Upshur County Commission race has a new twist this year

Monica Zalaznik
April 17, 2024

BUCKHANNON – The May 14, 2024, Primary Election ballot will include two Upshur County Commission seats for the first time since 2000, which introduces a complication that could mean the candidate with the most votes in each race won’t actually receive the nomination.

That is because of a provision in the West Virginia Constitution that says no two commissioners “shall be elected from the same magisterial district.” State code further clarifies that if the election for an unexpired term is held at the same time as the election for a full term, the latter office takes precedence in determining who is elected.

Upshur County Clerk Carol Smith said her office has been in contact with the West Virginia Secretary of State’s office several times, and they have told her that the magisterial district provision applies to both the Primary and General Elections.

This year the Upshur County Commission will have two seats open in the upcoming election, a full six-year term and a two-year unexpired term. The unexpired term became available after Upshur County Commissioner Terry Cutright passed away unexpectedly on Sept. 1, 2022; Doug Bush was appointed to fill that role and is running for the seat this spring.

Full term

Kristie G. Tenney (R, District 3)
Scott H. Williams (R, District 2)

Unexpired term

Doug Bush (R, District 2)
Jesse Davidson (R, District 3)
Patrick Kyle Lane (R, District 2)

In practical terms, the way state law is written means that one of these scenarios will play out in the Primary Election:

Kristie Tenney (District 3) will win the Republican nomination for the full-term seat, and the highest vote-getter between either Doug Bush (District 2) or Patrick Lane (District 2) will get the Republican nomination for the unexpired term that will be on the November 2024 General Election ballot. Jesse Davidson (District 3) cannot get the Republican nomination — even if he has more votes — because he is in the same district as Tenney.
Scott Williams (District 2) will win the Republican nomination for the full-term seat, and Jesse Davidson (District 3) will win the Republican nomination for the unexpired term. Doug Bush (District 2) and Patrick Lane (District 2) cannot get the nomination – even if they have more votes — because they are in the same district as Williams.

To see why that is, let’s take a step back and break things down:

Upshur County has three county commission seats serving six-year terms. One of the three seats is up for election every two years.
Upshur County is divided into three magisterial districts, representing roughly (1) the city/central part of the county, (2) the northern and eastern parts of the county, and (3) the southern and western parts of the county.
The county commission seats are not assigned to a specific district; any person living in any of the three districts can run for any of the three seats. But collectively, no more than one person from each district can be elected.

Normally, since only one commission seat is up for election at any given time, only people from the open district will file for office. But this year, five people are running in the Primary Election to become the Republican nominee for the two seats. No Democrats are on the ballot.

Commission President Sam Nolte (District 1) is not up for election, meaning no one from his district can be elected.

Here is where things get complicated. According to state code, since two commission seats are up for election simultaneously, the full-term race takes priority.

“If the election for an unexpired term is held at the same time as the election for a full term for county commissioner, the full term shall be counted first and the unexpired term shall be counted second,” reads state code 3-10-7(h). “If the candidate with the highest number of votes for the unexpired term resides in the same magisterial district as the candidate with the highest number of votes for the full term, the candidate for the full term shall be seated. The candidate with the next highest number of votes for the unexpired term residing in a different magisterial district shall be seated for the unexpired term.”

Smith said the West Virginia Secretary of State’s office told her that provision does apply to the Primary Election, meaning the Republican who receives the most votes in the full-term race will effectively eliminate the Republican candidate or candidates from their district in the unexpired term race.

“The highest vote-getter in the full [six-year] term determines the winner in the [two-year] unexpired term (in the May 14 Primary Election),” Smith said. “If the candidate from the 3rd Magisterial District is the winner in the full-term race, then the highest vote-getter in the unexpired term in the 2nd Magisterial District would be the winner. However, if the candidate from District 2 in the full-term race is the winner, then the person in District 3 in the unexpired term race is the winner.”

Although no Democrats are running for commission, the same scenario would apply in the November 2024 General Election, Smith confirmed. If a non-partisan or write-in candidate wins the full-term seat in the fall, then anyone from their district could not win the unexpired term seat.

“If you have an independent file for the full-term [from a different district], and they get the most votes in the General Election, then the person who we thought was going to be the winner of the unexpired term race won’t be the winner anymore because you can’t have two people from the same district,” Smith said.

Smith said the last time the commission had two seats available was in 2000 when Upshur County Commissioner Fred Gaudet passed away.

“We didn’t have anyone file in a different district than the seat that was up, which was the 1st District for the unexpired term, so the only people who filed for that were in the 1st district,” Smith said. “The only people who ran in the full term were in the 3rd District.”

Smith’s office has started mailing out absentee ballots and the application for those may be found on the county website here.

“We’re getting ready for early voting and sample ballots are up on the County Clerk’s webpage at upshurcounty.org,” Smith said. “I have the forms there for absentee applications, and I have a form there for anyone who needs to register to vote or needs to change their party or update their address.”