DO NOT REMOVE fll£ COPY FROM HLE IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 18-0712 ��fo��2 2o:·�l STATE OF WEST VIRGINIA, ex rel. ,,I EDYTHE NASH G.I\ISER, CLERK SUPRErt.E COURT OF APPEALs DONALD L. BLANKENSHIP, OF WESTVIRGINIA l!:!Jf •. �, . CANDIDATE FOR U.S. SENATE IN WEST VIRGINIA,and CONSTITUTION PARTY OF WESTVIRGINIA,
Petitioners, v.
MAC WARNER, IN HIS OFFICIAL CAPA CITY AS WEST VIRGINIA SECRETARY OF STATE
Respondent.
RESPONSE TO PETITION FOR WRIT OF MANDAMUS ON BEHALF OF MOVANT-INTERVENOR THE WEST VIRGINIA REPUBLICAN PARTY, INC.
Elbert Lin (WVSB #12171) J. Mark Adkins (WVSB #7414) Hunton Andrews Kurth LLP Richard R. Heath, Jr. (WVSB #9067) Riverfront Plaza, East Tower Bowles Rice LLP 951 East Byrd Street 600 Quarrier Street (2530 1) Richmond, Virginia 23219 Post OfficeBox 1386 Telephone: (804) 788-7202 Charleston, West Virginia 25325-1386 Facsimile: (804) 788-8218 Telephone: (304) 347-1100 Email: [email protected] Facsimile: (304) 347-1756 Email: [email protected] [email protected] TABLE OF CONTENTS
QUESTIONS PRESENTED ...... 1
INTRODUCTION ...... 1
STATEMENT OF THE CASE ...... 3
I. West Virginia's Two Paths To The Ballot...... 3
II. WestVirginia's Sore-Loser Laws ...... 4
III. The Secretary of State's Rejection of Mr. Blankenship's Application...... 5
SUMMARY OF ARGUMENT ...... 5
STATEMENT REGARDING ORAL ARGUMENT ...... 8
ARGUMENT ...... 8
I. WestVirginia's Sore-Loser Laws Are Constitutional...... 9
A. West Virginia's sore-loser laws do not impose a severe
burden and are nondiscriminatory...... 11
1. The sore-loser prohibitions impose only a minimal burden on both candidates and unrecognized
parties ...... 11
2. WestVirginia's sore-loser laws do not improperly discriminate...... 15
B. The State has important interests that justify its sore-loser laws ...... 20
II. WestVirginia Code§ 3-5-23(g) Prohibits Mr. Blankenship's Nomination By the Constitution Party...... 23
A. The amended sore-loser law merely clarifiedpreexisting law ...... 24
B. Application of the amended sore-loser law to Petitioners is
not impermissibly retroactive ...... 26 III. West Virginia Code§ 3-5-23(a) Prohibits Mr. Blankenship's Nomination ...... 29
A. The plain language of§ 3-5-23(a) bars unrecognized political parties from nominating sore-loser candidates ...... 29
B. The title of the bill thatenacted § 3-5-23(a) passes constitutional muster...... 3 3
CONCLUSION ...... 39
11 TABLE OF AUTHORITIES
Page(s)
Cases
ABKCO Music, Inc. v. La Vere, 217 F.3d 684 (9th Cir. 2000) ...... 24
Anderson v. Celebrezze,
460 U.S. 780 (1983) ...... passim
Backus v. Sp ears, 677 F.2d 397 (4th Cir. 1982) ...... 2, 9, 12
Bedfo rd Corp. v. Price 112 W.Va. 674, 166 S.E.2d 380 (1932) ...... 37
State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 460 S.E.2d 436 (1995) ...... 8
Brown v. Th ompson, 37 4 F .3d 253 (4th Cir. 2004) ...... 24
State ex rel. Browne v. Hechler, 197 W.Va. 612, 476 S.E.2d 559 (1996) ...... 30
Bullock v. Carter,
405 U.S. 134 (1972) ...... 11, 20
