Erik Patrick Wells v. Charles T. Miller, Prosecuting Attorney , 237 W. Va. 731 ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
FILED
September 15, 2016
No. 16-0779 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
ERIK PATRICK WELLS,
Petitioner/Respondent Below
v.
STATE OF WEST VIRGINIA ex rel. CHARLES T. MILLER,
Prosecuting Attorney for Kanawha County,
Respondent/Petitioner Below
Appeal from the Circuit Court of Kanawha County
The Honorable Charles E. King, Judge
Civil Action No. 16-P-364
AFFIRMED
Submitted: September 7, 2016
Filed: September 15, 2016
Thomas P. Maroney, Esq. Charles T. Miller, Esq.
MARONEY, WILLIAMS, WEAVER Laura Young, Esq.
& PANCAKE, PLLC Robert William Schulenberg, III, Esq.
Charleston, West Virginia Office of the Prosecuting Attorney of
Attorney for Petitioner Kanawha County
Charleston, West Virginia
Attorneys for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “‘Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).” Syl. Pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83,
543 S.E.2d 364 (2001).
2. “The constitution, in article IV, section 11, gives wide powers to the
legislature to make all reasonable regulations and restrictions as to preparation of ballots
and the conduct and returns of elections.” Syl. Pt. 4, Morris v. Bd. of Canvassers of City
of Charleston, 49 W. Va. 251, 38 S.E. 500 (1901).
3. West Virginia Code § 3-5-7 (2015) requires 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 to file a certificate of announcement declaring his or her
candidacy for the nomination or election to the office. Accordingly, candidates who seek
to hold an office or political party position pursuant to West Virginia Code § 3-5-23
(2009) must complete a certificate of announcement in accordance with the provisions of
West Virginia Code § 3-5-7.
i
4. A candidate who is registered and affiliated with a recognized
“political party” as defined in West Virginia Code § 3-1-8 (1965) may not become a
candidate for political office by virtue of the nomination certificate process outlined in
West Virginia Code § 3-5-23 (2009).
5. “The State of West Virginia through its Legislature retains the
authority to prescribe reasonable rules for the conduct of elections, reasonable procedures
by which candidates may qualify to run for office, and the manner in which they will be
elected.” Syl. Pt. 4, Sowards v. County Comm’n of Lincoln Cty., 196 W. Va. 739, 474
S.E.2d 919 (1996).
ii
WORKMAN, Justice:
This is an appeal from the circuit court’s August 18, 2016, order granting
respondent State of West Virginia’s (hereinafter “respondent”) amended petition for writ
of quo warranto, disallowing petitioner Erik Patrick Wells’ (hereinafter “petitioner”)
candidacy for the office of Kanawha County Clerk. The circuit court found that, as a
registered member of the Democratic Party, petitioner’s candidacy was governed by the
provisions of West Virginia Code § 3-5-7 (2015) and that petitioner had failed to comply
with its requirements, disqualifying him as a candidate for the office of Kanawha County
Clerk.
Based upon our review of the briefs, legal authorities, appendix record, and
upon consideration of arguments of counsel, we conclude that West Virginia Code § 3-5­
7 is applicable to any person who seeks to hold an office or political party position to be
filled by primary or general election. Therefore, in light of petitioner’s failure to comply
with the requirements of West Virginia Code § 3-5-7, we affirm the circuit court’s order
granting the petition for writ of quo warranto.
I. FACTS AND PROCEDURAL HISTORY
On July 18, 2016, petitioner, a registered Democrat, filed a “Candidate’s
Certificate of Announcement for 2016 Partisan Elections” and paid the required filing fee
1
to the Kanawha County Clerk’s office. Petitioner left blank1 a portion of the form, which
states as follows:
I am a member of and affiliated with the following political
party: _____________. I am a member of and affiliated with
this political party as evidenced by my current voter’s
registration and I have not been registered as a member of
another political party within sixty days of this date. (W.Va.
Code § 3-5-7(d)(6))
Subsequently, petitioner filed a “Minor Party or Independent Candidate Nomination
Petition,” seeking to become a certificate nomination candidate pursuant to West Virginia
Code § 3-5-23 (2009). On this form, in the space provided for “Party,” the certificate
stated: “Independent.” Petitioner submitted signatures from 1,019 individuals; the
County Clerk invalidated 119 of the signatures, leaving 900 signatures as valid.2
On August 10, 2016, respondent filed a petition for writ of quo warranto
pursuant to West Virginia Code § 53-2-1 et seq. (1923),3 and the following day filed its
amended petition. The circuit court conducted a hearing on this matter on August 12,
1
West Virginia Code § 3-5-7(d) requires this information to be submitted “on a
form prescribed by the Secretary of State” and in the form of a “sworn statement before a
notary public or other officer authorized to administer oaths[.]” Further, any person who
“knowingly provides false information on the certificate is guilty of false swearing[.]”
W. Va. Code § 3-5-7(f).
2
Of those 1,019 individuals signing the petition, 656 were registered Democrats,
135 were registered Republicans, and 137 had no party affiliation.
3
“A writ of quo warranto, or a writ in the nature of a writ of quo warranto lies to
try and determine the right or the title to a public office. The writ will issue against any
person who intrudes into or usurps a public office.” State ex rel. Bumgardner v. Mills,
132 W. Va. 580, 587, 53 S.E.2d 416, 423 (1949) (citations omitted).
2
2016, during which a key issue was petitioner’s failure to fully complete the certificate of
announcement, having left his party affiliation blank. During the hearing, petitioner
testified that he was and remained a registered Democrat and had voted on May 10, 2016,
in the Democratic primary. Petitioner testified that he was running for the office of
Kanawha County Clerk as an “independent,” as indicated on the “Minor Party or
Independent Candidate Nomination Petition.” Petitioner further testified that he read and
was aware of the requirements imposed on a candidate filing a certificate of
announcement, but had not decided to run for office until after the primary election.4
By order entered August 18, 2016, the circuit court granted respondent’s
petition for writ of quo warranto and disallowed petitioner’s candidacy for the office of
Kanawha County Clerk in the November 8, 2016, general election. Specifically, the
circuit court found that petitioner failed to fully complete the certificate of announcement
required by West Virginia Code § 3-5-7 and that regardless, as a registered Democrat,
4
Petitioner testified that Carol Bright, a deputy clerk for Kanawha County, told
petitioner he could leave his party affiliation blank in the certificate of announcement.
