SER Donald L. Blankenship v. Mac Warner, W. Va. Secretary of State

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2018 Term
FILED
_______________
October 5, 2018
released at 3:00 p.m.
No. 18-0712
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. DONALD L. BLANKENSHIP
AND THE CONSTITUTION PARTY OF WEST VIRGINIA,
Petitioners
v.
MAC WARNER, IN HIS OFFICIAL CAPACITY AS WEST VIRGINIA
SECRETARY OF STATE,
Respondent
____________________________________________________________
WRIT DENIED
____________________________________________________________
Submitted: August 29, 2018
Filed: October 5, 2018
Robert M. Bastress, Jr., Esq.
Marc E. Williams, Esq.
Morgantown, West Virginia
Melissa Foster Bird, Esq.
Counsel for Petitioners
Christopher Smith, Esq.
Anna C. Majestro, Esq.
Nigel E. Jeffries, Esq.
Nelson Mullins Riley & Scarborough LLP
South Charleston, West Virginia
Huntington, West Virginia
Counsel for Intervenor Nigel E.
Counsel for Respondent
Jeffries
Elbert Lin, Esq.
Hunton Andrews Kurth LLP
Richmond, Virginia
J. Mark Adkins, Esq.
Richard R. Heath, Jr., Esq.
Bowles Rice LLP
Charleston, West Virginia
Counsel for Intervenor The West Virginia
Republican Party, Inc.
JUSTICE FARRELL delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN is disqualified.
JUSTICE ALLEN H. LOUGHRY II suspended, therefore not participating and
JUSTICE PAUL T. FARRELL sitting by temporary assignment.
JUSTICE ALAN D. MOATS and JUSTICE DARRELL PRATT sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. “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 return of elections.” Syl. Pt. 4, Morris v. Board of Canvassers of City
of Charleston, 49 W.Va. 251, 38 S.E. 500 (1901).
2. “A statute should be so read and applied as to make it accord with the
spirit, purposes and objects of the general system of law of which it is intended to form a
part; it being presumed that the legislators who drafted and passed it were familiar with all
existing law, applicable to the subject matter, whether constitutional, statutory or common,
and intended the statute to harmonize completely with the same and aid in the effectuation
of the general purpose and design thereof, if its terms are consistent therewith.” Syl. Pt. 5,
State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).
3. “It is the duty of a court to construe a statute according to its true
intent, and give to it such construction as will uphold the law and further justice. It is as
well the duty of a court to disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction would lead to injustice and
absurdity.” Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).
i
4. West Virginia Code § 3-5-23(a) (2018) prevents unsuccessful primary
election candidates from subsequently running as nomination-certificate candidates in the
general election.
5. “The title to an act of the Legislature which amends and reenacts a
particular section, article and chapter of the Code by specific reference to them, and which
relates to an object as to which, and as to the original section of the Code, the provisions
of the act are not foreign, but are congruous and germane and such as might have been
incorporated in the section when enacted, and which title is broad enough to give a fair and
reasonable indication of the purposes, but does not disclose the details, of the act, satisfies
the requirements of Section 30, Article VI of the Constitution of this State and is valid.”
Syl. Pt. 3, Wheeling v. Casualty Co., 131 W.Va. 584, 48 S.E.2d 404 (1948).
6. The title to H.B. 2981 (2009), an act to amend and reenact West
Virginia Code §§ 3-5-7, 3-5-23, and 3-5-24, is constitutionally sufficient under Article VI,
Section 30 of the West Virginia Constitution.
7. “Equal protection of the law is implicated when a classification treats
similarly situated persons in a disadvantageous manner.” Syl. Pt. 2, in part, Israel v.
Secondary Schools Act. Com’n, 182 W.Va. 454, 388 S.E.2d 480 (1989).
ii
8. “West Virginia’s constitutional equal protection principle is a part of
the Due Process Clause found in Article III, Section 10 of the West Virginia Constitution.”
Syl. Pt. 4, Israel v. Secondary Schools Act. Com’n, 182 W.Va. 454, 388 S.E.2d 480 (1989).
9. “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, State ex rel. Sowards v. County Comm’n of Lincoln Cty., 196 W.Va.
739, 474 S.E.2d 919 (1996).
10. West Virginia Code § 3-5-23(a) (2018), which prevents unsuccessful
primary election candidates from subsequently running as nomination-certificate
candidates, does not violate the constitutional guarantees of freedom of association and
equal protection.
iii
FARRELL, Justice:
On August 9, 2018, the petitioners, Donald Blankenship and the Constitution
Party of West Virginia, petitioned this Court requesting the issuance of a writ of mandamus
directing the respondent, Mac Warner, West Virginia Secretary of State, to list Mr.
Blankenship as a candidate for the United States Senate on the general election ballot as
the Constitution Party’s nominee.
Secretary Warner subsequently filed a response to the petition. Intervenor
briefs were filed by the The West Virginia Republican Party, Inc., and Nigel E. Jeffries.
On August 23, 2018, this Court issued a rule to show cause and ordered
Secretary Warner to show cause, if any, why a writ of mandamus should not be awarded
as requested by the petitioners. Oral argument was conducted on August 29, 2018.1 For the
reasons set forth herein, we deny the writ.
I. Factual and Procedural Background
In the May 2018 primary election, Mr. Blankenship sought but failed to win
the Republican Party’s nomination for the United States Senate. Thereafter, on May 21,
1
Given the request for accelerated consideration and resolution of this case as it
relates to the preparation of the ballot for the 2018 general election, this Court announced
its decision in an August 29, 2018, order, denying the petitioners relief and indicating that
this detailed opinion would follow.
