Chapter 3. Elections


Published: 2015

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WEST VIRGINIA CODE











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WVC 3-

CHAPTER 3. ELECTIONS.

WVC -5-

ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.







WVC 3-5-1

§3-5-1. Time and place of holding primary elections in the year

one thousand nine hundred eighty and thereafter; hours

polls open.

Primary elections shall be held at the voting place in each of

the voting precincts in the state, for the purposes set forth in

this article, on the second Tuesday in May in the year one thousand

nine hundred eighty-six and in each second year thereafter.

At such election the polls shall be opened and closed at the

hours provided for opening and closing the polls in a general

election.







WVC 3-5-1a

§3-5-1a. Time and place of holding primary elections held in the

year one thousand nine hundred seventy-eight; hours

polls open.

The primary election held in the year one thousand nine

hundred seventy-eight shall be held at the voting place in each of

the voting precincts in the state, for the purposes set forth in

this article, on the second Tuesday in May in the year one thousand

nine hundred seventy-eight.

At such election the polls shall be opened and closed at the

hours provided for opening and closing the polls in a general

election.







WVC 3 - 5 - 2

§3-5-2. Delegates to national conventions; alternate delegates.

(a) At the primary election to be held in the year one

thousand nine hundred ninety-two, and in each fourth year

thereafter, there shall be elected by the voters of each political

party of the state, in accordance with a plan adopted by the state

party, persons to be delegates to the national convention of the

party to be held next after the date of such primary.

(b) The plan adopted by each political party of the state

shall state the method, subject to compliance with their national

party rules and not inconsistent with the provisions of this

chapter, for the election of persons in each congressional district

of the state as delegates to the national convention of the party,

for the election or selection of persons in each congressional

district of the state as alternate delegates to the national

convention of the party and for the selection of all remaining

delegates and alternate delegates allocated to the party in their

national convention. Not less than one hundred twenty days before

the primary election to be held in the year one thousand nine

hundred ninety-two, and in every fourth year thereafter, the

governing body of each political party of the state shall certify

the plan adopted by the party under signature of the state party

chairman and file the plan with the secretary of state. Any

questions regarding whether such plan was rightfully adopted by the

party shall be resolved by the party based upon party rules.

(c) The plan adopted by each political party of the state shall, to the extent permissible under their national party rules,

provide for the following:

(1) The voters of each political party shall elect in each

congressional district the number of persons as delegates to the

national convention of the party to which the district is entitled.

(2) If the rules of the national political party do not

require the apportionment of delegates on the basis of their

commitment for president, the persons receiving the highest number

of votes as delegates in any congressional district to the number

to which the district is entitled, shall be elected delegates.

After the election of delegates in each congressional district to

the number to which the district is entitled, the persons receiving

the next highest votes in each congressional district and having

qualified, as may be provided in the plan adopted by the party,

shall be elected as alternate delegates to the number of alternate

delegates to which the district is entitled.

(3) If the rules of the national political party require that

the percentage of votes cast for the various presidential

candidates determine the apportionment of committed candidates to

be elected as delegates or alternates, regardless of whether such

committed candidates received the highest number of votes, then the

plan adopted by the political party of the state shall prescribe

the number of delegates and alternates to be elected under such

apportionment, the method by which the apportionment shall be made,

and the method by which the secretary of state shall determine which delegates and alternates are elected. A committed candidate

for delegate to national convention is one whose preference for

particular presidential candidate appears on the ballot.

(4) In the event the number of persons elected in the primary

election in a congressional district is less than the number to

which the district is entitled as delegates and alternate delegates

to the national convention of the political party, the governing

body of the political party of the state shall appoint persons from

the congressional district to serve as delegates or alternate

delegates to the national convention of the party unless the rules

of the party otherwise provide.

(5) The number of persons which each of the congressional

districts in the state are entitled to elect as delegates to the

national convention of the political party shall be apportioned

among the congressional districts in the same proportion to the

total number of delegates to the party's national convention

elected in all congressional districts in the state as the

population of the congressional district bears to the total

population of the state based upon the census of population taken

by the bureau of the census of the United States department of

commerce in the year one thousand nine hundred ninety, and in every

tenth year thereafter.

(d) The official primary ballot at the primary election to be

held in the year one thousand nine hundred ninety-two, and in every

fourth year thereafter shall, following the names of all candidates for delegates to the national convention of the party, contain the

words "For election in accordance with the plan adopted by the

party and filed with the secretary of state."

(e) Unless and until a political party of the state has

adopted and certified a plan for the election of delegates to the

national convention of the party and filed the plan with the

secretary of state, there shall be elected by the voters of the

political party of the state at the primary election to be held in

the year one thousand nine hundred ninety-two, and in each fourth

year thereafter, the number of persons to which the party is

entitled as delegates-at-large, and by the voters of each political

party in each congressional district in the state the number of

delegates to which the district is entitled. The persons receiving

the highest number of votes in the state as delegates-at-large, to

the number to which the state is entitled, shall be elected

delegates. The persons receiving the highest number of votes as

delegates in any congressional district, to the number to which the

district is entitled, shall be elected delegates. Each delegate so

elected shall then appoint an individual to serve as alternate

delegate, and shall by registered letter notify the secretary of

state of such appointment within forty days after the primary

election.







WVC 3-5-3

§3-5-3. Presidential preference.

In presidential election years, in addition to the candidates

required to be nominated at the primary election, the qualified

voters of each political party shall have the opportunity of voting

for their choice among those aspiring to be the candidates of their

respective parties for president of the United States. The names

of such aspirants shall be printed on the official election ballot

of their respective parties, as provided in section thirteen of

this article, upon the filing with the secretary of state of the

certificate of announcement as provided in section seven of this

article and the filing fee or petition in lieu of filing fee as

provided in sections eight and eight-a of this article, and the

ballot shall be marked and the vote shall be counted, canvassed and

returned under the same conditions as to names, certificates and

other matters, as the names and certificates of the party aspirants

for the party nomination for the office of governor.







WVC 3 - 5 - 4

§3-5-4. Nomination of candidates in primary elections.

     (a) At each primary election, the candidate or candidates of

each political party for all offices to be filled at the ensuing

general election by the voters of the entire state, of each

congressional district, of each state senatorial district, of each

delegate district, and of each county in the state shall be

nominated by the voters of the different political parties, except

that no presidential elector shall be nominated at a primary

election.

     (b) In primary elections a plurality of the votes cast shall

be sufficient for the nomination of candidates for office. Where

only one candidate of a political party for any office in a

political division, including party committeemen and delegates to

national conventions, is to be chosen the candidate receiving the

highest number of votes therefor in the primary election shall be

declared the party nominee for such office. Where two or more such

candidates are to be chosen in the primary election, the candidates

constituting the proper number to be so chosen who shall receive

the highest number of votes cast in the political division in which

they are candidates shall be declared the party nominees and

choices for such offices, except that:

     (1) Candidates for the office of commissioner of the county

commission shall be nominated and elected in accordance with the

provisions of section ten, article nine of the Constitution of the

State of West Virginia and the requirements of section one-b, article one, chapter seven of this code;

     (2) Members of county boards of education shall be elected at

primary elections in accordance with the provisions of sections

five and six of this article;

     (3) Candidates for the House of Delegates shall be nominated

and elected in accordance with the residence restrictions provided

in section two, article two, chapter one of this code.

