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WVC 3-

CHAPTER 3. ELECTIONS.

WVC 3 - 10 -

ARTICLE 10. FILLING VACANCIES.







WVC 3 - 10 - 1

§3-10-1. Elections to fill vacancies.

     (a) When a vacancy occurs in an elected office of the state or

county, it shall be filled according to the processes set forth in

this article. As used in this article, unless otherwise indicated

by the context:

     (1) "General cutoff date" means the eighty-fourth day before

the general election that immediately precedes the general election

where the office would be on the ballot for election if there were

not a vacancy; and

     (2) "Primary cutoff date" means the eighty-fourth day before

the primary election that immediately precedes the general cutoff

date.

     (b) When this article requires an appointment to fill a

vacancy in an elected office, the appointment shall be made within

thirty days of the vacancy, unless this code specifically states a

different time period for the specific office. The term that the

appointee holds the office shall depend on when the vacancy occurs,

as follows:

     (1) If the vacancy occurs after the primary cutoff date, then

that appointee shall hold the office until the end of the term of

office: Provided, That if the vacancy for any county office or

United States Senate occurs during the window after the primary

cutoff date, but before the general cutoff date, the process

contained in sections four, six, seven and eight of this article,

depending on the specific office vacated, shall be followed; or

     (2) If the vacancy occurs on or before the primary cutoff

date, then the office shall be filled at the following regular

primary and subsequent general election pursuant to this article

and the appointee shall hold the office until a qualified

replacement is elected and certified at that general election. The

elected replacement shall hold the office until the end of the

original term of office.

     (c) If an election is required to fill the vacancy by

subsection (b) of this section and the other provisions of this

article, the election shall proceed depending on when the vacancy

occurs and in which office it occurs. Elections to fill vacancies

shall be held at the same places, and superintended, conducted and

returned, and the result ascertained, certified and declared, in

the same manner, and by the same officers, as in general elections,

unless otherwise stated in this article.

     (1) For a vacancy in the Office of Governor, the times for the

special elections contained in section two of this article shall

control. The proclamation entered pursuant to section two of this

article by the person acting as Governor shall include the dates

for the special candidate filing period, if necessary, and shall

follow the requirements set forth in this section. All aspects of

this section, where not in conflict with section two of this

article, shall also be followed. If a regularly scheduled primary

or general election fits within the times for the special elections

contained in section two of this article, the special elections shall be conducted in conjunction with the regularly scheduled

election or elections. If a special election is required by

section two of this article and it cannot be held in conjunction

with the regular election dates, then the compensation of election

officers shall be reimbursed pursuant to section nine of this

article.

     (2) For a vacancy in the offices of United States House of

Representatives or United States Senate, the times for the special

election, if necessary, contained in section four of this article

shall control. All aspects of this section, where not in conflict

with section four of this article, shall also be followed.

     (A) With regard to United States House of Representatives, the

proclamation entered pursuant to section four of this article by

the Governor shall include the dates for the special candidate

filing period, if necessary, and shall follow the requirements set

forth in this section. If a regularly scheduled primary or general

election fits within the times for the special elections contained

in section four of this article, the special elections shall be

conducted in conjunction with the regularly scheduled election or

elections. If a special election is required by section two of

this article and it cannot be held in conjunction with the regular

election dates, then the compensation of election officers shall be

reimbursed pursuant to section nine of this article.

     (B) With regard to United States Senate, if a special general

election following the regular general election is required by section four of this article, and it cannot be held in conjunction

with the regular election dates, then the compensation of election

officers shall be reimbursed pursuant to section nine of this

article.

     (3) For all other offices, the Governor, or other person

granted authority by this article, shall issue a proclamation

stating that the office will appear on the next regular primary

election and subsequent general election, in order to fill the

vacancy: Provided, That if the vacancy for any county office occurs

during the window after the primary cutoff date, but before the

general cutoff date, the process contained in sections six, seven

and eight of this article shall be followed. If the candidate

filing period for the next regular primary election has closed or

has less than one week remaining, the proclamation shall provide

for a special primary candidate filing period. If there are less

than eighty-four days between the vacancy and the next regular

primary election, then the proclamation shall state that the office

will appear on the subsequent regular primary election and

corresponding general election following the next regular primary

election.

