CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/13/2023 1

2020 Ballot-Petition Signature Requirements 

in West Virginia 

Wilson v. Justice (Thomas E. Johnston, 2:20-cv-526) and 

West v. Warner (Irene C. Berger, 2:20-cv-570) (S.D. W. Va.) 

Southern District of West Virginia district judges denied 2020 independent candidates relief from West Virginia’s ballot-petition 

signature requirements. Independent candidates for President and 

governor argued that the requirements were too onerous, especially 

during a global infectious pandemic. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

Covid-19; laches; interlocutory appeal; case assignment. 

Prospective independent candidates in the 2020 general election were unsuccessful in persuading judges in the Southern District of West Virginia to relax West Virginia’s ballot-petition signature requirements. 

Gubernatorial Candidate 

A prospective independent candidate for governor filed in the Southern District of West Virginia a federal complaint against West Virginia’s governor 

and its secretary of state on August 4, 2020, challenging West Virginia’s ballot-petition signature requirements for independent candidates in light of 

social distancing made necessary by a global Covid-19 infectious pandemic.1

Nearly two weeks later, the plaintiff filed a motion for a temporary restraining order and a preliminary injunction.2

On the next day, Chief Judge Thomas E. Johnston set the case for a telephonic status conference on Friday, August 21.3

 At the five-minute conference, Judge Johnston set the case for a hearing on Monday.4

The courthouse was mostly closed in the spring because of the pandemic, 

but it was mostly open in August.5

 Because Chief Judge Johnston observed 

evidence of community transmission, he mostly closed the courthouse again 

in September.6 Because the hearing in this case was in August, however, it 

could be held in the courtroom.7 The hearing was open to the public, but it 

was not attended by very many members of the public.8 Participants were 

required to wear masks, except when speaking.9

1. Complaint, Wilson v. Justice, No. 2:20-cv-526 (S.D. W. Va. Aug. 4, 2020), D.E. 1. 

2. Motion, id. (Aug. 17, 2020), D.E. 4. 

3. Order, id. (Aug. 18, 2020), D.E. 5. 

Tim Reagan interviewed Judge Johnston for this report by telephone on November 4, 

2020. 

4. Order, Wilson, No. 2:20-cv-526 (S.D. W. Va. Aug. 21, 2020), D.E. 11; Minutes, id.

(Aug. 21, 2020), D.E. 10. 

5. Interview with Hon. Thomas E. Johnston, Nov. 4, 2020. 

6. Id. 

7. Id. 

8. Id. 

9. Id.; see Transcript at 3, Wilson, No. 2:20-cv-526 (S.D. W. Va. Aug. 24, 2020, filed Sept. 
2020 Ballot-Petition Signature Requirements in West Virginia 

2 Federal Judicial Center 9/13/2023 

Following a brief recess at the end of the hearing, Judge Johnston denied 

the plaintiff immediate relief.10 The primary basis for Judge Johnston’s ruling 

was laches, but Judge Johnston found other reasons that the requested relief 

would cause the state hardship and be detrimental to the public: 

Plaintiff has proffered no reasonable justification for waiting to file suit 

and seeking emergency relief until August. 

. . . Plaintiff's delay, in bringing this suit at the eleventh hour and only 

after not satisfying the ballot access requirements[,] is inexcusable and unreasonable. 

. . . 

[It] threatens to disrupt the remaining election process. . . . 

. . . 

Now, even though the doctrine of laches resolves Plaintiff’s motion for 

preliminary injunction, the Court nonetheless finds that Plaintiff would not 

be entitled to preliminary injunctive relief. 

. . . 

The Court agrees with Defendants that the ballot access requirements 

imposed only modest burdens on the Plaintiff and, thus, intermediate scrutiny applies. . . . 

. . . 

Defendants have offered several justifications for enforcing the ballot 

access laws. . . . 

. . . 

Even if plaintiff had shown a likelihood of success on the merits, a preliminary injunction would not be appropriate because a modification of 

these election laws, at least at this juncture, would cause the government 

significant hardship and would be detrimental to the public. . . . 

Issuing Plaintiff’s proposed injunction would not permit sufficient time 

for county boards of ballot commissioners to prepare ballots for printing 

and meet the September 18, 2020 ballot mailing deadline. Moreover, reducing the number of valid signatures at this stage could expand the pool of independent candidates and require more signature verification efforts on the 

. . . part of county officials. Finally, placing Plaintiff on the ballot would deprive the public of proper enforcement of West Virginia’s election laws and 

potentially result in disparate treatment of other prospective candidates 

who did not satisfy the signature gathering and deadline requirements.11

Presidential Candidate 

On Friday, August 28, Kanye West, a prospective independent candidate for 

President, filed in the Southern District a complaint against West Virginia’s 

secretary of state challenging his disqualification for the ballot as a result of 

1, 2020), D.E. 16 [hereinafter Wilson Transcript] (“THE COURT: You can remove your 

mask when you’re speaking. I know it makes it difficult.”). 

