Erik Wells' eligibility to run for Kanawha County clerk this fall seemingly depends on which of two legal arguments prevails:
n People affiliated with a political party can run for public office only as a candidate of that party.
n Everyone, regardless of party affiliation, has a legal right to petition to appear on the ballot as an independent candidate.
Those were the arguments raised Friday during a two-hour hearing before Kanawha Circuit Judge Charles King.
Kanawha County Prosecuting Attorney Charles Miller called for the "quo warranto" hearing to determine if County Clerk Vera McCormick - whom Wells would oppose in November - is required to put Wells on the general election ballot.
Miller argued that Wells, a registered Democrat and former state senator, is attempting "an end run, to get on the ballot," skipping the traditional Democratic primary process, to petition to appear on the ballot as an independent.
"It has the potential to create confusion and fraud in an election," Miller said.
One scenario, he said, is that a major party could set up an independent candidate to aid the party's nominee in the general election, such as the Democratic Party running a member as a "conservative independent" candidate, in hopes of siphoning votes away from the Republican challenger.
However, Pat Maroney, representing Wells, said it is clear the 1st and 14th amendments to the U.S. Constitution protect Wells' right to appear on the ballot.
"What is at issue here is restricting a citizen as to whether his or her name can be placed on the ballot," said Maroney, a former state Democratic Party chairman.
"He can run as an independent, if he wants to, and still retain his party status," Maroney said, adding that the West Virginia Supreme Court has upheld that premise in cases dating back to 1916.
In that case, he said, a candidate for magistrate in McDowell County lost in the primary and was allowed by the court to run in the general election as an independent, using the same petition process.
That led King to comment that a Southern West Virginia election might not be the best precedent for state election law.
"Nothing against Southern West Virginia, but running as a magistrate in the early 1900s, I don't know," King commented.
King also asked if putting Wells on the ballot would deceive the voters.
"He's listed as an independent on the ballot but, in reality, he's a Democrat," King said.
In response, Maroney noted that, this year, all 50 states permitted an independent to appear on the Democratic ballot for president: Vermont Sen. Bernie Sanders.
Miller and Kanawha Assistant Prosecutor Rob Schulenberg asked why Wells did not run in the Democratic primary or request that the county Democratic Executive Committee put him on the ballot to fill the vacancy after no Democrats ran in the primary.
Wells testified that he was overseas, on active duty with the U.S. Navy Reserve, and could not have filed to run in the May primary because of rules for active-duty personnel in the Uniform Code of Military Justice. The UCMJ is the foundation of U.S. military law.
However, Wells said, he'd had no intention of running for any office this year until late June or early July.
"It was only because of what took place in the news about this office that spurred me to run," Wells said, referring to reports about confusion in the County Clerk's Office with the redrawing of precinct maps. Those problems, first reported by the Gazette-Mail, caused hundreds of May primary voters to end up voting in the wrong delegate or state senatorial districts.
Additionally, earlier this year, McCormick was one of two county clerks who refused to fully implement a new online voter registration system championed by Secretary of State Natalie Tennant, who is married to Wells.
Another issue raised Friday by Miller and Schulenberg was whether, under the law, only voters registered as independent or no party affiliation could sign the petition to place Wells on the ballot.
By law, people wishing to appear on the ballot as independent candidates must obtain signatures of support equal to 1 percent of the vote for that office in the previous election - or about 600 signatures for county clerk.
In submitting his certification for candidacy on July 18, Wells collected more than 1,100 signatures, 947 of which were verified to be registered county voters. However, that total included 656 Democrats, 135 Republicans, three Mountain Party members and three Libertarians.
Maroney argued that the law does not make that distinction.
"It doesn't say 1 percent of independent voters, it doesn't say 1 percent of Democratic voters, it doesn't say 1 percent of Republican voters," he said.
King set a Tuesday deadline for both sides to submit findings of fact and proposed final orders.
"We're under a time crunch, apparently, in getting the matter expedited," he said.
McCormick has said the issue needs to be resolved quickly, so that the Nov. 8 election ballots can be certified and sent to the printers by the end of the month.
Reach Phil Kabler at philk@wvgazettemail.com, 304 348-1220, or follow @PhilKabler on Twitter.