1
2018, Mr. Blankenship changed his party registration to the Constitution Party. On July 17,
2018, the Constitution Party notified the Secretary of State that Mr. Blankenship would be
that party’s nominee for the United States Senate.2 On July 24, 2018, Mr. Blankenship filed
with the Secretary of State’s office his “Candidate’s Certificate of Announcement for 2018
Elections” indicating his intention to run as a Constitution Party candidate. Mr.
Blankenship paid the required filing fee and presented the signatures of a sufficient number
of registered voters as specified by West Virginia Code § 3-5-23 (2018) the statute that
governs certificate nominations.3
In a letter dated July 26, 2018, Secretary Warner denied Mr. Blankenship’s
certification as a Constitution Party candidate based upon West Virginia Code § 3-5-23,
explaining that the statute precludes him from utilizing the nomination-certificate process
2
There are two pathways that citizens in West Virginia may take to become a
candidate for public office in the general election. One pertains to candidates of political
parties recognized under State law. According to West Virginia Code § 3-1-8 (1965), a
“political party” is “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.”
Based upon the results of the last general election, there are four recognized political parties
in West Virginia: Democrat, Republican, Mountain, and Libertarian. The other pathway is
for candidates of unrecognized parties provided for in West Virginia Code § 3-5-23 (2018).
Unrecognized parties, like the Constitution Party, must utilize the nomination-certificate
process which requires collecting a certain number of signatures of registered voters.
3
According to West Virginia Code § 3-5-23(c), “[t]he number of 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.” Other portions of West Virginia Code § 3-5-23 are quoted in
section III, infra.
2
to become a candidate in the general election because he lost the Republican Party Primary.
Upon receipt of Secretary Warner’s letter, Mr. Blankenship and the Constitution Party filed
this petition for a writ of mandamus.
II. STANDARD OF REVIEW
It is axiomatic that “[m]andamus is a proper remedy to require the
performance of a nondiscretionary duty by various governmental agencies or bodies.” Syl.
Pt. 1, State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W.Va. 207, 151 S.E.2d
102 (1966). Generally,
A writ of mandamus will not issue unless three elements
coexist—(1) a clear legal right in the petitioner to the relief
sought, (2) a legal duty on the part of the respondent to do the
thing which the petitioner seeks to compel, and (3) the absence
of another adequate remedy.
Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
Because of the need for promptness in cases affecting the right to political
office, this Court has recognized that “[i]n West Virginia a special form of mandamus
exists to test the eligibility to office of a candidate in either a primary or general election.”
Syl. Pt. 5, in part, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607(1976). “Because there is an important public policy interest in determining the
qualifications of candidates in advance of an election, this Court does not hold an election
mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus
case.” Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979).
3
We have explained that “when a writ of mandamus has been invoked to preserve the right
to vote or to run for political office . . . this Court has eased the requirements for strict
compliance for the writ’s preconditions, especially those relating to the availability of
another remedy.” Syl. Pt. 3, in part, State ex rel. Sowards v. County Comm’n of Lincoln
Cty., 196 W.Va. 739, 474 S.E.2d 919 (1996).
Having set forth the proper standards governing our review of this case, we
now turn to a discussion of the parties’ arguments and the substantive law.
III. DISCUSSION
The petitioners argue that West Virginia Code § 3-5-23(a) does not disqualify
Mr. Blankenship because he is now not a candidate in any primary election for public
office. The petitioners further aver that the purpose of the statute is to prevent the practice
of “cross filing,” whereby a person may appear on the general ballot not only as the
nominee of a recognized party but also as an independent candidate or as a candidate of an
unrecognized party. The petitioners assert both statutory and constitutional challenges to
the Secretary of State’s action.
Before we reach the issues in this case, we note that the West Virginia
Constitution authorizes the Legislature to make laws concerning the election of public
officials. This Court has held that “[t]he Constitution, in article IV, section 11, gives wide
powers to the legislature to make all reasonable regulations and restrictions as to
4
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). Specifically, 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 shall be elected, appointed and
removed.” 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.
Finally, this Court is 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) (citations
omitted). Against this backdrop, we proceed to address the parties’ arguments.
A. The Meaning of West Virginia Code § 3-5-23(a)
Secretary Warner determined that West Virginia Code § 3-5-23(a) renders
Mr. Blankenship ineligible to run as a Constitution Party candidate in the general election.
The statute provides in relevant 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
5
certificate in accordance with the provisions of this section and
the provisions of § 3-5-24 of this code.
It is Secretary Warner’s position that the words “who are not already
candidates in the primary election” in West Virginia Code § 3-5-23(a) constitute a “sore
loser” or “sour grapes” law. Secretary Warner contends that the law prohibits a candidate
affiliated with a recognized political party who ran for election in a primary election and
lost, from changing his or her voter registration to a minor party organization or becoming
an unaffiliated candidate to take advantage of the later filing deadline for nomination-
certificate candidates and have his or her name on the subsequent general election ballot.
Conversely, the petitioners contend that the words “who are not already
candidates in the primary election” apply only during the pendency of the primary election.