Burdick v. Takushi,
504 U.S. 428 (1992) ...... passim
C. C. Sp ike Copley Garage, In c. v. Pub. Serv. Com 'n of W Va ., 171 W.Va. 489, 300 S.E.2d 485 (1983) ...... 36
Campbell v. Kelly, 157 W.Va. 453, 202 S.E.2d 369 (1974) ...... 34
City of Wheeling ex rel. Carter v. Am. Cas. Co., 131 W.Va. 584,48 S.E.2d 404 (1948) ...... 34, 35
City of Huntington v. Chesapeake & Potomac Tel. Co., 154 W.Va. 634, 177 S.E.2d 591 (1970) ...... 34
Clingman v. Beaver,
544 U.S. 581 (2005) ...... passim
111 Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129,67 S.E. 613 (1910) ...... 25
Cookeville Reg'! Med. Ctr. v. Leavitt, 531 F.3d 844 (D.C. Cir. 2008) ...... 24
Council of Alternative Political Parties v. Ho oks, 179 F.3d 64 (3d Cir. 1999)...... 14, 17
Crawfo rd v. Ma rion CountyElection Bd. ,
553 U.S. 181 (2008) ...... 14
Crawfo rd v. Parsons, 141 W. Va. 752,92 S.E.2d 913 (1956) ...... 34
Dale v. Painter, 234 W. Va. 343,765 S.E.2d 232 (2014) ...... 30
Daly v. Tennant, 216 F. Supp. 3d 699 (2016) ...... 18
Davis Mem 'l Hasp. v. W Virginia State Tax Com 'r, 222 W. Va. 677, 671 S.E.2d 682 (2008) ...... 29
State ex ref. Davis v. Oakley, 156 W. Va. 154, 191 S.E.2d 610 (1972) ...... 36, 38
De la Fuente v. Merrill, 214 F. Supp. 3d 1241 (M.D. Ala. 2016) ...... 9,10, 12, 19
State ex rel. Dyer v. Sims, 134 W. Va. 278,58 S.E.2d 766 (1950) ...... 34
Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214 (1989) ...... 13
In re Fahey, 779 F.3d 1 (1st Cir. 20 15) ...... 26
State ex ref. Graney v. Sims, 144 W. Va. 72,105 S.E.2d 886 (1958) ...... 34
Jenness v. Fortson, 403 U.S. 431 (1971) ...... 15, 18, 19
Landgraf v. US! Film Prods., 511 U.S. 244 (1994) ...... 25, 27, 28
lV Leshinskyv. Te lvent GIT, SA., 873 F. Supp. 2d 582 (S.D.N.Y. 2012) ...... 25
Levy v. Sterling Holding Co., LLC, 544 F.3d 493 (3d Cir. 2008) ...... 24
Libertarian Party of Mich. v. Johnson, 905 F. Supp. 2d 751 (E.D. Mich. 2012) ...... 9, 12
Linger v. Jennings, 143 W. Va. 57,99 S.E.2d 740 (1957) ...... 34, 35
State ex rei. Ma nchin v. Lively, 295 S.E.2d 912 (W. Va. 1982) ...... 26, 29
Ma rtin v. Radix,
527 U.S. 343 (1999) ...... 24
McEvoy v. lEI Barge Servs., Inc. , 622 F.3d 671 (7th Cir. 2010) ...... 26
State ex rei. McMillion v. Stahl, 141 W. Va. 233, 89 S.E.2d 693 (1955) ...... 34
State ex rei. Moore v. Blankenship, 158 W. Va. 939, 217 S.E.2d 232 (1975) ...... 34
Mo ore v. Sch. Reform Bd. of City of Detroit, 147 F. Supp. 2d 679 (E.D. Mich. 2000) ...... 25
State ex ref. My ers v. Wo od, 154 W. Va. 431, 175 S.E.2d 637 (1970) ...... 38
Na t'l Comm. of US. Taxpayers Partyv. Garza, 924 F. Supp. 71 (W.D. Tex. 1996) ...... 9,13
Newark Ins. Co. v. Brown, 218 W. Va. 346,624 S.E.2d 783 (2005) ...... 29
Olsen v. Samuel McintyreIn v. Co., 956 P.2d 257 (Utah 1998) ...... 25
Pia mba Cortes v. Am. Airlines, Inc. , 177 F.3d 1272 (11th Cir. 1999) ...... 24, 25
Public Citizen, Inc. v. First Na t. Bank in Fairmont,
198 W. Va. 329,480 S.E.2d 538 (1996) ...... passim
