CHARLESTON — Not giving up, a Texas presidential write-in candidate is appealing the dismissal of his suit to keep former Republican U.S. President Donald Trump off West Virginia’s ballot, though it’s likely not the case that will decide the issue.

Texas resident and write-in presidential candidate John Anthony Castro filed a notice of appeal Tuesday with the U.S. Court of Appeals for the 4th Circuit after U.S. District Judge Irene C. Berger dismissed his September lawsuit to block Trump’s placement on West Virginia’s primary and general election ballots when the candidate filing period opens Jan. 8.

Berger granted motions last week by attorneys for Trump, Secretary of State Mac Warner and the West Virginia Republican Party to dismiss the lawsuit. She also ordered that Castro’s case be dismissed without prejudice, which would allow Castro to possibly file it again.

Castro was seeking a federal court order prohibiting Trump from being placed on the 2024 Republican primary ballot in West Virginia, arguing that the 14th Amendment to the U.S. Constitution prevents Trump from holding future federal offices.

In her memorandum opinion, Berger said that Castro’s lawsuit was disingenuous, considering there were no signs that Castro had actively campaigned for president in West Virginia or had any campaign presence in the state at all.

Berger cited admissions by Castro in similar lawsuits in New Hampshire and Arizona where Castro admitted that he had no campaign activities beyond filing lawsuits to block Trump from the ballots in multiple states. Beyond that, Berger said Castro was unable to show how Trump being on the ballot would harm his write-in presidential campaign.

In a separate filing Tuesday, Castro accused Berger of relying on hearsay for her ruling and not giving him an opportunity to be heard in court beyond filings.

“The Arizona court improperly relied on hearsay in media reports regarding alleged out-of-court statements made by Plaintiff,” Castro wrote. “It was improper for the Arizona court to do so and improper for this Court to do so. Plaintiff hereby objects to any reliance on those adjudicative facts since they improperly relied upon hearsay that is being properly addressed here.”

Castro claims Trump’s words and actions leading up to the certification of the 2020 presidential election by Congress on Jan. 6, 2021, helped fuel a riot at the U.S. Capitol by Trump supporters attempting to stop the certification of President Joe Biden’s victory.

The lawsuit, filed Sept. 7 in the U.S. District Court for the Southern District of West Virginia, is one of two dozen lawsuits filed by Castro attempting to block Trump’s access to state ballots. Castro claimed that allowing Trump on West Virginia’s ballot next year will harm Castro’s ability to campaign and fundraise, though Castro has reported no donations to date to the Federal Election Commission.

Castro cites Section 3 of the 14th Amendment to the U.S. Constitution, which states that “No person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

But Castro’s lawsuit is not likely the one that will end up deciding the issue of Trump’s placement on state ballots. The U.S. Supreme Court is expected to take up an appeal of a 4-3 decision made last week by the Colorado Supreme Court, which ruled that Trump was ineligible for the state’s ballot due to the insurrection clause.

In another case, the Michigan Supreme Court released an unsigned decision Wednesday declining to hear a similar case to the Colorado ballot lawsuit. West Virginia Attorney General Patrick Morrisey released a statement Wednesday afternoon praising the decision.

“The rights of the voters and candidates should be protected because any eligible candidate has the right to be on the ballot unless legally disqualified,” Morrisey said. “Excluding an eligible candidate from the ballot deprives citizens of the right to choose for themselves who they want to represent them in every level of government, and it impedes a fair and free election process.”

Elgine McArdle, chairwoman of the West Virginia Republican Party, said in a statement last week that it should be up to voters, not courts, to decide whether Trump is fit to hold the office of president again.

“As I have said many times, the Republican voters in West Virginia and across the country will decide our presidential nominee — not far-left special interests,” McArdle. “Voters in West Virginia and across the country deserve the right to reward him for this record by way of their vote in 2024.”