10. Order, id. (Aug. 24, 2020), D.E. 15; Minutes, id. (Aug. 24, 2020), D.E. 14; Wilson

Transcript, supra note 9, at 44–61. 

11. Wilson Transcript, supra note 9, at 49, 51, 53, 57, 59–61. 
2020 Ballot-Petition Signature Requirements in West Virginia 

Federal Judicial Center 9/13/2023 3

the invalidation of about half of his ballot-petition signatures.12 On Monday, 

West filed a motion for a preliminary injunction.13

Judge Irene C. Berger issued an order on Monday requiring prompt service on the secretary and a response to West’s motion by September 8.14

Unsuccessful Consolidation 

On September 3, the governor and the secretary moved to consolidate the 

two cases or transfer the second case to Judge Johnston.15 Judge Berger had 

made consideration of the preliminary-injunction motion a priority, but the 

consolidation motion created a small delay.16 Judge Berger declined consolidation six days later.17 The first case arose because an insufficient number of 

signatures were collected; the second case arose because an insufficient number of signatures were deemed valid.18 In addition, because Judge Johnston 

had already ruled on an injunction motion in his case, the cases were in different procedural postures.19

Judge Berger’s Decision 

Because the facts were not in dispute, a hearing on West’s injunction motion 

was not necessary.20 Even if the pandemic had not made proceedings challenging, Judge Berger probably would not have deemed a hearing necessary.21

She denied West a preliminary injunction on September 14, finding reasonable West Virginia’s methods for validating ballot-petition signatures.22

West filed on September 15 a notice of appeal23 and on September 16 a 

motion to stay his claims for declaratory relief pending interlocutory appeal.24 On October 18, the court of appeals denied a motion to expedite the 

appeal.25 On September 21, Judge Berger denied the stay motion, finding that 

appellate review of the injunction decision would be unlikely to affect the 

merits of the remaining claims.26

12. Complaint, West v. Warner, No. 2:20-cv-570 (S.D. W. Va. Aug. 28, 2020), D.E. 1. 

13. Preliminary-Injunction Motion, id. (Aug. 31, 2020), D.E. 4. 

14. Order, id. (Aug. 31, 2020), D.E. 7. 

Tim Reagan interviewed Judge Berger for this report by telephone on October 29, 2020. 

15. Consolidation Motion, West, No. 2:20-cv-570 (S.D. W. Va. Sept. 3, 2020), D.E. 12; 

Consolidation Motion, Wilson, No. 2:20-cv-526 (S.D. W. Va. Sept. 3, 2020), D.E. 17. 

16. Interview with Hon. Irene C. Berger, Oct. 29, 2020. 

17. Opinion, West, No. 2:20-cv-570 (S.D. W. Va. Sept. 9, 2020), D.E. 19, 2020 WL 

5414354. 

18. Id. 

19. Id. at 3. 

20. Interview with Hon. Irene C. Berger, Oct. 29, 2020. 

21. Id. 

22. See Amended Opinion, West, No. 2:20-cv-570 (S.D. W. Va. Sept. 15, 2020), D.E. 24, 

2020 WL 5524868; see also Lacie Pierson, Federal Judge Denies Kanye West’s Bid to Get on 

Ballot in WV, Huntington Herald-Dispatch, Sept. 15, 2020, at A2. 

23. Notice of Appeal, West, No. 2:20-cv-570 (S.D. W. Va. Sept. 15, 2020), D.E. 25. 

24. Stay Motion, id. (Sept. 16, 2020), D.E. 27. 

25. Order, West v. Warner, No. 20-1994 (4th Cir. Sept. 18, 2020), D.E. 14. 

26. Opinion, West, No. 2:20-cv-570 (S.D. W. Va. Sept. 21, 2020), D.E. 29; see Scheduling 

Order, id. (Sept. 22, 2020), D.E. 30 (provisionally setting a scheduling conference for No-
2020 Ballot-Petition Signature Requirements in West Virginia 

4 Federal Judicial Center 9/13/2023 

On September 28, the court of appeals granted West’s voluntary dismissal of the appeal,27 and Judge Berger granted his voluntary dismissal of the 

case.28

Voluntary Dismissal of Judge Johnston’s Case 

Following Judge Berger’s lead, Judge Johnston denied the consolidation motion on September 23.29 Judge Johnston granted a voluntary dismissal on October 14.30

vember 10). 

27. Order, West, No. 20-1994 (4th Cir. Sept. 28, 2020), D.E. 16. 

28. Order, West, No. 2:20-cv-570 (S.D. W. Va. Sept. 28, 2020), D.E. 32. 

29. Order, Wilson v. Justice, No. 2:20-cv-526 (S.D. W. Va. Sept. 23, 2020), D.E. 20. 

30. Order, id. (Oct. 14, 2020), D.E. 23.