However, Ms. Bright testified that petitioner refused to provide that information;
therefore, she ultimately told petitioner that the deputy clerk would take the certificate of
announcement as presented and that the clerk’s office would “deal with it later.” Ms.
Bright, however, specifically denied telling petitioner that he did not have to complete
that portion of the certificate. David Dodd, Chief Deputy County Clerk, testified that he
advised Ms. Bright to accept the certificate and that they would “deal with it later.” The
circuit court found that “the deputy clerks did not act to relieve [petitioner] from fully
completing his certificate of announcement, nor could they under the law.” We note that
petitioner did not assign as error any of the circuit court’s findings regarding these factual
issues, nor did petitioner argue that estoppel precludes application of the circuit court’s
legal conclusions as a result.
3
petitioner could not avail himself of the certificate nomination process under West
Virginia Code § 3-5-23. As pertained to the certificate of announcement, the circuit court
reasoned that
[b]y failing to include the party affiliation in the certificate of
announcement, the . . . [petitioner] created confusion for the
voters regarding precisely who is running for office and what
party and party philosophies [petitioner] is affiliated with.
Further, the failure to include a party affiliation in the
certificate of announcement will create an impossible
situation for election officials in preparing the ballet [sic] and
for voters when voting.
The circuit court stated that if petitioner’s name appeared on the ballot as a Democrat, it
would create the impression that he was on the ballot because he either won the primary
election or had his name placed on the ballot by the Kanawha Democratic Executive
Committee or its chairperson. On the other hand, if his name appeared as “independent,”
it would be inaccurate because petitioner is a registered Democrat. The circuit court
further found that West Virginia Code § 3-5-23 was for use by “persons who seek
elective office and who are not members of an organized party having a nominating
election or a nominating convention.”
The circuit court further rejected petitioner’s contention that he presented a
viable, constitutionally-based “ballot access” challenge because “as a registered
Democrat, [petitioner] had access to the ballot” and found that petitioner could have
simply followed the various requirements to run for office. Specifically, the circuit court
noted that petitioner could have filed a certificate of announcement for county-wide
4
office or pursued having the Kanawha County Democratic Executive Committee place
his name on the ballot. 5 This appeal followed.
II. STANDARD OF REVIEW
Petitioner’s appeal raises the issues of the application and scope of West
Virginia Code § 3-5-7 and West Virginia Code §§ 3-5-23 and -24. In this regard, we have
held that “‘[w]here the issue on an appeal from the circuit court is clearly a question of
law or involving an interpretation of a statute, we apply a de novo standard of review.’
Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).”
Syl. pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83, 543 S.E.2d
364 (2001). Mindful of this applicable standard, we now consider the substantive issues
raised by the parties.
III. DISCUSSION
Petitioner raises three assignments of error. First, petitioner asserts that the
circuit court erred in concluding that the certificate of announcement requirements
contained in West Virginia Code § 3-5-7(d)(6) are applicable to a candidate seeking
5
Petitioner raised below the issue of his military service, suggesting that he could
not have filed to run in the primary because he was deployed. Respondent countered that
petitioner was released from active duty on February 16, 2016, well in advance of the
March 1, 2016, deadline for a political party’s executive committee to act. Respondent
further argued that pursuant to the Hatch Act, 5 U.S.C.A. §§ 7321-7326, and under the
military regulations as contained in the Department of Defense Directive Number
1344.10, petitioner could have filed to run for office. These issues were not briefed and
therefore are not properly before the Court.
5
nomination by certificate. Second, petitioner contends that the circuit court erred in
concluding that, as a registered Democrat, he could not avail himself of the certificate
nomination process outlined in West Virginia Code § 3-5-23. Finally, petitioner asserts
that in denying petitioner’s candidacy, the circuit court denied him ballot access, in
violation of the First and Fourteenth Amendments of the United States Constitution and
Article III, Sections 7, 16 and 17 and Article IV, Sections 1 and 4 of the West Virginia
Constitution.
Before we address petitioner’s arguments, we note that the West Virginia
Constitution reserves to the Legislature the ability to make laws concerning public
officials and the manner in which those officials assume office. In syllabus point four of
Morris v. Board of Canvassers of City of Charleston, 49 W. Va. 251, 38 S.E. 500 (1901),
this Court held: “The constitution, in article IV, section 11, gives wide powers to the
legislature to make all reasonable regulations and restrictions as to preparation of ballots
and the conduct and returns of elections.”6
Article IV, section 8 provides that “[t]he Legislature, in cases not provided
for in this constitution, shall prescribe, by general laws, the terms of office, powers,
duties and compensation of all public officers and agents, and the manner in which they
6
We further recognize that “[a] State’s power to determine how its officials are to
be elected is a quintessential attribute of sovereignty.” California Democratic Party v.
Jones, 530 U.S. 567, 590 (2000) (J. Stevens dissenting).
6
shall be elected, appointed and removed.” Additionally, Article IV, Section 11 provides
that
[t]he Legislature shall prescribe the manner of conducting and
making returns of elections, and of determining contested
elections; and shall pass such laws as may be necessary and
proper to prevent intimidation, disorder or violence at the
polls, and corruption or fraud in voting, counting the vote,
ascertaining or declaring the result or fraud in any manner
upon the ballot.
This Court is further mindful that the Legislature “inevitably must, enact reasonable
regulations of parties, elections, and ballots to reduce election- and campaign-related
disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
A. Applicability of West Virginia Code § 3-5-7 to certificate nomination candidates
under West Virginia Code § 3-5-23
As indicated above, petitioner, a registered Democrat, seeks to be a
candidate for the office of Kanawha County Clerk by utilizing the “certificate
nomination” process outlined in West Virginia Code § 3-5-23. The statute provides, in
pertinent part:
Groups of citizens having no party organization may
nominate candidates who are not already candidates in the
primary 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.
7
W. Va. Code § 3-5-23(a).7 The nominating certificate must 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.” W. Va. Code § 3-5-23(d). Upon fulfillment of these
criteria, the statute provides that “[a]ll 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.” Id.
As noted above, the circuit court found that, even assuming petitioner was a
proper certificate nomination candidate, he was required to file the certificate of
announcement described in West Virginia Code § 3-5-7(d) and because petitioner refused
to identify his party affiliation in the certificate of announcement, the certificate was
noncompliant and therefore precluded his candidacy.
West Virginia Code § 3-5-7(a) provides as follows:
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
7
The statute further provides that a person soliciting signatures of duly qualified
voters on the nomination certificate must first obtain credentials from the county clerk
and that the certificate must be signed by duly registered voters in an amount equal to at
least one percent of the entire vote cast in the last general election for the office being
sought. W. Va. Code § 3-5-23(b) and (c).