v Ringel- Wi lliams v. W Virginia Consol. Pub. Ret. Bd. , 237 W. Va. 702, 790 S.E.2d 806 (2016) ...... 26
Salt Lake Countyv. Kennecott Copper Corp., 163 F.2d 484 (lOth Cir. 1947) ...... 25
Sizemore v. State Wo rkmen 's Camp. Com 'r, 159 W. Va. 100,219 S.E.2d 912 (1975) ...... 7, 27
South Carolina Green Party v. South Carolina State Election Comm 'n, 612 F.3d 752 (4th Cir. 2010) ...... 9,13
State v. Mines, 38 W. Va. 125, 18 S.E. 470 (1893) ...... 34
Storer v. Brown,
415 U.S. 724 (1974) ...... passim
T. Weston, In c. v. Mineral Cnty. , 219 W. Va. 564,638 S.E.2d 167 (2006) ...... 31
Teweleit v. Ha rtford Life & Ace. Ins. Co. , 43 F.3d 1005 (5th Cir. 1995) ...... 24
Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997) ...... passim
W Va . Human Rights Comm 'n v. Garretson, 196 W. Va. 118,468 S.E.2d 733 (1996) ...... 30
Wa lter Butler Bldg. Co. v. Soto, 142 W. Va. 616,97 S.E.2d 275 (1957) ...... 34
State ex ref. Wa lton v. Casey, 179 W. Va. 485,370 S.E.2d 141 (1988) ...... 37
We lls v. State ex ref. Miller, 237 W. Va. 731,791 S.E.2d 361 (2016) ...... 11, 30,32
Williams v. Rhodes, 393 U.S. 23 (1968) ...... 17
Statutes
Cal. Elec. Code § 8003 ...... 9
Colo. Rev. Stat.§ 1-4-105 ...... 9
Ga. Code Ann.§ 21-2-137 ...... 9
Vl Idaho Code§ 34-704 ...... 9
Ky. Rev. Stat. Ann. § 118.345 ...... 9
Md. Code Ann., Elec. Law§ 5-706(b) ...... 9
Minn. Stat. Ann. § 2048.04 ...... 9
N.J. Stat. Ann.§ 19:13-8.1 ...... 9
Neb. Rev. Stat.§ 32-605 ...... 9
S.C. Code Ann.§ 7-11-210 ...... 9
Tenn. Code Ann.§ 2-5-101(£) ...... 9
W. Va. Code§ 3-1-8 ...... 3
W. Va. Code§ 3-5-1 ...... 31
W. Va. Code§ 3-5-4 ...... 3
W. Va. Code§ 3-5-7 ...... 30, 35
W. Va. Code§ 3-5-7(d)(6) ...... 5,27, 28
W. Va. Code§ 3-5-22 ...... 3, 14, 18
W. Va. Code§ 3-5-23 ...... passim
W. Va. Code§ 3-5-23(c) ...... 19
W. Va. Code§ 3-5-24 ...... 31,35
West Virginia Code chapter 30, article 3 ...... 37
West Virginia Code§ 3-5-23(a) ...... passim
West Virginia Code§ 3-5-23(g) ...... passim
West Virginia Code§ 3-6-4a ...... 12
Other Authorities
2009 Leg., Reg. Sess. (W. Va. 2009) ...... 30
2012 Leg., Reg. Sess. (W. Va. 2012) ...... 26 https://www.merriam-webster.com/dictionary/a1r eady ...... 30
Vll U.S. Constitution, amend. XIV ...... 8, 10
W. Va. Const. art. VI,§ 30 ...... 7, 33
West Virginia Drafting Manual ...... 31
V111 QUESTIONS PRESENTED1
1. Whether West Virginia's sore-loser laws, found in West Virginia Code § 3-5-
23(a) and (g), pass constitutional muster because they are minimally burdensome, nondiscriminatory, and reasonable eligibility requirements?
2. Whether § 3-5-23(g), which merely clarified the sore-loser prohibition in § 3-5-
23(a), raises retroactivity concerns when applied to a nomination-certificate filed weeks after
§ 3-5-23(g) took effect?
3. Whether § 3-5-23(a) includes a validly enacted sore-loser prohibition that bars an unrecognized political party from nominating to the general election ballot a candidate who voluntarily participated in a recognizedpolitical party's primary election and lost?
