Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
         Committee Substitute for Senate Bill 541
  BY SENATORS STUART, AZINGER, SMITH, TAYLOR, AND
                       OLIVERIO
    [Originating in the Committee on the Judiciary;
           reported on February 24, 2023]
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 A BILL to amend and reenact §3-5-7, §3-5-11, and §3-5-19 of the Code of West Virginia, 1931,
        as amended; to amend and reenact §18-2-1 of said code; and to amend and reenact §18-
        5-1a of said code, all relating generally to elections; clarifying the contents of the certificate
        of announcement of candidacy; specifying what information must be sworn or affirmed by
        candidates for office; clarifying the timing of challenges to candidate qualifications;
        amending the authority of political parties to fill ballot vacancies caused by voluntary
        withdrawals after the primary election; and prohibiting persons who have been convicted
         of certain crimes against minors from being eligible to hold positions on boards of
         education.
     Be it enacted by the Legislature of West Virginia:
                                     CHAPTER 3. ELECTIONS.
     ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
     §3-5-7. Filing certificates of announcements of candidacies; requirements; withdrawal of
            candidates when section applicable.
        (a) 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 shall
 be registered to vote and file a certificate of announcement declaring his or her candidacy for the
 nomination or election to the office.
        (b) The certificate of announcement shall be filed as follows:
        (1) Candidates for the House of Delegates, the State Senate, circuit judge, family court
 judge, and any other office or political position to be filled by the voters of more than one county
 shall file a certificate of announcement with the Secretary of State.
         (2) Candidates for an office or political position to be filled by the voters of a single county
 or a subdivision of a county, except for candidates for the House of Delegates, State Senate,
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 circuit judge, or family court judge, shall file a certificate of announcement with the clerk of the
 county commission.
         (3) Candidates for an office to be filled by the voters of a municipality shall file a certificate
 of announcement with the recorder or city clerk.
         (c) The certificate of announcement shall be filed with the proper officer not earlier than
 the second Monday in January before the primary election day and not later than the last Saturday
 in January before the primary election day and must be received before midnight, eastern
 standard time, of that day or, if mailed, shall be postmarked by the United States Postal Service
 before that hour. This includes the offices of justice of the Supreme Court of Appeals, judge of
 the Intermediate Court of Appeals, circuit court judge, family court judge, and magistrate, which
 are to be filled on a nonpartisan and division basis at the primary election: Provided, That on the
 final day of a political filing period, the office of the Secretary of State shall be open from 9:00 a.m.
 until 11:59 p.m. The offices of the County Clerk in all counties of the state shall be open on that
 final day of a political filing period from 9:00 a.m. until 12:00 11:59 p.m.
         (d) The certificate of announcement shall be on a form prescribed by the Secretary of
 State on which the candidate shall make a sworn statement before a notary public or other officer
 authorized to administer oaths that the candidate is legally qualified to seek and hold the office
 sought. The certificate of announcement shall containing contain the following information:
         (1) The date of the election in which the candidate seeks to appear on the ballot;
         (2) The name of the office sought; the district, if any; and the division, if any;
         (3) The legal name of the candidate and the exact name the candidate desires to appear
 on the ballot, subject to limitations prescribed in §3-5-13 of this code;
         (4) The county of residence and a statement that the candidate is a current resident and
 legally qualified registered voter of that county; and the current magisterial district of residence
 for candidates elected from magisterial districts or under magisterial district limitations;
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         (5) The specific address designating the location at which the candidate resides at the
 time of filing, including number and street, or rural route and box number, and city, state, and zip
 code;
         (6) For partisan elections, the name of the candidate's political party and a statement that
 the candidate: (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 60 days before the date of filing
 the announcement;
         (7) For candidates for delegate to national convention, the name of the presidential
 candidate to be listed on the ballot as the preference of the candidate on the first convention
 ballot; or a statement that the candidate prefers to remain "uncommitted";
         (8) For candidates for county board of education, a statement that the candidate swears
 and affirms that he or she has not been convicted of an offense under §61-8A-1 et seq., §61-8B-
 1 et seq., and §61-8C-1 et seq. of this code in which the victim was a minor;
         (8) (9) A statement that the person filing the certificate of announcement is a candidate for
 the office in good faith and meets all constitutional and statutory qualifications to seek and hold
 the office sought: Provided, That for the offices of state senator and member of the House of
 Delegates, a separate, express statement that the candidate swears or affirms he or she has
 been "a resident within the district or county from which he or she will be elected for at least one
 year preceding the general election";
         (9) (10) An exhaustive list of the constitutional and statutory qualifications for all statewide,
