A petition filed with the West Virginia Supreme Court of Appeals seeks to void the votes cast for Pocahontas County Prosecutor-elect Eugene Simmons in November’s general election and declare outgoing Prosecuting Attorney Donna Price the winner.

Filed December 4 by Arbovale resident Cheryl McCullough, the petition for writ of mandamus describes the outcome of November’s race for Prosecuting Attorney as an “election swindle” that allegedly robbed Pocahontas County residents of the right to a legally elected Prosecutor. The petition names West Virginia Secretary of State Natalie Tennant and Pocahontas County Clerk Missy Bennett as respondents.

A December 6 scheduling order from the state Supreme Court gives Tennant and Bennett until December 20 to respond to the petition.

Bennett said she was consulting with the Pocahontas County Commission, which certified the election results, concerning her office’s response.

“Once the deadline for filing responses has passed, the matter will be mature for consideration by the Court,” the scheduling order states.

The incumbent Price won a three-way race for the Democratic nomination in the May primary. With no Republican candidates in the primary, Price appeared to have secured reelection. However, shortly after the primary, Simmons gathered signatures on a Minor Party or Independent Candidate Nomination Petition to gain a spot on the ballot for the November general election.

As he gathered signatures and presented his petition to the County Clerk’s office, Simmons remained a registered Democrat and stated that party’s affiliation on his petition. Simmons gathered a total of 34 signatures. According to West Virginia’s election laws, Simmons needed needed 25 signatures. Of those who signed the petition, 15 were Democrats, 11 were Republicans and eight claimed no party affiliation.

McCullough’s petition contends that only those eight unaffiliated signers should have been counted, as the Democrat and Republican signers already had an opportunity to nominate their parties’ respective candidates in the May primary. Because of this, McCullough’s petition concludes that election officials should not have placed Simmons’ name on the November ballot.

McCullough said her quarrel is not with Bennett or Simmons, but with the process.

“This is not about Eugene Simmons,” said McCullough. “His name is not at the top of that writ. It has to do with the process, and what the law states.”

“Even if it wasn’t Eugene—if it was somebody else—I would still be challenging it,” she said.

“I think the process has a loophole in it,” McCullough continued, “because if you read the law, the law tells you why it was written. It was written for the minority parties. It was not written for the Democrats. It wasn’t written for the Republicans or the Mountain Party. It was written so [minority parties] could get their candidates on the ballot.”

“We should all be concerned that our May primaries are neutered,” McCullough said.

Why wait to challenge Simmons’ placement on the ballot until after the election?

McCullough said she was advised in August by an attorney for the Secretary of State’s office to wait for the outcome of the election before challenging Simmons’ placement on the ballot.

“He said, ‘There’s nothing you can do until after the election,” McCullough recalled. “‘If you did anything, it’s too close to the election.’ I was told to wait, by the Secretary of State’s office. After that, I went forward.”

Bennett said her office acted on Simmons’ petition based on advice given by the Secretary of State’s office.

“Basically, the Secretary of State’s office’s response was that [the petition] was proper,” said Bennett. “It was my understanding, with talking with the Secretary of State’s office, that it is not required for a person to change their political party to file a petition.”

Because the case is pending before the court, West Virginia Secretary of State spokesperson Jake Glance said his agency couldn’t comment on the details of the petition.

“The Secretary of State’s office disagrees with the petitioner’s interpretation of that code section,” said Glance. “At the same time, we welcome an interpretation by the Supreme Court. That way, the question will be interpreted, and then it will clarify how to apply that section of code.”

While her petition names Bennett specifically, McCullough said she doesn’t fault Bennett for acting on the advice of Tennant’s office, adding that the county clerk does “an excellent job” in her office.

Simmons said he, too, was acting on the advice given by the Secretary of State’s office when he began the petition process to get on the ballot. He is still planning to move into the Prosecuting Attorney’s office on January 1.

For the time being, Price said she is planning to vacate the office on December 31 and is currently in the process of doing so.

However, the prosecutor said McCullough’s petition raised some interesting questions.

“It makes some valid points,” said Price. “One concerning thing, is that I didn’t realize his party hadn’t changed.”

“I was like most people and thought, well, he’s changed his politics and doesn’t classify himself as having a party affiliation,” Price added.

“If you voted in the primary and then signed that petition, is that then voting twice?” Price wondered.

The county may get an answer to that question when the Supreme Court of Appeals reviews the matter after its December 20 deadline for responses.

If the court doesn’t reject Simmons’ petition and annul the general election results for the Prosecuting Attorney’s race, McCullough said she is considering two other avenues to challenge the election, based on what she describes as additional discrepancies in the candidate’s election filings.

With the first of the year just a few weeks away, McCullough has formally requested court to expedite its ruling in the matter.