INTRODUCTION
Don Blankenship wants a do over. He voluntarily sought to gain the benefit of being the
West Virginia Republican Party's nominee for the United States Senate but failed, receiving only twenty percent of the Republican primary vote.2 Disgruntled by the result, Mr. Blankenship announced two weeks later that he would run as a "third-party candidate" for the United States
Senate in the 2018 General Election.3 A long-time Republican,4 Mr. Blankenship then changed his party registration to the "Constitution Party."5 The problem for Mr. Blankenship, however, is
1 Movant-Intervenor The West Virginia Republican Party, Inc. (the "Party") moved for leave to intervene on August 14, 2018, and its motion remains pending. If this Court does not grant leave to intervene, the Party respectfully requests that it be permitted to submit this brief as amicus curiae. 2 2018 Official Election Results, Attached as Exhibit 1. 3 See "Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat, Attached as Exhibit 2. 4 Mr. Blankenship was previously registered to vote as a member of the West Virginia Republican Party on December 7, 1998. 5 See WV Voter Registration Information, Attached as Exhibit 3. that the West Virginia Legislature has enacted laws, consistent with the state and federal constitutions, to prohibit precisely this kind of sore-loser candidacy.
Trying to force his way onto the printed ballot, Mr. Blankenship and the Constitution
Party ("Petitioners") ignore decades of U.S. Supreme Court precedent in trying to persuade this
Court to be the first in the country's history to strike down a sore-loser law. More than forty states have enacted sore-loser laws, and no court has ever upheld a constitutional challenge.
Almost thirty years ago, the Fourth Circuit rejected such a challenge as "frivolous." Backus v.
Sp ears, 677 F.2d 397, 399 (4th Cir. 1982). As the Supreme Court has said often and again:
"[T]here must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Storer v. Brown, 415
U.S. 724, 730 (1974). Sore-loser laws that bar losing primary candidates like Mr. Blankenship
from lingering on the ballot are the paradigm of such regulation, preventing elections from devolving into free-for-alls. After all, "the function of the election process is 'to winnow out and finally reject all but the chosen candidates,' not to provide a means of giving vent to 'short-range political goals, pique, or personal quarrel[s]."' Burdick v. Ta kushi, 504 U.S. 428, 438 (1992)
(quoting Storer, 415 U.S. at 735).
Recognizing the futility of their constitutional claims, Petitioners primarily argue that
West Virginia Code § 3-5-23(g), passed by the Legislature earlier this year to clarify the state's previous sore-loser law, would be impermissibly retroactive if applied to them. But the doctrine of retroactivity provides no refuge for Petitioners. West Virginia has had a version of the sore loser law for almost ten years. Petitioners have had ample fair notice, and the Legislature's clarification of the law earlier this year raises no retroactivity concerns. And even if§ 3-5-23(g) were the state's first ever sore-loser law (which it is not), the Secretary of State correctly applied
2 the law prospectively in denying Petitioners' attempted nomination-certificate. Mr. Blankenship did not even become eligible to be the Constitution Party's candidate, much less complete the filing process to do so, until late July, months after the passage of§ 3-5-23(g) and weeks after the law went into effect.
Mr. Blankenship willingly took the risk of running to be the Republican Party nominee because the potential reward outweighed the cost of giving up a run as a minor party or independent candidate. His gamble failed, and the Secretary of State rightly refused him a do over. The Petition should be refused.
STATEMENT OF THE CASE
I. West Virginia's Two Paths to The Ballot
Like many states, West Virginia distinguishes between how recognized parties and unrecognized parties get their candidates on the ballot. A recognized party is one whose candidate for governor received at least one percent of the total votes cast in the last general election. W. Va. Code § 3-1-8. Recognized parties are then split into two groups (sometimes called "major" and "minor" recognized parties): if they received more than ten perfect of the vote, they nominate parties through a primary election; if they received more than one percent but less than ten, they may nominate by a party convention. W. Va. Code§ 3-5-4; W. Va. Code
§ 3-5-22.
At present, there are four recognized political parties in West Virginia: the Democratic
Party, the Republican Party, the Mountain Party, and the Libertarian Party. 6 The Democratic and
Republican Parties received over ten percent of the vote for governor in 2016, so they nominated their candidates by primary election. The Mountain and Libertarian Parties received over one percent but less than ten percent, so they nominated their candidates by party convention.
