H. B. 2039


(By Delegate Fleischauer)

[Introduced February 14, 2001 ; 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 residency requirement of persons soliciting petition signatures; 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;
  1. (9) The words "subscribed and sworn to before me this ______ day of _____________, 19 20 ____," 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 two thousand one shall apply to the primary election held in the year two thousand two 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 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 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 ............................, 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 20 ......
Given under my hand and the seal of my office this ................. day of ........................., 19 20 ......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application made as herein provided in this section, shall issue such 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 a 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 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 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. 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 the 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 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 of this section, in addition to penalties prescribed elsewhere for violation of this chapter, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than one year, or both fined and imprisoned: 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.
§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. The residency requirement is removed for persons soliciting 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.