Because Mr. Blankenship filed to run as a nomination-certificate candidate after he lost the
Republican primary election, the petitioners maintain that he is not prevented from utilizing
the nomination-certificate process to run in the general election as the Constitution Party
candidate. The petitioners assert that Secretary Warner’s interpretation of West Virginia
Code § 3-5-23(a) is without support from the text of the statute, the explanatory notes, and
the title of the bill as introduced and as finally passed. The petitioners contend that the
purpose of West Virginia Code § 3-5-23(a) is to prevent “cross filing.” Moreover, the
petitioners point out that this Court’s recent opinion Wells v. Miller, 237 W.Va. 731, 791
6
S.E.2d 361 (2016), which discussed the statute at length, did not refer to the statute as a
“sore loser law.”4
In determining the meaning of West Virginia Code § 3-5-23(a), we are
mindful that “[t]he primary object in construing a statute is to ascertain and give effect to
the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Compensation
Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975). In addition, this Court has held that
A statute should be so read and applied as to make it
accord with the spirit, purposes and objects of the general
system of law of which it is intended to form a part; it being
presumed that the legislators who drafted and passed it were
familiar with all existing law, applicable to the subject matter,
whether constitutional, statutory or common, and intended the
statute to harmonize completely with the same and aid in the
effectuation of the general purpose and design thereof, if its
terms are consistent therewith.
Syl. Pt. 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908). Further, under our law,
[i]t is the duty of a court to construe a statute according
to its true intent, and give to it such construction as will uphold
the law and further justice. It is as well the duty of a court to
disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.
Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). We now proceed to apply
these rules to the statutory language at issue.5
4
Notably, however, in her dissent in Wells, former Justice Davis characterized West
Virginia Code § 3-5-23(a) as “prevent[ing] unsuccessful primary election candidates from
subsequently running as independent candidates.” 237 W.Va. at 749, 791 S.E.2d at 379.
7
First, we find it significant that in 2009, when the Legislature amended West
Virginia Code § 3-5-23(a) to add the phrase “who are not already candidates in the primary
election,” West Virginia Code § 3-5-24(a) (2005) was also amended to extend the deadline
for filing a nomination certificate to August 1. In the previous version of the statute, the
filing deadline for nomination-certificate candidates was “not later than the day preceding
the date on which the primary election is held.” W.Va. Code § 3-5-24. Thus, prior to 2009,
the results of the primary election were obviously unknown to a third-party candidate who
filed for office. Under our prior law, it was impossible for a person who lost in the primary
to later file as a nomination-certificate candidate. However, the extension of the deadline
for filing a nomination certificate until August 1 created the possibility of a candidate who
lost in the primary election to then seek to continue his or her campaign as a nomination-
certificate candidate. It is reasonable to conclude that to prevent this scenario, the
Legislature simultaneously added the language “who are not already candidates in the
primary election” into West Virginia Code § 3-5-23(a).
Second, construing West Virginia Code § 3-5-23(a) to prevent a primary
election candidate from filing as a nomination-certificate candidate only during the
pendency of the primary election is an unreasonable reading of the statute that would lead
5
In Wells, we found the language in West Virginia Code § 3-5-23(a) ambiguous on
the issue whether the statute expressly forbade a member of a recognized political party
from becoming a nomination-certificate candidate. After utilizing our rules of statutory
construction, we held that such a candidate may not become a candidate for political office
by virtue of the nomination certificate process outlined in West Virginia Code § 3-5-23.
The issue in the instant case is different from the one in Wells.
8
to absurd results. As noted above, the deadline for filing a nomination certificate is August
1, which always falls after the date of the May primary election. Therefore, while a primary
election candidate would be prevented from filing a nomination certificate during the
pendency of the primary election, he or she could simply wait until the conclusion of the
primary election to file his or her nomination certificate. If such were the case, the
prohibition in West Virginia Code § 3-5-23(a) could be so easily circumvented as to be
meaningless. “It is always presumed that the Legislature will not enact a meaningless or
useless statute.” T. Weston, Inc. v. Mineral Cnty., 219 W.Va. 564, 568, 638 S.E.2d 167,
171 (2006) (citation omitted)
Therefore, we conclude that the prohibition in West Virginia Code § 3-5-
23(a) is not limited to the pendency of the primary election but also includes those
candidates who ran in the primary election. Accordingly, we now hold that West Virginia
Code § 3-5-23(a) (2018) prevents unsuccessful primary election candidates from
subsequently running as nomination-certificate candidates in the general election.6
6
The parties also argue about the applicability to this case of West Virginia Code
§§ 3-5-23(f) and (g), which became effective on June 5, 2018, and provide:
(f) For the purposes of this section, any person who, at the time
of the filing of the nomination certificate or certificates, is
registered and affiliated with a recognized political party as
defined in § 3-1-8 of this code may not become a candidate for
political office by virtue of the nomination-certificate process
as set forth in this section.
(g) For the purposes of this section, any person who was a
candidate for nomination by a recognized political party as
9
B. Constitutionality of the Title to H.B. 2981
The petitioners assert the alternative argument that if West Virginia Code §
3-5-23(a) prevents the loser of a primary from later running as a nomination-certificate
candidate, then the statutory language at issue is unconstitutional. Pursuant to Article VI,
Section 30 of the West Virginia Constitution, “[n]o act hereafter passed shall embrace more
than one object, and that shall be expressed in the title.” Id. The provision further states
that if a bill does not provide a sufficient description of its contents, “the act shall be void
only as to so much thereof, as shall not be so expressed.” According to the petitioners, the
purpose of this provision is to protect both the Legislature and the public from hidden
provisions in statutes.
West Virginia Code § 3-5-23(a) was amended in 2009 by H.B. 29817 to add
the phrase “who are not already candidates in the primary election.” The petitioners point
defined in § 3-1-8 of this code may not, after failing to win the
nomination of his or her political party, become a candidate for
the same political office by virtue of the nomination-certificate
process as set forth in this section.
Because we find that section (a) disposes of the issue before us, we do not find it necessary
to discuss sections (f) and (g).