8
shall file a certificate of announcement declaring his or her
candidacy for the nomination or election to the office.
(emphasis added). Significantly, West Virginia Code 3-5-7(c) states that such certificate
of announcement must be filed no earlier than the second Monday in January and no later
than the last Saturday in January; petitioner filed his certificate of nomination in July, six
months after the time period prescribed in the statute. Moreover, for partisan elections
such as the Kanawha County Clerk, the certificate must contain
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 sixty days before the date of
filing the announcement . . .
W. Va. Code § 3-5-7(d). In spite of the broad, compulsory language of the statute
requiring “[a]ny person” seeking office in a primary “or general election” to file a
certificate of announcement of his candidacy for the “nomination or election to the
office,” petitioner makes two arguments in support of its inapplicability to his certificate
nomination candidacy. W. Va. Code § 3-5-7(a) (emphasis added).
First, petitioner argues that our decision in State ex rel. Browne v. Hechler,
197 W. Va. 612, 476 S.E.2d 559 (1996), is dispositive. In Browne, the Court held that
the 1991 version of West Virginia Code § 3-5-7 applied only to primary elections and
therefore certificate nomination candidates were “not required to file a declaration of
candidacy pursuant to W. Va. Code § 3-5-7 (1991).” Syl. Pt. 2, in part, Browne.
9
Respondent correctly counters, however, that West Virginia Code § 3-5-7 has undergone
a critical amendment since that time.
In Browne, the Court sought to ascertain the deadline for the filing of a
nomination certificate and fee under the 1986 version of West Virginia Code § 3-5-23,
which used the terms “declaration”8 and “certificate” in a manner creating ambiguity as
to the filing deadlines. 197 W. Va. at 613-14, 476 S.E.2d at 560-61. Respondent
suggested that the “declaration” referred to therein was distinguishable from the
nomination certificate and actually referred to the certificate of announcement required
by West Virginia Code § 3-5-7. Id. at 614, 476 S.E.2d at 561. The Browne Court
quickly rejected this argument, observing that West Virginia Code § 3-5-7(f) stated that
“[t]he provisions of this section shall apply to the primary election . . . .” and was
therefore “by its own terms, inapplicable” to a certificate nomination candidate, who does
not participate in the primary election. Id.9
This provision of West Virginia Code § 3-5-7, as it existed at the time of
Browne, seemingly confining applicability to candidates participating in a primary
8
The term “declaration” has since been replaced with “nomination certificate” and
the statute rewritten.
9
The Browne Court did not address the opening sentence of the 1991 version of
West Virginia Code § 3-5-7 which, like its current incarnation, stated that “[a]ny 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 . . . shall file a certificate of
announcement[.]” (emphasis added).
10
election survived each of the Legislature’s various amendments enacted in 1998, 2005,
2007, and 2009. However, the 2015 amendments to the statute eliminated this provision
in its entirety. Accordingly, there is no longer any wording contained within the
language of the statute stating that its provisions apply exclusively to candidates
participating in the primary election. In fact, the sole reference to its applicability is now
the long-standing opening statement that the statute and its requirements are mandatory
upon “[a]ny 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[.]” W. Va. Code § 3-5-7(a)
(emphasis added).
What this Court is left with, then, is the plain language of West Virginia
Code § 3-5-7 which unmistakably makes itself applicable to all candidacies, including
certificate nomination candidacies, and clearly mandates that all those seeking office in a
primary or general election file a statutorily-compliant certificate of announcement.
Whether this was the intention of the Legislature in making the 2015 amendments to the
statute is not for this Court to speculate: “Where the language of a statute is free from
ambiguity, its plain meaning is to be accepted and applied without resort to
interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 715, 172 S.E.2d 384,
385 (1970). What is clear, however, is that the Court’s decision in Browne is no longer
valid as pertains to this issue in light of the 2015 amendments to West Virginia Code § 3­
5-7.
11
Petitioner argues alternatively that West Virginia Code § 3-5-7 is
inapplicable to a certificate nomination candidate because such candidacy is governed
exclusively by West Virginia Code § 3-5-23, which requires no such certificate of
announcement and mandates that upon filing of the certificate of nomination, a candidate
“shall” be placed on the ballot. W. Va. Code § 3-5-23(d). The Court, however, cannot
countenance such a myopic view of our election code. This Court has made clear that
[s]tatutes which relate to the same persons or things, or to the
same class of persons or things, or statutes which have a
common purpose will be regarded in pari materia to assure
recognition and implementation of the legislative intent.
Accordingly, a court should not limit its consideration to any
single part, provision, section, sentence, phrase or word, but
rather review the act or statute in its entirety to ascertain
legislative intent properly.
Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217
S.E.2d 907 (1975). Certainly our state election code presents a comprehensive “code of
laws for the establishment, administration and regulation of elections and election
procedures in the state of West Virginia.” W. Va. Code § 3-1-1 (1963).
Petitioner provides no support for the notion that statutes purporting to have
a broad reach become completely inoperable when more specific statutes delineate
additional requirements specifically applicable to certain individuals or processes. West
Virginia Code § 3-5-23 contains no exclusivity language, nor is there anything inherently
inconsistent with requiring a candidate to file both a certificate of announcement pursuant
to West Virginia Code § 3-5-7 and a nomination certificate containing all of the required
12
signatures and representations required by West Virginia Code § 3-5-23. As stated in
Browne, the certificate of announcement serves to “ensure the orderly administration of .
. . elections and to provide notice to the electorate of the identity of candidates[.]” 197
W. Va. at 614, 476 S.E.2d at 561. Petitioner offers no reason why such goals should be
rendered inapplicable to certificate nomination candidates.
Nonetheless, petitioner highlights a purported “conflict” in West Virginia
Code § 3-5-7 and § 3-5-23 in support of his suggestion that he is not required to complete
the certificate of announcement. The certificate of announcement requires a candidate to
identify, among other housekeeping matters, the date of the election, the office sought,
the district, the candidate’s legal name, county of residence, and address. W. Va. Code §
3-5-7(d)(1) through (5). Subsection (d)(6), however, requires a candidate in a partisan
election to identify his or her political party and swear, under oath, that the candidate is a
member of and affiliated with that political party and has not been registered as a voter
affiliated with any other party for the preceding sixty days. W. Va. Code § 3-5-7(d)(6).
