He’s baaaa-aaaaack … maybe. Don Blankenship came in third place in West Virginia’s Republican Senate primary earlier this month, but he’s not throwing in the towel. Refusing to accept defeat, Blankenship pledged to do everything he could to defeat Patrick Morrisey, who won the primary and will face off against Joe Manchin in November. With that in mind, Blankenship accepted the nomination of the state’s Constitution Party to be its own nominee in the election, hoping to split the Republican vote:
West Virginia coal baron and former prisoner Don Blankenship announced on Monday that he plans to launch a long-shot third-party Senate bid after finishing a distant third in this month’s Republican primary. …
“It is especially appropriate for me to be nominated by the Constitution Party given its staunch and uncompromising commitment to upholding the United States Constitution,” Blankenship said.
Should he follow through on his threat, Blankenship, who spent a year behind bars following the 2010 explosion at his Upper Big Branch Mine that killed 29 workers, could play spoiler in the general election by drawing votes from the GOP nominee, state Attorney General Patrick Morrisey. Since the primary, Blankenship has refused to endorse Morrisey, whom he says is incapable of defeating Manchin.
There’s only one problem with Blankenship’s plan, Politico notes — West Virginia law. The state adopted a “sore loser” statute which appears to make Blankenship ineligible to run under any circumstances in the general election. It’s not entirely clear from the statutes, though, that Blankenship might be ineligible under any circumstance. The candidate booklet published by the state makes it look cut and dried:
THE “SORE LOSER” or “SOUR GRAPES” LAW (W. Va. Code §§ 3-5-7(d)(6) and 3-5-23) Candidates affiliated with a recognized political party who run for election in a primary election and who lose the nomination cannot change her or his voter registration to a minor party organization/unaffiliated candidate to take advantage of the later filing deadlines and have their name on the subsequent general election ballot.
The statutes cited make a slightly more ambiguous case. In 3-5-7(d)(6), for instance, the statute only requires that the candidate cannot have been registered with another party for 60 days prior to filing the announcement:
For partisan elections, the name of the candidate’s political party and a statement that the candidate: (A) Is a member of and affiliated with that political party as evidenced by the candidate’s current registration as a voter affiliated with that party; and (B) has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing the announcement[.]
It’s May 20th now and the filing deadline is August 1. If Blankenship registers today as a member of the Constitution Party, he can file as their candidate any time after July 20th, plenty of time to beat the deadline. What about 3-5-23? Subsection (a) seems to be the closest to dealing with the issue, and it’s also less than clear, emphasis mine:
Groups of citizens having no party organization may nominate candidates who are not already candidates in the primary election for public office otherwise than by conventions or primary elections. In that case, the candidate or candidates, jointly or severally, shall file a nomination certificate in accordance with the provisions of this section and the provisions of section twenty-four of this article.
The intent of this might have been to create a “sour grapes” or “sore loser” law, but it doesn’t quite read that way. It reads as a bar on nominating a candidate concurrently in a primary, not as a bar to nominating a primary loser as a general-election candidate. For instance, New York often has smaller parties offer endorsements in the form of nominations for major-party candidates, which 3-5-23 would outlaw in West Virginia. Blankenship’s no longer a primary candidate, having lost it to Morrisey. Does that make him eligible again? Why not just write a statute that more clearly and directly states that a candidate who lost a primary election cannot run for the same office in the same cycle?
However, as Gabriel Malor pointed out on Twitter earlier, courts have recognized the combination of the two statutes as a bar on sore losers from major-party primaries:
This has been litigated, and recently. Because Blankenship is (or was until very recently) a registered Republican, he would be precluded from seeking certificate nomination. Wells v. State ex rel. Miller. pic.twitter.com/G5lMflerJv
— Gabriel Malor (@gabrielmalor) May 21, 2018
In other words, Blankenship got a bite already at a very privileged apple, and courts are not likely to look kindly on a second bite intended for those outside of the two major parties. Blankenship’s willing to duke it out anyway:
“Although the establishment will likely begin their efforts against us by mounting a legal challenge to my candidacy, we are confident that — if challenged — our legal position will prevail, absent a politically motivated decision by the courts,” he said.
The coal baron also said that the establishment was “determined to keep me — the most anti-establishment candidate in the nation — out of the United States Senate,” and that “the press and the establishment have colluded and lied to convince the public that I am a moron, a bigot, and a felon.”
That puts the cart before the horse, though. Blankenship will need to collect signatures for his candidacy, and according to 3-5-23, he’ll need “not less than one percent of the entire vote cast at the last preceding general election for the office in the state, district, county or other political division for which the nomination is to be made[.]” Assuming the court uses the 2014 election in which Shelly Moore Capito won the other Senate seat, Blankenship will need more than 4300 signatures to qualify in a fairly short period of time, using the infrastructure of a fringe party to do it. It’s not impossible for a self-funder especially, but Blankenship only got 27,153 votes in a Republican primary after a long run-up to the vote. It’s no slam dunk.
Still, it looks like the Don Blankenship story isn’t over quite yet. Although, once you watch Blankenship’s insane response to Mitch McConnell’s election-night tweak, you’ll wish it was.