HB2926 ENR SUB 2
H. B. 2926
(By Delegate Manchin)
[Amended and again passed May 27, 2009, as a result of the
objections of the Governor; in effect ninety days from passage.]
to amend and reenact §3-5-4 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto two new
sections, designated §7-1-1b and §7-1-15, all relating to
elections of county commissioners; providing legislative
findings; clarifying residency requirements; and establishing
a procedure for challenging a county commission candidate's
qualifications for elected office.
Be it enacted by the Legislature of West Virginia:
That §3-5-4 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and to amend said code by adding thereto two
new sections, designated §7-1-1b and §7-1-15, all to read as
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-b,
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
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-1b. Legislative findings; qualifications for county
(a) The Legislature finds that:
(1) There is confusion concerning when a candidate for county
commission must be a resident of the magisterial district he or she
wants to represent;
(2) The supreme court has discussed the residency requirement
in several cases and has conflicting interpretations;
(3) It is imperative that this issue be permanently resolved
at the time of filing to ensure the citizens have choice on the
(4) It is essential the citizens know they are voting for a person who is qualified to be a candidate; and
(5) With the expense of holding an election, tax payer moneys
should not be wasted of officials who could never serve.
(b) A candidate for the office of county commissioner shall be
a resident from the magisterial district for which he or she is
(1) by the last day to file a certificate of announcement
pursuant to section seven, article five, chapter three of this
(2) at the time of his or her appointment by the county
executive committee or the chairperson of the county executive
§7-1-15. Challenge of candidate for county commission; residency.
(a) (1) Any person desiring to contest the qualifications of
another person whose nomination in the primary election, nomination
by petition, or nomination by appointment to fill a vacancy on the
ballot, has been certified and filed pursuant to article five,
chapter three of this Code, as a candidate for the office of county
commission at a general election, shall file a verified petition
specifically setting forth the grounds of the challenge not later
than thirty days after the date of the primary election.
(2) The court may permit a petition to be filed after the
thirtieth day after the primary election upon a finding that the
petitioner was unable to discover the grounds for challenging the
qualifications of the candidate prior to the thirtieth after the
primary election despite the exercise of reasonable diligence.
(3) The petition shall be filed with the circuit court of the
county in which the candidate is seeking office.
(b) The circuit court shall at the earliest possible date set
the matter for hearing, but in no event shall the hearing be held
later than thirty days after the filing of the petition.
(c) The matter shall be tried by the circuit judge, without a
jury. After hearing the evidence, the circuit judge shall
determine whether the candidate whose qualifications have been
challenged is legally qualified to have his or her name placed upon
the ballot in question. The circuit judge shall issue a written
decision on each challenge by separately stating findings of facts,
conclusions of law within ten days of the conclusion of the
(d) The burden of proof shall be upon the petitioner, who must
show by a preponderance of the evidence of the record as a whole
that the candidate is not qualified to be a candidate for county
(e) Within five days after judgment is rendered by the circuit
court, the petitioner or the candidate, or both, may file an appeal
in the Supreme Court upon giving a cost bond in the sum of $300.
The appeal shall be immediately docketed in the Supreme Court and
shall be decided at the earliest possible date, as a preference
case over all others.
(f) The procedure set forth above shall be the sole and only
manner in which the qualifications of a candidate for county
commission may be challenged prior to the time of his or her
election. After any such person has been elected to public office,
the election may be challenged as otherwise provided by law. After
any person assumes an elective office, his or her qualifications to
hold that office may be contested as otherwise provided by law.