On Thursday, September 15, the West Virginia Supreme Court issued an opinion in Wells v State, 16-0779. It construed the West Virginia election law to require all candidates who petition for the November ballot to have filed a declaration of candidacy on the last Saturday in January. On September 16, the Secretary of State phoned various candidates who had petitioned to be on the November ballot and told them that they will be removed from the ballot (even though they had already been certified to be on the ballot) as a result of the decision.
The only presidential candidate who petitioned in West Virginia this year is Darrell Castle, Constitution Party nominee. There is no effect on the presidential nominees of the Democratic, Green, Libertarian or Republican Parties, because they are qualified and did not need a petition this year.
Since 1991, the West Virginia election law has said in section 3-5-7, “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 shall file a certificate of announcement declaring his or her candidacy for the nomination of election to the office…The certificate of announcement shall be filed with the proper officer not later than the last Saturday in January.” The West Virginia primary is in May.
In 1996, the West Virginia Supreme Court ruled this section only applies to candidates running in a primary. That case was State ex rel Browne v Hechler, 476 S.E.2d 559. It allowed Harry Browne, the Libertarian presidential nominee that year, to get on the ballot even though he had not filed any declaration of candidacy until August 1, the day his petition was due. The current opinion says that the Browne case doesn’t control the outcome because another statute was amended in 2015. Page ten of the opinion says, “West Virginia Code 3-5-7 has undergone a critical amendment since that time.” Page eleven says, “However, the 2015 amendments to the statute eliminated this provision entirely.” The preceding sentence is, “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 election survived each of the Legislature’s various amendments enacted in 1998, 2005, 2007, and 2009.”
A January filing deadline for independent or minor party presidential candidates is clearly unconstitutional. West Virginia is in the Fourth Circuit. In 1980 it struck down Maryland’s March 3 deadline for independent presidential candidates, in Anderson v Morris, 636 F 2d 55. It said, “We cannot conclude that Maryland’s early filing date furthers the asserted state interest in any respect…Failing to achieve a legitimating purpose, Maryland’s early filing date for presidential candidates for nomination by petition is invalid.” Also, of course, the U.S. Supreme Court said the same thing for the entire nation in Anderson v Celebrezze, 460 U.S. 780 (1983), striking down a March 20 deadline from Ohio.
The West Virginia recent opinion has no discussion whatsoever of the constitutional precedents striking down early deadlines for independent candidates. The court seems oblivious that 55 court opinions around the nation have struck down such early deadlines.
Thank you for researching the history of the law cited in this decision.
HB 2010 (Chapter 103)
It appears that they are referring to §3-5-7(j) as limiting application to primaries.
Subsection (j) was removed in “HB2010 S JUD AM _1.htm” (see bill status for HB 2010), an amendment in the Senate Judiciary Committee.
The Senate companion, SB 10, changed a couple of instances of “shall apply” to “applies”, which I would interpret as simply matching drafting standards. So maybe someone asked why the change was made.
If you look at the previous version of (j), it is not necessarily a limiting provision as interpreted in Hechler, it could simply be saying when the new provisions take effect.
If you look at the Committee Substitute it is still present. But by the time of the final bill subsection (j) is gone. The bill was vetoed by Governor Manchin, and the House adopted a complete floor substitute that omitted the section.
I can’t figure out whether it was a clerical error or not. The intent was to amend and re-enact §3-5-7, so that whatever was passed by the legislature becomes the new version for the section.
Guess what —
1. Each election continues to be NEW.
2. Separate is NOT equal.
3. EQUAL ballot accèss tests for ALL candidates for the same office in the same area.
An apparently unlimited number of MORON lawyers and even worse MORON judges in ballot access cases.
“The only presidential candidate who petitioned in West Virginia this year is Darrell Castle, Constitution Party nominee. There is no effect on the presidential nominees of the Democratic, Green, Libertarian or Republican Parties, because they are qualified and did not need a petition this year.”
Oh, thank God. It sucks for Darrell, obviously, but I freaked out over the Libertarians and Greens possibly being removed when I read the title.
Has this affected any of the Libertarians or Greens downballot? Or just Constitution and independent candidates?
Legalese aside what does this ruling mean?
ALL of the SCOTUS *opinions* about ballot access are ARBITRARY J-U-N-K if there is NOT E-Q-U-A-L treatment of ALL candidates for the same office in the same area —
i.e. unequal time deadlines to do such and such, petition amounts, filing fees, etc. etc.
EQUAL remains in the Equal Protection Clause in 14th Amdt, Sec. 1 — obtained at the REAL cost of about 400,000 Union Army/Navy dead in the horrific Civil War I in 1861-1865 — plus multi-thousands more having no eyes, hands, feet, arms, legs for life.
Thank you, Jim.
Michael, it means we put you on the ballot and then in September we thought of a reason to take you off.
Richard, you say this didn’t affect the Libertarian or Green (or D or R) *Presidential* tickets — but did it affect any other Libertarians or Greens (or Ds or Rs)? I’m thinking in particular of Charlotte Pritt, on whom you reported two months ago:
http://ballot-access.org/2016/07/17/charlotte-pritt-the-west-virginia-democratic-party-nominee-for-governor-in-1996-accepts-green-party-nomination/
The Green and Libertarian Parties are ballot-qualified, so they don’t need to petition, so it has no effect on any of their nominees.
Wow, so now Castle is down to 23 states. That’s pretty sad.
I believe Darrell Castle will sue and win. I think he has already found an attorney.
Thank you for clarifying, Richard. (Here in Michigan, even the Ds and Rs who get on the primary ballot frequently do so by petition — though for most spots there is also an option of a $100 fee.)
The problem with this is that Phil Hudok is now also removed from the ballot. As the CPWV’s candidate for governor this year, and given the fact that the only way for a minor party to qualify for future non-petitioned ballot access is to get a minimum of 1% of the gubernatorial vote, the Constitution Party is now totally shut out from participation. For those of you who don’t care because he’s not a Libertarian, consider that David Moran collected signatures and filed near the August deadline in 2012 as the Libertarian Party of WV’s governor candidate and squeaked out 1.2% which qualified the party for carte-blanch access and now they are running a full slate of candidates including Gary Johnson in WV this year. How does that make you feel?
I’m so relieved about Charlotte Pritt for Governor remaining since she is ballot-qualified. That was the first person I thought of too. I hope Darrell Castle finds a way back on the ballot. I appreciate his stance against TPP.
So you’re positive that Castle will be able to get back on, Richard?
Phil Hudok is polling at 2% in the WV governor’s race where Democrat Jim Justice only leads Republican Bill Cole by 2% (44-42). Go ahead and call me a conspiracy theorist, but I think it’s a pretty good bet that this new poll had something to do with this asinine court decision interpretation that suddenly removed Phil and Darrell Castle and three other Constitution Party candidates from the ballot. http://wvmetronews.com/2016/09/19/gop-poll-shows-tight-gubernatorial-race-much-closer-than-metronews-west-virginia-poll/ (Libertarian David Moran also at 2% and Mountain Party Charlotte Pritt at 3%).
Bryan Sells is the attorney handling the case for the CP: http://www.bryansellslaw.com/about/