West Virginia Code §3-5-23(d) provides merely, however, that the nomination certificate
“may” designate a party name, device or emblem. In spite of petitioner’s insistence to
the contrary, we perceive no appreciable conflict in these provisions, much less one
13
which would render the provisions of West Virginia Code § 3-5-7(d)(6) wholly
inapplicable to a nomination certificate candidate.10
The certificate of announcement described in West Virginia Code § 3-5-7
(and in fact the entire statute) pertains to the candidate himself. The certificate seeks
information which identifies the candidate, the office for which the candidate is running,
and information designed to ensure the candidate is a proper one for the office he or she
seeks. The Legislature has made clear in enacting the requirements of West Virginia
Code § 3-5-7(d)(6) that voters are entitled to know with which political party, if any, a
candidate is affiliated and that the candidate has not been otherwise affiliated in the
10
Petitioner did not assert a specific constitutional challenge to West Virginia
Code § 3-5-7(d)(6)’s requirement that he declare his party affiliation in the certificate of
announcement; rather, he challenged merely the statutory applicability thereof to his
candidacy. Our normal practice, from which we see no reason to depart on this occasion,
is to refrain from addressing issues not raised. “‘Courts are not constituted for the
purpose of making advisory decrees or resolving academic disputes.” Syl. Pt. 2, in part,
Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991).”
Nonetheless, this Court is cognizant of its decision in West Virginia Libertarian
Party v. Manchin, 165 W. Va. 206, 270 S.E.2d 634 (1980), which tersely and with little
discussion found that the predecessor requirement of West Virginia Code § 3-5-23(d) that
a candidate “file a declaration containing the name of the political party he or they
propose to represent, its platform, principles or purposes” violated the Equal Protection
rights of an unaffiliated candidate. As repeatedly noted throughout this opinion,
petitioner is not an unaffiliated candidate; he therefore lacks standing to litigate the issue.
See generally Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 95, 576 S.E.2d
807, 822 (2002). Even so, we do not perceive an issue of constitutional dimension with
West Virginia Code § 3-5-7(d)(6)’s requirement that all candidates, including unaffiliated
candidates, identify their political party, if any. To the extent a candidate is not a
“member of and affiliated with,” a political party, i.e. unaffiliated or “independent,” the
truthful and complete answer to this inquiry is simply “none.”
14
preceding sixty days. The substantial ends of these disclosures is clear: voters are
entitled to know the party or principles for which a candidate stands, to the extent a
candidate has so affiliated himself or herself, such that they can make a knowledgeable
decision in casting their votes. This statute seeks to prevent candidates from engaging in
chicanery regarding their political affiliations, if any, designed to inure entirely to their
individual political benefit and mislead the electorate. See Lippitt v. Cipollone, 337 F.
Supp. 1405, 1406 (N.D. Ohio 1971) (upholding similar requirements to preclude
candidates from “altering their political party affiliations for opportunistic reasons.”).
The provisions of West Virginia Code § 3-5-23, however, are geared
toward ascertaining information about the “groups of citizens” who purport to by-pass the
primary election and nominate a candidate by certificate. While the certificate itself is
required to be filed by the candidate, the provisions of West Virginia Code § 3-5-23 deal
virtually exclusively with the qualifications of the citizens who seek to nominate the
candidate and the certificate by which they seek to do so. Subsection (b) governs the
credentialing required of those who solicit or canvass voter signatures on the nomination
certificate. Subsection (c) details the criteria for becoming a signator of the nomination
certificate and the number of such signators required. Subsections (e) and (f) outline the
duties of the Secretary of State to investigate the “validity of the certificates and the
signatures thereon” and any penalties for violation of the statute. Subsection (d), which
petitioner suggests “conflicts” with the requirements of a candidate to aver his or her
registered party affiliation provides simply that the group of citizens which seeks to
15
nominate a candidate “may” designate a name or emblem for themselves. It does not
speak to the registered party affiliation, if any, of the candidate.
Petitioner offers absolutely no argument or rationale before this Court as to
why requiring the certificate of announcement delineated in West Virginia Code § 3-5-7
of certificate nomination candidates under West Virginia Code § 3-5-23 is impractical,
impossible, or inequitable. Indeed he likely cannot inasmuch as, despite his insistence
that he was not required to complete a certificate of announcement, it was he who took it
upon himself to file one, albeit incomplete and untimely. Any inefficacies in requiring
nomination certificate candidates to complete the form are not only immaterial to our
application of the statute as drafted by the Legislature, but merely theoretical.11 In fact,
we note that the certificate of announcement itself as promulgated by the Secretary of
State appears to expressly contemplate execution by certificate nomination candidates
who effectively by-pass the primary election. The Secretary of State’s Official Form C-1
entitled “Candidate’s Certificate of Announcement for 2016 Partisan Elections” requests
the candidate to indicate the “Date of Election” and requests the candidate to “Check
one” of the following: primary, general, or unexpired term. Should the form be
11
Insofar as filing deadlines are concerned, West Virginia Code § 3-5-7 simply
requires a nomination certificate candidate to announce his or her candidacy in January.
Such candidate still has until August 1 to collect the signatures required on the
nomination certificate. This Court has cited with approval cases in which courts have
rejected challenges to election laws affecting third-party or independent candidates based
on the argument that such provisions require the candidate anticipate his or her candidacy
too early. See Manchin, 165 W. Va. 206, 223-226, 270 S.E.2d 634, 644-646 (collecting
cases).
16
applicable only to those candidates participating in the primary election, there would be
no need to make an allowance for a candidate to check only “general” election, unless
that candidate may by-pass the primary and run only in the general election as
nomination certificate candidates do.
The critical importance of the frank disclosure of a candidate’s party
affiliation is well-illustrated in the case at bar. As indicated above, petitioner is a
registered Democrat, yet seeks to run by nomination certificate as an “independent.”