6 See Recognized Political Parties in WV,Attached as Exhibit 4.
3 Petitioner Constitution Party of West Virginia (the "Constitution Party") has never been a recognized political party. Since its formation in 2004, it has nominated no gubernatorial candidate that has polled at least one percent of the total number of votes cast for that office.
The Constitution Party's candidates must therefore follow the pathway for unrecognized parties-a nomination-certificate process that requires gathering a certain amount of signatures from registered voters. W. Va. Code § 3-5-23. This pathway acknowledges that unrecognized parties have not shown an ability to organize and gamer a critical mass of votes, and thus provides a different mechanism for proving a base level of support before being printed on the ballot.
II. \Vest Virginia's Sore-Loser Laws
There are two sore-loser provisions at issue here, subsection (a) and subsection (g) of
West Virginia Code § 3-5-23. The first was enacted in 2009, allowing unrecognized parties to nominate only those candidates "who are not already candidates in the primary election for public office otherwise than by conventions or primary elections." W. Va. Code § 3-5-23(a).
The Secretary of State published an official guidebook for potential candidates that interpreted subsection (a) as a sore-loser law: "Candidates affiliated with a recognized political party who run for election in a primary election and who lose the nomination cannot change her or his voter registration to a minor party organization/unaffiliated candidate to take advantage of the later filing deadlines and have their name on the subsequent general election ballot."7 That guidebook was published in December 2017, before Mr. Blankenship declared his intention to run as a candidate in the Republican primary.
7 See Running fo r Offi ce in West Virginia (Exhibit 5) at 4.
4 On March 10, 2018, the West Virginia Legislature clarified the existing sore-loser law by adding subsection (g). That provision states that a candidate cannot be the nominee of an
unrecognized party if he or she already lost the nomination of a recognized party:
any person who was a candidate for nomination by a recognized political party as defined in §3-1-8 of this code may not, after fa iling to win the nomination of his or her political party, become a candidate fo r the same political offi ce by virtue of the nomination-certificationprocess as set forth in this section.
W. Va. Code§ 3-5-23(g) (emphasis added).
Petitioners unequivocally admit that § 3-5-23(g) "would altogether disallow [Mr.
Blankenship's] third-party candidacy" if it were applied to his situation. Pet. at 8. The effective
date of§ 3-5-23(g) was June 5, 2018. Six weeks later, on July 24, 2018, Mr. Blankenship filed a
certificate of nomination to be the Constitution Party's nominee for the United States Senate. He
had to wait until the end of July to file because his previous affiliation with the Republican Party independently prohibited him from becoming the candidate of any other party until that time,
under a different state law that is not challenged here, W. Va. Code§ 3-5-7(d)(6).
Ill The Secretary of State's Rejection of Mr. Blankenship's Application
The Secretary of State rejected Mr. Blankenship's attempted second candidacy, finding
that the sore-loser provisions of West Virginia Code § 3-5-23 prohibit him from utilizing the
nomination-certificate process since he previously sought the nomination of the Republican
Party. Mr. Blankenship now asks this Court to issue a writ of mandamus ordering the West
Virginia Secretary of State to list him as a candidate on the General Election ballot for United
States Senate.
SUMMARY OF ARGUMENT
I. No court has ever struck down a prohibition on sore-loser candidacies as
unconstitutional, and this Court should not be first. To evaluate both free association and equal
5 protection challenges to "candidate eligibility requirements," the U.S. Supreme Court has long applied a balancing test, which this Court has also adopted. Under that flexible standard, regulations that impose severe burdens are subject to strict scrutiny, but laws that impose lesser burdens need only be justified by a state's important regulatory interests. Petitioners contend that West Virginia's sore-loser laws violate their rights to free association and equal protection, but the laws easily pass constitutional muster.
West Virginia's sore-loser laws only minimally burden Petitioners, while supporting the state's several legitimate interests in protecting integrity and order in its elections. The laws only slightly burden a sore-loser candidate's ability to run for his or her desired office. Indeed, Mr.
Blankenship has already appeared on a ballot for the U.S. Senate; he is prohibited from the general election ballot only because he chose to compete in the Republican primary and lost.
Moreover, "[t]hat a particular individual may not appear on the ballot as a particular party's candidate does not severely burden that party's associational rights." Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 359 (1997). At the same time, the laws serve numerous state interests, including its interests in "regulating the number of candidates on the ballot," Storer,
415 U.S. at 732, "protecting the integrity, fairness,and efficiency of their ballots," Timmons, 520
U.S. at 364, and "temper[ing] the destabilizing effects of party-splintering and excessive factionalism," id. at 367.
