HB2926 PS AM 3-4
Roskovensky 3338

The Committee on Political Subdivisions moves to amend the bill on page one, line sixteen, by striking everything after the enacting section and inserting in lieu thereof the following:
"CHAPTER 3. ELECTIONS.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
(a) At each primary election, the candidate or candidates of each political party for all offices to be filled at the ensuing general election by the voters of the entire state, of each congressional district, of each state senatorial district, of each delegate district, of each judicial circuit of West Virginia, of each county, and of each magisterial district in the state shall be nominated by the voters of the different political parties, except that no presidential elector shall be nominated at a primary election.
(b) In primary elections a plurality of the votes cast shall be sufficient for the nomination of candidates for office. Where only one candidate of a political party for any office in a political division, including party committeemen and delegates to national conventions, is to be chosen, or where a judicial circuit has two or more circuit judges and one circuit judge is to be chosen for each numbered division within the circuit, the candidate receiving the highest number of votes therefor in the primary election shall be declared the party nominee for such office. Where two or more such candidates are to be chosen in the primary election, the candidates constituting the proper number to be so chosen who shall receive the highest number of votes cast in the political division in which they are candidates shall be declared the party nominees and choices for such offices, except that:
(1) Candidates for the office of commissioner of the county commission shall be nominated and elected in accordance with the provisions of section ten, article nine of the Constitution of the state of West Virginia and the requirements of section one-a, article one, chapter seven;
(2) Members of county boards of education shall be elected at primary elections in accordance with the provisions of sections five and six of this article;
(3) Candidates for the House of Delegates shall be nominated and elected in accordance with the residence restrictions provided in section two, article two, chapter one of this code; and
(4) In judicial circuits having numbered divisions, each numbered division shall be tallied separately and the candidate in each division receiving a plurality of the votes cast shall be declared the party nominee for the office in that numbered division.
(c) In case of tie votes between candidates for party nominations or elections in primary elections, the choice of the political party shall be determined by the executive committee of the party for the political division in which such persons are candidates.
§3-5-7a. Challenge of Candidate's Qualifications.
(a) As used in this section:
(1) "Candidate" means a person having filed for election to the county commission.
(2) "Challenger" means any qualified voter registered in the same magisterial district for which the candidate has filed. (3)"Commission" means the State Election Commission.
(b) A challenge to a candidate's qualifications shall be filed with the commission no later than 140 days before the general election. This shall be the sole remedy to challenge a candidate's qualifications, unless the grounds for disqualification are through the exercise of reasonable diligence discovered after the deadline.
(c) The challenge must be made in a notarized affidavit by a challenger, based on reasonable suspicion or belief of the facts stated. Grounds for filing a challenge are that the candidate does not meet the constitutional or statutory qualifications for county commission.
(d) If a challenger through the exercise of reasonable diligence fails to discover grounds for challenging a candidate until after the deadline established in subsection (b), the challenger may file in circuit court.
(f) The commission shall proceed as follows if a candidates qualifications are challenged:
(1) Within five business days after the challenge is filed, designate and announce the time of the hearing and where the hearing will be held. The hearing shall be held at a location in the county reasonably convenient to the public.
(2) Allow for depositions prior to the hearing, if requested by the challenger or candidate before the time of the hearing is designated and announced.
(3) Issue subpoenas for witnesses or documents, or both, upon request of the parties or upon its own motion.
(4) Provide notice of the hearing to the challenger, to the candidate and to other candidates filing from the same magisterial district for election to the county commission. Each person given notice shall also be given a copy of the challenge or a summary of its allegations.
(5) Conduct a hearing as follows:
(A) Allow evidence to be presented at the hearing in the form of affidavits, supporting documents, or it may examine witnesses. Each witness must be placed under oath before testifying.
(B) Receive evidence at the hearing from any person with information concerning the subject of the challenge, and such presentation of evidence shall be subject to the rules of evidence. The challenger shall be permitted to present evidence at the hearing, but the challenger may not be required to testify unless subpoenaed by a party. The commission may allow evidence to be presented by a person who is present.
(C) Record the hearing by a reporter or by mechanical means, and the full record of the hearing shall be preserved by the commission.
(E) Make a written decision on each challenge by separately stating findings of facts, conclusions of law, and an order.
(F) Render a written decision within 10 days after the challenge is filed and serve that written decision on the parties.
(g) The burden of proof shall be upon the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for county commission.
(h) The decision of a commission may be appealed to the West Virginia Supreme Court of Appeals by a candidate adversely affected by the commission's decision. An appeal must be made within 5 days after the commission serves the written decision on the adversely affected party.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-1a. Qualifications for County Commissioners.

Legislative Findings - The Legislature finds that there presently exists confusion concerning the date by which a candidate for county commission must establish residency in the magisterial district from which the candidate desires to serve as a representative. The West Virginia Supreme Court of Appeals has discussed the residency requirement in several cases but there remains conflicting interpretations. To eliminate confusion among candidates, courts of law and the public, the residency requirement must be clarified by the Legislature.
The Legislature further finds that it is essential that citizens know they are voting for a person who is qualified to be a candidate. Taxpayer money should not be wasted on holding elections for candidates who are not qualified to serve. Failure to require that county commission candidates must establish residency prior to the primary in that district for which the candidate desries to serve as a representative will continue to result in litigation; the removal of candidates from the ballot; the elimination of choice to the electorate on general election ballots; unintended disenfranchisement of voters; and potential disqualification and removal from office after the general election. In order to minimize the likelihood of a candidate being disqualified after having been elected in either a primary or general election such candidate must be a resident of the magisterial district from which he or she desires to serve as a representative by the last date for filing as a candidate for primary election.
(a) A person who files as a candidate for county commission shall be a resident of the magisterial district from which he or she desires to serve as a representative by the last day to file for election to that office.
(b) Any person who becomes a candidate for county commission by virtue of being appointed by the county's executive committee shall be a resident of the magisterial district from which he or she desires to serve by the date of the of his or her appointment by the county's executive committee."