7
The title to H.B. 2981 provides as follows:
AN ACT to amend and reenact § 3-5-7, § 3-5-23 and § 3-5-24
of the Code of West Virginia, 1931, as amended, all relating to
elections, generally requiring candidates for the Senate and
House of Delegates to file announcement of candidacy with the
Secretary of State; reducing number of signatures needed for
nomination of third-party candidates; making filing deadline
10
out that the title to H.B. 2981 contains no reference to this change in West Virginia Code
§ 3-5-23(a). Thus, the petitioners argue that the title to H.B. 2981 flatly fails to adequately
inform that there were changes made to the eligibility requirements for nomination-
certificate candidates. The petitioners aver that the title appears to describe all changes
made by the Act to West Virginia Code §§ 3-5-7, 3-5-23, and 3-5-24, except the added
eligibility requirement in § 3-5-23(a) for those seeking certificate nomination.
The general principles set forth in Wheeling v. Casualty Co., 131 W.Va. 584,
48 S.E.2d 404 (1948), govern this case. In Wheeling, this Court explained:
In considering whether an act of the Legislature violates
the constitutional requirement concerning its title, the
provision of the Constitution must be construed liberally in
favor of the act, and generally the language in a title to an act
should be construed in the most comprehensive sense
favorable to the validity of the act. The provisions of Section
30, Article VI of the Constitution of this State, will be liberally
construed to sustain a legislative enactment and all doubt will
be resolved in favor of the constitutionality of the statute.
When the principal object of an act is expressed in the
title and the act embraces with such principal object other
auxiliary objects, the act, if not otherwise objectionable, is
valid, not only as to the principal object but also as to the
auxiliary objects. If the title to an act is broad enough to give a
fair and reasonable index to all the purposes of the act, it is not
for the nomination of candidates August 1; 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; establishing the date by
which the filing fee must be paid; and making technical
corrections.
11
necessary to descend to particulars in the title. If the title to an
act is sufficiently clear and full as not to mislead the legislators,
it satisfies the requirements of Section 30, Article VI of the
Constitution of this State, and that constitutional provision
does not require the details of the legislation to be disclosed in
the title. The test of the sufficiency of the title to a statute is
whether it will impart to a person interested in its subject matter
enough information to provoke a reading of the act and to
restrict its scope to a single topic.
131 W.Va. at 594-95, 48 S.E.2d at 410 (citations omitted). Accordingly, this Court held in
syllabus three of Wheeling:
The title to an act of the Legislature which amends and
reenacts a particular section, article and chapter of the Code by
specific reference to them, and which relates to an object as to
which, and as to the original section of the Code, the provisions
of the act are not foreign, but are congruous and germane and
such as might have been incorporated in the section when
enacted, and which title is broad enough to give a fair and
reasonable indication of the purposes, but does not disclose the
details, of the act, satisfies the requirements of Section 30,
Article VI of the Constitution of this State and is valid.
The petitioners argue that this case is governed by C.C. “Spike” Copley
Garage v. P.S.C. of W.Va., 171 W.Va. 489, 300 S.E.2d 485 (1983). Copley Garage
concerned the Legislature’s passage of an omnibus statute that radically altered the
authority and operating procedures of the Public Service Commission (“PSC”). Among
other things, it had the effect of deregulating the business of towing, hauling or carrying
wrecked or disabled vehicles. This Court found that the title of the Act was deficient
because while the title was “enormously specific; it set forth a brief description of every
12
major change that the act made except deregulation of wrecker services.” 171 W.Va. at
491, 300 S.E.2d at 487. This Court explained:
The title to Chapter 98 is not infirm because it is vague
and unspecific, but rather because it is positively misleading.
A person reading a title to a bill drawn with the specificity of
the title to Chapter 98 who finds no mention of wrecker
services in the title would reasonably conclude that the act did
not touch that subject because all the other concerns are set
forth with specificity.
Id. We held in syllabus point one of Copley Garage:
Where the title to an act of the Legislature is specific
about the purpose of all provisions of an omnibus act except
one isolated provision, the title is deficient under W.Va. Const.,
art. VI, § 30 with regard to the provision in the act whose
purpose is obscured because the omission of one purpose in a
title that is otherwise exhaustively informative is positively
misleading.
This Court does not believe that Copley Garage applies to the instant facts.
As noted in the opinion, Copley Garage was a “close case.” 171 W.Va. at 490, 300 S.E.2d
at 486. Additionally, Copley Garage concerned an omnibus statute that radically changed
the authority and operating procedures of the PSC. In contrast, the instant case concerns
the simple amendment and reenactment of three statutes. For these reasons, we believe
Wheeling to be the more applicable case.
Construing the language in the title of H.B. 2981 in the most comprehensive
sense favorable to the validity of the Act and resolving all doubt in favor of the
constitutionality of the statute, we find the language of the title of H.B. 2981 to be
13
constitutionally sufficient. As noted in Wheeling, the test is simply whether someone
interested in the bill’s subject matter would know to read it. The title need not inform the
reader of every specific change, but must alert the reader to the broader topics of the bill
and not affirmatively mislead the reader. The title to H.B. 2981 designates the chapter and
sections of the Code that are amended. Also, the title alerts the reader that it relates to
“elections generally,” including the “nomination of third-party candidates,” and
nomination certificates. Finally, while the title is not extremely detailed, it is not
misleading. In sum, we believe that someone interested in third-party candidates and
“nomination certificates” would know to read West Virginia Code § 3-5-23(a) as amended
by H.B. 2981. Therefore, we hold that the title to H.B. 2981 (2009), an act to amend and
reenact West Virginia Code §§ 3-5-7, 3-5-23, and 3-5-24, is constitutionally sufficient
under Article VI, Section 30 of the West Virginia Constitution.8
8
The petitioners also contend that the title to H.B. 2981 is insufficient because
subsection (h) of the amended West Virginia Code § 3-5-23 creates a criminal act
subjecting candidates to a criminal penalty of up to one year in jail and a $1,000 fine. The
petitioners hinge their argument on State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d
637 (1970), in which they say this Court struck from the law a provision in a bill creating
a new crime because the title of the bill gave no indication that a new criminal offense was
established. We note, however, that H.B. 2981 did not create a new crime. Section (f) of
W.Va. Code § 3-5-23 (2006), before the 2009 amendment, provided that “any person
violating the provisions of this section is guilty of a misdemeanor and, upon conviction,
shall be fined not more than one thousand dollars, or confined in jail for not more than one
year, or both.” The 2009 amended section (f) contained the same crime, as does section (h)
in the current version of the statute. Therefore, we find no merit to the petitioners’
argument.
