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W.Va. court denies GOP appeal to have separate ballot for Senate seat

September 24, 2010

CHARLESTON, W.Va. (AP) -- West Virginia's Republican Party was denied its bid Friday to have voters provided with separate ballots for the regular general and special U.S. Senate elections set for Nov 2.

The GOP, which is expected to appeal the ruling by Kanawha Circuit Judge Jennifer Bailey, opposes allowing a straight-ticket vote to apply to the special Senate election in addition to regular general elections. That option allows a vote to be cast for all of a party's candidates with one mark on the ballot, and Democrats outnumber Republicans in West Virginia by nearly 2-to-1.

"The absolute fatal flaw is that one question can be applied to both elections," said GOP lawyer Robert Ryan.

But the judge called Ryan's allegations of harm to his party too speculative to warrant her blocking Secretary of State Natalie Tennant from continuing with a single ballot.

"Frankly, if I believed that this was an unlawful ballot, I would have no hesitation in ordering that it's enjoined," Bailey said. "I don't find it to be unlawful."

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Bailey instead agreed with a lawyer for Tennant, the state's chief elections officer, that separate ballots would confuse and possibly disenfranchise voters -- including hundreds of military and other overseas absentee voters who have already been mailed a unified ballot.

The judge also cited past elections, as raised by Tennant lawyer John Curry, when special races were deemed separate but were still included on the same ballot as regularly scheduled elections.

Bailey faulted the Republican executive committee as well for the delay in filing the lawsuit. The party sued Sept. 17, more than two weeks after Tennant decided on a single ballot. It was also Curry, and not Ryan, who requested Friday's hearing, the judge said.

The Nov 2nd special election will decide who serves out the more than two years then remaining in the term of the late Robert C. Byrd, who died in June. The Legislature set up the special election process with a measure passed in July.

Ryan argued that lawmakers intended for separate ballots when they made clear in that bill that the Senate race would be separate from the general election. But Curry noted that no such intent is included in the legislation, and Bailey agreed.

Curry said the Legislature made the distinction in a GOP-led gambit to allow Rep. Shelley Moore Capito, R-W.Va., to run for the Senate seat while also seeking a sixth U.S. House term in the general election. Capito later demurred.

Tennant's lawyer further argued that if lawmakers intended separate ballots, the result would cost millions of dollars. He said that depending on which voting machines they use, nearly all of the state's 55 counties would either have to buy a new set of devices just for the special election or reprogram their devices, in violation of federal law.

GOP lawyer Ryan disputed that argument. He also chided Curry for suggesting that the Republican challenge would hamper overseas military voters.

"Why would we disenfranchise folks who typically would vote with Republicans?" Ryan said with a chuckle.

Curry, meanwhile, questioned whether straight-ticket voting would hurt the GOP this year. West Virginia has backed the Republican nominee in the past three presidential elections, and analysts believe a voter enthusiasm gap will benefit the GOP in November.

Bailey allowed Janet "J.T." Thompson, an independent legislative candidate, to join the GOP's challenge. Acting as her own lawyer, Thompson had unsuccessfully petitioned the state Supreme Court objecting to a single ballot. Among other arguments Friday, she advocated a straight-ticket option for unaffiliated candidates.

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