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WEST virginia legislature
2023 regular session
Committee Substitute
for
Senate Bill 541
By Senators Stuart, Azinger, Smith, Taylor, and Oliverio
[Originating in the Committee on the Judiciary; reported on February 24, 2023]
A BILL to amend and reenact §3-5-7, §3-5-11, and §3-5-19 of the Code of West Virginia, 1931, as amended; to amend and reenact §18-2-1 of said code; and to amend and reenact §18-5-1a of said code, all relating generally to elections; clarifying the contents of the certificate of announcement of candidacy; specifying what information must be sworn or affirmed by candidates for office; clarifying the timing of challenges to candidate qualifications; amending the authority of political parties to fill ballot vacancies caused by voluntary withdrawals after the primary election; and prohibiting persons who have been convicted of certain crimes against minors from being eligible to hold positions on boards of education.
Be it enacted by the Legislature of West Virginia:
(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 be registered to vote and file a certificate of announcement declaring his or her candidacy for the nomination or election to the office.
(b) The certificate of announcement shall be filed as follows:
(1) Candidates for the House of Delegates, the State Senate, circuit judge, family court judge, and any other office or political position to be filled by the voters of more than one county shall file a certificate of announcement with the Secretary of State.
(2) Candidates for an office or political position to be filled by the voters of a single county or a subdivision of a county, except for candidates for the House of Delegates, State Senate, circuit judge, or family court judge, shall file a certificate of announcement with the clerk of the county commission.
(3) Candidates for an office to be filled by the voters of a municipality shall file a certificate of announcement with the recorder or city clerk.
(c) The certificate of announcement shall be filed with the proper officer not earlier than the second Monday in January before the primary election day and not later than the last Saturday in January before 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. This includes the offices of justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, circuit court judge, family court judge, and magistrate, which are to be filled on a nonpartisan and division basis at the primary election: Provided, That on the final day of a political filing period, the office of the Secretary of State shall be open from 9:00 a.m. until 11:59 p.m. The offices of the County Clerk in all counties of the state shall be open on that final day of a political filing period from 9:00 a.m. until 12:00 11:59 p.m.
(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 administer oaths that the candidate is legally qualified to seek and hold the office sought. The certificate of announcement shall containing contain 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 §3-5-13 of this code;
(4) The county of residence and a statement that the candidate is a current resident and legally qualified registered voter of that county; and the current 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 60 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) For candidates for county board of education, a statement that the candidate swears and affirms that he or she has not been convicted of an offense under §61-8A-1 et seq., §61-8B-1 et seq., and §61-8C-1 et seq. of this code in which the victim was a minor;
(8) (9) A statement that the person filing the certificate of announcement is a candidate for the office in good faith and meets all constitutional and statutory qualifications to seek and hold the office sought: Provided, That for the offices of state senator and member of the House of Delegates, a separate, express statement that the candidate swears or affirms he or she has been "a resident within the district or county from which he or she will be elected for at least one year preceding the general election";
(9) (10) An exhaustive list of the constitutional and statutory qualifications for all statewide, legislative, and county offices; and
(9) (11) 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 60 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 10 days following the close of the filing period, the candidate may not be refused certification for this reason: Provided, however, That any pre-election eligibility challenge, brought by mandamus or in any other manner, asserting that a candidate lacks the constitutional or statutory qualifications to hold the office sought, shall be resolved by the deadline for distribution of absentee ballots set forth in §3-3-5(e) of this code, and any such unresolved challenge pending at that time shall be dismissed without prejudice: Provided further, That an appeal from the final order resolving a pre-election challenge pending at the deadline for distribution of absentee ballots need not be dismissed pursuant to the provisions of this subsection: And provided further, That the dismissal of an unresolved pre-election eligibility challenge without prejudice shall not preclude any party from pursuing a post-election contest, using the procedures set forth in §3-5-20 or §3-7-1 et seq. of this code, concerning the candidate or election that was the subject of a pre-election challenge that was dismissed without prejudice.
(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 §3-9-3 of this code.
(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) A person 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: Provided, however, That an unsuccessful candidate for a nonpartisan office in an election held concurrently with the primary election may be appointed under the provisions of section nineteen of this article §3-5-19 of this code to fill a vacancy on the general ballot.
(i) A candidate who files a certificate of announcement for more than one office or division and does not withdraw, as provided by §3-5-11 of this code, from all but one office prior to the close of the filing period may not be certified by the Secretary of State or placed on the ballot for any office by the board of ballot commissioners.
