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Judge denies request to remove Reed from primary ballot, not tally her votes

by KATE SHUNNEY

Kanawha Circuit Judge Joanna Tabit last week rejected an emergency petition to force election officials to not include candidate Tally Reed on the May 8 primary election ballot in Morgan and Berkeley counties, and to discard any votes cast for her in the primary.

Reed is a Republican seeking a seat in the House of Delegates representing the 59th district. She is running for the open seat against former delegate Larry Kump in the Republican primary.

Howard Stone and Patricia Adams, residents of the district, filed a civil suit against Reed and West Virginia Secretary of State Mac Warner in Kanawha County Circuit Court on April 26, the day after early voting began in the primary election.

Stone and Adams, represented by attorney Patrick Lane, argue that Reed hasn’t lived in the 59th district long enough to be eligible to seek the House seat. State law says a candidate must have lived in the district for a year before the general election in order to run for district office. The case claims Reed lives in the 58th district but owns a house in the 59th district.

Judge Tabit held a hearing in the case last Thursday, May 3.

In an order filed in Kanawha County Circuit Court on Friday, May 4, Judge Tabit dismissed Lane’s emergency petition to have Reed removed from the ballot and to instruct election officials not to tabulate any votes cast for her.

Judge Tabit’s order says the question of Reed’s eligibility to be a candidate can be settled after the primary election under West Virginia law.

State code says election results or the eligibility of candidates can be contested within 10 days after election results are certified.

In her court order, Tabit notes that Reed filed a Certificate of Announcement to run for the House of Delegates on January 25 and that Secretary Warner certified the list of all qualified candidates to be on the primary ballot on March 12. The suit challenging Reed’s candidacy was filed on April 26.

“While Petitioners argue that their delay for filing the Emergency Petition for Mandamus was to allow Respondent West Virginia Secretary of State suitable time to investigate and resolve alleged election law complaints related to this matter, counsel for Respondent West Virginia Secretary of State represented to this Court that no such complaints were filed until April 16, 2018, a little more than a week in advance of the Petitioners’ Emergency Petition for Mandamus,” the judge’s order says.

Judge Tabit’s order notes that early voting in West Virginia was underway and voters had already cast ballots in the primary by the time the court case against Reed and Warner was filed.

“By the time of this Court’s hearing on the Emergency Petition for Mandamus, which took place just one week from the filing of the petition, early voting had been taking place for eight days and hundreds, if not thousands, of votes had already been cast in the 59th Delegate District,” the order says.

“A determination at this time that Respondent Reed is ineligible after early voting has started would be to disenfranchise the hundreds, if not thousands, of have already cast their votes in the 59th Delegate District.”

Judge Tabit noted that her ruling was limited to the request for emergency action by the court, and “does not address the merits of the specific challenge to Respondent Tally Reed’s candidacy for House of Delegates.”

No date has been set for a future hearing in the case, according to the Kanawha County Circuit Clerk’s office.

Secretary Warner was represented in the hearing by counsel Zachary Viglianco and Anthony Martin, Assistant Attorneys General of the State of West Virginia and Stephen Connolly, Chief Legal Counsel for the Secretary of State’s office.

Reed was represented by attorneys J. Mark Adkins and Richard R. Health Jr. of Bowles Rice LLP.

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