 legislative, and county offices; and
         (9) (11) The words "subscribed and sworn to before me this ______ day of
 _____________, 20____" and a space for the signature of the officer giving the oath.
         (e) The Secretary of State or the board of ballot commissioners, as the case may be, may
 refuse to certify the candidacy or may remove the certification of the candidacy upon receipt of a
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 certified copy of the voter's registration record of the candidate showing that the candidate was
 registered as a voter in a party other than the one named in the certificate of announcement during
 the 60 days immediately preceding the filing of the certificate: Provided, That unless a signed
 formal complaint of violation of this section and the certified copy of the voter's registration record
 of the candidate are filed with the officer receiving that candidate's certificate of announcement
 no later than 10 days following the close of the filing period, the candidate may not be refused
 certification for this reason: Provided, however, That any pre-election eligibility challenge, brought
 by mandamus or in any other manner, asserting that a candidate lacks the constitutional or
 statutory qualifications to hold the office sought, shall be resolved by the deadline for distribution
 of absentee ballots set forth in §3-3-5(e) of this code, and any such unresolved challenge pending
 at that time shall be dismissed without prejudice: Provided further, That an appeal from the final
 order resolving a pre-election challenge pending at the deadline for distribution of absentee ballots
 need not be dismissed pursuant to the provisions of this subsection: And provided further, That
 the dismissal of an unresolved pre-election eligibility challenge without prejudice shall not
 preclude any party from pursuing a post-election contest, using the procedures set forth in §3-5-
 20 or §3-7-1 et seq. of this code, concerning the candidate or election that was the subject of a
 pre-election challenge that was dismissed without prejudice.
        (f) The certificate of announcement shall be subscribed and sworn to by the candidate
 before some officer qualified to administer oaths, who shall certify the same. Any person who
 knowingly provides false information on the certificate is guilty of false swearing and shall be
 punished in accordance with §3-9-3 of this code.
        (g) Any candidate for delegate to a national convention may change his or her statement
 of presidential preference by notifying the Secretary of State by letter received by the Secretary
 of State no later than the third Tuesday following the close of candidate filing. When the rules of
 the political party allow each presidential candidate to approve or reject candidates for delegate
 to convention who may appear on the ballot as committed to that presidential candidate, the
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 presidential candidate or the candidate's committee on his or her behalf may file a list of approved
 or rejected candidates for delegate and the Secretary of State shall list as "uncommitted" any
 candidate for delegate who is disapproved by the presidential candidate.
           (h) A person may not be a candidate for more than one office or office division at any
 election: Provided, That a candidate for an office may also be a candidate for President of the
 United States, for membership on political party executive committees, or for delegate to a political
 party national convention: Provided, however, That an unsuccessful candidate for a nonpartisan
 office in an election held concurrently with the primary election may be appointed under the
 provisions of section nineteen of this article §3-5-19 of this code to fill a vacancy on the general
 ballot.
           (i) A candidate who files a certificate of announcement for more than one office or division
 and does not withdraw, as provided by §3-5-11 of this code, from all but one office prior to the
 close of the filing period may not be certified by the Secretary of State or placed on the ballot for
 any office by the board of ballot commissioners.
      §3-5-11. Withdrawals; filling vacancies in candidacy; publication.
            (a) A candidate who has filed a certificate of announcement and wishes to withdraw and
  decline to stand as a candidate for the office shall file a signed and notarized statement of
  withdrawal on a form provided by the Secretary of State with the same officer with whom the
  certificate of announcement was filed. If the notarized statement of withdrawal is received by the
  proper officer by the deadlines set forth in subsection (b) of this section, the candidate's
  withdrawal is final and his or her name shall not be certified as a candidate nor printed on any
  ballot. If a candidate files a notarized statement of withdrawal after the deadlines set forth in
  subsection (b) of this section, the candidate shall not be withdrawn and the candidate's name
  shall remain on the ballot.
            (b) Deadlines for withdrawing as a candidate:
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         (1) For primary or special primary elections or nonpartisan elections held in conjunction
 with a primary election: The notarized statement of withdrawal must be received by the same
 officer with whom the certificate of announcement was filed by the close of business of that officer
 not later than the third Tuesday following the close of the candidate filing period.