Although this term is commonly used to refer to individuals who eschew party affiliation,
West Virginia does not recognize an official designation of “Independent.” Rather, those
who are “unaffiliated” are registered as such.12 To run as unaffiliated or “independent,”
petitioner may not merely declare himself “independent” or lacking in party affiliation;
he must change his registration to reflect accordingly. West Virginia Code § 3-5-7(d)(6)
requires that he declare his party affiliation, if any, and aver that he has not otherwise
12
See W. Va. Code § 3-2-5 (d)(2) (2013) (identifying requested information for
voter registration application including “[t]he applicant’s choice of political party
affiliation, if any, or an indication of no affiliation.”); see also West Virginia Secretary of
State Natalie E. Tennant, “Voter Registration Totals,”
http://www.sos.wv.gov/elections/history/Pages/Voter_Registration.aspx (last visited
September 14, 2016) (“‘No Party’ refers to individuals who specifically do NOT affiliate
themselves with any particular party and are sometimes commonly referred to as
‘Independents.’”); “West Virginia Voter Registration Application,” West Virginia
Secretary of State, Natalie E. Tennant,
http://www.sos.wv.gov/elections/forms/Documents/Forms%20­
%20Voter/mail%20in%20voter%20registration%20application.pdf (last visited
September 14, 2016) (designating six options for “party choice”: Democratic,
Republican, Mountain, Libertarian, unaffiliated, or other”).
17
been affiliated in the 60 days preceding the filing. This Court has observed that such
requirements “promote political stability, preserve party integrity . . . and prevent voter
confusion.” State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 307, 460
S.E.2d 436, 442 (1995); see also Bendinger v. Ogilvie, 335 F. Supp. 572, 575 (N.D. Ill.
1971) (noting that without such requirements “party swapping and changing might
become so prevalent that the average political party could no longer function properly”).
However, upon filing his certificate of announcement—six months late—
petitioner failed or refused to identify his political party, thereby wholly usurping the
paramount purpose of the nomination certificate. On the nomination certificate and in
sworn testimony, petitioner purported to identify as having no party affiliation or
“independent,” all while maintaining his registered Democrat status. Simply put,
petitioner is a registered Democrat and any attempt to otherwise identify himself or
“disaffiliate” with the Democratic party can only be accomplished by changing his
registration; to permit otherwise would perpetrate a fraud on the electorate. As we have
previously stated, “the State’s interests in preserving the integrity of the political process .
. . . are put at risk by candidates who skip from one party to another just prior to an
election campaign to take advantage of a political opportunity.” Billings, 194 W. Va. at
308, 460 S.E.2d at 443. If “skipping” from party to party to take advantage of a political
opportunity puts the State’s election interests at risk, it is fairly inarguable that allowing a
candidate to masquerade as something he is not makes an utter mockery of those
interests.
18
The statute as currently constituted, requiring all candidates to file a
certificate of announcement in January, appears to reflect a Legislative intent that voters
and candidates should know at the outset who is running for elected office. Certificate
nomination candidates then obviously have until August 1—an additional approximate
six months—to collect the signatures necessary to secure their nomination. This prevents
certificate nomination candidates from first emerging near the end of the election season
to the surprise of an unwitting recognized political party candidate.
We therefore hold that West Virginia Code § 3-5-7 requires 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 to file a certificate of announcement declaring
his or her candidacy for the nomination or election to the office. Accordingly, candidates
who seek to hold an office or political party position pursuant to West Virginia Code § 3­
5-23 must complete a certificate of announcement in accordance with the provisions of
West Virginia Code § 3-5-7. It is undisputed that petitioner filed his certificate of
announcement six months late and that when he did so, his failure to state his political
party made his untimely filing also incomplete. Therefore, we conclude that the circuit
court committed no reversible error in disallowing his candidacy.
B. Certificate Nomination Candidacies by Recognized Political Party Members
Our above holding notwithstanding, we turn now to petitioner’s argument
that the circuit court erred in finding that, as a registered Democrat, the certificate
19
nomination process contained in West Virginia Code § 3-5-23 was not available to him.
Although effectively unnecessary to the resolution of this matter given our above
holding, the Court chooses to consider this properly raised issue given its importance.
See generally Syl. Pt. 1, Israel by Israel v. West Virginia Secondary Schools Activities
Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989) (permitting consideration of issues
presenting “sufficient collateral consequences” resulting from failure to address
“questions of great public interest”). As noted above, the circuit court found that the
certificate nomination process is available only to third-party or independent candidates,
rather than individuals affiliated with a recognized political party13 who neglect or refuse
to participate in the primary process or seek nomination by the executive committee of
their party or convention. 14
Without question, this Court has historically recognized West Virginia
Code § 3-5-23 as “providing the method for ballot access for third-party and independent
13
As utilized herein, the term “recognized political party” should be read to
include those parties which qualify as a “political party” as defined by West Virginia
Code § 3-1-8. See West Virginia Secretary of State, Natalie E. Tennant, “Recognized
Political Parties in WV,” http://www.sos.wv.gov/elections/candidates­
committees/Pages/Recognized-Political-Parties-in-WV.aspx (last visited September 14,
2016) (identifying current recognized political parties as: Democratic, Republican,
Mountain, and Libertarian).
14
West Virginia Code 3-5-4 requires nomination by primary election of the
candidates of “each political party.” Vacancies in candidacy may be filled by political
party executive committees pursuant to West Virginia Code 3-5-11(c). Political parties
polling at less than ten percent of the total vote for Governor at the preceding general
election may nominate candidates by party convention per West Virginia Code § 3-5-22.
20
party candidates.” Write-In Pritt Campaign v. Hechler, 191 W. Va. 677, 681, 447 S.E.2d
612, 616 (1994) (emphasis added). Moreover, in Manchin, 165 W. Va. at 222, 270
S.E.2d at 644, this Court stated that the statute “constitute[s] a method for third-party or
independent candidates to gain access to the general election ballot . . . . [and] that the
petition process serves as the functional equivalent of a primary election.” (emphasis
added). Notably, the West Virginia Secretary of State’s official credentialing form and
nomination petition expressly state that they are for “independent” or “minor party”
candidates.15 There is nothing on these forms remotely suggesting this process is for use
by individuals with recognized political party affiliation.
The language of West Virginia Code § 3-5-23 presents some ambiguity in
that it does not expressly forbid a member of a recognized political party from becoming
a certificate nomination candidate. However, the language of the statute plainly suggests
that it is a mechanism by which only unaffiliated or minor party candidates may enter the
election process. In fact, the statute begins with the statement that “[g]roups of citizens
15
The face of the State of West Virginia “Official Credentials” Form P-1, states
“As prescribed by WV Code §3-5-23 Authorization to Solicit Petition Signatures for
Independent and Minor Party Candidates in the _____ Election.” The “Nomination
Petition” Form P-3 itself is entitled “State of West Virginia Minor Party or Independent
Candidate Nomination Petition for the ___ General Election” and notes at the bottom
“Issued by the Office of the Secretary of State (WV Code §3-5-23)”. See also West
Virginia Secretary of State Natalie E. Tennant, “No Party Candidates,”
http://www.sos.wv.gov/elections/candidates-committees/Pages/nopartyaffiliation.aspx
(last visited September 14, 2016) (“Citizens who want to run independently or under the
banner of a minor party must petition the voters within the state by gathering signatures
to get on the General Election ballot).