(a) A candidate who has filed a certificate of announcement and wishes to withdraw and decline to stand as a candidate for the office shall file a signed and notarized statement of withdrawal on a form provided by the Secretary of State with the same officer with whom the certificate of announcement was filed. If the notarized statement of withdrawal is received by the proper officer by the deadlines set forth in subsection (b) of this section, the candidate’s withdrawal is final and his or her name shall not be certified as a candidate nor printed on any ballot. If a candidate files a notarized statement of withdrawal after the deadlines set forth in subsection (b) of this section, the candidate shall not be withdrawn and the candidate’s name shall remain on the ballot.
(b) Deadlines for withdrawing as a candidate:
(1) For primary or special primary elections or nonpartisan elections held in conjunction with a primary election: The notarized statement of withdrawal must be received by the same officer with whom the certificate of announcement was filed by the close of business of that officer not later than the third Tuesday following the close of the candidate filing period.
(2) For general or special general elections or nonpartisan elections held in conjunction with a general election: The notarized statement of withdrawal must be received by the same officer with whom the certificate of announcement was filed by the close of business of that officer not later than eighty-four 84 days before the general election.
(c) Upon request of the candidate's family, the board of ballot commissioners may remove the name of a candidate who dies before the ballots are printed. If a candidate dies after the ballots are printed but before the election, the clerk of the county commission shall give a written notice which shall be posted with the sample ballot at each precinct with the county to the following effect: "To the voter: (name) of (residence), a candidate for (office) is deceased."
(e) The amendments to this section enacted by the Legislature during the 2022 Regular Session shall be retrospective to January 30, 2022.
(a) If any vacancy occurs in the party nomination of candidates for office nominated at the primary election or by appointment under the provisions of section eleven of this article §3-5-11 of this code, the vacancies may be filled, subject to the following requirements and limitations:
(1) Each appointment made under this section shall be made by the executive committee of the political party for the political division in which the vacancy occurs: Provided, That if the executive committee holds a duly called meeting in accordance with §3-1-9 of this code but fails to make an appointment or fails to certify the appointment of the candidate to the proper filing officer within the time required, the chairperson of the executive committee may make the appointment not later than two days following the deadline for the executive committee: Provided however, That for a delegate district or senatorial district situated entirely within a single county, the county executive committee, or its chairperson if the committee fails to act, may fill the vacancy and certify the candidate named to the appropriate filing officer.
(2) Each appointment made under this section is complete only upon the receipt by the proper filing officer of the certificate of appointment by the executive committee, or its chairperson, as the case may be, the certificate of announcement of the candidate as prescribed in section seven of this article §3-5-7 of this code and, except for appointments made under subdivision (4), (5), (6) or (7) of this subsection, the filing fee or waiver of fee as prescribed in section eight or eight-a §3-5-8 or §3-5-8a of this article code. The proper filing officer is the officer with whom the original certificate of announcement is regularly filed for that office.
(3) If a vacancy in nomination will be caused by the failure of a candidate to file for an office, or by withdrawal of a candidate no later than the third Tuesday following the close of candidate filing pursuant to the provisions of section eleven of this article §3-5-11 of this code, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than 30 days after the last day to file a certificate of announcement pursuant to section seven of this article §3-5-7 of this code: Provided, That in no case shall any such vacancy be filled after the date of the primary election except as otherwise provided by subdivision (6) of this subsection.
(4) If a vacancy in nomination is caused by the disqualification of a candidate and the vacancy occurs not later than 84 days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer not later than 78 days before the general election. A candidate may be determined disqualified if a written request is made by an individual with information to show a candidate’s ineligibility to the State Election Commission no later than 84 days before the general election explaining grounds why a candidate is not eligible to be placed on the general election ballot or not eligible to hold the office, if elected. The State Election Commission shall review the reasons for the request. If the commission finds the circumstances warrant the disqualification of the candidate, the commission shall authorize appointment by the executive committee to fill the vacancy. Upon receipt of the authorization, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than 78 days before the general election.
(5) If a vacancy in nomination is caused by the incapacity of the candidate and if the vacancy occurs not later than 84 days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than 78 days before the general election.
