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Introduced Version House Bill 3067 History

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hb3067 intr
H. B. 3067


(By Delegates Amores and Trump)
[Introduced
March 16, 2005 ; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact §3-5-23 of the Code of West Virginia, 1931, as amended, relating to elections generally; and removing certain language requiring canvassers to notify signers that they are prohibited from voting; making certain technical changes; and requiring the clerk of the county commission to assist the circuit clerk and the Secretary of State in checking the validity of nominating petitions.

Be it enacted by the Legislature of West Virginia:
That §3-5-23 of the Code of West Virginia, 1931, as amended be amended and reenacted to read as follows:
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-23. Certificate nominations; requirements and control; penalties.

(a) Groups of citizens having no party organization may nominate candidates for public office otherwise than by conventions or primary elections. In such the case, the candidate or candidates, jointly or severally, shall file a declaration with the Secretary of State if the office is to be filled by the voters of more than one county, or with the clerk of the circuit court of the county if the office is to be filled by the voters of one county or political subdivision thereof; such the declaration to be filed at least thirty days prior to the time of filing the certificate provided by section twenty-four of this article: Provided, That the deadline for filing the certificate for persons seeking ballot access as a candidate for the office of president or vice president shall be filed not later than the first day of August preceding the general election. At the time of filing of such the declaration, each candidate shall pay the filing fee required by law, and if such the declaration is not so filed or the filing fee so paid, the certificate shall not be received by the Secretary of State, or clerk of the circuit court, as the case may be.
(b) The person or persons soliciting or canvassing signatures of duly qualified voters on such the certificate or certificates, may solicit or canvass duly registered voters residing within the county, district or other political division represented by the office sought, but must first obtain from the clerk of the county commission credentials which must be exhibited to each voter canvassed or solicited, which credentials may be in the following form or effect:
State of West Virginia, County of ................., ss:
This certifies that ..............................., whose post-office address is ..............................., the holder of this credential is hereby authorized to solicit and canvass duly registered voters residing in .................. (here place the county, district or other political division represented by the office sought) to sign a certificate purporting to nominate ............................ (here place name of candidate heading list on certificate) for the office of .......................... and others, at the general election to be held on ..................., 20....
Given under my hand and the seal of my office this ............... day of ........................., 20......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application made as herein provided, shall issue such the credentials and shall keep a record thereof.
(c) The certificate shall be personally signed by duly registered voters, in their own proper handwriting or by their marks duly witnessed, who must be residents within the county, district or other political division represented by the office sought wherein such the canvass or solicitation is made by the person or persons duly authorized. Such signatures need not all be on one certificate. The number of such the signatures shall be equal to not less than two percent of the entire vote cast at the last preceding general election for the office in the state, district, county or other political division for which the nomination is to be made, but in no event shall the number be less than twenty-five. The number of such the signatures shall be equal to not less than two percent of the entire vote cast at the last preceding general election for any statewide, congressional or presidential candidate, but in no event shall the number be less than twenty-five. Where two or more nominations may be made for the same office, the total of the votes cast at the last preceding general election for the candidates receiving the highest number of votes on each ticket for such the office shall constitute the entire vote. No signature on such the certificate shall be counted unless it be that of a duly registered voter of the county, district or other political division represented by the office sought wherein such the certificate was presented. It shall be the duty of those soliciting signatures to read to each voter whose signature is solicited the statement written on the certificate which gives notice that no person signing such certificate shall vote at any primary election to be held to nominate candidates for office to be voted for at the election to be held next after the date of signing such certificate.
(d) Such certificates shall state the name and residence of each of such the candidates; that he or she is legally qualified to hold such the office; that the subscribers are legally qualified and duly registered as voters and desire to vote for such the candidates; and may designate, by not more than five words, a brief name of the party which such the candidates represent and may adopt a device or emblem to be printed on the official ballot. All candidates nominated by the signing of such the certificates shall have their names placed on the official ballot as candidates, as if otherwise nominated under the provisions of this chapter.
The Secretary of State shall prescribe the form and content of the nomination certificates to be used for soliciting signatures. The content shall include the language to be used in giving written and oral notice to each voter that signing of the nominating certificate forfeits that voter's right to vote in the corresponding primary election.
Offices to be filled by the voters of more than one county shall use separate petition forms for the signatures of qualified voters for each county.
(e) The Secretary of State, or the clerk of the circuit court, as the case may be, may investigate the validity of such the certificates and the signatures thereon. and if upon such If upon investigation there may be doubt as to the legitimacy and the validity of such the certificate, he or she may request the Attorney General of the state, or the prosecuting attorney of the county, to institute a quo warranto proceeding against the nominee or nominees by certificate to determine his or their right to such the nomination to public office, and upon request being made, the Attorney General or prosecuting attorney shall institute such the quo warranto proceeding. The clerk of the county commission shall, at the request of the Secretary of State or the clerk of the circuit court, compare the information from any certificate to the county voter registration records in order to assist in determining the validity of any certificates.
(f) Any person violating the provisions of this section, in addition to penalties prescribed elsewhere for violation of this chapter, is guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars, or confined in jail for not more than one year, or both, in the discretion of the court: Provided, That no criminal penalty may be imposed upon anyone who signs a nomination certificate and votes in the primary election held after the date the certificate was signed.



NOTE: The purpose of this bill is to remove certain language requiring canvassers to notify signers that they are prohibited from voting in a primary election and to make certain technical changes. The bill also requires the clerk of the county commission to assist the circuit clerk and the Secretary of State in checking the validity of nominating petitions. The U.S. District Court found that the stricken language suppressed First Amendment Rights. See McClure v. Manchin, 301 FSupp.2d 564 (2003).

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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