21
having no party organization may nominate candidates who are not already candidates in
the primary election for public office . . . .” The use of the phrases “no party
organization” and reference to candidates “who are not already candidates in the primary
election” unquestionably suggests that it is for use by candidates who do not belong to
one of the recognized “political part[ies]” in West Virginia. See W. Va. Code § 3-1-8
(1965) (“Any affiliation of voters representing any principle or organization which, at the
last preceding general election, polled for its candidate for Governor at least one percent
of the total number of votes cast for all candidates for that office in the state, shall be a
political party . . .”). Moreover, subsection (d) permitting the designation “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” further suggests that the statute is
designed for independent or third party candidates, recognized party candidates having no
need to effectively “create” a name, emblem or device to reflect their party.
Having determined that the statute is ambiguous, we turn then to our
canons of statutory construction. This Court has repeatedly held that “in the
interpretation of a statute, the legislative intention is the controlling factor; and the
intention of the legislature is ascertained from the provisions of the statute by the
application of sound and well established canons of construction.” State v. Gen. Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 144, 107 S.E.2d 353,
358 (1959). Critically,
22
[t]he only mode in which the will of the legislature is spoken
is in the statute itself. In the construction of statutes, it is the
legislative intent manifested in the statute that is important
and such intent must be determined primarily from the
language of the statute. . . . and the general rule is that no
intent may be imputed to the legislature other than that
supported by the face of the statute itself. . . .. A statute is to
be taken, construed and applied in the form in which it is
enacted.
Id. at 144-45, 207 S.E.2d at 358. (emphasis added). As we previously stated herein,
“statutes which have common purpose will be regarded in pari materia . . . [and] a court
should . . . review the act or statute in its entirety to ascertain legislative intent properly.”
Syl. Pt. 5, in part, Fruehauf Corp., 159 W. Va. 14, 217 S.E.2d 907. As the Supreme
Court of Massachusetts observed in reference to similar “imprecisions” in its election
laws,
[t]hey simply goad us to undertake a holistic evaluation of the
election law regime, and to ascertain as we must “the intent of
the statute from all its parts and from the subject matter to
which it relates.” DiGiacomo v. Metropolitan Prop. & Cas.
Ins. Co., 66 Mass.App.Ct. 343, 346, 847 N.E.2d 1107 (2006).
See Sterilite Corp. v. Continental Cas. Co., supra at 839, 494
N.E.2d 1008 (courts “should not accept the literal meaning of
the words of a statute without regard for that statute’s purpose
and history”). Thus, we turn to the statutory scheme “as a
whole,” Wolfe v. Gormally, supra, mindful that “[t]he general
purpose of the Legislature in enacting the statutes regulating .
. . elections was to make a reasonably consistent and
harmonious body of law . . . which should have the final
result of filling the offices required by law.” Thacher v.
Secretary of the Commonwealth, 250 Mass. 188, 190, 145
N.E. 256 (1924).
Libertarian Assoc. of Mass. v. Sec’y of the Commonwealth, 969 N.E.2d 1095, 1105-06
(2012).
23
In examining the election laws in pari materia, it becomes apparent that it
was the Legislature’s intention that West Virginia Code § 3-5-23 was for use exclusively
by unaffiliated or minor party candidates. Our election code provides that “[a]t each
primary election, the candidate or candidates of each political party”—which quite
obviously includes the Democratic party—“shall be nominated by the voters of the
different political parties . . . [by a] plurality of the votes cast[.]” W. Va. Code § 3-5-4(a).
Quite simply, members of recognized political parties are to be nominated by their party
during the primary election. In view of the fact that the primary process is available only
to candidates of “each political party,” individuals who do not belong to these parties, as
defined by statute, or any minor political party ostensibly have no means of entering the
election process in absence of the provisions of West Virginia Code § 3-5-23.
West Virginia Code § 3-5-23, therefore, provides for the certificate
nomination process and quite understandably reads in terms of groups of citizens who
“hav[e] no party organization” and candidates who “are not already candidates in the
primary election.” W. Va. Code § 3-5-23(a). The absence of any provision even
suggesting that the certificate nomination process is available to a recognized party
candidate compels a conclusion to the contrary. As noted above, “no intent may be
imputed to the legislature other than that supported by the face of the statute itself.” Gen.
Daniel Morgan Post No. 548, 144 W. Va. at 145, 107 S.E.2d at 358. This Court
therefore may not impute the availability of the certificate nomination process to a
24
recognized party candidate inasmuch as the face of the statute quite simply does not
support any such usage.
The evolution of the statute lends further credence to our conclusion that it
was not designed for, and therefore does not permit, a member of a recognized political
party to avail himself of its process. The 1916 version of the statute provided that
nomination by certificate was available to “[p]olitical parties having national
organization,” but having cast less than ten percent of the total vote cast for governor at
the general election. W. Va. Code § 3-5-23 (1916) (emphasis added).16 Clearly, this
16
An appreciation of how substantially West Virginia Code § 3-5-23 differed from
the current version of the statute in its earliest incarnation is critical to placing our case of
George v. Board of Ballot Comm’rs, 79 W. Va. 213, 90 S.E. 550 (1916), into its proper
context. George addressed whether a Republican candidate who was defeated in the
primary election could then run as the nomination certificate candidate of the
“Independent Republican Party.” Id. The Court noted that “[a]s to whether [the
candidate] may have been previously a candidate for nomination by another party, or may
be a candidate of some party other than named in the certificate, the statute is silent.” Id.
at 215, 90 S.E. at 551. With respect to its intended reach, the statute at that point
provided simply that “[c]andidates for public office may be nominated otherwise than by
direct primary election.” W. Va. Code § 3-5-23 (1915). There was no mention, as the
statute currently contains, of “groups of citizens having no party organization,” or
nomination of candidates “who are not already candidates in the primary election.” That
the Court in George concluded that the statute’s silence would not preclude such
candidacy is fairly immaterial to the case at bar as we now have additional direction on
the face of the statute suggesting its proper application.