     (c) In case of tie votes between candidates for party

nominations or elections in primary elections, the choice of the

political party shall be determined by the executive committee of

the party for the political division in which such persons are

candidates.







WVC 3-5-5

§3-5-5.

Repealed.

Acts, 1993 Reg. Sess., Ch. 43.







WVC 3-5-6

§3-5-6. Election of county board of education members at primary

elections.

(a) An election for the purpose of electing members of the

county board of education shall be held on the same date as the

primary elections, as provided by law, but upon a nonpartisan

ballot printed for the purpose.

(b) No more than two members may be elected or serve from the

same magisterial district. The eligibility of candidates to be

declared elected for full terms of four years and for unexpired

terms of two or more years based on this limitation shall be

determined at the time of certification of the election.

(1) Such eligibility shall be based on the magisterial

district residence of incumbent members of the board whose terms

will continue beyond the first day of July following the primary

election.

(A) No person is eligible to be declared elected who resides

in a district which has two such incumbent members.

(B) No more than one candidate is eligible to be declared

elected who resides in a district which has one such incumbent

member.

(C) A person with the highest number of votes may be declared

elected to an unexpired term notwithstanding the fact that the

person's magisterial district has two representatives serving on

the board at the time of the election: Provided, That the number

of representatives from that magisterial district will be less than two as of the first day of July following the primary.

(2) The person declared elected to an unexpired term shall

assume the duties of a member of the board of education according

to the provisions of section two, article five, chapter eighteen of

this code.

(c) In each nonpartisan election for board of education the

board of canvassers shall:

(1) Declare and certify the election of the required number of

eligible candidates receiving the highest numbers of votes to fill

any full terms;

(2) Declare and certify the election of the required number of

eligible candidates receiving the next highest numbers of votes,

after all full terms are filled, to fill any unexpired terms.

(d) It is the intent of this statute that any person declared

to be elected under the preceding provisions of this section shall

take office as a duly elected member or members, even though the

person may not have received a majority or plurality of all votes

cast at such election.

(e) In case of a tie vote for a seat on a county board of

education in any primary election, the provisions of section

twelve, article six of this chapter shall control in breaking the

tie.







WVC 3 - 5 - 6 A

§3-5-6a. Election of justices of the Supreme Court of Appeals.

     (a) An election for the purpose of electing a justice or

justices of the Supreme Court of Appeals shall be held on the same

date as the primary election, as provided by law, upon a

nonpartisan ballot by division printed for this purpose. For

election purposes, in each election at which shall be elected more

than one justice of the Supreme Court of Appeals, the election

shall be by numbered division corresponding to the number of

justices being elected. Each justice shall be elected at large

from the entire state.   (b) In each nonpartisan election by

division for a justice of the Supreme Court of Appeals, the

candidates for election in each numbered division shall be tallied

separately, and the board of canvassers shall declare and certify

the election of the eligible candidate receiving the highest

numbers of votes cast within a numbered division to fill any full

terms.

     (c) In case of a tie vote under this section, section twelve,

article six of this chapter controls in breaking the tie vote.







WVC 3 - 5 - 6 B



§3-5-6b. Election of circuit judges.

     (a) An election for the purpose of electing a circuit court

judge or judges shall be held on the same date as the primary

election in their respective circuits, as provided by law, upon a

nonpartisan ballot by division printed for this purpose.

     (b) In each nonpartisan election by division for a circuit

court judge, the candidates for election in each numbered division

shall be tallied separately, and the board of canvassers shall

declare and certify the election of the eligible candidate

receiving the highest numbers of votes cast within a numbered

division to fill any full terms.

     (c) In case of a tie vote under this section, section twelve,

article six of this chapter controls in breaking the tie vote.







WVC 3 - 5 - 6 C

§3-5-6c. Election of family court judges.

     (a) An election for the purpose of electing a family court

judge or judges shall be held on the same date as the primary

election in their respective circuits, as provided by law, upon a

nonpartisan ballot by division printed for this purpose.

     (b) In each nonpartisan election by division for a family

court judge, the candidates for election in each numbered division

shall be tallied separately, and the board of canvassers shall

declare and certify the election of the eligible candidate

receiving the highest numbers of votes cast within a numbered

division to fill any full terms.

     (c) In case of a tie vote under this section, section twelve,

article six of this chapter controls in breaking the tie vote.







WVC 3 - 5 - 6 D

§3-5-6d. Election of magistrates.

     (a) An election for the purpose of electing a magistrate or

magistrates by division shall be held on the same date as the

primary election in their respective circuits, as provided by law,

upon a nonpartisan ballot by division printed for this purpose.

     (b) In each nonpartisan election by division for a magistrate,

the candidates for election in each numbered division shall be

tallied separately, and the board of canvassers shall declare and

certify the election of the eligible candidate receiving the

highest numbers of votes cast within a numbered division to fill

any full terms.

     (c) In case of a tie vote under this section, section twelve,

article six of this chapter controls in breaking the tie vote.







WVC 3 - 5 - 7

§3-5-7. Filing 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

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, 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, circuit court judge, family court judge and magistrate,

which are to be filled on a nonpartisan and division basis at the

primary election.

     (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, containing 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 section thirteen, article five of this chapter;

     (4) The county of residence and a statement that the candidate

is a legally qualified voter of that county; and the magisterial

district of residence for candidates elected from magisterial

districts or under magisterial district limitations;

     (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 sixty 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) A statement that the person filing the certificate of

announcement is a candidate for the office in good faith;

     (9) 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 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 sixty 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 ten days following the close of the filing period, the

candidate may not be refused certification for this reason.

     (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 section

three, article nine of this chapter.

     (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 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

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 section eleven, article five of this chapter, 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.







WVC 3 - 5 - 8

§3-5-8. Filing fees and their disposition.

Every person who becomes a candidate for nomination for or

election to office in any primary election shall, at the time of

filing the certificate of announcement as required in this article,

pay a filing fee as follows:

(a) A candidate for president of the United States, for vice

president of the United States, for United States Senator, for

member of the United States House of Representatives, for Governor

and for all other state elective offices shall pay a fee equivalent

to one percent of the annual salary of the office for which the

candidate announces: Provided, That the filing fee for any

candidate for president or vice president of the United States

shall not exceed two thousand five hundred dollars commencing with

the two thousand four filing period;

(b) A candidate for the office of judge of a circuit court and

judge of a family court shall pay a fee equivalent to one percent

of the total annual salary of the office for which the candidate

announces;

(c) A candidate for member of the House of Delegates shall pay

a fee of one-half percent of the total annual salary of the office

and a candidate for state Senator shall pay a fee of one percent of

the total annual salary of the office;

(d) A candidate for sheriff, prosecuting attorney, circuit

clerk, county clerk, assessor, member of the county commission and

magistrate shall pay a fee equivalent to one percent of the annual salary, excluding any additional compensation or commission of the

office for which the candidate announces. A candidate for county

board of education shall pay a fee of twenty-five dollars. A

candidate for any other county office shall pay a fee of ten

dollars;

(e) Delegates to the national convention of any political

party shall pay the following filing fees:

A candidate for delegate-at-large shall pay a fee of twenty

dollars; and a candidate for delegate from a congressional district

shall pay a fee of ten dollars;

(f) Candidates for members of political executive committees

and other political committees shall pay the following filing fees:

A candidate for member of a state executive committee of any

political party shall pay a fee of twenty dollars; a candidate for

member of a county executive committee of any political party shall

pay a fee of ten dollars; and a candidate for member of a

congressional, senatorial or delegate district committee of any

political party shall pay a fee of five dollars.

