Senate Bill No. 61

(By Senator Hunter)

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[Introduced January 11, 2006; referred to the Committee

on Government Organization; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §3-5-23 of the Code of West Virginia, 1931, as amended, relating to providing that the county clerk assist, upon request, the Secretary of State or circuit clerk in determining the validity of nominating certificates.

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 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 county commission of the county if the office is to be filled by the voters of one county or political subdivision thereof; 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 the declaration each candidate shall pay the filing fee required by law, and if 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 county commission, as the case may be.
(b) The person or persons soliciting or canvassing signatures of duly qualified voters on 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 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 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 the canvass or solicitation is made by the person or persons duly authorized. The signatures need not all be on one certificate. The number of 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 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 the office shall constitute the entire vote. No signature on a 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 the certificate was presented.
(d) The certificates shall state the name and residence of each of the candidates; that he or she is legally qualified to hold the office; that the subscribers are legally qualified and duly registered as voters and desire to vote for the candidates; and may designate, by not more than five words, a brief name of the party which the candidates represent and may adopt a device or emblem to be printed on the official ballot. All candidates nominated by the signing of 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 county commission, as the case may be, may investigate the validity of the certificates and the signatures thereon. The county clerk shall, upon the request of the Secretary of State or circuit clerk, compare the information from any certificate to the county voter registration records in order to assist in determining validity of any certificates. If upon investigation there may be doubt as to the legitimacy and the validity of 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 the nomination to public office, and upon request being made, the Attorney General or prosecuting attorney shall institute 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 provide that the county clerk assist, upon request, the Secretary of State or circuit clerk in determining the validity of nominating.

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