(6) If a vacancy in nomination is caused by the timely filing of a notarized statement of withdrawal due to no longer satisfying one or more eligibility requirements for the office sought, according to section eleven of this article §3-5-11 of this code, of a candidate whose name would otherwise appear on the general election ballot, a replacement on the general election ballot may be appointed by the executive committee and certified to the proper filing officer no later than 78 days before the general election: Provided, That a vacancy in nomination created by timely withdrawal that is without cause as provided by this subdivision shall not be filed: Provided however, That "cause", for purposes of this subsection, means incapacity, death, disqualification for failure to meet the eligibility requirements for holding the office sought, military service, and any other reason set forth expressly in this section of the code.
(7) If a vacancy in nomination is caused by the death of the candidate occurring no later than 25 days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than 21 days following the date of death, or no later than 22 days before the general election, whichever date occurs first.
(b) Except as otherwise provided in §3-10-1 et seq. of this code, if any vacancy occurs in a partisan office or position other than political party executive committee, which creates an unexpired term for a position which would not otherwise appear on the ballot in the general election, and the vacancy occurs after the close of candidate filing for the primary election but not later than 84 days before the general election, a nominee of each political party may be appointed by the executive committee and certified to the proper filing officer no later than 78 days before the general election. Appointments shall be filed in the same manner as provided in subsection (a) of this section, except that the filing fee shall be paid before the appointment is complete.
(c) When a vacancy occurs in the board of education after the close of candidate filing for the primary election but not later than 84 days before the general election, a special candidate filing period shall be established. Candidates seeking election to any unexpired term for board of education shall file a certificate of announcement and pay the filing fee to the clerk of the county commission no earlier than the first Monday in August and no later than 77 days before the general election.
(d) The amendments to this section enacted by the Legislature during the 2022 Regular Session shall be retrospective to January 30, 2022.
There is a State Board of Education, to be known as the West Virginia Board of Education, which is a corporation and as such may contract and be contracted with, plead and be impleaded, sue and be sued, and have and use a common seal. The state board consists of 12 members, of whom one is the state Superintendent of Schools, ex officio; one of whom is the chancellor of the Higher Education Policy Commission, ex officio; and one of whom is the Chancellor of the West Virginia Council for Community and Technical College Education, ex officio, none of whom is entitled to vote. The other nine members are citizens of the state, appointed by the Governor, by and with the advice and consent of the Senate, for overlapping terms of nine years. Terms of office begin on November 5 of the appropriate year and end on November 4 of the appropriate year. Not more than five members are appointed from any one congressional district.
No more than five of the appointive members may belong to the same political party and no person is eligible for appointment to membership on the state board who is a member of any political party executive committee, or holds any other public office or public employment under the federal government, or under the government of this state or any of its political subdivisions, or who is an appointee or employee of the board. Members are eligible for reappointment. Any vacancy on the board shall be filled by the Governor by appointment for the unexpired term.
Notwithstanding the provisions of §6-6-4 of this code, a member of the state board may not be removed from office by the Governor except for official misconduct, incompetence, neglect of duty, or gross immorality and then only in the manner prescribed by law for the removal by the Governor of state elective officers.
Before exercising any authority or performing any duties as a member of the state board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by section five, article IV of the Constitution of West Virginia, the certificate whereof shall be filed with the Secretary of State. A suitable office in the state Department of Education at the State Capitol shall be provided for use by the state board.
Notwithstanding the provisions of §6-5-5 of this code, no person who has been convicted of an offense under the provisions of §61-8A-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., and §61-8D-1 et seq. of this code in which the victim is a minor may hold office as a member of the state board.
(a) A person who is a member of a county board:
(1) Shall be a citizen and resident in the county in which he or she serves on the county board. Also, a person who is a candidate for membership on a county board or who is a member-elect of a county board shall be a citizen and resident in the county in which he or she seeks to serve on the county board;
(2) May not be employed by the county board on which he or she serves, including employment as a teacher or service person;
(3) May not engage in the following political activities:
(A) Become a candidate for or hold any other public office, other than to succeed him himself or herself as a member of a county board subject to the following:
(i) A candidate for a county board, who is not currently serving on a county board, may hold another public office while a candidate if he or she resigns from the other public office prior to taking the oath of office as a county board member.
(ii) The term "public office" as used in this section does not include service on any other board, elected or appointed, profit or nonprofit, under the following conditions:
(I) The person does not receive compensation; and
(II) The primary scope of the board is not related to public schools.