Candidates filing for an office to be filled by the voters of

one county shall pay the filing fee to the clerk of the county

commission and candidates filing for an office to be filled by the

voters of more than one county shall pay the filing fee to the

Secretary of State at the time of filing their certificates of

announcement and no certificate of announcement shall be received

until the filing fee is paid.

All moneys received by the clerk from the fees shall be

credited to the general county fund. Moneys received by the

Secretary of State from fees paid by candidates for offices to be

filled by all the voters of the state shall be deposited in a

special fund for that purpose and shall be apportioned and paid by

him or her to the several counties on the basis of population and

that received from candidates from a district or judicial circuit

of more than one county shall be apportioned to the counties

comprising the district or judicial circuit in like manner. When

such moneys are received by sheriffs, it shall be credited to the

general county fund.







WVC 3 - 5 - 8 A

§3-5-8a. Nominating petitions as alternatives to filing fees; oath

of impecuniosity required; petition in lieu of payment

of filing fee.

A candidate seeking nomination to any office who is unable to

pay the filing fee may qualify through the following petition

process in lieu of payment of the filing fee.

The candidate shall file an oath with the appropriate office

required under section eight of this article stating that he or she

is unable to pay the filing fee due to a lack of financial

resources. Such oath shall be filed not earlier than the second

Monday in January next preceding the primary election day.

Upon receipt of the written oath the receiving officer shall

provide the candidate with in-lieu-of-filing-fee petition forms and

instructions on gathering the required signatures. The number of

required signatures shall be four qualified voters for each whole

dollar of the filing fee: Provided, That the filing fee shall be

waived, in whole and not in part. Only signatures of voters

registered in the county, district or other political division

represented by the office sought may be solicited. Solicitors of

signatures shall also be residents of the county, district or other

geographical entity represented by the office sought: Provided,

however, That for offices to be filled by the voters of more than

one county, separate petition forms shall be used for the

signatures of qualified voters from each county.

No qualified voter forfeits his or her opportunity to vote in the primary election by signing an in-lieu-of-filing-fee petition.

The candidate may submit a greater number of signatures to

allow for subsequent losses due to invalidity of some signatures.

The clerk of the county commission may not be required to determine

the validity of a greater number of signatures than that required

by this section.

Signatures obtained on an in-lieu-of-filing-fee petition shall

not be counted toward the number of voters required to sign a

nomination certificate in accordance with section twenty-three of

this article.

The candidate shall file all in-lieu-of-filing-fee petitions

with the required number of valid signatures with the clerk of the

county commission or Secretary of State, as the case may be, not

later than the last date required by law for filing declarations of

candidacies and payment of the filing fee.

The oath and forms required by this section shall be

prescribed by the Secretary of State.







WVC 3 - 5 - 9

§3-5-9. Certification and posting of candidacies.

By the eighty-fourth day next preceding the day fixed for the

primary election, the Secretary of State shall arrange the names of

all candidates, who have filed announcements with him or her, as

provided in this article, and who are entitled to have their names

printed on any political party ballot, in accordance with the

provisions of this chapter, and shall forthwith certify the same

under his or her name and the lesser seal of the state, and file

the same in his or her office.

The certificate of candidates shall show: (1) The name and

residence of each candidate; (2) the office for which he or she is

a candidate; (3) the name of the political party of which he or she

is a candidate; (4) upon what ballot his or her name is to be

printed; and (5) in the case of a candidate for delegate to the

national convention of any political party, the name of the person

the candidate prefers as the presidential nominee of his or her

party, or if he or she has no preference, the word "uncommitted".

The Secretary of State shall post a duplicate of the

certificate in a conspicuous place in his or her office and keep

same posted until after the primary election.

Immediately upon completion of such certification, the

Secretary of State shall ascertain therefrom the candidates whose

names are to appear on the primary election ballots in the several

counties of the state and shall certify to the clerk of the county

commission in each county the certificate information relating to each of the candidates whose names are to appear on the ballot in

that county. He or she shall transmit the certificate to the

several clerks by registered or certified mail, but, in emergency

cases, he may resort to other reliable and speedy means of

transmission which may be available so that such certificates shall

reach the several clerks by the seventieth day next preceding such

primary election day.

The provisions of this section shall apply to the primary

election held in the year one thousand nine hundred eighty-six and

every primary election held thereafter.







WVC 3 - 5 - 10

§3-5-10. Publication of sample ballots and lists of candidates.

(a) The ballot commissioners of each county shall prepare a

sample official primary ballot for each party and, as the case may

be, for the nonpartisan candidates to be voted for at the primary

election, according to the provisions of this article and articles

four and four-a of this chapter, as appropriate to the voting

system. If any ballot issue is to be voted on in the primary

election, the ballot commissioners shall likewise prepare a sample

official ballot for that issue according to the provisions of law

authorizing the election.

(b) The facsimile sample ballot for each political party and

for nonpartisan candidates or ballot issues shall be published as

follows:

(1) For counties in which two or more qualified newspapers

publish a daily newspaper, not more than twenty-six nor less than

twenty days preceding the primary election, the ballot

commissioners shall publish each sample official primary election

ballot as a Class I-0 legal advertisement in the two qualified

daily newspapers of different political parties within the county

having the largest circulation in compliance with the provisions of

article three, chapter fifty-nine of this code;

(2) For counties having no more than one daily newspaper, or

having only one or more qualified newspapers which publish weekly,

not more than twenty-six nor less than twenty days preceding the

primary election, the ballot commissioners shall publish the sample official primary election ballot as a Class I legal advertisement

in the qualified newspaper within the county having the largest

circulation in compliance with the provisions of article three,

chapter fifty-nine of this code; and

(3) Each facsimile sample ballot shall be a photographic

reproduction of the official sample ballot or ballot pages and

shall be printed in a size no less than sixty-five percent of the

actual size of the ballot, at the discretion of the ballot

commissioners: Provided, That when the ballots for the precincts

within the county contain different senatorial, delegate,

magisterial or executive committee districts or when the ballots

for precincts within a city contain different municipal wards, the

facsimile shall be altered to include each of the various districts

in the appropriate order. If, in order to accommodate the size of

each ballot, the ballot or ballot pages must be divided onto more

than one page, the arrangement and order shall be made to conform

as nearly as possible to the arrangement of the ballot. The

publisher of the newspaper shall submit a proof of the ballot and

the arrangement to the ballot commissioners for approval prior to

publication.

(c) The ballot commissioners of each county shall prepare, in

the form and manner prescribed by the Secretary of State, an

official list of offices and candidates for each office which will

appear on the primary election ballot for each party and, as the

case may be, for the nonpartisan candidates to be voted for at the primary election. All information which appears on the ballot,

including instructions as to the number of candidates for whom

votes may be cast for the office, any additional language which

will appear on the ballot below the name of the office, any

identifying information relating to the candidates, such as his or

her residence and magisterial district or presidential preference,

shall be included in the list in the same order in which it appears

on the ballot. Following the names of all candidates, the list

shall include the full title, text and voting positions of any

issue to appear on the ballot.