II. Applying § 3-5-23(g) to Petitioners raises no retroactivity concerns. First, a law is not retroactive when it merely clarifies a preexisting law. That is what happened here. In enacting § 3-5-23(g), the Legislature sought to clarify that § 3-5-23(a), which had been in effect since 2009, prohibited sore-loser candidacies. That was the interpretation of§ 3-5-23(a) adopted
6 by the Secretary of State, of which all candidates and parties were aware, and§ 3-5-23(g) merely enacted language tracking that interpretation.
Second, even if this Court holds that § 3-5-23(g) barred sore-loser candidacies in West
Virginia for the first time, the law is only being applied prospectively to conduct completed after the law's effective date. A law is not retroactive "merely because part of the factual situation to which it is applied occurred prior to its enactment" and thereby unsettles expectations. Syl. Pt. 3,
Sizemore v. State Wo rkmen 's Camp. Com 'r, 159 W. Va. 100,219 S.E.2d 912 (1975). Rather, the question is whether the law "operates upon transactions which have been completed." !d. Here,
§ 3-5-23(g) regulates the activity of "becoming a candidate for political office by virtue of the nomination-certificate process." W. Va. Code § 3-5-23(g). Petitioners did not complete that activity until late July 2018 when Mr. Blankenship attempted to file as a candidate for the
Constitution Party-weeks after§ 3-5-23(g) took effect.
III. Even if this Court holds that § 3-5-23(g) may not be applied to prohibit Mr.
Blankenship's nomination, it should hold that § 3-5-23(a) does so. Under § 3-5-23(a), groups like the Constitution Party "may nominate candidates who are not already candidates in the primaryelect ion." W. Va. Code§ 3-5-23(a) (emphasis added). The only reasonable reading of that statute is that it prohibits an unrecognized political party from nominating anyone who participated in the primary election, both winners and losers, like Mr. Blankenship. The use of the present tense "are" suggests that the prohibition could be read to apply only during the pendency of the primary election, but that is not a reasonable reading of the statute. Under that reading, any participant in the primary election could simply file for a nomination-certificate in the two-month gap between the primary election and the August 1 filing deadline, making the prohibition in§ 3-5-23(a) so easily circumvented as to be meaningless.
7 Petitioners contend that the 2009 bill that enacted § 3-5-23(a) violated the constitutional
requirement that the object of an act "shall be expressed in the title." W. Va. Const. art. VI,§ 30.
But Petitioners do not carry their heavy burden under that constitutional provision. A bill's title
need not tell the reader of every specific change; if it alerts the reader to the broader topics of the
bill and does not affirmatively mislead, that is enough. Here, the title of H.B. 2981 told readers
that it related to elections generally, the "nomination of third-party candidates," and § 3-5-23.
That was more than sufficient.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is unnecessary because no rule to show cause is warranted. This case
presents the straightforward application of unambiguous statutes that, under governing precedent
of this Court and the U.S. Supreme Court, are unquestionably constitutional.
If this Court desires oral argument, Rule 20 argument would be appropriate, and the Party
respectfully requests an opportunity to participate as an intervenor or as amicus curiae. See
supra note I. As explained in its motion to intervene, the Party's interests differ from those of
the Secretary of State, and its participation at oral argument would therefore be beneficial to the
Court's consideration of this matter.
ARGUMENT
Petitioners do not satisfy the high burden for a writ of mandamus. To be entitled to
mandamus, Petitioners must prove that Mr. Blankenship had a clear and indisputable legal right
to be on the ballot as the nominee of the Constitution Party after having lost the Republican
primary, and that the Secretary of State had a duty to place him on the ballot. See State ex rel.
Billings v. City of Point Pleasant, 194 W. Va. 301, 304, 460 S.E.2d 436, 439 (1995) (denying
mandamus in challenge to disaffiliation statute). !d. They have proven neither.
