H. B. 2115
(By Delegate Fleischauer)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections seven, twenty-three and
twenty-four, article five, chapter three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to primary elections and nominating procedures
of third party candidates; removing reference to general
election in provision governing declaration of candidacy for
primary election; eliminating the reference to the filing of
a declaration of candidacy in provision establishing
certificate nomination procedures; extending the filing
deadline for the nomination of certain candidates;
eliminating requirement that persons signing nomination
certificate state a desire to vote for nominated candidate;
permitting duly registered voters who sign nomination
certificates to vote in the corresponding primary election; requiring persons soliciting signatures to provide
circulation dates and a signature as to each certificate
page; extending the deadline for the filing of nomination
certificates for candidates; and establishing the date by
which the filing fee must be paid.
Be it enacted by the Legislature of West Virginia:
That sections seven, twenty-three and twenty-four, article
five, chapter three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
Any person who is eligible and seeks to hold an office or
political party position to be filled by election in any primary
or general election held under the provisions of this chapter
shall file a certificate of announcement declaring as a candidate
his or her candidacy for the nomination or election to the
office.
(a) The certificate of announcement shall be filed as
follows:
(1) With the secretary of state, if it be is an office or
political position to be filled by the voters of more than one county;
(2) With the clerk of the circuit court, if it be is for an
office to be filled by the voters of a single county or of a
subdivision less than a county;
(3) With the recorder or city clerk if it be is for an
office to be filled by the voters of a municipality.
The certificate of announcement shall be filed with the
proper officer not earlier than the second Monday in January next
preceding the primary election day, and not later than the last
Saturday in January next preceding the primary election day, and
must be received before midnight, eastern standard time, of that
day or, if mailed, shall be postmarked by the United States
postal service before that hour.
(b) The certificate of announcement shall be in a form
prescribed by the secretary of state on which the candidate shall
make a sworn statement before a notary public or other officer
authorized to give administer oaths, containing the following
information:
(1) The date of the election in which the candidate seeks to
appear on the ballot;
(2) The name of the office sought; the district, if any; and
the division, if any;
(3) The legal name of the candidate, and the exact name the candidate desires to appear on the ballot, subject to limitations
prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the
candidate is a legally qualified voter of that county; and the
magisterial district of residence for candidates elected from
magisterial districts or under magisterial district limitations;
(5) The specific address designating the location at which
the candidate resides at the time of filing, including number and
street or rural route and box number, and city, state and zip
code;
(6) For partisan elections, the name of the candidate's
political party, and a statement that the candidate is a member
of and affiliated with that political party as is evidenced by
the candidate's current registration as a voter affiliated with
that party, and that the candidate has not been registered as a
voter affiliated with any other political party for a period of
sixty days before the date of filing the announcement;
(7) For candidates for delegate to national convention, the
name of the presidential candidate to be listed on the ballot as
the preference of the candidate on the first convention ballot;
or, a statement that the candidate prefers to remain
"uncommitted";
(8) A statement that the person filing the certificate of announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______
day of _____________, 19____," and a space for the signature of
the officer giving the oath.
The secretary of state or the board of ballot commissioners,
as the case may be, may refuse to certify the candidacy or remove
the certification of the candidacy upon receipt of a certified
copy of the voter's registration record of the candidate
evidencing that the candidate was registered as a voter in a
party other than the one named in the certificate of announcement
during the sixty days immediately preceding the filing of the
certificate: Provided, That unless a signed formal complaint of
violation of this section and the certified copy of the voter's
registration record of the candidate be filed with the officer
receiving that candidate's certificate of announcement no later
than ten days following the close of the filing period, the
candidate shall not be refused certification for this reason.
(c) The certificate of announcement shall be subscribed and
sworn to by the candidate before some any officer qualified to
administer oaths, who shall certify the same. Any person who
knowingly provides false information on the certificate is guilty
of false swearing and shall be punished as set forth in section
three, article nine of this chapter.
(d) Any candidate for delegate to a national convention may
change his or her statement of presidential preference by
notifying the secretary of state by letter received by the
secretary of state no later than the third Tuesday following the
close of candidate filing. When the rules of the political party
allow each presidential candidate to approve or reject candidates
for delegate to convention who may appear on the ballot as
committed to that presidential candidate, the presidential
candidate or the candidate's committee on his or her behalf may
file a list of approved or rejected candidates for delegate, and
the secretary of state shall list as "uncommitted" any candidate
for delegate who is disapproved by the presidential candidate.
