Background
David C. Tabb filed as the Mountain Party candidate for a Jefferson County Commission seat representing the Harpers Ferry Magisterial District. Tabb undisputedly lived in the Charles Town Magisterial District, however, and West Virginia law requires a county commission candidate to reside in the district for which the candidate seeks election by the filing deadline. A county clerk’s employee warned Tabb that he was filing for the wrong district, and Tabb had previously sought the office from the Charles Town district.
After the State Elections Commission determined that it lacked jurisdiction over a challenge to Tabb’s eligibility, Jefferson County resident John A. Cline filed a verified petition in circuit court on August 27, 2026. Although the statutory deadline ordinarily fell 30 days after the primary election, the circuit court permitted the late filing under an exception for grounds that could not have been discovered earlier despite reasonable diligence. It then ordered Tabb’s name removed from the general-election ballot because he did not reside in the Harpers Ferry district.
The Court’s Holding
The Supreme Court of Appeals summarily affirmed the circuit court’s order. Applying clear-error review to the circuit court’s factual findings and abuse-of-discretion review to its final disposition, the majority concluded that Tabb had not established either clear error or an abuse of discretion. The court therefore left his removal from the ballot in place and denied his stay motion as moot.
Chief Justice C. Haley Bunn dissented. She concluded that the record did not satisfy the statutory requirements for allowing such a late pre-election challenge and criticized the majority for effectively endorsing an erroneous application of the statute. Because thousands of voters had already cast ballots that omitted Tabb’s name, however, she would have treated the request for reinstatement as moot rather than ordering his return to the ballot and potentially disenfranchising those voters.
Key Takeaways
- West Virginia law requires a county commission candidate to reside in the magisterial district for which the candidate seeks election by the certificate-of-announcement deadline.
- The court upheld the circuit court’s decision to entertain the post-deadline eligibility challenge and remove Tabb from the ballot, finding no clear error or abuse of discretion.
- The dissent disputed the statutory basis for accepting the late challenge but concluded that reinstatement was no longer practical once early and absentee voting had begun.
Why It Matters
The decision leaves in place the removal of a concededly nonresident candidate while also illustrating the importance of timing in election litigation. Challenges, stays, and appellate requests must be pursued early and with sufficient urgency because ballot printing and voting can make otherwise available relief impossible.
The memorandum decision is a ruling on the merits affirming the circuit court’s outcome, though under West Virginia Rule of Appellate Procedure 21(c), summary affirmance does not necessarily adopt all of the lower court’s reasoning.