         (2) For general or special general elections or nonpartisan elections held in conjunction
 with a general election: The notarized statement of withdrawal must be received by the same
 officer with whom the certificate of announcement was filed by the close of business of that officer
 not later than eighty-four 84 days before the general election.
         (c) Upon request of the candidate's family, the board of ballot commissioners may remove
 the name of a candidate who dies before the ballots are printed. If a candidate dies after the
 ballots are printed but before the election, the clerk of the county commission shall give a written
 notice which shall be posted with the sample ballot at each precinct with the county to the following
 effect: "To the voter: (name) of (residence), a candidate for (office) is deceased."
         (d) If after the time is closed for announcing as a candidate there is a vacancy on the ballot
 caused by failure of any person of a party to file for each available seat of each available office,
 the executive committee of the party for the political division within which such candidate was to
 be voted for, or its chair if the committee fails to act, may fill the vacancy and certify the candidate
 named to the appropriate filing officer: Provided, That for a delegate district or senatorial district
 situated entirely within a single county, the county executive committee, or its chairperson if the
 committee fails to act, may fill the vacancy and certify the candidate named to the appropriate
 filing officer. Certification of the appointment by the executive committee or its chair chairperson,
 the candidate's certificate of announcement, and the filing fee must be received by the appropriate
 filing officer as follows: For an appointment by an executive committee, no later than the second
 Friday 30 days following the close of filing, for an appointment by its chair, no later than the third
 Tuesday following the close of filing two days thereafter: Provided, however, That any candidate
 appointed to an intra-county delegate or senatorial district by a county executive committee for
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 that district pursuant to the process and by the deadline provided in this subsection shall not be
 refused certification for placement on the 2022 primary election ballot for that reason. A candidate
 appointed to fill a vacancy on the ballot under this subsection shall have his or her name printed
 on the primary ballot for that party. No vacancy shall be filled after the date of the primary election,
 except as provided in §3-5-19 of this code.
        (e) The amendments to this section enacted by the Legislature during the 2022 Regular
 Session shall be retrospective to January 30, 2022.
     §3-5-19. Vacancies in nominations; how filled; fees.
        (a) If any vacancy occurs in the party nomination of candidates for office nominated at the
 primary election or by appointment under the provisions of section eleven of this article §3-5-11
 of this code, the vacancies may be filled, subject to the following requirements and limitations:
        (1) Each appointment made under this section shall be made by the executive committee
 of the political party for the political division in which the vacancy occurs: Provided, That if the
 executive committee holds a duly called meeting in accordance with §3-1-9 of this code but fails
 to make an appointment or fails to certify the appointment of the candidate to the proper filing
 officer within the time required, the chairperson of the executive committee may make the
 appointment not later than two days following the deadline for the executive committee: Provided
 however, That for a delegate district or senatorial district situated entirely within a single county,
 the county executive committee, or its chairperson if the committee fails to act, may fill the vacancy
 and certify the candidate named to the appropriate filing officer.
        (2) Each appointment made under this section is complete only upon the receipt by the
 proper filing officer of the certificate of appointment by the executive committee, or its chairperson,
 as the case may be, the certificate of announcement of the candidate as prescribed in section
 seven of this article §3-5-7 of this code and, except for appointments made under subdivision (4),
 (5), (6) or (7) of this subsection, the filing fee or waiver of fee as prescribed in section eight or
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 eight-a §3-5-8 or §3-5-8a of this article code. The proper filing officer is the officer with whom
 the original certificate of announcement is regularly filed for that office.
         (3) If a vacancy in nomination will be caused by the failure of a candidate to file for an
 office, or by withdrawal of a candidate no later than the third Tuesday following the close of
 candidate filing pursuant to the provisions of section eleven of this article §3-5-11 of this code, a
 nominee may be appointed by the executive committee and certified to the proper filing officer no
 later than 30 days after the last day to file a certificate of announcement pursuant to section seven
 of this article §3-5-7 of this code: Provided, That in no case shall any such vacancy be filled after
 the date of the primary election except as otherwise provided by subdivision (6) of this subsection.
         (4) If a vacancy in nomination is caused by the disqualification of a candidate and the
 vacancy occurs not later than 84 days before the general election, a nominee may be appointed
 by the executive committee and certified to the proper filing officer not la