14
C. Other Constitutional Issues
1. Freedom of Association
The petitioners next deem § 3-5-23(a) to be unconstitutional because it
abridges their freedom of association rights. As provided in Article III, Section 16 of the
West Virginia Constitution, “[t]he right of the people to assemble in a peaceable manner,
to consult for the common good, to instruct their representatives, or to apply for redress of
grievances shall be held inviolate.” The petitioners note that decisions of the United States
Supreme Court as well as this Court have held that the right to associate with others to
advance particular causes is necessarily embedded in the freedoms of speech and of the
press. Similarly, say the petitioners, the U.S. Court of Appeals for the Fourth Circuit has
observed, “[t]he First Amendment, as incorporated against the states by the Fourteenth
Amendment, protects the rights of individuals to associate for the advancement of political
beliefs and ideas.” South Carolina Green Party v. S.C. State Election Comm’n, 612 F.3d
752, 755-56 (4th Cir. 2010).
The petitioners further aver that they are severely burdened by the
Secretary’s application of § 3-5-23(a). They explain that it has caused Mr. Blankenship to
lose the momentum that has propelled him, a newcomer to politics, to a respectable third-
place finish against two experienced politicians. They conclude that not only will this
15
arrested momentum deny him a run for the office of United States Senator in 2018, but the
denial could also effect a premature closing of the door to a future run for office.9
In Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992), the United States Supreme Court established a balancing test to evaluate
challenges to state ballot access requirements:
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). Our Court explained,
The required analysis depends upon the extent to which a
challenged regulation burdens First and Fourteenth
Amendment rights. For severe restrictions, the regulation must
be narrowly drawn to advance a state interest of compelling
importance. For reasonable, nondiscriminatory restrictions, the
State’s important regulatory interests are generally sufficient to
justify the restrictions.
Without question, the impact of candidate eligibility
requirements on voters implicates basic constitutional rights.
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. As a practical matter, there must be
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.
Wells, 237 W.Va. at 745, 791 S.E.2d at 375 (quotation marks and citations omitted).
9
According to Intervenor Republican Party, Inc., more than forty states have
enacted sore loser laws and every constitutional challenge has failed.
16
Instructive on the matter of burdens to ballot access is the United States
Supreme Court case of Storer v. Brown, 415 U.S. 724 (1974). In Storer, the Supreme Court
upheld a California election statute that denied ballot access to an independent candidate
seeking elective office if the 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.
17
Storer, 415 U.S. at 733-35.
Storer is often used by courts as a benchmark to measure the burden imposed
by an election law. For example, in Timmons, 520 U.S. 351, 369, the Supreme Court upheld
a Minnesota law that prohibited an individual from appearing on the ballot as the candidate
of more than one party. In doing so, the Supreme Court explained:
Minnesota’s fusion ban is far less burdensome than the
disaffiliation rule upheld in Storer, and is justified by similarly
weighty state interests. . . . Under the California disaffiliation
statute at issue in Storer, any person affiliated with a party at
any time during the year leading up to the primary election was
absolutely precluded from appearing on the ballot as an
independent or as the candidate of another party. Minnesota’s
fusion ban is not nearly so restrictive; the challenged
provisions say nothing about the previous party affiliation of
would-be candidates but only require that, in order to appear
on the ballot, a candidate not be the nominee of more than one
party. California’s disaffiliation rule limited the field of
candidates by thousands; Minnesota’s precludes only a handful
who freely chose to be so limited. It is also worth noting that
while California’s disaffiliation statute absolutely banned
many candidacies, Minnesota’s fusion ban only prohibits a
candidate from being named twice.
We conclude that the burdens Minnesota’s fusion ban
imposes on the New Party’s associational rights are justified
by “correspondingly weighty” valid state interests in ballot
integrity and political stability.
520 U.S. at 369-370 (footnote omitted). See also Burdick, 504 U.S. at 437 (comparing
Hawaii’s prohibition on write-in candidacies to the law upheld in Storer); Backus v. Spears,
677 F.2d 397, 400 (4th Cir. 1982) (comparing South Carolina’s sore-loser law to the law
upheld in Storer).
18
In the instant case, the language in West Virginia Code § 3-5-23(a) barring
sore loser candidacies is far less burdensome than the law in Storer, and only slightly
burdensome to those candidates’ ability to run for office. Mr. Blankenship was not
prevented from running on the primary election ballot for the United States Senate, and if
he had won the primary, he would be on the general election ballot as the nominee of the
Republican Party. Also, the statute does not absolutely prohibit Mr. Blankenship from
appearing on the general election ballot as an independent or nominee of an unrecognized
party; Mr. Blankenship is only barred because he voluntarily chose to compete in the
primary election as a Republican. The only burden imposed on candidates like Mr.
