Ex-coal CEO Don Blankenship is taking his fight to appear on the November ballot as a third-party Senate candidate to West Virginia's Supreme Court.
Blankenship's attorneys filed a petition to the state Supreme Court challenging West Virginia Secretary of State Mac Warner's decision to block him from appearing as the Constitution Party's candidate.
"The petition makes clear that the law relied upon by the Secretary of State in denying my ballot access is flawed in multiple ways and violates the Constitutions of both West Virginia and the United States," Blankenship said in a statement.
Warner rejected Blankenship's third-party bid last month, arguing he was unable to run as the Constitution Party's candidate after making a failed bid for the GOP Senate nomination because of West Virginia's "sore loser" law.
Blankenship's petition formally kicks off a closely watched legal battle with implications for the West Virginia Senate race, the outcome of which will help determine which party controls the chamber next year.
Republicans are hoping to unseat Democratic Sen. Joe ManchinJoe ManchinWith extreme gerrymanders locking in, Biden needs to make democracy preservation job one Five reasons for Biden, GOP to be thankful this season White House looks to rein in gas prices ahead of busy travel season MORE (W.Va.), arguing he's vulnerable after President TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE won the state by more than 40 percentage points in 2016.
Blankenship lost the GOP primary race in May to Attorney General Patrick Morrisey, but quickly pledged to work to keep him from winning the Senate race.
Morrisey is currently lagging behind Manchin in polling, according to a RealClearPolitics average of the race.
Blankenship's attorneys argued in their petition on Thursday to the state Supreme Court that the secretary of State is misrepresenting the state's code that defines who can appear on the ballot.
They add that a separate "sour grapes" state law that was enacted in June cannot be applied retroactively to block him from running as a third-party candidate.
"Even if the law were not otherwise flawed, it did not take effect until June 5, 2018—after the May Primary election and half-way through an election cycle. ... The Secretary of State declaring that I am impacted by any so-called 'sore loser law' for a primary election loss prior to the law being enacted is nonsensical," Blankenship said in a statement.
He added that the "law being relied upon by the Secretary of State to prevent my being on the ballot violates my equal rights as an individual, the Constitution Party’s equal rights, and attempts to apply a new law retroactively."
In a statement explaining his decision to deny Blankenship's third-party bid, Warner argued that it violated the law.
"According to the plain language of the law, which controls my decision, a candidate who loses the Primary Election cannot use the nomination-certificate process to run another campaign in the General Election. Any other decision would be contrary to the law," he said at the time.
Blankenship faces an uphill bid to getting onto the November ballot, but if he successfully challenges the state, he'll create headaches for national Republicans, who spent heavily to undercut his bid for the party's nomination. Republicans worried that his baggage — including a prison stint and a coal mine explosion that killed 29 people — would tank the party's chances of defeating Manchin.
Some legal experts say the wording of the state's code could give him an opening to challenge the law.
The ambiguity circles around a section of the code cited by the secretary of State’s office in an election guide as the basis for the sore loser law. The section says that groups of citizens can nominate individuals who “are not already candidates in the primary election for public office otherwise than by conventions or primary elections."
The use of the present tense “are” instead of a past tense “were,” could allow Blankenship to argue in court that the language doesn’t apply to him because he’s no longer a candidate in a primary election.