H. B. 2926
(By Delegate Manchin)
[Introduced March 3, 2009; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §3-5-4 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §3-5-7a; and to amend said code by adding
thereto a new section, designated §7-1-1b, all relating to
establishing a procedure for challenging a candidate's
qualifications for elected office; and setting forth
qualifications for county commissioners.
Be it enacted by the Legislature of West Virginia:
That §3-5-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code by amended by adding
thereto a new section, designated §3-5-7a; and to amend said code
by adding thereto a new section, designated §7-1-1b, all to read as
follows:
CHAPTER 3. ELECTIONS.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
(a) At each primary election, the candidate or candidates of each political party for all offices to be filled at the ensuing
general election by the voters of the entire state, of each
congressional district, of each state senatorial district, of each
delegate district, of each judicial circuit of West Virginia, of
each county, and of each magisterial district in the state shall be
nominated by the voters of the different political parties, except
that no presidential elector shall be nominated at a primary
election.
(b) In primary elections a plurality of the votes cast shall
be sufficient for the nomination of candidates for office. Where
only one candidate of a political party for any office in a
political division, including party committeemen and committeewomen
delegates to national conventions, is to be chosen, or where a
judicial circuit has two or more circuit judges and one circuit
judge is to be chosen for each numbered division within the
circuit, the candidate receiving the highest number of votes
therefor in the primary election shall be declared the party
nominee for such office. Where two or more such candidates are to
be chosen in the primary election, the candidates constituting the
proper number to be so chosen who shall receive the highest number
of votes cast in the political division in which they are
candidates shall be declared the party nominees and choices for
such offices, except that: (1) Candidates for the office of
commissioner of the county commission shall be nominated and
elected in accordance with the provisions of section ten, article
nine of the Constitution of the State of West Virginia and the requirements of section one-b, article one, chapter seven of this
code; (2) members of county boards of education shall be elected at
primary elections in accordance with the provisions of sections
five and six of this article; (3) candidates for the House of
Delegates shall be nominated and elected in accordance with the
residence restrictions provided in section two, article two,
chapter one of this code; and (4) in judicial circuits having
numbered divisions, each numbered division shall be tallied
separately and the candidate in each division receiving a plurality
of the votes cast shall be declared the party nominee for the
office in that numbered division.
(c) In case of tie votes between candidates for party
nominations or elections in primary elections, the choice of the
political party shall be determined by the executive committee of
the party for the political division in which such persons are
candidates.
§3-5-7a. Challenge of candidate's qualifications.
(a) As used in this section, the following terms mean:
(1) "Candidate" means a person having filed a notice of
candidacy under the appropriate statute for any elective office in
this state.
(2) "Challenger" means any qualified voter registered in the
same district as the office for which the candidate has filed or
petitioned.
(3)"Commission" means the State Election Commission.
(4) "Office" means the elected office for which the candidate has filed or petitioned.
(b) A challenge to a candidate's qualifications shall be filed
under this section with the commission receiving the notice of the
candidacy or petition no later than one hundred forty days before
the general election. This is the sole remedy to challenge a
candidate's qualifications before the one hundred forty day
deadline.
(c) The challenge must be made in a verified affidavit by a
challenger, based on reasonable suspicion or belief of the facts
stated. Grounds for filing a challenge are that the candidate does
not meet the Constitutional or statutory qualifications for the
office, including residency.
(d) If a challenger discovers grounds for challenging a
candidate after the deadline in subsection (b) of this section, the
challenger may file in circuit court.
(e) The commission shall conduct the hearing as follows:
(1) Within five business days after the challenge is filed,
designate and announce the time of the hearing and the facility
where the hearing will be held. The hearing shall be held at a
location in the district reasonably convenient to the public, and
shall preferably be held in the county receiving the notice of the
candidacy or petition.
(2) Allow for depositions prior to the hearing, if requested
by the challenger or candidate before the time of the hearing is
designated and announced.
(3) Issue subpoenas for witnesses or documents, or both, upon request of the parties or upon its own motion.
(4) Render a written decision within ten days after the
challenge is filed and serve that written decision on the parties.
(f) The commission shall give notice of the hearing to the
challenger, to the candidate, other candidates filing or
petitioning to be elected to the same office, to the county chair
of each political party in every county in the district for the
office, and to those persons who have requested to be notified.
Each person given notice shall also be given a copy of the
challenge or a summary of its allegations. Failure to comply with
the notice requirements in this subsection shall not delay the
holding of a hearing nor invalidate the results if the individuals
required by this section to be notified have been notified.
(g) The hearing shall be conducted as follows:
(1) The commission may allow evidence to be presented at the
hearing in the form of affidavits supporting documents, or it may
examine witnesses. The commission may subpoena witnesses or
documents. The parties shall be allowed to issue subpoenas for
witnesses or documents, or both, including a subpoena of the
candidate. Each witness must be placed under oath before
testifying.
(2) The commission may receive evidence at the hearing from
any person with information concerning the subject of the
challenge, and such presentation of evidence shall be subject to
the rules of evidence. The challenger shall be permitted to
present evidence at the hearing, but the challenger may not be required to testify unless subpoenaed by a party. The panel may
allow evidence to be presented by a person who is present.
(3) The hearing shall be recorded by a reporter or by
mechanical means, and the full record of the hearing shall be
preserved by the commission.
(h) The commission shall make a written decision on each
challenge by separately stating findings of facts, conclusions of
law, and an order.
(i) The burden of proof shall be upon the candidate, who must
show by a preponderance of the evidence of the record as a whole
that he or she is qualified to be a candidate for the office.
(j) If the challenge is based upon a question of residency,
the candidate must show all of the following:
(1) An actual abandonment of the first domicile, coupled with
an intent not to return to the first domicile;
(2) The acquisition of a new domicile by actual residence at
another place; and
(3) The intent of making the newer domicile a permanent
domicile.
(k) The decision of a commission may be appealed by a
candidate adversely affected by the decision. Appeal must be taken
within two days after the commission serves the written decision on
the parties.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-1b. Qualifications for county commissioners.
(a) The Legislature finds that:
(1) There is confusion concerning when a candidate for county
commission must be a resident of the magisterial district he or she
wants to represent;
(2) The supreme court has discussed the residency requirement
in several cases and has conflicting interpretations;
(3) It is imperative that this issue be permanently resolved
at the time of filing to ensure the citizens have choice on the
ballot;
(4) It is essential the citizens know they are voting for a
person who is qualified to be a candidate; and
(5) With the expense of holding an election, tax payer moneys
should not be wasted of officials who could never serve.
(b) A person who wants to be a candidate for county commission
shall be a resident of the magisterial district he or she wants to
run for by the last day to file for election to that office.
NOTE: The purpose of the bill is to establish a procedure for
challenging a candidate's qualifications for elected office,
including opportunity for hearings, evidence and appeals. The bill
also sets forth qualifications for county commissioners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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