     (d) (1) If a special candidate filing period is necessary, it

shall begin no sooner than the day after the proclamation and shall

close no earlier than close of business on the fourteenth day

following the proclamation. A notarized declaration of candidacy

and filing fee provided by section seven, article five of this chapter shall be filed either in person, by United States mail,

electronic means or any other means authorized by the Secretary of

State and received by the appropriate office before the close of

the filing period. For petition in lieu of payment of filing fees,

a candidate seeking nomination for the vacancy may utilize the

process set forth in section eight-a, article five of this chapter:

Provided, That the minimum number of signatures required is

equivalent to one qualified signature per one whole dollar of the

filing fee for that office.

     (2) If a primary election is required by the provisions of

this article:

     (A) For all statewide, multicounty and legislative elections,

drawing for the primary election ballot position will take place at

the Secretary of State's office twenty-four hours after the end of

the filing period. For each major political party on the ballot,

a single drawing by lot shall determine the candidate ballot

position for ballots statewide. This drawing shall be witnessed by

four clerks of the county commission chosen by the West Virginia

Association of County Clerks, with no more than two clerks

representing a single political party.

     (B) For county elections, drawing for the primary election

ballot position will take place at the county clerk's office

twenty-four hours after the end of the filing period. For each

major political party on the ballot, a single drawing by lot shall

determine the candidate ballot position for ballots statewide. This drawing shall be witnessed by the chairperson of the county

democratic and republican executive committees or their designee,

and the president of the county commission or his or her designee.

     (3) Ballot position for a general election required by this

article shall be determined pursuant to subdivision (3), subsection

(c), section two, article six of this chapter. If a general

election required by this article occurs in conjunction with a

regularly scheduled primary election, the general election shall be

listed along with the nonpartisan portion of each ballot in the

order of offices provided for regular ballots in this chapter.

     (e) When an election is required to fill a vacancy, the date

of the election and offices to be elected, as well as any other

information required in the proclamation, shall be published prior

to such election as a Class I-O legal advertisement in compliance

with the provisions of article three, chapter fifty-nine of this

code, and the publication area for such publication shall be each

county of the state that is eligible to vote in the election for

those offices.

     (f) If an election is required by this article, citizens

having no party organization or affiliation may nominate candidates

as provided by sections twenty-three and twenty-four, article five

of this chapter: Provided, That when an election is required by the

provisions of this article to be held at some time other than with

a regularly scheduled election, all certificates nominating

candidates shall be filed with the appropriate official no later than ninety days before the election.

     (g) The persons elected, having first duly qualified, shall

enter upon the duties of their respective offices. The elected

replacement shall hold the office until the end of the original

term of office.







WVC 3 - 10 - 2

§3-10-2. Vacancy in Office of Governor.

     (a) In case of the death, conviction on impeachment, failure

to qualify, resignation or other disability of the Governor, the

President of the Senate shall act as Governor until the vacancy is

filled or the disability removed; and if the President of the

Senate, for any of the above-named causes, shall be or become

incapable of performing the duties of Governor, the same shall

devolve upon the Speaker of the House of Delegates; and in all

other cases where there is no one to act as Governor, one shall be

chosen by the joint vote of the Legislature. Whenever a vacancy

shall occur in the Office of Governor before the first three years

of the term shall have expired, a new election for Governor shall

take place to fill the vacancy.

