Introduced Version
House Bill 2138 History
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H. B. 2138
(By Delegates Fleischauer, Douglas, Hunt, Johnson and Thomas)
____________
[Introduced January 14, 1998;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections seven, twenty-three and
twenty-four, article five, chapter three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
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 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 sections seven, twenty-three and twenty-four, article
five, chapter three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted 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.
Any person who is eligible to hold 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 such office.
(a) 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 circuit court, 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.
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 first
Saturday of February 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.
(b) The certificate of announcement shall be in 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 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 is a member of
and affiliated with that political party as is evidenced by the
candidate's current registration as a voter affiliated with that
party, and that the candidate 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 _____________, 19____," and a space for the signature of the
officer giving the oath.
The secretary of state or the board of ballot commissioners,
as the case may be, may refuse to certify the candidacy or remove
the certification of the candidacy upon receipt of a certified copy
of the voter's registration record of the candidate evidencing 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 be 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 not be refused
certification for this reason.
(c) The certificate of announcement shall be subscribed to 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 said certificate is guilty
of false swearing and shall be punished as set forth in section
three, article nine of this chapter.
(d) 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.
(e) No person shall 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 a political party executive committee or for
delegate to a political party national convention. Notwithstanding
the provisions of this section, nothing shall prohibit a candidate from jointly running for or jointly holding the offices of county
clerk and circuit clerk in those counties which operate a joint
clerkship system.
(f) Any 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 not be
certified by the secretary of state or placed on the ballot for any
office by the board of ballot commissioners.
The provisions of this section shall apply to the primary
election held in the year one thousand nine hundred ninety-two 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 for public office who are not already
candidates in the primary election 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. 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 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 ............................., a duly
registered voter of this State; whose post-office address is
........................., 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 ...........................,
19......
Given under my hand and the seal of my office this
................. day of ........................., 19......
...............................................
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 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. 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. It shall be the duty of those soliciting signatures
to provide a statement upon the face of each and every individual
certificate page as to the dates of circulation thereof, along with
the signature of the person soliciting signatures upon each such
certificate.
(d) Such certificates shall state the name and residence of
each of such candidates; that he 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 have
the candidates placed on the official general election ballot;
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. Notwithstanding any other
provision of this code to the contrary, a duly registered voter may
sign the certificate provided for in this section and may vote for
candidates of his or her choosing 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 such
investigation there may be doubt as to the legitimacy and the
validity of such certificate, he 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 hereof, in addition to
penalties prescribed elsewhere for violation of this chapter, shall
be guilty of a misdemeanor, and, upon conviction, shall be fined not more than one thousand dollars, or confined in the county jail
for not more than one year, or both, in the discretion of the
court.
§3-5-24. Filing of nomination certificates; time. deadlines for
filing; payment of filing fee.
(a) All certificates nominating candidates for office under
the preceding section, including other than certificates
nominating a candidate for the office of presidential elector
president or vice president, 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 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
circuit court of the county, not later than the day preceding the
date on which the primary election is held. After such date no
such certificate shall be received by such officers.
(b) All certificates nominating candidates for the office of
president or vice president shall be filed with the secretary of
state not later than the first day of August preceding the
general election.
(c) At the time of the filing of the nomination
certificates, each candidate shall pay the filing fee required by
section eight of this article. If any nomination certificate is
not timely filed or if the filing fee is not timely paid, the
certificate shall not be received by the secretary of state, or by the clerk of the circuit court, as the case may be.
NOTE: This bill is recommended by the Joint Standing
Committee on the Judiciary for introduction and passage this
session.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language.