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Introduced Version House Bill 2926 History

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hb2926 intr
H. B. 2926


(By Delegate Manchin)

[Introduced March 3, 2009; referred to the

Committee on Political Subdivisions then the Judiciary.]





A BILL to amend and reenact §3-5-4 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §3-5-7a; and to amend said code by adding thereto a new section, designated §7-1-1b, all relating to establishing a procedure for challenging a candidate's qualifications for elected office; and setting forth qualifications for county commissioners.

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; that said code by amended by adding thereto a new section, designated §3-5-7a; and to amend said code by adding thereto a new section, designated §7-1-1b, all to read as follows:

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 committeewomen 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 of this code; (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, the following terms mean:

(1) "Candidate" means a person having filed a notice of candidacy under the appropriate statute for any elective office in this state.

(2) "Challenger" means any qualified voter registered in the same district as the office for which the candidate has filed or petitioned.

(3)"Commission" means the State Election Commission.

(4) "Office" means the elected office for which the candidate
has filed or petitioned.
(b) A challenge to a candidate's qualifications shall be filed under this section with the commission receiving the notice of the candidacy or petition no later than one hundred forty days before the general election. This is the sole remedy to challenge a candidate's qualifications before the one hundred forty day deadline.

(c) The challenge must be made in a verified 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 the office, including residency.

(d) If a challenger discovers grounds for challenging a candidate after the deadline in subsection (b) of this section, the challenger may file in circuit court.

(e) The commission shall conduct the hearing as follows:

(1) Within five business days after the challenge is filed, designate and announce the time of the hearing and the facility where the hearing will be held. The hearing shall be held at a location in the district reasonably convenient to the public, and shall preferably be held in the county receiving the notice of the candidacy or petition.

(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) Render a written decision within ten days after the challenge is filed and serve that written decision on the parties.

(f) The commission shall give notice of the hearing to the challenger, to the candidate, other candidates filing or petitioning to be elected to the same office, to the county chair of each political party in every county in the district for the office, and to those persons who have requested to be notified. Each person given notice shall also be given a copy of the challenge or a summary of its allegations. Failure to comply with the notice requirements in this subsection shall not delay the holding of a hearing nor invalidate the results if the individuals required by this section to be notified have been notified.

(g) The hearing shall be conducted as follows:

(1) The commission may allow evidence to be presented at the hearing in the form of affidavits supporting documents, or it may examine witnesses. The commission may subpoena witnesses or documents. The parties shall be allowed to issue subpoenas for witnesses or documents, or both, including a subpoena of the candidate. Each witness must be placed under oath before testifying.

(2) The commission may 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 panel may allow evidence to be presented by a person who is present.
(3) The hearing shall be recorded by a reporter or by mechanical means, and the full record of the hearing shall be preserved by the commission.

(h) The commission shall make a written decision on each challenge by separately stating findings of facts, conclusions of law, and an order.

(i) 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 the office.

(j) If the challenge is based upon a question of residency, the candidate must show all of the following:

(1) An actual abandonment of the first domicile, coupled with an intent not to return to the first domicile;

(2) The acquisition of a new domicile by actual residence at another place; and

(3) The intent of making the newer domicile a permanent domicile.

(k) The decision of a commission may be appealed by a candidate adversely affected by the decision. Appeal must be taken within two days after the commission serves the written decision on the parties.

CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-1b. Qualifications for county commissioners.

(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 ballot;

(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 person who wants to be a candidate for county commission shall be a resident of the magisterial district he or she wants to run for by the last day to file for election to that office.




NOTE: The purpose of the bill is to establish a procedure for challenging a candidate's qualifications for elected office, including opportunity for hearings, evidence and appeals. The bill also sets forth qualifications for county commissioners.

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