WEST VIRGINIA CODE
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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
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