     (b) The new election shall consist of a special primary

election and a special general election, and shall occur at such

time as will permit the person elected as Governor in the new

election to assume office within one year of the date the vacancy

occurred: Provided, That the special general election provided in

this section may not apply to section eight, article one of this

chapter. Within thirty days from the date the vacancy occurs, the

person acting as Governor pursuant to the State Constitution shall

issue a proclamation fixing the time for a statewide election to

fill the vacancy in the Office of Governor. The special primary

election to fill a vacancy in the Office of Governor shall take

place no less than ninety days after the proclamation and no later than one hundred forty days from the date that the vacancy in the

office occurs. The proclamation issued by the person acting as

Governor pursuant to the State Constitution shall also provide for

a special general election to take place no sooner than ninety days

after the special primary election and no later than two hundred

eighty days from the date that the vacancy in the office occurs.

     (c) The election shall follow the requirements of section one

of this article that are not in conflict with this section.







WVC 3 - 10 - 3

§3-10-3. Vacancies in offices of state officials, United States

Senators and judges.

     (a) Any vacancy occurring in the offices of Secretary of

State, Auditor, Treasurer, Attorney General, Commissioner of

Agriculture, or in any office created or made elective to be filled

by the voters of the entire state, is filled by the Governor of the

state by appointment and subsequent election to fill the remainder

of the term, if required by section one of this article.

     (b) Any vacancy occurring in the offices of Justice of the

Supreme Court of Appeals, judge of a circuit court or judge of a

family court is filled by the Governor of the state by appointment

and subsequent election to fill the remainder of the term, as

required by subsection (d) of this section. If an election is

required under subsection (d) of this section, the Governor,

circuit court or the chief judge thereof in vacation, is

responsible for the proper proclamation by order and notice

required by section one of this article.

     (c) Any vacancy in the office of magistrate is appointed

according to the provisions of section six, article one, chapter

fifty of this code, and subsequent election to fill the remainder

of the term, as required by subsection (d ) of this section.

     (d) (1) When the vacancy in Justice of the Supreme Court of

Appeals, judge of the circuit court, judge of a family court or

magistrate occurs after the eighty-fourth day before a general

election, and the affected term of office ends on the thirty-first day of December following the next election, the person appointed

to fill the vacancy shall continue in office until the completion

of the term.

     (2) When the vacancy occurs before the close of the candidate

filing period for the primary election, the vacancy shall be filled

by election in the nonpartisan judicial election held concurrently

with the primary election, and the appointment shall continue until

a successor is elected and certified.

     (3) When the vacancy occurs after the close of candidate

filing for the primary election and not later than eighty-four days

before the general election, the vacancy shall be filled by

election in a nonpartisan judicial election held concurrently with

the general election, and the appointment shall continue until a

successor is elected and certified.

     (e) When an election to fill a vacancy is required to be held

at the general election according to the provisions of subsection

(d) of this section, a special candidate filing period shall be

established. Candidates seeking election to any unexpired term for

Justice of the Supreme Court of Appeals, judge of a circuit court,

judge of the family court or magistrate shall file a certificate of

announcement and pay the filing fee no earlier than the first

Monday in August and no later than seventy-seven days before the

general election.







WVC 3 - 10 - 3 A

§3-10-3a. Judicial Vacancy Advisory Commission.

     (a) The Judicial Vacancy Advisory Commission shall assist the

Governor in filling judicial vacancies. The commission shall meet

and submit a list of no more than five nor less than two best

qualified persons to the Governor within ninety days of the

occurrence of a vacancy, or the formal announcement of the justice

or judge by letter to the Governor of an upcoming resignation or

retirement that will result in the occurrence of a vacancy, in the

office of justice of the Supreme Court of Appeals, judge of a

circuit court or judge of a family court. The Governor shall make

the appointment to fill the vacancy, as required by this article,

within thirty days following the receipt of the list of qualified

candidates or within thirty days following the vacancy, whichever

occurs later.

     (b) The commission shall consist of eight appointed members.

