CHARLESTON — A Kanawha County Circuit Court judge Thursday delayed a decision that could determine how many legal hoops third-party candidates have to jump through to get their names on the general election ballot.
Independent gubernatorial candidate Denise Giardina asked the court to make it clear that the Legislature this year eliminated a law that kept anyone who signed a third-party ballot access petition from voting in their own party primary.
Her attorney, Jason Huber, told Judge Herman Canady Jr. that lawmakers took language out of the State Code in 1986.
This year, the Legislature eliminated a criminal penalty for signing a petition and then voting in a primary, which Huber said makes it clear lawmakers intended to eliminate the prohibition and allow people to do both.
However, the Legislature did not change another section of law that requires signature gatherers to explain the prohibition, which Huber says was a mistake that occurred in the rush at the end of the 60-day session.
Huber wants Canady to rule that anyone who signs a petition can still vote in a primary. 
Canady also was asked to let supporters gather signatures for Giardina and other third-party candidates without having to tell voters they cannot vote in the primary if they sign a petition.
“It’s absurd to believe something is unlawful yet there is no consequence,” Huber said.
The Legislature this year also doubled the number of signatures third-party candidates must collect to have their names placed on the general election ballot. 
The number increased from 1 percent of those who voted in the last election to 2 percent.
The change, which Huber called a “classic legislative tradeoff” proves lawmakers wanted to eliminate the primary voting prohibition and make it easier to gather signatures.
But the Democratic Party, which Canady on Thursday allowed to intervene in the case, said lawmakers never intended to allow petition signers to vote in the primary.
Signing a petition is in effect a primary vote and people cannot vote twice in the same election, said Pat Maroney, the party’s co-chairman.
Canady delayed his ruling to give lawyers time to submit legal papers supporting their arguments.
Giardina said she had wanted a resolution Thursday. She plans to gather signatures at Saturday’s West Virginia University football game in Morgantown.
No decision means she will have to tell people they will not be able to vote in the primary if they sign her petition, even though she believes they can.
“It just galls me to look people in the eye and tell them something that is not true,” Giardina said.
Secretary of State Ken Hechler, the state’s top elections officer, and the Republican Party agree with Giardina’s interpretation of the law.
Giardina needs to collect about 12,000 signatures by next May to get on the ballot. So far, her campaign has collected between 4,000 and 5,000 signatures, she said.