As Erik Wells prepares to take his fight to appear on the general election ballot as an independent candidate for Kanawha County Clerk to the state Supreme Court, the court in 2012 heard - or more accurately, declined to hear - a very similar case.
In that instance, Arbovale resident Cheryl McCullough filed a petition with the high court in December 2012 seeking a writ of mandamus to overturn the election a month earlier of Eugene Simmons as Pocahontas County prosecuting attorney - contending he had illegally run as an independent even though he was a registered Democrat.
Simmons, a Marlinton lawyer, submitted his nominating petition in July. Running in the general election as an independent, he defeated incumbent county prosecutor Donna Meadows-Price, a Democrat whose candidacy was clouded by a series of legal ethics charges brought against her that fall by the state Lawyer Disciplinary Board.
Attempting to overturn Simmons' election, McCullough made two arguments: That only persons with no party affiliation may use the nominating petition process to appear on the ballot as independents, and that only independents or voters with no party affiliation can sign the nominating petitions.
In the response for Secretary of State Natalie Tennant, Senior Assistant Attorney General Doren Burrell strongly challenged both points.
"The law was intended to remove barriers to ballot access and dependence upon large party organizations," Burrell stated.
"This procedure is not limited to voters or candidates who have registered themselves independent of any political party," he added.
Likewise, Pocahontas County Clerk Missy Bennett, in a response written by Charleston lawyers Joanna Tabit and Joseph Leonoro, concluded: "Mr. Simmons was duly elected prosecuting attorney and his election should stand."
Bennett also challenged the assertion that only persons with no party affiliation can petition to run as independents, noting that state election law "places no such restriction on persons to be nominated."
"The one restriction that applies is that the candidate being nominated not already be a candidate in the primary election," Bennett stated in the response.
Both responses noted that state election law does not prohibit voters with party affiliations from signing nominating petitions, with Burrell pointing out that the Legislature in 2009 repealed a law preventing persons who had voted in primary elections from signing nominating petitions.
Burrell also included an affidavit from Tim Leach, assistant general counsel to Tennant, relating a conversation with McCullough in which he advised the secretary of state's office interprets the law, "to allow people with registered party affiliations to run for office, or to sign nominating petitions for a candidate to run for office, as an unaffiliated or independent candidate."
The attorneys also cited several procedural issues, including that McCullough had waited for more than four months, until after the general election, to file the petition for the writ of mandamus. They also noted that she had failed to request a quo warranto hearing to determine Simmons' eligibility to appear on the ballot prior to the election.
On Dec. 21, 2012, the Supreme Court, in a 3-2 vote, denied McCullough's motion, with Justices Robin Davis and Margaret Workman voting to grant a hearing.
"We can't determine if the petition failed procedurally or on its merits," Leach said Friday.
"The facts in the case mirror to a great degree the facts in the Wells' appeal," he added.
Wells is expected to file that appeal early this week challenging Kanawha Circuit Judge Charles King's order Thursday disallowing Wells' candidacy as an independent because he is a registered Democrat.
Wells said Friday he has been told there are at least four and possibly as many as 10 others around the state who are running in county or legislative races this fall as independent candidates, although they have party registrations, including at least one registered Republican.
He said he is optimistic the Supreme Court will hear his appeal, since King's order could put those other candidates' ballot status in jeopardy.
Reach Phil Kabler at philk@wvgazettemail.com, 304 348-1220, or follow @PhilKabler on Twitter.