Four public members shall be appointed by the Governor for six-year

terms, except for the initial appointments which shall be staggered

in accordance with subsection (c) of this section. Four attorney

members shall be appointed by the Governor for six-year terms,

except as provided in subsection (c) of this section, from a list

of nominees provided by the Board of Governors of the West Virginia

State Bar. The Board of Governors of the West Virginia State Bar

shall nominate no more than twenty nor less than ten best qualified

attorneys for appointment to the commission whenever there is a

vacancy in the membership of the commission reserved for attorney members. The commission shall choose one of its appointed members

to serve as chair for a three-year term. No more than four

appointed members of the commission shall belong to the same

political party. No more than three appointed members of the

commission shall be residents of the same congressional district.

All members of the commission shall be citizens of this state.

Public members of the commission may not be licensed to practice

law in West Virginia or any other jurisdiction.

     (c) Of the initial appointments made to the commission, two

public members and two attorney members shall be appointed for a

term ending two years after the effective date of this section, one

public member and one attorney member shall be appointed for a term

ending four years after the effective date of this section, and one

public member and one attorney member shall be appointed for a term

ending six years after the effective date of this section.

     (d) The Governor, or his or her designee, the President of the

West Virginia State Bar and the Dean of the West Virginia

University College of Law shall serve as ex officio members of the

commission.

     (e) Members of the commission shall serve without

compensation, except that commission members are entitled to

reimbursement of travel and other necessary expenses actually

incurred while engaged in official commission activities in

accordance with the guidelines of the Travel Management Office of

the Department of Administration, or its successor entity. The Governor's Office shall cooperate with the commission to ensure

that all resources necessary to carrying out the official duties of

the commission are provided, including staff assistance, equipment

and materials.

     (f) The commission shall adopt written policies that formalize

and standardize all operating procedures and ethical practices of

its members including, but not limited to, procedures for training

commission members, publishing notice of judicial vacancies,

recruiting qualified individuals for consideration by the

commission, receiving applications from qualified individuals,

notifying the public of judicial vacancies, notifying state or

local groups and organizations of judicial vacancies and soliciting

public comment on judicial vacancies. The written policies of the

commission are not subject to the provisions of chapter twenty-

nine-a of this code, but shall be filed with the Secretary of

State.

     (g) A majority of the commission plus one shall constitute a

quorum to do business.

     (h) All organizational meetings of the commission shall be

open to the public and subject to the requirements of article

nine-a, chapter six of this code. An "organizational meeting"

means an initial meeting to discuss the commission's procedures and

requirements for a judicial vacancy. The commission shall hold at

least one organizational meeting upon the occurrence of a judicial

vacancy. All other meetings of the commission are exempt from article nine-a, chapter six of this code.

     (i) The commission shall make available to the public copies

of any applications and any letters of recommendation written on

behalf of any applicants. All other documents or materials created

or received by the commission shall be confidential and exempt from

the provisions of chapter twenty-nine-b of this code, except for

the list of best-qualified persons or accompanying memoranda

submitted to the Governor in accordance with the provisions of

subsection (j) of this section, which shall be available for public

inspection, and the written policies required to be filed with the

Secretary of State in accordance with subsection (f) of this

section.

     (j) The commission shall submit its list of best-qualified

persons to the Governor in alphabetical order. A memorandum may

accompany the list of best-qualified persons and state facts

concerning each of the persons listed. The commission shall make

copies of any list of best-qualified persons and accompanying

memoranda it submits to the Governor available for public

inspection.







WVC 3 - 10 - 4

§3-10-4. Vacancies in representation in United States Congress.

     (a) (1) If there is a vacancy in the representation from this

state in the House of Representatives in the Congress of the United

States, the Governor shall, within five days after the fact comes

to his or her knowledge, issue a proclamation setting dates for a

special general election that is not less than eighty-four nor more

than one hundred twenty days from the date of the vacancy and

requiring nomination of candidates as provided in subdivision (2)

of this subsection: Provided, That no such proclamation may be made

nor may a special election be held if the vacancy occurs after the

eighty-fourth day prior to the regularly scheduled general election

for a new full term of the office. The election shall follow the

requirements of section one of this article that are not in

conflict with this section.