(d) The official list of candidates and issues as provided in

subsection (c) of this section shall be published as follows:

(1) For counties in which two or more qualified newspapers

publish a daily newspaper, on the last day on which a newspaper is

published immediately preceding the primary election, the ballot

commissioners shall publish the official list of candidates and

issues as a Class I-0 legal advertisement in the two qualified

daily newspapers of different political parties within the county

having the largest circulation in compliance with the provisions of

article three, chapter fifty-nine of this code;

(2) For counties having no more than one daily newspaper, or

having only one or more qualified newspapers which publish weekly,

on the last day on which a newspaper is published immediately

preceding the primary election, the ballot commissioners shall

publish the sample official list of nominees and issues as a Class I legal advertisement in the qualified newspaper within the county

having the largest circulation in compliance with the provisions of

article three, chapter fifty-nine of this code;

(3) The publication of the official list of candidates for

each party and for nonpartisan candidates shall be in single or

double columns, as required to accommodate the type size

requirements as follows: (A) The words "official list of

candidates", the name of the county, the words "primary election",

the date of the election, the name of the political party or the

designation of nonpartisan candidates shall be printed in all

capital letters and in bold type no smaller than fourteen point.

The designation of the national, state, district or other tickets

shall be printed in all capital letters in type no smaller than

fourteen point; (B) the title of the office shall be printed in

bold type no smaller than twelve point and any voting instructions

or other language printed below the title shall be printed in bold

type no smaller than ten point; and (C) the names of the candidates

shall be printed in all capital letters in bold type no smaller

than ten point and the residence information shall be printed in

type no smaller than ten point; and

(4) When any ballot issue is to appear on the ballot, the

title of that ballot shall be printed in all capital letters in

bold type no smaller than fourteen point. The text of the ballot

issue shall appear in no smaller than eight point type. The ballot

commissioners may require the publication of the ballot issue under this subsection in the facsimile sample ballot format in lieu of

the alternate format.

(e) Notwithstanding the provisions of subsections (c) and (d)

of this section, beginning with the primary election to be held in

the year two thousand, the ballot commissioners of any county may

choose to publish a facsimile sample ballot for each political

party and for nonpartisan candidates or ballot issues instead of

the official list of offices and candidates for each office for

purposes of the last publication required before any primary

election.







WVC 3 - 5 - 11

§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

with the same officer with whom the certificate of announcement was

filed. If the statement of withdrawal is received not later than

the third Tuesday following the close of candidate filing, the name

of a candidate who files that statement of withdrawal may not be

printed on the ballot. No candidate who files a statement of

withdrawal after that time may have his or her name removed from

the ballot.

(b) 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."

(c) 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. Certification

of the appointment by the executive committee or its chair, 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 following the close of filing, for an appointment by its

chair, no later than the third Tuesday following the close of

filing. 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.







WVC 3 - 5 - 12

§3-5-12. Official and sample ballots; color.

There shall be a separate ballot printed on different colored

paper for each political party participating in the primary

election and the ballot of no two parties may be of the same color

or tint. The Secretary of State shall select and determine the

color of the paper of the ballot of each of the parties, and shall

notify the clerk of the county commission of each county thereof,

at the time he or she certifies the names of the candidates of the

various parties to the clerk, as herein provided.

A different color of paper shall be selected and designated by

the Secretary of State for each party. The sample ballots of each

party shall be of a different color than the official ballot and of

a different color from one another. There shall be printed across

the face of such sample ballot in large letters the words "sample

ballot". No sample ballot shall be voted or counted in any

election.







WVC 3 - 5 - 13

§3-5-13. Form and contents of ballots.

     The following provisions apply to the form and contents of

election ballots:

     (1) The face of every primary election ballot shall conform as

nearly as practicable to that used at the general election.

     (2) The heading of every ballot is to be printed in display

type. The heading is to contain a ballot title, the name of the

county, the state, the words "Primary Election" and the month, day

and year of the election. The ballot title of the political party

ballots is to contain the words "Official Ballot of the (Name)

Party" and the official symbol of the political party may be

included in the heading.

     (A) The ballot title of any separate paper ballot or portion

of any electronic or voting machine ballot for all judicial officer

shall commence with the words "Nonpartisan Ballot of Election of

Judicial Officers" and each such office shall be listed in the

following order:

     (i) The ballot title of any separate paper ballot or portion

of any electronic or voting machine ballot for all justices of the

Supreme Court of Appeals shall contain the words "Nonpartisan

Ballot of Election of Justice(s) of the Supreme Court of Appeals of

West Virginia". The names of the candidates for the Supreme Court

of Appeals shall be printed by division without references to

political party affiliation or registration.

     (ii) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all circuit court

judges in the respective circuits shall contain the words

"Nonpartisan Ballot of Election of Circuit Court Judge(s)". The

names of the candidates for the respective circuit court judge

office shall be printed by division without references to political

party affiliation or registration.

     (iii) The ballot title of any separate paper ballot or portion

of any electronic or voting machine ballot for all family court

judges in the respective circuits shall contain the words

"Nonpartisan Ballot of Election of Family Court Judge(s)". The

names of the candidates for the respective family court judge

office shall be printed by division without references to political

party affiliation or registration.

     (iv) The ballot title of any separate paper ballot or portion

of any electronic or voting machine ballot for all magistrates in

the respective circuits shall contain the words "Nonpartisan Ballot

of Election of Magistrate(s)". The names of the candidates for the

respective magistrate office shall be printed by division without

references to political party affiliation or registration.  

     (B) The ballot title of any separate paper ballot or portion

of any electronic or voting machine ballot for the Board of

Education is to contain the words "Nonpartisan Ballot of Election

of Members of the ______________ County Board of Education". The

districts for which less than two candidates may be elected and the

number of available seats are to be specified and the names of the candidates are to be printed without reference to political party

affiliation and without designation as to a particular term of

office.   

     (C) Any other ballot or portion of a ballot on a question is

to have a heading which clearly states the purpose of the election

according to the statutory requirements for that question.

     (3) (A) For paper ballots, the heading of the ballot is to be

separated from the rest of the ballot by heavy lines and the

offices shall be arranged in columns with the following headings,

from left to right across the ballot: "National Ticket", "State

Ticket", "County Ticket" and, in a presidential election year,

"National Convention" or, in a nonpresidential election year,

"District Ticket". The columns are to be separated by heavy lines.

Within the columns, the offices are to be arranged in the order

prescribed in section thirteen-a of this article.

     (B) For voting machines, electronic voting devices and any

ballot tabulated by electronic means, the offices are to appear in

the same sequence as prescribed in section thirteen-a of this

article and under the same headings as prescribed in paragraph (A)

of this subdivision. The number of pages, columns or rows, where

applicable, may be modified to meet the limitations of ballot size

and composition requirements subject to approval by the Secretary

of State.

     (C) The title of each office is to be separated from preceding

offices or candidates by a line and is to be printed in bold type no smaller than eight point. Below the office is to be printed the

number of the district, if any, the number of the division, if any,

and the words "Vote for ________" with the number to be nominated

or elected or "Vote For Not More Than ________" in multicandidate

elections. For offices in which there are limitations relating to

the number of candidates which may be nominated, elected or

appointed to or hold office at one time from a political

subdivision within the district or county in which they are

elected, there is to be a clear explanation of the limitation, as

prescribed by the Secretary of State, printed in bold type

immediately preceding the names of the candidates for those offices

on the ballot in every voting system. For counties in which the

number of county commissioners exceeds three and the total number

of members of the county commission is equal to the number of

magisterial districts within the county, the office of county

commission is to be listed separately for each district to be

filled with the name of the magisterial district and the words

"Vote for One" printed below the name of the office: Provided,

That the office title and applicable instructions may span the

width of the ballot so as it is centered among the respective

columns.

