H. B. 2533
(By Delegates Talbott, Hunt, Boggs, Varner,
Shaver, Perry and Fleischauer)
(Originating in the Committee on the Judiciary)
[January 17, 2012]
A BILL to amend and reenact §3-5-23 of the Code of West Virginia, 1931, as amended, relating to nomination certificates for candidates for public office; clarifying who may be a candidate; requiring the identities of signatories to a nominating certificate for a person seeking ballot access to be made public; requiring the investigation of the validity of signatures; and the verification of signatures by the Secretary of State if the office covers more than one county.
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 who (1) are not already candidates in the primary election; or (2) were not candidates in the primary election immediately preceding the general election, for public office otherwise than by conventions or primary elections. In that case, the candidate or candidates, jointly or severally, shall file a 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 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 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. A signature on a certificate 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. All certificates shall be of public record and shall be made available upon request by the Secretary of State or the clerk of the county commission, as the case may be.
(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 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 shall investigate the validity of the certificates and the signatures thereon. If an investigation of the validity of a certificate or the signatures contained therein is initiated by either the Secretary of State or a clerk of a county commission, it shall be the duty of the Secretary of State to verify the signatures on those certificates of candidates seeking an office to be filled by the voters of more than one county. 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 the 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 not more than one year, or both fined and imprisoned: Provided, That 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.