Similarly, nor does our extraordinarily brief case of State ex rel. Frazier v. Board
of Ballot Comm’rs of Wayne County, 112 W. Va. 650, 166 S.E. 363 (1932), compel a
different conclusion. In Frazier, a candidate who had likewise been defeated in the
primary sought to utilize the nomination certificate process to reach the general election
ballot. Id. at 650, 166 S.E. at 364. The Court found that Frazier’s nomination certificate
was not timely filed and therefore his candidacy was precluded. Id. at 651, 166 S.E. at
(continued . . .)
25
language contemplates minor party candidates. Presumably in view of the fact that the
statute, as then constructed, did not appear to allow for unaffiliated candidates, the statute
was amended in 1941 to make itself available to “groups of citizens having no party
organization[.]” W. Va. Code § 3-4-29 (1941) (emphasis added).
Not only is this conclusion consistent with the statutory scheme and
compelled by our canons of statutory construction, its equity is apparent. In light of our
above conclusion that candidates must file a certificate of announcement declaring their
party affiliation, to permit recognized political party candidates to then by-pass the
primary and use the nomination certificate process allows him or her to then appear on
the ballot ostensibly as the candidate of one of the recognized parties. To suggest that
this would create voter confusion is putting it mildly. These requirements seek to avoid
“political opportunism which is [] likely to threaten the State’s interests”, Billings, 194
W. Va. at 308, 460 S.E.2d at 443, and are necessary to maintain “order, rather than
chaos” in the nomination process. Storer v. Brown, 415 U.S. 724, 730 (1974). As in this
case, petitioner was a registered Democrat, yet held himself out for purposes of obtaining
nomination certificate signatures as “independent.” Accordingly, to allow him to appear
on the ballot as “independent” or “unaffiliated” is patently false; to allow him to appear
on the ballot as “Democrat” suggests that he is his party’s nominee—also patently false.
364. The Court did not address, in any fashion, the propriety of an unsuccessful primary
candidate’s use of the certificate nomination process.
26
These considerations inexorably lead to the conclusion that in order to
“maintain[] the integrity of different routes to the ballot and [] stabiliz[e] the political
system,” West Virginia Code § 3-5-23 is available only to unaffiliated or minor party
candidates. Polly v. Navarro, 457 So. 2d 1140, 1143 (Fla. App. 1984). Plainly, this same
conclusion was reached by the State’s chief elections official, as evidenced by the form
promulgated by her office entitled “Minor Party or Independent Candidate Nomination
Petition.”17 We therefore hold that a candidate who is registered and affiliated with a
recognized “political party” as defined in West Virginia Code § 3-1-8 may not become a
candidate for political office by virtue of the nomination certificate process outlined in
West Virginia Code § 3-5-23.
C. Constitutional Issues
Petitioner asserts that he has fully complied with the substantive and
procedural requirements of West Virginia Code §§ 3-5-23 and -24, and therefore has the
fundamental constitutional right to ballot access through the signature petitions.
Petitioner maintains that his right to become a candidate for public office is a
fundamental right, see Garcelon v. Rutledge, 173 W. Va. 572, 318 S.E.2d 622 (1984),
and there is nothing preventing him, a registered Democrat, from running as an
17
West Virginia Code of State Regulations § 153-26-5 provides that “[o]nly forms
which satisfy the prescribed statutory requirements shall be authorized by the Secretary
of State as the official election forms” and that the Secretary of State “shall amend any
official election form when it is necessary to conform the form with statutory
requirements[.]”
27
unaffiliated candidate pursuant to the provisions set forth in West Virginia Code § 3-5­
23. He reminds this Court that candidates’ rights are necessarily tied to voters’ rights. See
Bullock v. Carter, 405 U.S. 134, 143 (1972). Petitioner states that the circuit court’s
decision effectively denied 900 Kanawha County voters the right to nominate and vote in
the general election for a candidate of their choice.
Respondent counters that Petitioner is not being denied access to the
general election ballot because of any arbitrary and capricious action by those who
supervise the election process and ballot for Kanawha County elections. Rather,
Respondent maintains that petitioner should not be included on the general election ballot
because he chose to ignore all of the options which would have permitted him to be on
the ballot as a representative of the party to which he belongs, the Democratic party.
Having decided at the last minute to fling his “Democratic hat into the ring,” petitioner
failed to change his registration to unaffiliated at least sixty-one days before filing his
certificate of candidacy under West Virginia Code § 3-5-7; he compounded that problem
by refusing to fully complete the Candidate’s Certificate of Announcement, leaving his
party affiliation blank.
In Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and Burdick v.
Takushi, 504 U.S. 428, 433-34 (1992), the United States Supreme Court established a
balancing test to evaluate challenges to state ballot access requirements:
28
A court considering a challenge to a state election law must
weigh the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate against the precise
interests put forward by the State as justifications for the
burden imposed by its rule, taking into consideration the
extent to which those interests make it necessary to burden
the plaintiff’s rights.
Burdick, 504 U.S. at 434 (citation and internal punctuation omitted). The required
analysis “depends upon the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights.” Id. For “severe” restrictions, the regulation must be
“narrowly drawn to advance a state interest of compelling importance.” Id. (quoting
Norman v. Reed, 502 U.S. 279, 289 (1992)). For “reasonable, nondiscriminatory
restrictions,” the “State’s important regulatory interests are generally sufficient to justify
the restrictions.” Id. (citation and internal punctuation omitted).
Without question, “[t]he impact of candidate eligibility requirements on
voters implicates basic constitutional rights.” Anderson, 460 U.S. at 786. Nonetheless,
“not all restrictions imposed by the States on candidates’ eligibility for the ballot impose
constitutionally-suspect burdens on voters’ rights to associate or to choose among
candidates.” Id. at 787. “[A]s a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than chaos, is to
accompany the democratic processes.” Storer, 415 U.S. at 730.18 In syllabus point four of
18
In Storer, the United States Supreme Court upheld a California election statute
that denied ballot access to an independent candidate seeking elective public office if the
(continued . . .)
29
Sowards v. County Comm’n of Lincoln Cty., 196 W. Va. 739, 474 S.E.2d 919 (1996), we
held:
The State of West Virginia through its Legislature
retains the authority to prescribe reasonable rules for the
conduct of elections, reasonable procedures by which
candidates may qualify to run for office, and the manner in
which they will be elected.
candidate had a registered affiliation with a qualified political party within one year prior
to the immediately preceding primary election. Id. at 736. In finding California’s
disaffiliation requirement constitutional, the Supreme Court stated as follows:
The requirement that the independent candidate not have been
affiliated with a political party for a year before the primary is
expressive of a general state policy aimed at maintaining the
integrity of the various routes to the ballot. It involves no
discrimination against independents.
