CHARLESTON – A day before the general election, the West Virginia Supreme Court of Appeals upheld a ruling removing a Mountain Party candidate from the Jefferson County Commission ballot.
In rejecting David C. Tabb’s appeal November 2, the court voted 4-1 to affirm a September 10 circuit court order that disqualified Tabb because he lives in the Charles Town Magisterial District but filed to represent the Harpers Ferry Magisterial District.
Chief Justice C. Haley Bunn dissented, saying the challenge to his candidacy was improperly allowed after a statutory deadline but that voting had progressed too far to restore his name to the ballot.
Tabb filed for the Harpers Ferry seat in January. West Virginia law requires county commission candidates to reside in the district they seek to represent by the deadline for filing their candidacy paperwork.
According to the court’s decision, an employee of the Jefferson County Clerk’s Office advised Tabb that he was filing for the wrong district. Tabb had twice previously sought a commission seat representing Charles Town but nevertheless filed for the Harpers Ferry seat. His residence was undisputed.
The appeal centered on whether a challenge to his qualifications could proceed after the usual filing deadline.
State law generally requires such challenges to be filed in circuit court within 30 days after the primary election – June 11 in this case. An exception allows a later filing if the challenger could not have discovered the grounds within that period “despite the exercise of reasonable diligence.”
Jefferson County resident John A. Cline filed his challenge August 27. The circuit court found sufficient grounds to permit the late filing and ordered Tabb’s name removed from the ballot. An earlier complaint to the State Elections Commission ended Aug. 11 when the commission concluded it lacked jurisdiction.
Tabb appealed September 11, disputing, among other things, the factual findings supporting the late challenge.
“Upon our review, we find that the petitioner has not established clear error or abuse of discretion,” the majority wrote in its unsigned memorandum decision.
The court affirmed without oral argument and denied Tabb’s request to stay the removal order as moot. The majority cited a court rule explaining that summary affirmance upholds a lower court’s outcome “but not necessarily the lower tribunal’s reasoning.”
Bunn sharply criticized the handling of the challenge, saying the circuit court allowed it despite “uncontroverted evidence” that the statutory exception had not been satisfied.
“The majority, in affirming the circuit court’s order, commits the same offense as the circuit court by ignoring the statute’s substantive requirements in favor of reaching the outcome it perceives as correct on the merits,” she wrote.
But Bunn said restoring Tabb’s name at that point would disenfranchise people who had already voted. According to supplemental briefing she cited, 5,249 voters had cast early ballots as of October 28, and 466 absentee ballots had been mailed. None included Tabb’s name.
Bunn also criticized how the urgency of his request for a stay was presented.
Although Tabb promptly appealed, she wrote, references to the September 18 deadline for transmitting absentee and military and overseas ballots were buried on pages five and 12 of a 53-page filing. Bunn pointed to a court rule requiring a separate, detailed motion for expedited relief.
Bunn said she would have treated the dispute over the pre-election challenge as moot rather than affirm the circuit court’s application of the statute, and would have considered Tabb’s remaining appellate issues later.
Justices Bill Wooton, Charles Trump, H.L. “Kirk” Kirkpatrick and Bill Flanigan concurred in the decision.
West Virginia Supreme Court of Appeals case number 26-551
