HB2926 PS AM 3-4
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
(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
(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
§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
(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
(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
(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
(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
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
(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."