IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST iD WHY ay 9 STATE OF WEST VIRGINIA ex rel. ALICIA STINE, ial rap, Petitioner, v. Civil Action No, 22-P-151 Honorable Louis H. Bloom MAC WARNER, Secretary of State of the State of West Virginia, and ANDREA KIESSLING, Respondents, RESPONDENT MAC WARNER’S POST-HEARING MEMORANDUM, On May 3, 2022, this Court held a hearing on Petitioner's Emergency Petition for Writ of Mandamus, During the hearing, counsel for the Secretary of Sate of West Virginia stated that the Secretary takes no position on the merits of this action, Nevertheless, the Court ordered the Secretary to submit proposed findings of fact and conclusions of law. ‘The Court also stated any party may file a memorandum if they so desire. Accordingly, the Seoretary respectfully submits this brief memorandum to make two points. First, although the Secretary has complied with this Court’s directive to submit proposed findings of fact and conclusions of law, the Secretary respectfully requests that the Court note his objection, The Secretary's office is largely ministerial with regard to certifying a candidate’s name to the ballot. State ex rel. Harden v. Hechler, 187 We, 670 (1992), ‘The Secretaty is granted specific, limited statutory authority to determine a candidate's eligibility under just two circumstances: (1) ifa person files a formal complaint within 10 days of the close of the candidate filing period when it appears the candidate's official political affiliation is different than the 1political party for which the candidate seeks nomination (see W, Va. Code § 3-5-7(e)); and (2) as, a member of the State Election Commission, a bipartisan body that has jurisdiction under W. Va, Code § 3-5-19(a)(4), where the Secretary would not, as an executive branch elected official belonging to one political party, be called upon to unilaterally determine eligibility. Ithas long been held that the Secretary is without the ability, for good reeson, to make such Judicial or administrative determinations by looking beyond the certificate of announcement and investigating candidate qualifications, State ex rel. Summerfield v, Maxwell, 148 W. Va. 535, 540- 41 (1964), Upholding voter confidence in the integrity of our electoral system could be at risk if any Secretary opines unilaterally on the merits of eligibility matters, Not only is this beyond the authority granted by the Legislature, but it deprives candidates of due process and clear recourse. As the state's chief election official, the Secretary must remain impartial in elections, Otherwise the Secretary's opinion on candidate eligibility, however delivered, could be used as political fodder or relied upon by voters as authoritative—both of which could affect the outcome of'an election. Constrained by Summerfield, supra, the Secretery has refrained from investigating and expressing his opinion on the merits of eligibility challenges when an alleged disqualification is not on the face of the certificate, and the Secretary would prefer to do so here, Further, it remains possible that someone may invoke the post-primary remedy set forth in W. Va, Code § 3-5-19(a)(4). ‘That statute allows an individual to file a written request with the State Election Commission no later than 84 days before the general election to challenge the eligibility of the nominated candidate, It further requires the State Election Commission to review and make a decision upon the request. See W. Va. Code § 3-3-19(a)(4). The Secretary of State is a member of the State Election Commission. See W. Va, Code § 3-1A-1. Thus, if the Secretary of State takes a position now, in this pre-primary litigation, then his impartiality may be called into« question in any post-primary proceeding filed under W. Va. Code § 3-5-19(a)(4).. Second, if this Court determines that Respondent Kiessling is ineligible, the Secretary respectfully submits that it would be practically impossible at this point to strike or otherwise remove Kiessling’s name from the ballots, Absentee ballots went out March 25, and early voting began April 27. Further, primary election day is only four business days away. It is simply too late to reprint ballots and reprogram all affected voting machines. The only practical solution given the timeframe would be an order directing county election officials to disregard and refrain from tallying any votes cast for Kiessling, and perhaps further directing the affected county clerks to post a sign at all affected polling places stating that Kiessling is ineligible. If, however, the Court is inclined to require a sign, the Secretary requests that the Court’s Order expressly direct, where the sign must be posted so that placement is consistent in every polling place and clarify that posting such sign with Kiessling’s name is not violative of W. Va, Code § 3-9-9 (prohibition against electioneering in the polling place). The Secretary suggests that any such sign be posted ‘onthe polling place door, or possibly the check-in table where voters sign the poll book and receive their ballot. As a final consideration, the Secretary notes that although W. Va. Code § 3-1A-6(a) does give his office the authority to issue orders to county election officials, the statute requires the Secretary to consult with the State Election Commission prior to issuing an order. So as the Court {s fashioning a remedy in this case, the Secretary asks that the Court be mindful that his office will need time to call an emergency meeting with the State Election Commission before it can issue any orders to county election officials,Respectfully submitted, MAC WARNER, Secretary of State of the State of West Virginia, David R. Pogué; WVSB No. 10806 CAREY DOUGLAS KESSLER & RUBY PLLC 901 Chase Tower, 707 Virginia Street, East Charleston, WV 25301 ‘Telephone: (304) 345-1234 Facsimile: (304) 342-1105 drpogue@ecsdlawfirn.com‘i : FILED IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA: MEENA te ny 17 STATE OF WEST VIRGINIA. ", ex rel, ALICIA STINE, NA COUNT CT Petitioner, ve Civil Action No, 22-P-151 Honorable Louis H. Bloom MAC WARNER, Secretary of State of the State of West Virginia, and ANDREA KIESSLING, —* Respondents, CERTIFICATE OF SERVICE, I, David R. Pogue, counsel for Respondent, do hereby certify that on this 4" day of May, 2022, I have served a true and exact copy of the foregoing “Respondent Mac Wamer’s Post- Hearing Memorandum,” via email, upon counsel of record as follows: ‘Anthony Majestro, Esq James Nelson, Esq, Powell & Majestro, PLLC 405 Capitol Street, Suite P-1200 Charleston, WV 25301 304-346-2889 / 304-346-2895 (f) amajestro@powellmajestro.com Mare B. Williams Nelson Malins Riley & Searborough, LLP 949 Third Avenue, Suite 200 Huntington, WV 25701 304-526-3501 (office) 304-634-9013 (cell) Mare, Williams@nelsonmullins.com David R. Pogue, WVSB No. 10806