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CHARLESTON -- S. Marshall Wilson, an independent candidate for Governor of West Virginia, pushed back on claims by state officials that he had plenty of time to gather signatures to qualify for ballot access according to court documents filed over the weekend.
Wilson, a member of the House of Delegates representing part of Berkeley County, filed a response Monday to a motion to dismiss his lawsuit by the state Attorney General's Office on behalf of Secretary of State Mac Warner and Gov. Jim Justice last Thursday.
The state officials also filed a response in opposition of Wilson's motion for preliminary injunction on Saturday to force the Secretary of State's office to waive the signature requirements to allow Wilson to be placed on the ballot for the Nov. 3 general election.
A hearing before U.S. District Judge Thomas Johnston took place Monday afternoon. During that hearing, Johnston ruled against Wilson's motion for a preliminary injunction.
A former Republican who switched to independent at the end of 2019, Wilson declined to run for his House seat after serving two terms. Wilson filed his certificate of candidacy for governor on Aug. 3 but stated in his original complaint filed with the U.S. District Court for the Southern District of West Virginia Aug. 4 that he – along with supporters – had been collecting signatures to be placed on the ballot since January.
According to Chapter 3 of State Code which governs elections, candidates who decide to run without an affiliation with a political party must collect nominating certificates signed by 1 percent of the voting population who voted in the previous election for the seat the candidate is running for. Wilson needed to collect 7,139 valid signatures of registered voters by Aug. 3.
Wilson said in his complaint that the stay-at-home order issued by Justice on March 23 and lifted on May 4 – a 42-day period when people were required to remain at home except for reporting to work at essential businesses, shopping for groceries and supplies, and medical services – caused him to collect fewer signatures than he would have otherwise.
According to the Secretary of State's Office, Wilson collected 5,710 signatures. After county clerks checked the signatures to verify the voter registration of the signatories, only 4,740 signatures were deemed valid – 2,399 less than what was required to be eligible for the November ballot.
In the motion to dismiss filed on behalf of Warner and Justice by Deputy Attorney General Curtis Capehart last week, they argue that Wilson's delay in bringing the case until after the Aug. 3 deadline was "inexcusable and unreasonable." They argue that Wilson's case could push back hard deadlines for counties to finalize, approve, and print absentee ballots and program electronic voting machines.
Capehart also wrote that Wilson should have brought suit when Justice issued the stay-at-home order instead of waiting until after the deadline.
"(Wilson's) causes of action arise from a combination of the COVID-19 pandemic and the 'Stay at Home' order," Capehart wrote. "(Wilson) was or should have been aware that the 'Stay at Home' order applied to his signature-gatherers from the moment the order was issued … his failure to act over the next 135 days was inexcusable and unreasonable."
Wilson, in his response Sunday, said he didn't have a valid cause to file his lawsuit until his candidacy was rejected by the Secretary of State's Office.
"(Warner and Justice) incorrectly argue Wilson should have taken action when Governor Justice issued his Stay Home Order," wrote John Balenovich, attorney for Wilson. "Wilson did not have standing at that time because his injury was speculative and hypothetical.
"As applied to Wilson, the burden created by the Executive Orders by Governor Justice and the Secretary of State in combination with strict adherence to signature requirement needed for ballot access has created an unconstitutional burden for independent candidates in this election cycle," Balenovich continued.
In his filing, Balenovich argues that Wilson's constitutional rights were violated by requiring in-person signatures – a provision of state code that Justice could have waived by using his executive order powers during the state of emergency Justice declared on March 16 due to the coronavirus.
According to a declaration filed with the court by Donald Kersey, general counsel for the Secretary of State's Office, Wilson inquired on March 29 about whether the "wet ink" requirement could be waived and was told only an executive order from the governor could do that. Several days later, Wilson was told he could be allowed to post the signature form online for supporters to download, print out, sign, and mail back to Wilson.
On June 25, Wilson asked the Secretary of State's Office if the Aug. 3 deadline could be extended. He was told no. By July 10, Wilson asked if the number of signatures required could be relaxed.
"In each of these conversations, (Wilson) was again informed that these requirements are fixed by the West Virginia Code, and may only be changed through legislative amendment, suspended through an executive order responding to an emergency, or enjoined by a court," Kersey said. "Additionally, (Wilson) was informed that the Governor's Office had evaluated these requests and determined that the statute did not impede the State's ability to respond to a declared emergency, hence there was not a requisite trigger to allow for any exercise of the Governor's discretionary emergency powers."
In the meantime, Marshall is preparing supporters for a write-in campaign for governor should the court not rule in his favor according to his campaign's Facebook page.
The ballot order must be determined by county ballot commissioners by today. By law, county election officials must start distributing absentee ballots to in-state voters who have requested them by Friday, Sept. 18, and to overseas voters by Saturday, Sept. 19.