Blankenship is that they must choose between the two paths for a spot on the general
election ballot: the path for recognized parties or the one for independents and
unrecognized parties. See De La Fuente v. Merrill, 214 F. Supp. 3d 1241, 1256 (M.D.Ala.
2016) (stating that “[i]t cannot be over-emphasized that Mr. De La Fuente is only barred
from the ballot because of his voluntary participation in the Democratic Primary.”).
Moreover, even after losing the Republican primary, Mr. Blankenship had until September
18 to register as an official write-in candidate.
The language in § 3-5-23(a) is also minimally burdensome on unrecognized
political parties like the Constitution Party. The Supreme Court has recognized “[t]hat a
particular individual may not appear on the ballot as a particular party’s candidate does not
severely burden that party’s associational rights.” Timmons, 520 U.S. at 359 (citations
19
omitted). A limitation like a sore loser law does not “restrict the ability of the [unrecognized
party] and its members to endorse, support, or vote for anyone they like.” Id. at 363. Sore
loser laws do not “directly limit [an unrecognized] party’s access to the ballot . . . [but
merely] reduce the universe of potential candidates who may appear on the ballot as the
party’s nominee.” Id. Further, the unrecognized party is “free to try to convince” its desired
candidate “to refrain from seeking the nomination of another political party.” South
Carolina Green Party, 612 F.3d at 757 (citation omitted). Moreover, “the burdens [a]re not
severe because [the unrecognized party] and its members remain[] free to govern
themselves internally and to communicate with the public as they wish.” Clingman v.
Beaver, 544 U.S. 581, 589 (2005). These unrecognized parties “simply c[an]not nominate
as their candidate any of [a] few individuals, id. at 590 (internal quotations omitted), on
account of voluntary choices made by those individuals alone.” That is quite different from
a law that “directly hampers the ability of a party to spread its message.” Eu v. San
Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 233 (1989). Accordingly, we
conclude that language in West Virginia Code § 3-5-23(a) does not place a severe burden
on the petitioners.
The United States Supreme Court case of Jenness v. Fortson, 403 U.S. 431(1971), provides additional guidance on the issue of freedom of association. In Jenness,
the Supreme Court was called upon to examine the basic structure of pertinent provisions
of the Georgia Election Code, which provided as follows:
20
Any political organization whose candidate received 20% or
more of the vote at the most recent gubernatorial or presidential
election is a “political party.” Any other political organization
is a “political body.” “Political parties” conduct primary
elections, regulated in detail by state law, and only the name of
the candidate for each office who wins this primary election is
printed on the ballot at the subsequent general election, as his
party’s nominee for the office in question. A nominee of a
“political body” or an independent candidate, on the other
hand, may have his name printed on the ballot at the general
election by filing a nominating petition. This petition must be
signed by “a number of electors of not less than five per cent.
of the total number of electors eligible to vote in the last
election for the filling of the office the candidate is seeking . .
. .”
403 U.S. at 433 (footnotes omitted). Those challenging the Georgia law launched a two-
pronged attack. First, they said that requiring a nonparty candidate to acquire the signatures
of a certain number of voters before his or her name is printed on the ballot is to abridge
the freedoms of speech and association guaranteed by the First and Fourteenth
Amendments. Regarding the challenge based on the freedom of association, the Court in
Jenness reasoned as follows:
Anyone who wishes, and who is otherwise eligible, may
be an independent candidate for any office in Georgia. Any
political organization, however new or however small, is free
to endorse any otherwise eligible person as its candidate for
whatever elective public office it chooses. So far as the Georgia
election laws are concerned, independent candidates and
members of small or newly formed political organizations are
wholly free to associate, to proselytize, to speak, to write, and
to organize campaigns for any school of thought they wish.
They may confine themselves to an appeal for write-in votes.
Or they may seek, over a six months’ period, the signatures of
5% of the eligible electorate for the office in question. . . .
In a word, Georgia in no way freezes the status quo, but
implicitly recognizes the potential fluidity of American
21
political life. . . . We can find in this system nothing that
abridges the rights of free speech and association secured by
the First and Fourteenth Amendments.
403 U.S. at 438-440.
Similarly, language in West Virginia Code § 3-5-23(a) does not violate the
freedom of association rights of Mr. Blankenship and the members of the Constitution
Party. Anyone who wishes and is eligible may be a nomination-certificate candidate for
office in West Virginia. Had Mr. Blankenship not run for the United States Senate in the
Republican Primary, he presumably would have been eligible to run as the Constitution
Party’s nominee for the United States Senate. The Constitution Party was free to endorse
and nominate any otherwise eligible person for its nominee. The petitioners remain “free
to associate, to proselytize, to speak, to write, and to organize campaigns” for the
propagation of their political beliefs. See Jenness, 403 U.S. at 438. Significantly, Mr.
Blankenship still had the opportunity to file as a write-in candidate.
