H. B. 2981
(By Delegates Fleischauer, Hatfield, Staggers,
Doyle, Shook, Moore, Klempa, Brown,
Susman, Frazier and Longstreth)
[Introduced March 6, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §3-5-7, §3-5-23 and §3-5-24 of the Code
of West Virginia, 1931, as amended, all relating to primary
elections and nominating procedures of third-party candidates;
removing reference to general election in provision governing
declaration of candidacy for primary election; eliminating the
reference to the filing of a declaration of candidacy in
provision establishing certificate nomination procedures;
extending the filing deadline for the nomination of certain
candidates; eliminating residency requirement of persons
soliciting petition signatures; eliminating requirement that
persons signing nomination certificate state a desire to vote
for nominated candidate; permitting duly registered voters who
sign nomination certificates to vote in the corresponding
primary election; requiring persons soliciting signatures to
provide circulation dates and a signature as to each
certificate page; extending the deadline for the filing of nomination certificates for candidates; and establishing the
date by which the filing fee must be paid.
Be it enacted by the Legislature of West Virginia:
That §3-5-7, §3-5-23 and §3-5-24 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
(a) Any person who is eligible and seeks to hold an office or
political party position to be filled by election in any primary
or
general election held under the provisions of this chapter shall
file a certificate of announcement declaring
as a candidate his or
her candidacy for the nomination or election to the office.
(b) The certificate of announcement shall be filed as follows:
(1) With the Secretary of State if it be an office or
political position to be filled by the voters of more than one
county;
(2) With the clerk of the county commission if it be for an
office to be filled by the voters of a single county or of a
subdivision less than a county;
(3) With the recorder or city clerk if it be for an office to
be filled by the voters of a municipality.
(c) The certificate of announcement shall be filed with the
proper officer not earlier than the second Monday in January next preceding the primary election day, and not later than the last
Saturday in January next preceding the primary election day, and
must be received before midnight, eastern standard time, of that
day or, if mailed, shall be postmarked by the United States Postal
Service before that hour.
(d) The certificate of announcement shall be on a form
prescribed by the Secretary of State on which the candidate shall
make a sworn statement before a notary public or other officer
authorized to
give administer oaths, containing the following
information:
(1) The date of the election in which the candidate seeks to
appear on the ballot;
(2) The name of the office sought; the district, if any; and
the division, if any;
(3) The legal name of the candidate and the exact name the
candidate desires to appear on the ballot, subject to limitations
prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate
is a legally qualified voter of that county; and the magisterial
district of residence for candidates elected from magisterial
districts or under magisterial district limitations;
(5) The specific address designating the location at which the
candidate resides at the time of filing, including number and
street or rural route and box number and city, state and zip code;
(6) For partisan elections, the name of the candidate's
political party and a statement that the candidate: (A) Is a
member of and affiliated with that political party as evidenced by
the candidate's current registration as a voter affiliated with
that party; and (B) has not been registered as a voter affiliated
with any other political party for a period of sixty days before
the date of filing the announcement;
(7) For candidates for delegate to national convention, the
name of the presidential candidate to be listed on the ballot as
the preference of the candidate on the first convention ballot; or
a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______
day of _____________, 20____" and a space for the signature of the
officer giving the oath.
(e) The Secretary of State or the board of ballot
commissioners, as the case may be, may refuse to certify the
candidacy or may remove the certification of the candidacy upon
receipt of a certified copy of the voter's registration record of
the candidate showing that the candidate was registered as a voter
in a party other than the one named in the certificate of
announcement during the sixty days immediately preceding the filing
of the certificate:
Provided, That unless a signed formal complaint of violation of this section and the certified copy of
the voter's registration record of the candidate are filed with the
officer receiving that candidate's certificate of announcement no
later than ten days following the close of the filing period, the
candidate
shall may not be refused certification for this reason.
(f) The certificate of announcement shall be subscribed and
sworn to by the candidate before some officer qualified to
administer oaths, who shall certify the same. Any person who
knowingly provides false information on the certificate is guilty
of false swearing and shall be punished in accordance with section
three, article nine of this chapter.