     (2) The party executive committees for the congressional

district for which there is a vacancy shall each, within thirty

days of the Governor's proclamation, nominate a candidate to stand

at the general election required by subdivision (1) of this

subsection.

     (b) If there is a vacancy in the representation from this

state in the Senate of the United States Congress, the vacancy

shall be filled by the Governor of the state by appointment and:

     (1) If the vacancy occurs on or before the primary cutoff

date, then an election shall be held pursuant to section one of

this article; or

     (2) If the vacancy occurs after the primary cutoff date, but

on or before the general cutoff date, then the Governor shall issue

a proclamation providing for: (A) A special filing period; (B) a

special primary election to be held in conjunction with the

upcoming general election; and (C) a special general election to be

held not less than eighty-four nor more than one hundred twenty

days following the date of the special primary election. Each

election shall follow the requirements of section one of this

article that are not in conflict with this section.







WVC 3 - 10 - 4 A

§3-10-4a.

     Repealed.

Acts, 2013 Reg. Sess., Ch. 76.







WVC 3 - 10 - 5

§3-10-5. Vacancies in State Legislature.

     (a) Any vacancy in the office of State Senator or member of

the House of Delegates shall be filled by appointment by the

Governor, from a list of three legally qualified persons submitted

by the party executive committee of the party with which the person

holding the office immediately preceding the vacancy was

affiliated. The list of qualified persons to fill the vacancy

shall be submitted to the Governor within fifteen days after the

vacancy occurs and the Governor shall duly make his or her

appointment to fill the vacancy from the list of legally qualified

persons within five days after the list is received. If the list

is not submitted to the Governor within the fifteen-day period, the

Governor shall appoint within five days thereafter a legally

qualified person of the same political party as the person vacating

the office.

     (b) In the case of a member of the House of Delegates, the

list shall be submitted by the party executive committee of the

delegate district in which the vacating member resided at the time

of his or her election or appointment. The appointment to fill a

vacancy in the House of Delegates is for the unexpired term.

     (c) In the case of a State Senator, the list shall be

submitted by the party executive committee of the state senatorial

district in which the vacating senator resided at the time of his

or her election or appointment. The appointment to fill a vacancy

in the State Senate is for the unexpired term, unless section one of this article requires a subsequent election to fill the

remainder of the term, which shall follow the procedure set forth

in section one of this article.







WVC 3 - 10 - 6

§3-10-6. Vacancy in office of circuit court clerk.

     (a) When a vacancy occurs in the office of clerk of the

circuit court, the circuit court by a majority vote of the judges

shall fill the same within thirty days of the vacancy by

appointment of a person of the same political party as the

officeholder vacating the office for the period required by section

one of this article.

     (b) Notwithstanding any code provision to the contrary, the

chief judge may appoint a temporary successor to the office of

clerk of the circuit court until the requirements of this section

have been met. The temporary successor may serve no more than

thirty days from the date of the vacancy.

     (c) If an election is necessary, the circuit court, or the

chief judge thereof in vacation, is responsible for the proper

proclamation, by order and notice required by section one of this

article.

     (d) Section one of this article shall be followed with respect

to any election needed to fill a vacancy, except that if the

vacancy occurs after the primary cutoff date but not later than the

general cutoff date, candidates to fill the vacancy shall be

nominated by the county executive committee in the manner provided

in section nineteen, article five of this chapter, as in the case

of filling vacancies in nominations, and the names of the persons,

so nominated and certified to the clerk of the county commission of

the county, shall be placed upon the ballot to be voted at the next general election.







WVC 3 - 10 - 7

§3-10-7. Vacancies in offices of county commissioner and clerk of

county commission.