2. Equal Protection
The petitioners next assert that if the the language in West Virginia Code §
3-5-23(a) constitutes a sore loser law, it would violate the constitutional equal protection
guarantee because the petitioners are similarly situated to other parties and candidates, but
West Virginia law treats them disparately. This Court has held that “[e]qual protection of
the law is implicated when a classification treats similarly situated persons in a
disadvantageous manner.” Syl. Pt. 2, in part, Israel v. W.Va. Secondary Sch. Activities
22
Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989). We have explained that “West Virginia’s
constitutional equal protection principle is a part of the Due Process Clause found in Article
III, Section 10 of the West Virginia Constitution.” Syl. Pt. 4, Israel, supra. The petitioners
base their claim on the fact that the use of the nomination-certificate process is denied to
any person who previously lost his or her bid to be a recognized party’s nominee, while
the two smaller recognized parties, the Libertarian and Mountain Party, can circumvent the
section (a) by choosing a losing primary candidate by a nominating convention. Thus,
explain the petitioners, section (a) operates to deny the Constitution Party of the right to
nominate a candidate for an office when the candidate lost another party’s nomination, but
allows the Libertarian and Mountain Parties, as well as the Democrat and Republican
Parties, to do just that. Therefore, the petitioners contend, section (a) treats similarly-
situated persons in a disadvantageous manner. Moreover, the petitioners assert that for the
same reasons the section (a) language denies to Mr. Blankenship his fundamental right of
access to the ballot because the right to access in West Virginia is a fundamental right under
the Equal Protection Clause.
The Supreme Court in Jenness also addressed an equal protection challenge
raised against the Georgia election law at issue. First, the Jenness Court compared the facts
of that case with the facts of Williams v. Rhodes, 393 U.S. 23 (1968), a case in which the
Supreme Court found invidious discrimination in Ohio’s election laws. The Court
determined that Georgia’s election laws were not unconstitutional. The Court explained:
23
Unlike Ohio, Georgia freely provides for write-in votes. Unlike
Ohio, Georgia does not require every candidate to be the
nominee of a political party, but fully recognizes independent
candidacies. Unlike Ohio, Georgia does not fix an
unreasonably early filing deadline for candidates not endorsed
by established parties. Unlike Ohio, Georgia does not impose
upon a small party or a new party the Procrustean requirement
of establishing primary election machinery. Finally, and in
sum, Georgia’s election laws, unlike Ohio’s, do not operate to
freeze the political status quo.
Id. at 438. The Jenness Court further indicated:
The fact is, of course, that from the point of view of one
who aspires to elective office in Georgia, alternative routes are
available to getting his name printed on the ballot. He may
enter the primary of a political party, or he may circulate
nominating petitions either as an independent candidate or
under the sponsorship of a political organization. We cannot
see how Georgia has violated the Equal Protection Clause of
the Fourteenth Amendment by making available these two
alternative paths, neither of which can be assumed to be
inherently more burdensome than the other.
The fact is that there are obvious differences in kind
between the needs and potentials of a political party with
historically established broad support, on the one hand, and a
new or small political organization on the other. Georgia has
not been guilty of invidious discrimination in recognizing these
differences and providing different routes to the printed ballot.
Sometimes the grossest discrimination can lie in treating things
that are different as though they were exactly alike, a truism
well illustrated in Williams v. Rhodes, supra.Id. at 440-442 (footnotes omitted).
Based on the Supreme Court’s decisions in Jenness, Storer, Timmons, and
the other cases discussed above, we find no invidious discrimination in the fact that, under
our election laws, the use of the certificate nomination process is denied to any person who
24
previously lost his or her bid to be a recognized party’s nominee, while the two smaller yet
statutorily recognized parties, the Libertarian and the Mountain Party, can circumvent the
section (a) prohibition by choosing a losing primary candidate in a nominating convention.
As the Supreme Court noted in Jenness, the fact is that there are obvious differences in
kind between the needs and potentials of political parties, such as the Mountain and
Libertarian Parties which have historically earned a certain level of support, and a new or
small political organization such as the Constitution Party. A state is not guilty of invidious
discrimination in recognizing these differences and in providing different treatment in its
election laws.
Significantly, the petitioners simply are not similarly situated to recognized
parties. Smaller recognized parties have polled at least one percent in the previous
gubernatorial election. See W.Va. Code § 3-1-8 (stating that an officially recognized
political party is established when an affiliation of voters polled at least one percent in the
previous gubernatorial election). This difference is crucial, as West Virginia law affords
parties that have polled at a certain rate “political party” status and, with that status, the
ability to nominate candidates in a primary election or convention. See W.Va. Code § 3-1-
8 (stating that an officially recognized political party is established when an affiliation of
voters polled at least one percent in the previous gubernatorial election); W.Va. Code § 3-
5-4 (allowing recognized political parties to use the primary process to nominate
candidates); W.Va. Code § 3-5-22 (allowing recognized political parties who polled less
25
than ten percent in the prior gubernatorial election to use the convention process to
nominate candidates).
Notably, recognized parties do not carry the same risks to the electoral
system posed by independent candidates and unrecognized parties. Recognized parties
have a demonstrated history of political performance. Therefore, it is unlikely that a
recognized party will nominate another recognized party’s losing candidate and create a
splinter faction comprised primarily of the loser’s original party because an existing
recognized party has an established party base. Further, recognized parties have internal
checks, systems, and nominating procedures that govern whether they ultimately decide to
nominate the other recognized party’s losing candidate.
Significantly, recognized parties have internal systems, and nominating
procedures that govern their choice of nominee. In contrast, the nomination-certificate
process has no such system of checks to preclude a jilted candidate from running and even
forming his or her own party out of spite. The nomination-certificate candidate must
simply gather signatures. He or she has no party procedures to negotiate, no party members
to win over, and no votes to win at a convention. Additionally, a primary loser’s access to
the nomination-certificate process poses a risk to the stability of the political system.
Specifically, the primary loser is likely to siphon votes from the party of which he or she
was a primary candidate. For example, parties opposing the Republican Party in the general
election may attempt to elevate a candidate through the nomination-certificate process in
26
an effort to split the Republican vote between the primary winner and the nomination-
certificate candidate in the general election to make it more likely that the other party’s
candidate will win the general election. Therefore, we find that the difference in treatment
in West Virginia Code § 3-5-23(a) between recognized parties, on one hand, and
unrecognized parties and independent candidates on the other, does not constitute invidious
discrimination.