     (D) The location for indicating the voter's choices on the

ballot is to be clearly shown. For paper ballots, other than those

tabulated electronically, the official primary ballot is to contain

a square formed in dark lines at the left of each name on the ballot, arranged in a perpendicular column of squares before each

column of names.

     (4) (A) The name of every candidate certified by the Secretary

of State or the board of ballot commissioners is to be printed in

capital letters in no smaller than eight point type on the ballot

for the appropriate precincts. Subject to the rules promulgated by

the Secretary of State, the name of each candidate is to appear in

the form set out by the candidate on the certificate of

announcement, but in no case may the name misrepresent the identity

of the candidate nor may the name include any title, position,

rank, degree or nickname implying or inferring any status as a

member of a class or group or affiliation with any system of

belief.

     (B) The city of residence of every candidate, the state of

residence of every candidate residing outside the state, the county

of residence of every candidate for an office on the ballot in more

than one county and the magisterial district of residence of every

candidate for an office subject to magisterial district limitations

are to be printed in lower case letters beneath the names of the

candidates.

     (C) The arrangement of names within each office must be

determined as prescribed in section thirteen-a of this article.

     (D) If the number of candidates for an office exceeds the

space available on a column or ballot page and requires that

candidates for a single office be separated, to the extent possible, the number of candidates for the office on separate

columns or pages are to be nearly equal and clear instructions

given the voter that the candidates for the office are continued on

the following column or page.

     (5) When an insufficient number of candidates has filed for a

party to make the number of nominations allowed for the office or

for the voters to elect sufficient members to the Board of

Education or to executive committees, the vacant positions on the

ballot shall be filled with the words "No Candidate Filed":

Provided, That in paper ballot systems which allow for write-ins to

be made directly on the ballot, a blank line shall be placed in any

vacant position in the office of Board of Education or for election

to any party executive committee. A line shall separate each

candidate from every other candidate for the same office.

Notwithstanding any other provision of this code, if there are

multiple vacant positions on a ballot for one office, the multiple

vacant positions which would otherwise be filled with the words "No

Candidate Filed" may be replaced with a brief detailed description,

approved by the Secretary of State, indicating that there are no

candidates listed for the vacant positions.

     (6) In presidential election years, the words "For election in

accordance with the plan adopted by the party and filed with the

Secretary of State" is to be printed following the names of all

candidates for delegate to national convention.

     (7) All paper ballots are to be printed in black ink on paper sufficiently thick so that the printing or marking cannot be

discernible from the back: Provided, That no paper ballot voted

pursuant to the provisions of 42 U. S. C. §1973, et seq., the

Uniformed and Overseas Citizens Absentee Voting Act of 1986, or

federal write-in absentee ballot may be rejected due to paper type,

envelope type, or notarization requirement. Ballot cards and paper

for printing ballots using electronically sensible ink are to meet

minimum requirements of the tabulating systems and are to conform

in size and weight to ensure ease in tabulation.

     (8) Ballots are to contain perforated tabs at the top of the

ballots and are to be printed with unique sequential numbers from

one to the highest number representing the total number of ballots

printed. On paper ballots, the ballot is to be bordered by a solid

line at least one sixteenth of an inch wide and the ballot is to be

trimmed to within one-half inch of that border.

     (9) On the back of every official ballot or ballot card the

words "Official Ballot" with the name of the county and the date of

the election are to be printed. Beneath the date of the election

there are to be two blank lines followed by the words "Poll

Clerks".

     (10) The face of sample paper ballots and sample ballot labels

are to be like other official ballots or ballot labels except that

the word "sample" is to be prominently printed across the front of

the ballot in a manner that ensures the names of candidates are not

obscured and the word "sample" may be printed in red ink. No printing may be placed on the back of the sample.







WVC 3 - 5 - 13 A



§3-5-13a. Order of offices and candidates on the ballot; uniform

drawing date.

     (a) The order of offices for state and county elections on all

ballots within the state shall be as prescribed herein. When the

office does not appear on the ballot in an election, then it shall

be omitted from the sequence. When an unexpired term for an office

appears on the ballot along with a full term, the unexpired term

shall appear immediately below the full term.

     NATIONAL TICKET: President (and Vice President in the general

election), United States Senator, member of the United States House

of Representatives

     STATE TICKET: Governor, Secretary of State, Auditor,

Treasurer, Commissioner of Agriculture, Attorney General, State

Senator, member of the House of Delegates, any other multicounty

office, state executive committee.

     COUNTY TICKET: Clerk of the circuit court, county

commissioner, clerk of the county commission, prosecuting attorney,

sheriff, assessor, surveyor, congressional district executive

committee, senatorial district executive committee in multicounty

districts, delegate district executive committee in multicounty

districts.

     NATIONAL CONVENTION: Delegate to the national convention --

at-large, delegate to the national convention -- congressional

district

     DISTRICT TICKET: County executive committee.

     (b) Except for office divisions in which no more than one

person has filed a certificate of announcement, the arrangement of

names for all offices shall be determined by lot according to the

following provisions:

     (1) On the fourth Tuesday following the close of the candidate

filing, beginning at nine o'clock a. m., a drawing by lot shall be

conducted in the office of the clerk of the county commission in

each county. Notice of the drawing shall be given on the form for

the certificate of announcement and no further notice shall be

required. The clerk of the county commission shall superintend and

conduct the drawing and the method of conducting the drawing shall

be prescribed by the Secretary of State.

     (2) Except as provided herein, the position of each candidate

within each office division shall be determined by the position

drawn for that candidate individually: Provided, That if fewer

candidates file for an office division than the total number to be

nominated or elected, the vacant positions shall appear following

the names of all candidates for the office.

     (3) Candidates for delegate to national convention who have

filed a commitment to a candidate for president shall be listed

alphabetically within the group of candidates committed to the same

candidate for president and uncommitted candidates shall be listed

alphabetically in an uncommitted category. The position of each

group of committed candidates and uncommitted candidates shall be

determined by lot by drawing the names of the presidential candidates and for an uncommitted category.



     (4)



A candidate or the candidate's representative may attend

the drawings.







WVC 3-5-14

§3-5-14. General provisions applicable to primary elections.

Provisions of article one of this chapter relating to ballot

commissioners, election commissioners and clerks, procedures for

obtaining election supplies and conducting elections, loss and

replacement of election supplies, challenge of voters, leaves of

absence for voting, election expenses and recount procedures shall

control and govern primary elections wherever applicable.

In all other particulars, when no specific provision is made

in this article for the control, conduct and government of any

phase of primary elections, resort shall be had to other provisions

of this chapter which may be applicable thereto and controlling

thereof.







WVC 3 - 5 - 15

§3-5-15. Ascertaining and certifying primary election results.

When the polls are closed in an election precinct where only

a single election board has served, the receiving board shall

perform all of the duties prescribed in this section. When the

polls are closed in an election precinct where two election boards

have served, both the receiving and counting boards shall together

conclude the counting of the votes cast, the tabulating and

summarizing of the number of the votes cast, unite in certifying

and attesting to the returns of the election and join in making out

the certificates of the result of the election provided in this

article. They shall not adjourn until the work is completed.