....
The general election ballot is reserved for major struggles; it
is not a forum for continuing intraparty feuds. The provision
against defeated primary candidates running as independents
effectuates this aim, the visible result being to prevent the
losers from continuing the struggle and to limit the names on
the ballot to those who have won the primaries and those
independents who have properly qualified. The people, it is
hoped, are presented with understandable choices and the
winner in the general election with sufficient support to
govern effectively.
. . . [The disaffiliation statute] protects the direct primary
process by refusing to recognize independent candidates who
do not make early plans to leave a party and take the
alternative course to the ballot. It works against independent
candidacies prompted by short-range political goals, pique, or
personal quarrel. It is also a substantial barrier to a party
fielding an “independent” candidate to capture and bleed off
votes in the general election that might well go to another
party.
Storer, 415 U.S. at 733-35.
30
While he raised a constitutional argument as an assignment of error,
petitioner does not set forth constitutional challenges to any specific provision of our
State’s election code. In particular, he fails to advance the argument that the January
deadline set forth in West Virginia Code § 3-5-7 for the filing of a certificate of
announcement creates a burden that falls unequally to a candidate seeking ballot access
through West Virginia Code § 3-5-23. In the same fashion, petitioner does not assert that
the substantive requirements imposed by West Virginia Code § 3-5-7 impose any
particular burden on those candidates.19
Instead, petitioner contends that groups of citizens under West Virginia
Code § 3-5-23 are free to nominate any qualified citizen and there is no compelling state
interest in requiring their candidate to file a certificate of announcement under West
Virginia Code § 3-5-7. On this issue, petitioner confuses the right of citizen voters with
19
In Billings, this Court did address a specific constitutional challenge to the
disassociation requirement of West Virginia Code § 3-5-7, and held that:
The provision in W. Va. Code, 3-5-7(b)(6) (1991),
which effectively disqualifies from running for political office
individuals who change their political party affiliation within
sixty days of filing their announcements of candidacy, is
necessary to accomplish the compelling governmental interest
in preserving the integrity of the political process, promoting
party stability, and avoiding voter confusion. The provision,
therefore, does not violate either the fundamental right of
candidacy or the right to change political party affiliations.
Syl. Pt. 4, Billings, 194 W. Va. 301, 460 S.E.2d 436.
31
his own and therein misapprehends the proper test for reasonable, nondiscriminatory
regulations on the candidate. See Timmons, 520 U.S. at 358-59 (noting state need not
establish that ballot access restrictions are narrowly tailored and necessary to promote its
interests unless restrictions severely burden rights). Ultimately, the focal point of our
inquiry is whether a “reasonably diligent” candidate can be expected to satisfy the
requirement. See Storer, 415 U.S. at 742. In this regard, petitioner has failed to establish
or even argue that he could not satisfy the requirements set forth in West Virginia Code §
3-5-7. He simply maintains those requirements are inapplicable to his candidacy. As
discussed above, we reject that argument because it goes against the plain language of the
statute.
We do not disagree with petitioner’s claim that pursuant to West Virginia
Code § 3-5-23, a group of citizens has the right to associate together to express their
support for a candidate and select its “standard bearer.” Such a group would have similar
constitutional protections as those who are members of a majority political party because
the freedom of association protected by the First and Fourteenth Amendments includes
political organizations.20 Elrod v. Burns, 427 U.S. 347, 357 (1976); Buckley v. Valeo, 424
20
The United States Supreme Court has recognized the special place occupied by
alternative candidates in our political system. In Illinois State Board of Elections v.
Socialist Workers Party, 440 U.S. 173 (1979), Justice Marshall, writing for the majority,
emphasized the important rights implicated by restrictions on access to the ballot and the
role that third parties play in the exercise of those rights:
(continued . . .)
32
U.S. 1, 15 (1976). “The right to associate with the political party of one’s choice is an
integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U.S. 51, 57
(1973). The First Amendment protects not only an individual’s right to associate with the
political party of his or her choice, it also protects citizens’ right “to band together in
promoting among the electorate candidates who espouse their political views.” See
California Democratic Party, 530 U.S. at 574 (2000) (holding California’s proposition
which converted State’s primary election from closed to blanket primary in which voters
could vote for any candidate regardless of voter’s or candidate’s party affiliation violated
political parties’ First Amendment right of association); Clingman v. Beaver, 544 U.S.
581, 600 (2005) (O’Connor, J., concurring) (“constitutional protection of associational
rights is especially important in th[e] context [of primary elections] because the
aggregation of votes is, in some sense, the essence of the electoral process. To have a
meaningful voice in this process, the individual voter must join together with like-minded
others at the polls. And the choice of who will participate in selecting a party’s candidate
obviously plays a critical role in determining both the party’s message and its prospects
of success in the electoral contest.”).
The States’ interest in screening out frivolous candidates must
be considered in light of the significant role that third parties
have played in the political development of the Nation.
Abolitionists, Progressives, and Populists have undeniably
had influence, if not always electoral success. As the records
of such parties demonstrate, an election campaign is a means
of disseminating ideas as well as attaining political office.
Id. at 185.
33
It does not follow, though, that a third party or unaffiliated group of citizens
who nominates a candidate pursuant to the provisions set forth in West Virginia Code §
3-5-23 is absolutely entitled to have its nominee appear on the ballot. See Libertarian
Party of New Hampshire v. Gardner, 759 F. Supp. 2d 215, 225 (D.N.H. 2010), aff’d, 638
F.3d 6 (1st Cir. 2011) (holding right to nominate candidate does not translate into right to
control whose name appears on election ballot). A particular candidate might be
ineligible for office, unwilling to serve, or, as here, fail to comply with the State election
law. “It seems to us that limiting the choice of candidates to those who have complied
with state election law requirements is the prototypical example of a regulation that,
while it affects the right to vote, is eminently reasonable.” Burdick, 504 U.S. at 440 n.10.
Accordingly, we agree with respondent that this is not a ballot access case.
As discussed more fully above, petitioner, a registered Democrat, had the opportunity to
seek ballot access through the provisions of West Virginia Code 3-5-7 but simply failed
to do so.
34
IV. CONCLUSION
For the reasons stated herein, we therefore affirm the circuit court’s August
18, 2016, order granting respondent’s amended petition for writ of quo warranto,
disallowing petitioner’s candidacy for the office of Kanawha County Clerk, in the
November, 2016 general election.
Affirmed.
35