     (a) Any vacancy in the office of county commissioner or clerk

of county commission shall be filled by the county commission of

the county, unless the number of vacancies in a county commission

deprive that body of a quorum, in which case the Governor of the

state shall fill any vacancy in the county commission necessary to

create a quorum thereof. Persons appointed shall be of the same

political party as the officeholder vacating the office for the

period stated by section one of this article. If a quorum of the

county commission cannot agree upon a person to fill a vacancy in

the office of county commissioner within thirty days of the date

the vacancy first occurred, the county executive committee of the

vacating county commissioner's political party shall select and

name a person to fill the vacancy from the membership of the

vacating county commissioner's political party. The clerk shall be

appointed within thirty days of the vacancy.

     (b) Notwithstanding any code provision to the contrary, a

county commission may appoint a temporary successor to the office

of clerk of the county commission until the requirements of this

section have been met. The temporary successor may serve no more

than thirty days from the date of the vacancy.

     (c) If an election is necessary under section one of this

article, the county commission, or the president thereof in

vacation, shall be responsible for the proper proclamation, by order, and notice required by section one of this article.

     (d) Section one of this article shall be followed with respect

to any election needed to fill a vacancy, except that if the

vacancy occurs after the primary cutoff date but not later than the

general cutoff date, candidates to fill the vacancy shall be

nominated by the county executive committee in the manner provided

in section nineteen, article five of this chapter, as in the case

of filling vacancies in nominations, and the names of the persons,

so nominated and certified to the clerk of the county commission of

the county, shall be placed upon the ballot to be voted at the next

general election.

     (e) If the election for an unexpired term is held at the same

time as the election for a full term for county commissioner, the

full term shall be counted first and the unexpired term shall be

counted second. If the candidate with the highest number of votes

for the unexpired term resides in the same magisterial district as

the candidate with the highest number of votes for the full term,

the candidate for the full term shall be seated. The candidate

with the next highest number of votes for the unexpired term

residing in a different magisterial district shall be seated for

the unexpired term.







WVC 3 - 10 - 8

§3-10-8. Vacancies in offices of prosecuting attorney, sheriff,

assessor and surveyor.

     (a) Any vacancy occurring in the office of prosecuting

attorney, sheriff, assessor or county surveyor shall be filled by

the county commission within thirty days of the vacancy by

appointment of a person of the same political party as the

officeholder vacating the office. The appointed person shall hold

the office for the period stated by section one of this article.

     (b) Notwithstanding any code provision to the contrary, a

county commission may appoint a temporary successor to the office

of prosecuting attorney, sheriff, assessor or county surveyor until

the requirements of this section have been met. The temporary

successor may serve no more than thirty days from the date of the

vacancy.

     (c) If an election is necessary under section one of this

article, the county commission, or the president thereof in

vacation, shall be responsible for the proper proclamation, by

order, and notice required by section one of this article.

     (d) Section one of this article shall be followed with respect

to any election needed to fill a vacancy, except that if the

vacancy occurs after the primary cutoff date but not later than the

general cutoff date, candidates to fill the vacancy shall be

nominated by the county executive committee in the manner provided

in section nineteen, article five of this chapter, as in the case

of filling vacancies in nominations, and the names of the persons, so nominated and certified to the clerk of the county commission of

the county, shall be placed upon the ballot to be voted at the next

general election.







WVC 3 - 10 - 9

§3-10-9. Costs of special elections paid by state.

     If an election as required by section two or four of this

article cannot be held in conjunction with the regular election

dates, then the cost of printing ballots and all other reasonable

and necessary expenses in holding and making the return of the new

election to fill a vacancy are obligations of the state incurred by

the ballot commissioners, clerks of the county commissions and

county commissions of the various counties as agents of the state.

All expenses of the new election are to be audited by the Secretary

of State. The Secretary of State shall prepare and transmit to the

county commissions forms on which the county commissions shall

certify all expenses of the new election to the Secretary of State.

If satisfied that the expenses as certified by the county

commissions are reasonable and were necessarily incurred, the

Secretary of State shall requisition the necessary warrants from

the Auditor of the state to be drawn on the State Treasurer and

shall mail the warrants directly to the vendors of the new election

services, supplies and facilities.





Note: WV Code updated with legislation passed through the 2015 Regular Session

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.