorney general, and Libertarian candidate Rusty Hollen.

Chief Justice Margaret Workman and Justice Beth Walker heard the appeal, along with three circuit judges.

Paul Farrell was appointed to fill in for suspended Justice Allen Loughry, who faces an impeachment trial in the state Senate along with a federal trial over allegations including that he repeatedly lied about using his office for personal gain.

Workman appointed circuit judges Alan Moats and Darrell Pratt to fill in for Robin Davis and Menis Ketchum. Ketchum retired last month before the House of Delegates impeached the court’s four other justices. He has pleaded guilty to a felony fraud count related to his personal use of a state vehicle and gas fuel card and faces up to 20 years in prison. Davis retired after she was impeached.

Blankenship is the former CEO of Massey Energy, which owned a mine where a 2010 explosion killed 29 workers. He spent a year in federal prison for safety violations related to the explosion.