In all election precincts, as soon as the polls are closed and

the last voter has voted, the receiving board shall first process

the absentee ballots according to the provisions of section eight,

article three of this chapter. After the absentee ballots to be

counted have been deposited in the ballot box, the election

officers shall proceed to ascertain the result of the election in

the following manner:

(a) The receiving board shall ascertain from the poll books

and record separately on the proper form the total number of voters

of each party and nonpartisan voters who have voted.

(1) The number of provisional ballots of each party shall be

counted and subtracted from the number of voters of the same party,

which result should equal the number of ballots of that party

deposited in the ballot box.

(2) The total of all voters, including both partisan and

nonpartisan voters, minus the total of all provisional ballots,

should equal the number of nonpartisan ballots deposited in the

ballot box.

(3) The commissioners and clerks shall also report, over their

signatures, the number of each type of ballots spoiled and the

number of each type of ballots not voted.

(b) The procedure for counting ballots, whether performed

throughout the day by the counting board, as provided in section

thirty-three, article one of this chapter, or after the close of

the polls by the receiving board or by the two boards together,

shall be as follows:

(1) The ballot box shall be opened and all votes shall be

tallied in the presence of the entire election board;

(2) One of the commissioners shall take one ballot from the

box at a time and shall determine if the ballot is properly signed

by the two poll clerks of the receiving board. If not properly

signed, the ballot shall be placed in an envelope for the purpose

without unfolding it. If properly signed, the commissioner shall

announce which type of ballot it is and hand the ballot to a team

of commissioners of opposite politics, who shall together read the

votes marked on the ballot for each office. Write-in votes for

nomination for any office and write-in votes for election for any

person other than an official write-in candidate shall be

disregarded;

(3) The commissioner responsible for removing the ballots from

the box shall keep a tally of the number of ballots of each party

and any nonpartisan ballot as they are removed and whenever the

number of ballots of a particular party shall equal the number of

voters entered on the poll book for that party minus the number of

provisional ballots of that party, as determined according to

subsection (a) of this section, any other ballot found in the

ballot box shall be placed in the same envelope with unsigned

ballots not counted, without unfolding the same, or allowing anyone

to examine or know the contents thereof, and the number of excess

ballots of each party shall be recorded on the envelope;

(4) Each poll clerk shall keep an accurate tally of the votes

cast by marking in ink on tally sheets, which shall be provided for

the purpose so as to show the number of votes received by each

candidate for each office;

(5) When the votes have been read from a ballot, the ballot

shall be immediately strung on a thread, with separate threads for

each party's ballots and for nonpartisan ballots.

(c) As soon as the results at the precinct are ascertained,

the commissioners and clerks shall make out and sign three

certificates of result, for each party represented, of the vote for

all candidates of each party represented, on a form prescribed by

the Secretary of State, giving the complete returns of the election

at the polling place, which form shall include the following oath:

We, the undersigned commissioners and poll clerks of the primary election held at precinct No. .......... of ..........

district of .......... County, W.Va., on the .......... day of

.........., 20..., do hereby certify that having been first duly

sworn, we have carefully and impartially ascertained the result of

said election at said precinct for the candidates on the official

ballot of the .......... party, and the same is as follows:

The election officers shall enter the name of each office and

the full name of each candidate on the ballot and the number of

votes, in words and numbers, received by each. The election

officers shall also enter the full name of every official write-in

candidate for election to offices to be filled in the primary,

except delegate to national convention, and the number of votes for

each. Two of the certificates of result of election, for each

party, shall be sealed in separately addressed envelopes, furnished

for that purpose, and shall be disposed of by the precinct

commissioners as follows: Two of the sealed envelopes containing

the returns of each party shall be delivered to the clerk of the

county commission who shall, within forty-eight hours, mail one of

the sealed returns for each precinct by certified mail to the

Secretary of State. The one unsealed certificate shall be posted

on the outside of the front door of the polling place.

(d) All ballots voted for candidates of each party shall be

sealed in separate envelopes and the commissioners and clerks shall

each sign across the seal.







WVC 3 - 5 - 16

§3-5-16. Return of supplies and certificates.

Immediately after completion of the count, tabulation and the

posting of the certificate of result of the primary election in

each precinct, one of the commissioners or poll clerks of each

party at the precinct, designated for that purpose, shall return to

the clerk of the county commission the ballot boxes, registration

books and the several packages of ballots, poll books, tally

sheets, certificates and all other election supplies and returns.







WVC 3 - 5 - 17

§3-5-17. Canvassing and certifying returns; recount procedures.

     The commissioners of the county commission, sitting as a board

of canvassers, shall convene at the courthouse of the county on the

fifth day following any primary election, which is not a Saturday,

Sunday or legal holiday, and shall proceed to canvass the returns

of the election. The procedures prescribed in section nine,

article six, of this chapter relating to canvass of general

election returns, shall, where adaptable, be applied in the canvass

of the primary election returns. The board shall proceed to

ascertain the result of the election in the county and district and

election precincts and cause to be prepared and recorded in the

primary election precinct record book a table or tables which show,

as to each candidate of each political party for each office, the

number of votes cast for him or her at each precinct and the total

number cast in the entire county. The board shall then make up and

enter in said record book a certificate for each political party

showing, as to each candidate for each political party for each

office, the total number of votes, in words and figures, cast for

him or her in the entire county and the number of votes received by

all the candidates of such party in such district in the following

form:

     The board of canvassers of the county of ................ of

West Virginia, having carefully and impartially examined the

returns of the primary election held in said county on the .......

day of ..........., 19...., do hereby certify that in said county or district, at said election, on the official ballot of the

.................. party for the office of ..............., A. B.

received ............ (......) votes; C. D. received ..............

(......) votes.

     And so on for each office for each political party according

to the truth. When the certificates are all entered, the report

shall be signed by the members of the board or by a majority of

the board. Such members shall also sign separate certificates of

the result of the election, within the county, for each of the

offices to be filled by each political party

as provided by the following section.

     The provisions of article six of this chapter, relating to the

recount of votes in general elections, shall, to the extent

applicable, be operative in primary and other elections conducted

under provisions of this article.







WVC 3 - 5 - 18

§3-5-18. Disposition of certificates of results.

The certificates of the board of canvassers made pursuant to

the preceding section shall be by them disposed of as follows: One

of the certificates showing the votes received by each candidate of

each party for each office to be filled by the voters of a

political division greater than a county, including members of the

State Executive Committee, shall be filed with the Secretary of

State, and preserved in his or her office, and a copy thereof filed

in the office of the clerk of the county commission of the county

of such board, to be preserved by the clerk, and which shall be

open to public inspection; one certificate showing the votes

received by each candidate of each party for each office to be

filled by the voters of the county or magisterial district within

such county, including members of the county executive committee,

shall be filed with the clerk of the county commission, and

preserved in his or her office. If requested, the board of

canvassers shall furnish to the county chairman of each political

party a certificate showing the number of votes received by each of

the candidates of such party in the county or any magisterial

district therein.

The Secretary of State shall certify, under the seal of the

state, to the clerk of the county commission of each county in

which a candidate is to be voted for, the name of the candidate of

each political party receiving the highest number of votes in the

political division in which he or she is a candidate, and who is entitled to have his or her name placed on the official ballot in

the general election as the nominee of the party for such office.

