Senate Bill No. 664
(By Senators Hunter and Weeks)
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[Introduced March 21, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §3-5-23 of the Code of West Virginia,
1931, as amended, relating generally to nominating petitions;
removing those sections found unconstitutional by the federal
court; and providing that the county clerk shall assist the
Secretary of State in determining the validity of nominating
petitions.
Be it enacted by the Legislature of West Virginia:
That §3-5-23 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-23. Certificate nominations; requirements and control;
penalties
.
(a) Groups of citizens having no party organization may
nominate candidates for public office otherwise than by conventions
or primary elections. In such 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 circuit court of the county if
the office is to be filled by the voters of one county or political
subdivision thereof; such 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 such declaration each candidate
shall pay the filing fee required by law, and if such 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 circuit
court, as the case may be.
(b) The person or persons soliciting or canvassing signatures
of duly qualified voters on such 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
____________________________________ , whose post-office address is
_______________________________________________________________ ,
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 such canvass or solicitation is made by the person
or persons duly authorized. Such signatures need not all be on one
certificate. The number of such signatures shall be equal to not
less than two 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 such signatures shall be equal to not less than two
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 such office shall constitute the entire
vote. No signature on such certificate shall 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 such
certificate was presented.
It shall be the duty of those soliciting
signatures to read to each voter whose signature is solicited the
statement written on the certificate which gives notice that no
person signing such certificate shall vote at any primary election
to be held to nominate candidates for office to be voted for at the election to be held next after the date of signing such
certificate.
(d) Such certificates shall state the name and residence of
each of such candidates; that he
or she is legally qualified to
hold such office; that the subscribers are legally qualified and
duly registered as voters and desire to vote for such candidates;
and may designate, by not more than five words, a brief name of the
party which such candidates represent and may adopt a device or
emblem to be printed on the official ballot. All candidates
nominated by the signing of such 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.
The content shall include the language to be used in giving written
and oral notice to each voter that signing of the nominating
certificate forfeits that voter's right to vote in the
corresponding primary election.
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.
(e) The Secretary of State, or the clerk of the circuit court,
as the case may be, may investigate the validity of such
certificates and the signatures thereon.
and if upon The county clerk shall, upon the request of the Secretary of State or circuit
clerk, compare the information from any certificate to the county
voter registration records in order to assist in determining
validity of any certificates. If upon such investigation there may
be doubt as to the legitimacy and the validity of such certificate,
he
or she may request the Attorney General of the state, or the
prosecuting attorney of the county, to institute a quo warranto
proceeding against the nominee or nominees by certificate to
determine his or their right to such nomination to public office,
and upon request being made, the Attorney General or prosecuting
attorney shall institute such quo warranto proceeding.
(f) Any person violating the provisions of this section, in
addition to penalties prescribed elsewhere for violation of this
chapter, is guilty of a misdemeanor and, upon conviction, shall be
fined not more than one thousand dollars, or confined in
the county
or regional jail for not more than one year, or both, in the
discretion of the court:
Provided, That no criminal penalty may be
imposed upon anyone who signs a nomination certificate and votes in
the primary election held after the date the certificate was
signed.
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(NOTE: The purpose of this bill is to provide the Secretary of
State the authority to require
the County Clerk to assist the
Secretary of State in determining the validity of nominating
.
Furthermore, the bill removes language ruled unconstitutional in a
2003 Federal District court ruling.
Strike-throughs indicate language which would be stricken from
the present law, and underscoring indicates new language which
would be added.)
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