As set forth above, the language at issue in section (a) regarding “who are
not already candidates in the primary election” imposes only a minimal burden and is
nondiscriminatory. As this Court stated in Wells, “[f]or reasonable, nondiscriminatory
restrictions, the State’s important regulatory interests are generally sufficient to justify the
restrictions.” 237 W.Va. at 745, 791 S.E.2d at 365 (internal quotation marks and citations
omitted). In syllabus point four of State ex rel. Sowards, 196 W.Va. 739, 474 S.E.2d 919,
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.
Several important regulatory interests are served by the prohibition in West Virginia Code
§ 3-5-23(a). 10
10
The petitioners’ argument on the different treatment between the recognized and
unrecognized parties is essentially a claim that the § 3-5-23(a) clause is under-inclusive,
i.e., it denies the Constitution Party the right of nominating a candidate for office when the
candidate lost another party’s nomination, but allows the Libertarian and Mountain Parties,
27
First, courts have found that states have an interest specifically in preventing
sore loser candidacies. See Burdick, 504 U.S. at 439 (upholding Hawaii’s ban on write-in
voting as “a legitimate means of averting divisive sore-loser candidacies”); Clingman, 544
U.S. at 594 (upholding Oklahoma’s semi-closed primary because it advanced the state’s
regulatory interest in “guard[ing] against party raiding and sore loser candidacies by
spurned primary contenders.” (citation omitted)). Second, a sore loser law advances the
state’s legitimate interest in regulating the number of candidates on the ballot. See
Anderson, 460 U.S. at 788 n. 9 (remarking that “it is both wasteful and confusing to
encumber the ballot with the names of frivolous candidates.” (citation omitted)); Storer,
415 U.S. at 732 (providing that states have “an interest, if not a duty, to protect the integrity
of its political processes from frivolous and fraudulent candidacies.” (citation omitted));
Timmons, 520 U.S. at 364 (recognizing the state’s interest in “avoiding voter confusion
and overcrowded ballots.” (citation omitted)). Third, a prohibition on sore loser
candidacies serves the state’s interest in preserving identifiable political parties. See
Clingman, 544 U.S. at 594 (recognizing the important regulatory interest in “preserv[ing]
as well and the Republican and Democrat Parties, to do just that. However, because the
section (a) clause does not impose a severe burden and is not discriminatory, “the State
need not narrowly tailor the means it chooses to promote” its interests. Timmons, 520 U.S.
at 365. Instead, “[w]hen a state election law provision imposes only ‘reasonable,
nondiscriminatory restrictions’ . . . ‘the State’s important regulatory interests are generally
sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460
U.S. at 788). As noted above, because we find the section (a) provision to be reasonable
and nondiscriminatory, the State need not narrowly tailor the means by which it chooses to
promote its interests.
28
the political parties as viable and identifiable interest groups.”); Timmons, 520 U.S. at 366(indicating that “[t]he State surely has a valid interest in making sure that minor and third
parties who are granted access to the ballot are bona fide and actually supported, on their
own merits.”); Storer, 415 U.S. at 735 (recognizing the interest in preventing those who
lost their party primary from retaining their candidacy to “continu[e] intraparty feuds.”).
Fourth, a sore loser law is justified by the state’s interest in orderly, fair, and efficient
procedures for elections. See Timmons, 520 U.S. at 364 (providing that “[s]tates certainly
have an interest in protecting the integrity, fairness, and efficiency of their ballots and
election processes as means for electing public officials.” (citation omitted)). Finally, a
sore loser law furthers a state’s “strong interest in the stability of [its] political system.”
Timmons, 520 U.S. at 366 (citation omitted). See also Storer, 415 U.S. at 736 (indicating
that it has been a concern since the Founding Era “that splintered parties and unrestrained
factionalism may do significant damage to the fabric of the government.”); Storer, 415
U.S. at 735 (a sore loser law “works against independent candidacies prompted by short-
range political goals, pique, or personal quarrel.”). Therefore, this Court finds that the
prohibition in West Virginia Code § 3-5-23(a) is a reasonable, nondiscriminatory
restriction, and that the State’s important regulatory interests are sufficient to justify the
restriction. Accordingly, we now hold that West Virginia Code § 3-5-23(a), which
prevents unsuccessful primary election candidates from subsequently running as
nomination-certification candidates does not violate the constitutional guarantees of free
association and equal protection.
29
In sum, this Court finds first that West Virginia Code § 3-5-23(a) prohibits
unsuccessful primary candidates from running as nomination-certificate candidates in the
general election. Second, we find the title of H.B. 2981 to be constitutionally sufficient.
Third, we find the language at issue in West Virginia Code § 3-5-23(a) does not violate the
constitutional guarantees of freedom of association and equal protection. Finally, we find
the ballot access restriction in West Virginia Code § 3-5-23(a) to be reasonable and
nondiscriminatory, and that the State’s important regulatory interests are sufficient to
justify the restriction. Therefore, because Mr. Blankenship unsuccessfully ran in the 2018
Republican primary election, he is now prohibited from gaining access to the 2018 general
election ballot for the same office by means of a nomination-certificate candidacy.
IV. CONCLUSION
Based upon the foregoing, we find that there is no clear legal right in the
petitioners to the relief sought, and there is no legal duty on the part of the respondent to
do the thing which the petitioners seek to compel. Accordingly, we deny the writ sought
by the petitioners.
Writ denied.
30