CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 4/10/2023 1

Reversing a State Supreme Court’s 

Retroactive Application 

of a Very Early Ballot Qualification Deadline 

Daly v. Tennant 

(Robert C. Chambers, S.D. W. Va. 3:16-cv-8981) 

A state’s secretary of state interpreted a state supreme court’s opinion 

to retroactively apply an early ballot-qualification deadline for independent and unrecognized-party candidates. Two candidates disqualified by the ruling filed a federal complaint, and the district judge 

granted the candidates a preliminary injunction against the ruling. 

The plaintiffs were awarded $34,234.81 in attorney fees and costs. 

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

matters for state courts; intervention; attorney fees. 

On September 15, 2016, West Virginia’s supreme court of appeals issued an 

opinion that was interpreted by West Virginia’s secretary of state as meaning 

that a revision to West Virginia’s election statutes required independent and 

unrecognized-party candidates for office to have qualified for the November 

8 ballot on January 30.1

The Socialist Equality Party’s nominee for a seat in West Virginia’s house 

of delegates and the Constitution Party’s nominee for President filed a federal 

complaint in the Southern District of West Virginia on September 19 against 

West Virginia’s secretary of state challenging the constitutionality of the state 

court’s retroactive change of the qualification deadline from August 1 to January 30.2

 On the following day, the candidates filed an emergency motion for 

a temporary restraining order.3

Judge Robert C. Chambers set the case for hearing on the afternoon of 

September 22, ordering the secretary to respond to the candidates’ motion by 

September 21.4 On September 21, an independent candidate for Putnam 

County’s commission filed a motion to intervene as an additional plaintiff,5

1. Wells v. West Virginia ex rel. Miller, 237 W. Va. 731, 791 S.E. 2d 361 (2016); id., 791 

S.E.2d at 368 (“Whether this was the intention of the Legislature in making the 2015 amendments to the statute is not for this Court to speculate . . . .”); see id. 791 S.E.2d at 382 (dissenting opinion by Justice Davis) (“the majority’s opinion effectively imposes two conflicting sets 

of filing deadlines upon independent candidates”); see also Phil Kabler, Court Quashes Wells’ 

Bid, Charleston Gazette-Mail, Sept. 13, 2016, at 1A; Phil Kabler, Court Releases Opinion on 

Wells, Charleston Gazette-Mail, Sept. 16, 2016, at 1C; Phil Kabler, In Light of High Court’s 

Ruling, Counties Mull Candidates’ Fates, Charleston Gazette-Mail, Sept. 13, 2016, at 1A. 

2. Complaint, Daly v. Tennant, No. 3:16-cv-8981 (S.D. W. Va. Sept. 19, 2016), D.E. 1; see 

Kate White, Candidates Say They Still Belong on Ballot in Nov., Charleston Gazette-Mail, Sept. 

21, 2016, at 1C. 

3. Temporary-Restraining-Order Motion, Daly, No. 3:16-cv-8981 (S.D. W. Va. Sept. 20, 

2016), D.E. 3. 

4. Order, id. (Sept. 20, 2016), D.E. 6. 

5. Intervention Motion, id. (Sept. 21, 2016), D.E. 7. 
Reversing a State Supreme Court’s Retroactive Application 

of a Very Early Ballot Qualification Deadline 

2 Federal Judicial Center 4/10/2023 

and Judge Chambers granted the motion that same day.6 The ACLU moved to 

participate as an amicus curiae,7

 and Judge Chambers granted that motion on 

the following day.8 Judge Chambers also ordered the Putnam County Clerk 

joined as a defendant.9

Following the September 22 hearing, Judge Chambers issued a preliminary 

injunction in the candidates’ favor.10

[The January deadline] unmistakably places a substantial burden on and discriminates against those candidates and voters whose political preferences lie 

outside the existing political parties. The January deadline deprives these candidates from knowing the political climate of the major parties and what issues will come to the forefront during campaigns.11

On January 24, 2017, Judge Chambers converted the preliminary injunction into a permanent injunction against the statutory filing deadline.12 He 

awarded the plaintiffs $34,234.81 in attorney fees and costs on May 16.13

6. Intervention Order, id. (Sept. 21, 2016), D.E. 9. 

7. Amicus Curiae Motion, id. (Sept. 21, 2016), D.E. 13. 

8. Amicus Curiae Order, id. (Sept. 22, 2016), D.E. 15. 

9. Joinder Order, id. (Sept. 22, 2016), D.E. 14. 

10. See Kate White, US Judge Blocks Candidate Removals, Charleston Gazette-Mail, Sept. 

23, 2016, at 1A. 

11. Daly v. Tennant, 216 F. Supp. 3d 699, 706 (S.D. W. Va. 2016); see Order, Daly, No. 

3:16-cv-8981 (S.D. W. Va. Sept. 22, 2016), D.E. 20. 

12. Order, Daly, No. 3:16-cv-8981 (S.D. W. Va. Jan. 24, 2017), D.E. 26. 

13. Order, id. (May 16, 2017), D.E. 33 (noting that the defendants did not respond to or 

oppose the fee motion).