West Virginia Libertarian Party v. Manchin , 165 W. Va. 206 ( 1980 )

McGraw, Justice,

concurring in part and dissenting in part:

At the time a pre-election order was entered in this case, I said:

Justice McGraw would dispose of the case differently, saying first that filing fees are impermissible as a qualification for candidacy under the Constitution of the State. [Qualifications which exceed constitutional mandates are impermissible. Marra v. Zink, _ W.Va. _, 256 S.E.2d 581 (1979); State ex rel. Piccirillo v. City of Follansbee, _ W.Va. _, 233 S.E.2d 419 (1977).] Justice McGraw is further of the opinion that the Federal and State Constitutions, in their Equal Protection Clauses, forbid a State election law which operates to confer special privilege or advantage upon any association, candidate or partisan. Every qualified voter is entitled to participate at every step of the electoral process. This right is not restricted to those professing partisan affiliation. The Independent voter has the same constitutional right to cast his ballot for Independent candidates of his choice, in the same election, and upon the same terms and conditions, as does a partisan voter.

The Election Law, embodied in Chapter 3 of the West Virginia Code, can be applied to enable the Independent voter to participate in the primary election on June 3, 1980. The respondent should be directed to specify ballots in blank for use by the Independent voter at his polling place. The Independent voter could write thereon his vote, which would then be tabulated by the election officials and all candidates receiving the requisite percentage of votes necessary to qualify should be certified to the November general election ballot for consideration by all qualified voters. [¹]

As I conclude my reflections on this case, keeping in mind the majority’s well crafted opinion, I think of article 3, section 230 of the West Virginia Constitution and I wonder why it is such a difficult proposition with which to keep faith.

1 In the primary election held June 3, 1980, a write-in ballot was provided to all voters in Kanawha County which, if it had been used throughout the state, would have enabled all persons not affiliated with the two main line parties to participate in the election.