(e) No person shall be a candidate for more than one office
or office division at any election: Provided, That a candidate
for an office may also be a candidate for president of the United
States, for membership on a political party executive committee
or for delegate to a political party national convention.
Notwithstanding the provisions of this section, nothing shall
prohibit a candidate from jointly running for or holding the
offices of county clerk and circuit clerk in those counties which
operate a joint clerkship system.
(f) Any candidate who files a certificate of announcement
for more than one office or division and does not withdraw, as provided by section eleven, article five of this chapter, from
all but one office prior to the close of the filing period shall
not be certified by the secretary of state or placed on the
ballot for any office by the board of ballot commissioners.
The provisions of this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-one shall apply to the primary election held in the year
one thousand nine hundred ninety-two and every primary election
held thereafter. The provisions of this section enacted during
the regular session of the Legislature in the year one thousand
nine hundred ninety-eight ninety-nine shall apply to the primary
election held in the year two thousand and every primary election
held thereafter.
§3-5-23. Certificate nominations; requirements and control;
penalties.
(a) Groups of citizens having no party organization may
nominate candidates for public office who are not already
candidates in the primary election otherwise than by conventions
or primary elections. In such that 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 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 declaration each candidate shall pay the filing
fee required by law, and if such 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 nomination certificate in accordance with the
provisions of this section and the provisions of section twenty-
four of this article.
(b) The person or persons soliciting or canvassing
signatures of duly qualified voters on such 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 ............................., a duly registered voter of this State; whose post-office address is
....................., 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 .................., 19......
Given under my hand and the seal of my office this
.............. day of ...................., 19......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application
made as herein provided in this section, shall issue such those
credentials and shall keep a record thereof of those credentials.
(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 The signatures do not
need not
all to be on one certificate. The number of such the
signatures shall be equal to not less than one 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. 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 is that of a duly
registered voter of the county, district or other political
division represented by the office sought wherein such
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. It shall be the duty of those
soliciting signatures to provide a statement upon the face of
each and every individual certificate page as to the dates of
circulation of the certificate, along with the signature of the
person soliciting signatures upon each certificate.
(d) Such The certificates shall state the name and residence
of each of such the candidates; that he or she is legally
qualified to hold such office; that the subscribers are legally
qualified and duly registered as voters and desire to vote for such candidates have the candidates placed on the official
general election ballot; 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. Notwithstanding any other
provision of this code to the contrary, a duly registered voter
may sign the certificate provided for in this section and may
vote for candidates of his or her choosing 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 on the certificates,
and if upon such after the investigation there may be is 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 her 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.
(f) Any person violating the provisions hereof, in addition
to penalties prescribed elsewhere for violation of this chapter,
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined
imprisoned in the county jail for not more than one year, or both
fined and imprisoned, in the discretion of the court.
§3-5-24. Filing of nomination certificates; deadlines for
filing; payment of filing fee.
(a) All certificates nominating candidates for office under
the preceding section, including other than certificates
nominating a candidate for the office of presidential elector
president or vice president, shall be filed, in the case of a
candidate to be voted for by the voters of the entire state or by
any subdivision thereof of the state other than a single county,
with the secretary of state, and in the case of all candidates
for county and magisterial district offices, including all
offices to be filled by the voters of a single county, with the clerk of the circuit court of the county, not later than the day
preceding the date on which the primary election is held. After
such date no such certificate shall be received by such officers.
(b) All certificates nominating candidates for the office of
president or vice president shall be filed with the secretary of
state not later than the first day of August preceding the
general election.
(c) At the time of the filing of the nomination
certificates, each candidate shall pay the filing fee required by
section eight of this article. If any nomination certificate is
not timely filed or if the filing fee is not timely paid, the
certificate shall not be received by the secretary of state, or
by the clerk of the circuit court, as the case may be.
NOTE: This bill requires persons soliciting signatures for
candidacy to provide a statement on every individual page of the
certificate containing the dates of circulation and the signature
of the person soliciting the signatures. This bill also allows
any duly registered voter signing a certificate to vote for
candidates of his or her choosing in the primary election. This
bill provides deadlines for filing a certificate and payment of
the filing fee.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.