The Secretary of State shall also certify in the same manner the

names of all candidates nominated by political parties or by groups

of citizens, not constituting a political party, in any manner

provided for making such nominations in this chapter.







WVC 3 - 5 - 19

§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,

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

section nine, article one of this chapter 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.

(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 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 eight-a of this article. The proper filing

officer is the officer with whom the original certificate of

nomination is regularly filed for that office.

(3) If a vacancy in nomination is 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, a nominee may be appointed by the executive committee and

certified to the proper filing officer no later than thirty days

after the last day to file a certificate of announcement pursuant

to section seven of this article.

(4) If a vacancy in nomination is caused by the

disqualification of a candidate and the vacancy occurs not later

than eighty-four days before the general election, a nominee may be

appointed by the executive committee and certified to the proper

filing officer not later than seventy-eight days before the general

election. A candidate may be determined ineligible if a written

request is made by an individual with information to show a

candidate's ineligibility to the State Election Commission no later

than eighty-four days before the general election explaining

grounds why a candidate is not eligible to be placed on the general

election ballot or not eligible to hold the office, if elected.

The State Election Commission shall review the reasons for the

request. If the commission finds the circumstances warrant the

disqualification of the candidate, the commission may authorize

appointment by the executive committee to fill the vacancy. Upon

receipt of the authorization a nominee may be appointed by the

executive committee and certified to the proper filing officer no later than seventy-eight days before the general election.

(5) If a vacancy in nomination is caused by the incapacity of

the candidate and if the vacancy occurs not later than eighty-four

days before the general election, a nominee may be appointed by the

executive committee and certified to the proper filing officer no

later than seventy-eight days before the general election.

(6) If a vacancy in nomination is caused by the withdrawal of

the candidate no later than eighty-four days before the general

election due to extenuating personal circumstances which will

prevent the candidate from serving in the office if elected and if

the candidate or the chairperson of the executive committee for the

political division applies in writing to the State Election

Commission no later than eighty-four days before the general

election for permission to remove the candidate's name from the

general election ballot, the State Election Commission shall review

the reasons for the request. If the commission finds the

circumstances warrant the withdrawal of the candidate, the

commission shall authorize appointment by the executive committee

to fill the vacancy. Upon receipt of the authorization, a nominee

may be appointed by the executive committee and certified to the

proper filing officer no later than seventy-eight days before the

general election.

(7) If a vacancy in nomination is caused by the death of the

candidate occurring no later than twenty-five days before the

general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than

twenty-one days following the date of death or no later than

twenty-two days before the general election, whichever date occurs

first.

(b) Except as otherwise provided in article ten of this

chapter, if any vacancy occurs in a partisan office or position

other than political party executive committee, which creates an

unexpired term for a position which would not otherwise appear on

the ballot in the general election, and the vacancy occurs after

the close of candidate filing for the primary election but not

later than eighty-four days before the general election, a nominee

of each political party may be appointed by the executive committee

and certified to the proper filing officer no later than

seventy-eight days before the general election. Appointments shall

be filed in the same manner as provided in subsection (a) of this

section, except that the filing fee shall be paid before the

appointment is complete.

(c) When a vacancy occurs in the board of education after the

close of candidate filing for the primary election but not later

than eighty-four days before the general election, a special

candidate filing period shall be established. Candidates seeking

election to any unexpired term for board of education shall file a

certificate of announcement and pay the filing fee to the clerk of

the county commission no earlier than the first Monday in August

and no later than seventy-seven days before the general election.







WVC 3-5-20

§3-5-20. Election contests and court review.

Any candidate for nomination for or election to an office to

be filled by the voters of the state or any political subdivision

thereof or any candidate for membership on any political party

executive committee, may contest the primary election before the

county court of the county in which any primary election

procedures, practices or results may be in issue. The procedure in

such case shall be the same as that governing the contest of a

general election by candidates for county offices or offices in

magisterial districts. The decision of the county court upon such

contest may be reviewed by the circuit court of the county and by

the supreme court of appeals of the state. Wherever practicable,

the circuit court, on review, may, by order entered of record,

consolidate and hear together any such primary election cases

arising in one or more counties of the circuit, and the supreme

court of appeals, on further review, may likewise consolidate and

hear together any such cases whenever considered practicable by the

court so to do.

Any action of a political party executive committee in the

discharge of any of the duties imposed upon such committee by this

article, or of any board of election officials in conducting and

ascertaining the result of the primary election, or of any board of

canvassers in canvassing and certifying the result of the primary

election for the county, may be reviewed by the circuit court of

the county, upon the petition of any candidate, political committeeman or delegate voted for at such primary and affected

adversely by the action of such committee, board of election

officials, or board of canvassers. From the judgment of the

circuit court in any such proceeding, an appeal shall lie to the

supreme court of appeals of the state.

Any such contest, or petition for review, of a candidate for

a nomination not finally determined within ten days next preceding

the date of the next election after the primary, or of a candidate

for delegate to any convention within ten days next preceding the

date fixed for holding the convention, shall stand dismissed, and

the person shown by the face of the returns of the primary election

to be nominated for any office shall be entitled to have his name

printed upon the regular ballot to be voted at the election, and

the person shown upon the face of the returns to have been elected

as a delegate to any convention shall be entitled to sit in such

convention as a delegate.







WVC 3 - 5 - 21

§3-5-21. Party conventions to nominate presidential electors;

candidates; organization; duties.

Candidates for presidential electors shall be nominated by the

delegated representatives of the political party assembled in a

state convention to be held during the months of June, July or

August next preceding any general election at which presidential

electors are to be elected. The state executive committee of the

political party, by resolution, shall designate the place and fix

the date of the convention, shall prescribe the number of delegates

thereto, and shall apportion the delegates among the several

counties of the state in proportion to the vote cast in the state

for the party's candidate for governor at the last preceding

general election at which a governor was elected. The state

executive committee shall also ascertain and designate all offices

for which candidates are to be nominated at the convention.

At least sixty days prior to the date fixed for holding any

state convention, the chairman of the party's state executive

committee shall cause to be delivered to the party's county

executive committee in each county of the state a copy of the

resolutions fixing the time and place for holding the state

convention and prescribing the number of delegates from each county

to the convention. Within ten days after receipt of the copy of

the resolutions, the party executive committee of each county shall

meet and, by resolution, shall apportion the delegates to the state

convention among the several magisterial districts of the county, on a basis of the vote received in the county by the candidate of

the party for governor at the last preceding general election at

which a governor was elected, but in such apportionment of county

delegates each magisterial district shall be entitled to at least

one delegate to the state convention. The party's county executive

committee shall call a meeting of the members of the political

party in mass convention in the county, which meeting shall be held

at least thirty days prior to the date fixed for the state

convention and at which meeting the members of the political party

in each magisterial district shall elect the number of delegates to

which the district is entitled in the state convention.

The meeting place in the county shall be as central and

convenient as can reasonably be selected, and all recognized

members of the political party shall be entitled to participate in

any mass convention and in the selection of delegates. Notice of

the time and place of holding the county mass convention and of the

person who shall act as temporary chairman thereof shall be given

by publication as a Class II-O legal advertisement in compliance

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

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

county. The first publication shall be made not more than fifteen

days and the second publication shall be made not less than five

days prior to the date fixed for holding the convention. The

notice published shall specify the number of delegates which each

magisterial district in the county is entitled to elect to the state convention.

