The Republicans’ Senate headache in West Virginia isn’t over, even as the party tries to pivot to defeating Democratic Sen. Joe Manchin in November.
Former coal CEO and ex-convict Don Blankenship, who lost the GOP primary earlier in May, said Monday that he would run instead as a third-party candidate. If he goes through with the bid, Blankenship could become a spoiler in a high-stakes battle that could determine which party controls the Senate.
It’s unclear if Blankenship will ultimately make it on the ballot. But his third-party push has reignited a bitter battle between the former coal baron and national Republicans, who believe that Manchin is vulnerable after President Trump won the state by more than 40 points in 2016.
{mosads}Blankenship blasted the GOP establishment on Monday, warning there would be payback for their attempts to sink his primary bid and accusing the White House of reneging on a promise to not get involved in the race.
“The political establishment is determined to keep me — the most anti-establishment candidate in the nation — out of the United States Senate,” he said in a statement announcing his plans.
“The press and the establishment have colluded and lied to convince the public that I am a moron, a bigot, and a felon. They even went so far as to lie about my chances against Senator Joe Manchin in the general election,” Blankenship added.
Blankenship, who spent roughly a year in prison for conspiring to violate mine safety standards after 29 miners were killed in an explosion at a mine his company operated, said on Monday that he accepted the Constitution Party’s nomination for the Senate seat.
Republicans are panning Blankenship’s announcement as unrealistic, arguing the state’s “sore loser” law — which prevents failed primary candidates from changing their party affiliation to launch general election bids — makes it clear that the failed GOP candidate can’t run.
“He would have a tremendously uphill fight to get on the ballot given the state’s laws,” said a GOP strategist.
Josh Holmes, a longtime adviser and former staffer for Senate Majority Leader Mitch McConnell (R-Ky.), a main target for Blankenship’s attacks, added that the law “seems pretty clear to me.”
Candidates who ran in a primary election and lost cannot change their voter registration to appear on the general election ballot as the nominee for a third party or as an unaffiliated candidate, according to a 2018 election guide put out by the West Virginia secretary of state’s office.
Steven Allen Adams, a spokesman for West Virginia Secretary of State Mac Warner (R), said it’s the secretary’s view that Blankenship is barred from running as a third-party candidate.
“West Virginia does have a sore losers, sour grapes law,” he said. “We feel the law is pretty clear.”
But some legal experts note that the wording of the state’s code could give Blankenship an opening to challenge the law, setting up a legal battle between the failed GOP candidate and Republican officials in the state.
“The code is not clear. … In my mind there’s no clear answer short of a state’s Supreme Court decision,” said Robert Bastress, a professor at West Virginia University College of Law.
Bastress added that the “most reasonable reading is it precludes primary losers from running,” but noted that Blankenship has “an argument going the other way.”
Michael Kang, a professor at Emory University School of Law who has focused on election law, said the wording of West Virginia’s code “opened up a space, potentially, for what Blankenship wants to do.”
The ambiguity boils down to a section of the code cited by the secretary of state’s office 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.”
Both Kang and Bastress noted that the section’s 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.
“It’s not the strongest argument, but it’s ambiguous enough,” Kang said, adding that Blankenship’s “got to litigate this if he wants to run.”
Blankenship signaled on Monday that he has no fear of a legal fight, predicting that he would ultimately prevail “absent a politically motivated decision by the courts.”
Blankenship didn’t detail in his statement how he would challenge the state’s laws. But Adams noted that Blankenship would have to force a court fight if he wants to be on the ballot.
Other groups could try to sue Blankenship if he moves forward with his plans, though none have stepped forward.
“We don’t think it’s vague. We certainly feel that the legislative intent is clear. … Certainly if it goes to court we would be willing to defend that,” Adams said.
The state legislature passed more straightforward “sore loser” language in March, but the updated rules won’t take effect for 90 days.
Another portion of the code, which the secretary of state’s office cited in the election guide, notes that candidates cannot have been registered with another party within 60 days before filing. Blankenship moved to change his party affiliation on Monday, according to the secretary of state’s office.
Blankenship placed a distant third place in the GOP primary earlier this month, behind Attorney General Patrick Morrisey, who won the party’s nomination, and Rep. Evan Jenkins.
Republicans publicly fretted for months that a Blankenship primary win would sink their chances of beating Manchin.
The previously little-known Mountain Families PAC spent more than $1.3 million in ads against Blankenship during the state’s primary. New fundraising disclosures released on Sunday showed the group was funded in its entirety by the Senate Leadership Fund, a GOP outside group with deep ties to McConnell.
Blankenship ran a slash-and-burn campaign against national Republicans, positioning himself as the “most anti-establishment candidate in the country” and “Trumpier than Trump.” He and his allies made it clear he wouldn’t go quietly after the loss, blasting McConnell and Morrisey.
Blankenship made McConnell the chief antagonist of his campaign, nicknaming him “Cocaine Mitch” and accusing him from benefiting from his “China family” — a reference to his wife, Transportation Secretary Elaine Chao, and her father.
“Now that we know that the establishment will lie and resort to anything else necessary to defeat me,” Blankenship said on Monday, “We are better prepared than before.”
Democrats seized on the latest sign of GOP infighting in the state.
American Bridge, a Democratic outside group, blasted out news of Blankenship’s plans as a “certain notorious ex-con is back to wreak more havoc in the GOP.”
Manchin declined to say whether he thought Blankenship’s decision would help his reelection bid, describing himself as “laser channeled” on his own campaign.
“Everybody has the right to run,” Manchin said. “I’ve just go to run my race.”