After lawsuit against state Republicans, lawmakers change law about presidential electors procedure

Senate Bill 1014 allows state executive committees to make the rules for nominating presidential electors as long as the rules are consistent with rules of the national political party. If the party rules do not have procedures for nominating presidential electors, the bill says, they will be nominated at a state convention. (Will Price | West Virginia Legislative Photography)

During last week’s three-day special legislative session , West Virginia’s Republican-led Legislature passed a bill that removes a requirement that political parties hold statewide conventions to nominate presidential electors.

The change comes after a Cabell County man filed a lawsuit against state Republican party chairman Matt Herridge last month alleging the party’s plans to nominate its presidential electors at a summer meeting and not at a state convention violated state law.

Josh Keck, a college professor and member of the Cabell County Democratic Executive Committee , filed the lawsuit April 12 against Herridge and West Virginia Secretary of State Mac Warner, both in their official capacities.

“They had no legal defense,” Keck said of the Legislature passing the bill. “If they didn’t change the law, then the only option was for the judges to rule against the West Virginia Republican Executive Committee and force them to follow the law to hold conventions, and they just don’t want to be bothered to do that. That’s the only explanation, and I say that in all seriousness.”

Keck likened changing the bill to “weaponizing” the government. He said it’s disappointing to see it happen, especially during a special legislative session.

In a statement Friday, state Republican Party Chairman Matt Herridge said the bill had been introduced in past sessions and that the language in the code was “very antiquated and unattainable.”

“Just as in the past, the Party fulfills the full body of work that a nominal convention would entail at its open executive committee meetings made up of its 130 elected party representatives, also including party platform and national convention delegates,” Herridge said in the statement.

“Parties enjoy associational rights under the 1st and 14th Amendments, which should be protected and reflected by law,” he said. “The clarification protects all parties from frivolous litigation over any number of outdated and unattainable specifications in the old law. The law will now reflect something that is in line with the vast majority of states, leaving parties with the discretion their membership deserves.”

Gov. Jim Justice requested the legislation and set the agenda for the three-day special session that was mostly focused on budgetary issues. As of Friday the bill was awaiting the governor’s signature.

Eighty members — mostly Republicans — of the West Virginia House of Delegates and all 31 senators who were present for the vote signed off on Senate Bill 1014 , clarifying procedure for political party nomination of presidential electors.

The bill, which was effective at passage, allows state executive committees to make the rules for nominating presidential electors as long as the rules are consistent with rules of the national political party. If the party rules do not have procedures for nominating presidential electors, the bill says, they will be nominated at a state convention.

In the United States, the presidential election is decided by the electoral college process. Voters cast their votes for electors who pledge to vote for the winner of the popular vote in the state. West Virginia has four of the total 270 electoral votes.

According to the process for nominating presidential electors outlined in an interest packet posted on the West Virginia Republican Party’s website , a steering committee was to nominate four presidential electors to be presented to the state executive committee and ratified at its summer meeting, held May 18.

Keck said the Republican party changed their bylaws in 2020, when social distancing was important to prevent the spread of COVID-19 pandemic.

“At that point, I can understand why you would need to do a little different process,” he said. “But in 2024 there was no need for that.”

In the lawsuit, Keck argued that as a registered voter in the state who may choose to affiliate with the Republican Party, he would be harmed if “unlawfully nominated Presidential Electors are placed on the ballot.”

Keck said his biggest issue with the Republicans’ presidential elector procedure is that by not following the election law, as it was before the bill passed, the party created a broken electoral process.

“One party in power doesn’t have to follow the law while the other one, the minority party, does,” Keck said. “I’m not cool with that. That’s not appropriate. These conventions are not cheap. They take a lot of time.”

In a motion to dismiss the lawsuit, filed May 17, Herridge called Keck’s lawsuit “an attempt to create political mischief.”

“Despite not being a member of the West Virginia Republican Party with any personal connection to (let alone injury created by) the selection of Republican presidential delegates, Mr. Keck asks this Court to interject itself into that parties’ internal policies and procedures,” the response said. “It should not take this bait.”

It went on to say that Herridge believes he and the party are in “substantial compliance” with  the law and the party’s plans are consistent with past practice in nominating presidential electors.

The response also notes that Justice had included Senate Bill 1014 on the special legislative session call “so the challenged language is quite likely to be amended rendering this case moot.”

The governor’s office did not respond to a request for comment.

Del. Mike Pushkin, chairman of the state Democratic Party, said the party will nominate its presidential electors during a state convention June 14 and 15 in Charleston.

“It is open to the public and open to the media and we feel that’s the way we should be electing our delegates to the national convention and that’s how we will choose our electors as well, in broad daylight,” Pushkin said. “So no matter what the Republicans plan on doing, we’re going to continue doing it the way it should be done — that’s out in the open.”

Keck said he has problems with the way the new law is written, including that it doesn’t specify when electors need to be nominated or certified.

“We don’t have a legal specification of who needs to certify these names at the political party and we don’t know who they’re supposed to certify them to…,” Keck said. “Technically, the way it’s now worded, these political parties can wait until Nov. 4 If they want to, before putting their names out.”

With the law changed, Keck said he doesn’t intend to continue with the lawsuit.

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