8 I. West Virginia's Sore-Loser Laws Are Constitutional.
No court has ever found a prohibition on sore-loser candidacies, like that set forth in § 3-
5-23(g) and § 3-5-23(a), to be unconstitutional. More than forty states have enacted such laws.8
And every constitutional challenge has failed. See South Carolina Green Party v. South Carolina
State Election Comm'n, 612 F.3d 752, 756 (4th Cir. 2010) (rejecting challenge under First and
Fourteenth Amendments to South Carolina "sore-loser statute"); Backus, 677 F.2d at 399
(finding "frivolous" a constitutional challenge to "South Carolina's prohibition of candidates in a primary from appearing independently on the [general election] ballot"); De la Fuente v. Merrill,
214 F. Supp. 3d 1241, 1256 (M.D. Ala. 2016) (refusing to grant preliminary injunction of
"Alabama's sore loser statute" on free association and equal protection grounds); Libertarian
Party of Mich. v. Johnson, 905 F. Supp. 2d 751, 759 (E.D. Mich. 2012) (upholding "Michigan sore-loser law" against challenge under First and Fourteenth Amendments); Nat 'l Comm. of US
Taxpayers Party v. Garza, 924 F. Supp. 71, 75 (W.D. Tex. 1996) (refusing preliminary injunction of "Texas 'sore loser' statute").
Moreover, in both majority opinions and dissents, justices of the U.S. Supreme Court have repeatedly held out sore-loser laws as a paradigmatic example of a constitutionally permissible restriction on candidate eligibility. In Storer, the Court upheld a one-year disaffiliation requirement for independent candidates because it "carrie[ d] very similar credentials" to California's sore-loser law. 415 U.S. at 735. In Anderson v. Celebrezze, 460 U.S.
780 (1983), the Court struck down an early-filing deadline for independent candidates, but took care to distinguish it from state sore-loser laws. 460 U.S. at 804 & n.31. In Timmons, Justice
8 See, e.g. , Cal. Elec. Code § 8003; Colo. Rev. Stat. § 1-4-105; Ga. Code Ann. § 21-2- 137; Idaho Code § 34-704; Ky. Rev. Stat. Ann. § 118.345; Md. Code Ann., Elec. Law § 5- 706(b); Minn. Stat. Ann.§ 204B.04; Neb. Rev. Stat. § 32-605; N.J. Stat. Ann.§ 19:13-8.1; S.C. Code Ann.§ 7-11-210; Tenn. Code Ann.§ 2-5-101(£).
9 Stevens in dissent criticized the majority for upholding an "anti-fusion" law because, among other things, it "would not prevent sore-loser candidates." 520 U.S. at 377 (Stevens, J., dissenting). Similarly, in Burdick, Justice Kennedy agreed in dissent that states have an interest in preventing "undesirable sore loser candidacies," but argued that the prohibition on write-in candidacies upheld by the majority did not adequately do so. 504 U.S. at 449 (Kennedy, J., dissenting).
It should come as little surprise, therefore, that West Virginia's sore-loser prohibitions easily pass constitutional muster under the federal constitution. The U.S. Supreme Court has long applied a balancing test for evaluating the constitutionality of "candidate eligibility requirements." Anderson, 460 U.S. at 786. It weighs the "magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendment that the plaintiff seeks to vindicate" against the "interests put forward by the State as justifications for the burden imposed by its rule." Id. at 789. This is a "flexible standard," Burdick, 504 U.S. at 434, under which "strict scrutiny is appropriate only if the burden is severe," Clingman v. Beaver, 544 U.S. 581, 592
(2005). "Regulations that impose severe burdens ... must be narrowly tailored to serve a compelling state interest." Clingman, 544 U.S. at 586. But when a law imposes a lesser burden,
"a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Jd. As explained below, the statutory provisions here only minimally burden Petitioners, while supporting the state's several legitimate interests in protecting integrity and order in its elections.
This analysis dooms both Petitioners' free association and equal protection claims under the U.S. Constitution. When reviewing candidate eligibility requirements, the Supreme Court's
"analysis under the Equal Protection Clause follows the same lines as an analysis under the First
10 and Fourteenth Amendments." De La Fuente, 214 F. Supp. 3d at 1259. For example, though
Anderson was a free association case, the Supreme Court expressly "rel[ied] ... on the analysis in a number of [its] prior election cases resting on the Equal Protection Clause of the Fourteenth
Amendment." 460 U.S. at 786 n.7. Likewise, in setting forth the "flexible standard" for
"considering a challenge to a state election law," the Supreme Court in Burdick drew on cases involving both free association and equal protection claims. 504 U.S. at 434 (citing Anderson
(free association) and Bullock v. Carter, 405 U.S. 134 (1972) (equal protection)).