(B) Become a candidate for, or serve as, an elected member of any political party executive committee;
(C) Become a candidate for, or serve as, a delegate, alternate, or proxy to a national political party convention;
(D) Solicit or receive political contributions to support the election of, or to retire the campaign debt of, any candidate for partisan office;
(4) May engage in any or all of the following political activities:
(A) Make campaign contributions to partisan or bipartisan candidates;
(B) Attend political fund raisers for partisan or bipartisan candidates;
(C) Serve as an unpaid volunteer on a partisan campaign;
(D) Politically endorse any candidate in a partisan or bipartisan election; or
(E) Attend a county, state, or national political party convention.
(b) A member or member-elect of a county board, or a person desiring to become a member of a county board, may make a written request to the West Virginia Ethics Commission for an advisory opinion to determine if another elected or appointed position held or sought by the person is an office or public office which would bar service on a county board pursuant to subsection (a) of this section.
(1) Within thirty 30 days of receipt of the request, the Ethics Commission shall issue a written advisory opinion in response to the request and also shall publish the opinion in a manner which, to the fullest extent possible, does not reveal the identity of the person making the request.
(2) A county board member who relies in good faith upon an advisory opinion issued by the West Virginia Ethics Commission to the effect that holding a particular office or public office is not a bar from membership on a county board, and against whom proceedings are subsequently brought for removal from the county board on the basis of holding that office or offices, is entitled to reimbursement by the county board for reasonable attorney's fees and court costs incurred by the member in defending against these proceedings, regardless of the outcome of the proceedings.
(3) A vote cast by the member at a meeting of the county board may not be invalidated due to a subsequent finding that holding the particular office or public office is a bar to membership on the county board.
(4) Good faith reliance on a written advisory opinion of the West Virginia Ethics Commission that a particular office or public office is not a bar to membership on a county board is an absolute defense to any civil suit or criminal prosecution arising from any proper action taken within the scope of membership on the county board, becoming a member-elect of the county board or seeking election to the county board.
(c) To be eligible for election or appointment as a member of a county board, a person shall possess at least a high school diploma or a general educational development (GED) diploma. This provision does not apply to members or members-elect who have taken office prior to May 5, 1992, and who serve continuously from that date forward.
(d) A person elected to a county board after July 1, 1990, may not assume the duties of county board member unless he or she has first attended and completed a course of orientation relating to boardsmanship and governance effectiveness which shall be given between the date of election and the beginning of the member's term of office under the following conditions:
(1) A portion or portions of subsequent training such as that offered in orientation may be provided to members after they have commenced their term of office;
(2) Attendance at the session of orientation given between the date of election and the beginning of the member's term of office permits the member-elect to assume the duties of county board member, as specified in this section;
(3) Members appointed to the county board shall attend and complete the next orientation course offered following their appointment; and
(4) The provisions of this subsection relating to orientation do not apply to members who have taken office prior to July 1, 1988, and who serve continuously from that date forward.
(e) Annually, each member of a county board shall receive seven clock hours of training in areas relating to boardsmanship, governance effectiveness, and school performance issues including, but not limited to, pertinent state and federal statutes such as the "Process for Improving Education" set forth in §18-2E-5 of this code and the "No Child Left Behind Act" and their respective administrative rules.
(1) The orientation and training shall be approved by the state board and conducted by the West Virginia School Board Association or other organization or organizations approved by the state board:
(A) The state board may exclude time spent in training on school performance issues from the requisite seven hours herein required in subsection (e) of this section; and
(B) If the state board elects to exclude time spent in training on school performance issues from the requisite seven hours, the state board shall limit the training to a feasible and practicable amount of time.
(2) Failure to attend and complete the approved course of orientation and training relating to boardsmanship and governance effectiveness without good cause as determined by the state board by duly promulgated legislative rules constitutes neglect of duty under section seven, article six, chapter six of this code.
(f) In the final year of any four-year term of office, a member shall satisfy the annual training requirement before January 1. Failure to comply with the training requirements of this section without good cause as defined by the state board by duly promulgated legislative rules constitutes neglect of duty under §6-6-7 of this code.
(g) The state board shall appoint a committee named the "county board member training standards review committee" whose members shall meet at least annually. Subject to state board approval, the committee shall determine which particular trainings and training organizations shall be approved and whether county board members have satisfied the annual training requirement. Members of the committee serve without compensation, but may be reimbursed by their agencies or employers for all reasonable and necessary expenses actually incurred in the performance of their duties under this subsection.
(h) Notwithstanding the provisions of §6-5-5 of this code, no person who has been convicted of an offense under the §61-8A-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., and §61-8D-1 et seq. of this code in which the victim is a minor may hold office as a member of a county board.
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