Full Disclosure: Christopher Regan of Bordas & Bordas represents the West Virginia Democratic Executive Committee, intervenor/amicus curiae, in this case.
Whether the Kanawha County Republican Executive Committee has the right to replace incumbent Delegate Suzette Raines after she withdrew her candidacy for the upcoming House of Delegates election.
Suzette Raines is the incumbent Delegate serving the 35th District in Kanawha County, West Virginia. In January 2014, Delegate Raines announced her intention to run for re-election as a Republican candidate. Delegate Raines placed second in the May 2014 primary election securing her place on the November 2014 general election ballot. In July 2014, the West Virginia State Democratic Executive Committee (WVDEC) filed a lawsuit challenging Delegate Raines’ qualification and eligibility to seek election in the 35th District. After a rule to show cause was issued and prior to hearing, Delegate Raines announced her intention to withdraw her candidacy on August 7, 2014 and filed a Notice of Withdrawal of Candidacy with the West Virginia Secretary of State on August 11, 2014.
On August 12, 2014, the Kanawha County Republican Executive Committee (KCREC) filed a request with the Respondent State Election Commission seeking to appoint a replacement for Delegate Raines on the November ballot. After convening an emergency hearing on August 13, 2014, the State Election Commission denied the request, finding Delegate Raines had not shown her withdrawal as a candidate was based upon extenuating personal circumstances that would prevent her from serving in office if elected, a showing required by W. Va. Code § 3-5-19(a)(6). On September 22, 2014, the KCREC filed a Petition for Writ of Mandamus asking the West Virginia Supreme Court of Appeals to require the Natalie Tennant, as Secretary of State and a member of the State Election Commission, and the State Elect Commission, including its individual members, to permit the Kanawha County Republican Executive Committee to appoint a replacement candidate for the November 2014 ballot.
The KCREC argues that the State Election Commission was required by W. Va. Code § 3-5-19(a)(6) and the West Virginia Supreme Court’s decision in State ex rel. Cravotta v. Hechler, 187 W.Va. 790, 421 S.E.2d 698 (1992) to permit the KCREC to appoint a replacement candidate for the November 2014 election. According to the KCREC, a supplemental statement made by Delegate Raines was sufficient to satisfy the “extenuating personal circumstances” requirement of the statute and the State Election Committee clearly erred by taking no action on the KCREC’s request to appoint a replacement candidate.
Respondents (Secretary of State, SEC):
The Respondents argue that the August 11, 2014 notarized “Notice of Withdrawal of Candidacy” filed by Delegate Raines with the Secretary of State made no mention of extenuating personal circumstances. The Secretary of State and SEC also note that an August 12, 2014 Order entered by the Circuit Court of Kanawha County, West Virginia recognizes that Delegate Raines’ withdrawal as a candidate for the West Virginia House of Delegates, 35th District, was a condition to the parties’ agreement to dismiss the lawsuit filed against her by the WVDEC. Respondents represent that the only evidence of “extenuating personal circumstances” submitted to the SEC was an un-notarized email attached to the KCREC’s request to appoint a replacement candidate. Respondents maintain that SEC was not legally authorized to permit the KCREC to appoint a replacement candidate because it did not find that Delegate Raines’ withdrawal of her candidacy was due to extenuating personal circumstances that would prevent her from serving. Respondents argue this finding is supported by the fact that Delegate Raines continues to serve as a Delegate for the 35th District. Respondents note that the lack of evidence of extenuating personal circumstances distinguishes this case from that presented in Cravotta. Additionally, Respondents request that Cravotta be reconsidered.
Intervenor WVDEC argues that the SEC properly found no evidence of extenuating personal circumstances and, therefore, had no statutory authority to grant the KCREC’s request to appoint a replacement candidate. WVDEC further argues that the KCREC’s request was untimely under W. Va. Code § 3-5-19(a)(6) and, therefore, the SEC did not have the authority to consider the request. According to the WVDEC, W. Va. Code § 3-5-19(a)(6) requires the KCREC to appoint and a replacement candidate certified no later than 78 days prior to the general election and also requires the original candidate’s withdrawal to occur no less than 84 days prior to the general election and be found to be warranted by extenuating personal circumstances. As Delegate Raines’ withdrawal was 83 days before the general election, W. Va. Code § 3-5-19(a)(6) prohibits the relief sought by the KCREC. The WVDEC also argues the untimeliness of the KCREC’s action would result in the disenfranchisement of voters as absentee ballots began to be mailed out on September 19, 2014.
Depending on the grounds selected by the Court, the case could be narrowly decided or far-reaching. The SEC’s and Secretary of State’s request that Cravotta be reconsidered could certainly be significant and portend some specific standards for the “extenuating circumstances” argument becoming established. The issues raised by the intervening party, the WVDEC, related to the time limits for establishing a substitute are more narrow. However, the most serious effect will be on the voters, particularly military voters who could lose their right to vote.