Upon assembling, the mass convention of the county, shall

choose a chairman and a secretary, who, within five days after the

holding of the convention, shall certify to the chairman of the

state executive committee of the political party and the chairman

of the county committee of the political party, the names and

addresses of the parties selected as delegates to the state

convention.

If, after the election, a vacancy exists for a delegate from

any magisterial district, the party's county executive committee,

within ten days after the mass convention, shall appoint a member

of the political party in the magisterial district to fill the

vacancy, and shall certify the appointment to the chairman of the

state executive committee of the political party.

All contests over the selection of delegates to conventions

shall be heard and determined by the party executive committee of

the county from which the delegates are chosen, and the county

executive committee shall, upon written petition of any contest,

meet for a hearing and make a determination within ten days after

the holding of a county mass convention. The circuit court of the

county and the supreme court of appeals of the state shall have

concurrent original jurisdiction to review, by mandamus or other

proper proceeding, the decision of a county executive committee in

any contest.

The delegates chosen and certified by and from the several magisterial districts in the state and, in the event of any

contest, those prevailing in the contest, shall make up the state

convention. The number present of those entitled to participate in

any convention shall cast the entire vote to which the county is

entitled in the convention, and it shall require a majority vote to

nominate any candidate for office.

All nominations made at state conventions shall be certified

within fifteen days thereafter, by the chairman and the secretary

of the convention, to the secretary of state, who shall certify

them to the clerk of the circuit court of each county concerned,

and the names of the persons so nominated shall be printed upon the

regular ballot to be voted at the ensuing general election, except

that the names of the presidential elector candidates shall not be

printed thereon.

The delegates to any state convention may formulate and

promulgate the party platform or declaration of party principles as

to them shall seem advisable.







WVC 3-5-22

§3-5-22. Other party and group nominations; procedure.

Any political party which polled less than ten percent of the

total vote cast only for governor at the general election

immediately preceding may nominate candidates and select committees

by party conventions, provided such nominations are made and the

certificates thereof filed within the time and in the manner

provided in section twenty-four of this article, or by certificate

in the same manner as groups of citizens may make nominations as

provided in the following section.

No delegate or person participating in the selection of

delegates under this section shall vote in any primary election

held in that year.







WVC 3 - 5 - 23

§3-5-23. Certificate nominations; requirements and control;

penalties.

(a) 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 certificate in accordance with

the provisions of this section and the provisions of section

twenty-four of this article.

(b) The person or persons soliciting or canvassing signatures

of duly qualified voters on the certificate or certificates, may

solicit or canvass duly registered voters residing within the

county, district or other political division represented by the

office sought, but must first obtain from the clerk of the county

commission credentials which must be exhibited to each voter

canvassed or solicited, which credentials may be in the following

form or effect:

State of West Virginia, County of ..................., ss:

This certifies that the holder of this credential is hereby

authorized to solicit and canvass duly registered voters residing

in .................... (here place the county, district or other

political division represented by the office sought) to sign a

certificate purporting to nominate ............................

(here place name of candidate heading list on certificate) for the

office of ............................. and others, at the general election to be held on ........................., 20......

Given under my hand and the seal of my office this

................. day of ........................, 20......

.................................................

Clerk, county commission of ................... County.

The clerk of each county commission, upon proper application

made as herein provided, shall issue such credentials and shall

keep a record thereof.

(c) The certificate shall be personally signed by duly

registered voters, in their own proper handwriting or by their

marks duly witnessed, who must be residents within the county,

district or other political division represented by the office

sought wherein the canvass or solicitation is made by the person or

persons duly authorized. The signatures need not all be on one

certificate. The 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,

but in no event shall the number be less than twenty-five. The

number of signatures shall be equal to not less than one percent of

the entire vote cast at the last preceding general election for any

statewide, congressional or presidential candidate, but in no event

shall the number be less than twenty-five. Where two or more

nominations may be made for the same office, the total of the votes

cast at the last preceding general election for the candidates receiving the highest number of votes on each ticket for the office

shall constitute the entire vote. A signature on a certificate may

not be counted unless it be that of a duly registered voter of the

county, district or other political division represented by the

office sought wherein the certificate was presented.

(d) The certificates shall state the name and residence of

each of the candidates; that he or she is legally qualified to hold

the office; that the subscribers are legally qualified and duly

registered as voters and desire to have the candidates placed on

the ballot; and may designate, by not more than five words, a brief

name of the party which the candidates represent and may adopt a

device or emblem to be printed on the official ballot. All

candidates nominated by the signing of the certificates shall have

their names placed on the official ballot as candidates, as if

otherwise nominated under the provisions of this chapter.

The Secretary of State shall prescribe the form and content of

the nomination certificates to be used for soliciting signatures.

Offices to be filled by the voters of more than one county

shall use separate petition forms for the signatures of qualified

voters for each county.

Notwithstanding any other provision of this code to the

contrary, a duly registered voter may sign the certificate provided

in this section and may vote for candidates of his or her choosing

in the corresponding primary election.

(e) The Secretary of State, or the clerk of the county commission, as the case may be, may investigate the validity of the

certificates and the signatures thereon. If, upon investigation,

there is doubt as to the legitimacy and the validity of

certificate, the Secretary of State may ask the Attorney General of

the state, or the clerk of the county commission may ask the

prosecuting attorney of the county, to institute a quo warranto

proceeding against the nominee by certificate to determine his or

her right to the nomination to public office and upon request being

made, the Attorney General or prosecuting attorney shall institute

the quo warranto proceeding. The clerk of the county commission

shall, at the request of the Secretary of State or the clerk of the

circuit court, compare the information from any certificate to the

county voter registration records in order to assist in determining

the validity of any certificates.

(f) In addition to penalties prescribed elsewhere for

violation of this chapter, any person violating the provisions of

this section is guilty of a misdemeanor and, upon conviction, shall

be fined not more than $1,000, or confined in jail not more than

one year, or both fined and imprisoned: Provided, That a criminal

penalty may not be imposed upon anyone who signs a nomination

certificate and votes in the primary election held after the date

the certificate was signed.







WVC 3 - 5 - 24

§3-5-24. Filing of nomination certificates; time; location; fees;

effect of failure to timely file or pay fee.

     (a) All certificates nominating candidates for office under

section twenty-three of this article shall be filed not later than

August 1 preceding the November general election: Provided, That

for municipal or other elections not held in conjunction with

regular state and county general elections, certificates shall be

filed not later than ninety days before the date of the election,

unless otherwise provided by charter, ordinance or code.

     (b) The nomination certificate required by this section and

section twenty-three of this article shall be filed:

     (1) In the case of a candidate to be voted for by the voters

of the entire state or by any subdivision of the state other than

a single county, with the Secretary of State;

     (2) In the case of all candidates for county and magisterial

district offices, including all offices to be filled by the voters

of a single county, with the clerk of the county commission; and

     (3) In the case of candidates for election in a municipality,

with the recorder or other official designated by charter or

ordinance to perform election responsibilities.

     (c) Each candidate shall pay the filing fee required by

section eight of this article, at the time of the filing of the

nomination certificate.

     (d) If any nomination certificate is not timely filed or if the filing fee is not timely paid, the certificate may not be

received by the Secretary of State, the clerk of the county

commission or the recorder or other official designated by charter

or ordinance to perform municipal election responsibilities, as the

case may be.

     (e) This section is inapplicable to nonpartisan elections.





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.