(g) Any candidate for delegate to a national convention may
change his or her statement of presidential preference by notifying
the Secretary of State by letter received by the Secretary of State
no later than the third Tuesday following the close of candidate
filing. When the rules of the political party allow each
presidential candidate to approve or reject candidates for delegate
to convention who may appear on the ballot as committed to that
presidential candidate, the presidential candidate or the
candidate's committee on his or her behalf may file a list of
approved or rejected candidates for delegate and the Secretary of
State shall list as "uncommitted" any candidate for delegate who is
disapproved by the presidential candidate.
(h)
No A person
shall may not be a candidate for more than one office or office division at any election:
Provided, That a
candidate for an office may also be a candidate for President of
the United States, for membership on political party executive
committees or for delegate to a political party national
convention.
(i)
Any A candidate who files a certificate of announcement
for more than one office or division and does not withdraw, as
provided by section eleven, article five of this chapter, from all
but one office prior to the close of the filing period
shall may
not be certified by the Secretary of State or placed on the ballot
for any office by the board of ballot commissioners.
(j) The provisions of this section enacted during the regular
session of the Legislature in the year 1991 shall apply to the
primary election held in the year 1992 and every primary election
held thereafter. The provisions of this section enacted during the
regular session of the Legislature in the year
one thousand nine
hundred ninety-eight 2009 shall apply to the primary election held
in the year
two thousand 2010 and every primary election held
thereafter.
§3-5-23. Certificate nominations; requirements and control;
penalties.
(a) Groups of citizens having no party organization may
nominate candidates
who are not already candidates in the primary
election
for public office otherwise than by conventions or primary elections. In the that 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
nomination certificate in accordance
with the provisions of this section and the provisions of section
twenty-four of this article.
(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 one 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 one
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 A signature on a certificate shall may not 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
have the
candidates placed on the ballot;
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.
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.
Notwithstanding any other provision of this code to the
contrary, a duly registered voter may sign the certificate provided
in this section and may vote for candidates of his or her choosing
in the corresponding primary election.
(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. If, upon investigation,
there is doubt as to the legitimacy and the validity of
certificate, the Secretary of State may ask the Attorney General of
the state, or the clerk of the county commission may ask the
prosecuting attorney of the county, to institute a quo warranto
proceeding against the nominee by certificate to determine his or
her 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 th 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) In addition to penalties prescribed elsewhere for
violation of this chapter, any person violating the provisions of
this section is guilty of a misdemeanor and, upon conviction, shall
be fined not more than $1,000, or confined in jail for not more
than one year, or both fined and imprisoned: in the discretion of
the court Provided, That no a criminal penalty may not be imposed
upon anyone who signs a nomination certificate and votes in the
primary election held after the date the certificate was signed.
§3-5-24. Filing of nomination certificates; time.
(a) All certificates nominating candidates for office under
the preceding section including a candidate for the office of
presidential elector shall be filed, in the case of a candidate to
be voted for by the voters of the entire state or by any
subdivision thereof of the state other than a single county, with
the Secretary of State, and in the case of all candidates for
county and magisterial district offices, including all offices to
be filled by the voters of a single county, with the clerk of the
county commission, not later than the day preceding the date on
which the primary election is held. After that date no certificate
shall be received by such officers than August 1 preceding the general election.
(b) Each candidate shall pay the filing fee required by
section eight of this article, at the time of the filing of the
nomination certificate
. If any nomination certificate is not
timely filed or if the filing fee is not timely paid, the
certificate may not be received by the Secretary of State, or by
the clerk of the circuit court, as the case may be.
NOTE: This bill requires persons soliciting signatures for
candidacy to provide a statement on every individual page of the
certificate containing the dates of circulation and the signature
of the person soliciting the signatures. The residency requirement
is removed for persons soliciting signatures. This bill also
allows any duly registered voter signing a certificate to vote for
candidates of his or her choosing in the primary election. This
bill provides deadlines for filing a certificate and payment of the
filing fee.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.