The same analysis also defeats Petitioners' arguments under state constitutional law.
Though their brief is unclear at times, Petitioners appear in at least one instance to assert that any candidate eligibility requirement must be justified by a "compelling state interest." Pet. 10
(internal quotations omitted). That is not the law. This Court has expressly adopted the flexible standard set forth by the Supreme Court in Anderson and Burdick. Indeed, this Court has specifically acknowledged that '"limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable."' We lls v. State ex ref. Miller, 237 W. Va. 731,
747, 791 S.E.2d 361, 377 (2016) (quoting Burdick, 504 U.S. at 440 n.10).
A. West Virginia's sore-loser laws do not impose a severe burden and are nondiscriminatory.
1. The sore-loser prohibitions impose only a minimal burden on both candidates and unrecognized parties.
West Virginia's laws barring sore-loser candidacies, such as Mr. Blankenship's, only slightly burdens those candidates' ability to run for their desired offices. It has not stopped Mr.
Blankenship from doing so: He has already appeared on a ballot for the U.S. Senate and, had he won the primary election, he would be on the general election ballot as the nominee of the
Republican Party. Nor do the laws absolutely prohibit him from appearing on the general
11 election ballot as an independent or nominee of an unrecognized party: Mr. Blankenship is only barred because he voluntarily chose to compete for the benefit of being the Republican Party's nominee. The only burden that the sore-loser laws impose on candidates like Mr. Blankenship is that they must choose between the two paths to a printed spot on the general election ballot: the path for recognized parties or the one for independents and unrecognized parties. See De La
Fuente, 214 F. Supp. 3d at 1256 ("It cannot be over-emphasized that Mr. De La Fuente is only barred from the ballot because of his voluntary participation in the Democratic Primary."). And even now, Mr. Blankenship still has the opportunity to compete in the general election. Under
West Virginia Code § 3-6-4a, Mr. Blankenship has until September 18 to register as an official write-in candidate.
The sore-loser prohibitions are certainly "far less burdensome [on candidates] than the disaffiliation rule upheld in Storer," a benchmark often used by the Supreme Court and other courts to measure the burden imposed by an election law. Timmons, 520 U.S. at 369; see also
Burdick, 504 U.S. at 437 (comparing Hawaii's prohibition on write-in candidacies to the law upheld in Storer); Backus, 677 F.2d at 400 (comparing South Carolina's sore-loser law to the law upheld in Storer); Libertarian Party of Mich., 905 F. Supp. 2d at 763 ("Storer offers significant support for a finding that the less-restrictive Michigan sore loser statute passes constitutional muster."). Under the disaffiliation law at issue in Storer, "any person affiliated with a party at any time during the year leading up to the primary election was absolutely precluded from appearing on the ballot as an independent or as the candidate of another party." Timmons, 520
U.S. at 369. That law "limited the field of candidates by thousands." !d. In contrast, West
Virginia's sore-loser laws bar just those who have sought and failed to win the nomination of a recognized party from appearing on the general election ballot either as an independent or as the
12 nominee of an unrecognized party. They "preclude[] only a handful who freely choose to be so limited." ld.
The laws also are only minimally burdensome on unrecognized political parties, such as
Petitioner Constitution Party. "That a particular individual may not appear on the ballot as a particular party's candidate does not severely burden that party's associational rights." 520 U.S. at 359. Such a limitation, like a sore-loser law, does not "restrict the ability of the [unrecognized party] and its members to endorse, support, or vote for anyone they like." Id. at 363. The sore loser prohibitions here do not "directly limit [an unrecognized] party's access to the ballot," but merely "reduce the universe of potential candidates who may appear on the ballot as the party's nominee." ld. In fact, the unrecognized party is always "free to try to convince" its desired candidate "to refrain from seeking the nomination of another political party," South Carolina
Green Party, 612 F . 3d at 757, or to run its desired candidate in the next election cycle, Na t '!
Comm. of U.S. Taxpayers Party, 924 F. Supp. at 74.
Put another way, "[t]he burdens [a]re not severe because [the unrecognized party] and its members remain[] free to govern themselves internally and to communicate with the public as they wish[]." Clingman, 544 U.S. at 589. They "simply c[an]not nominate as their candidate any of [a] few individuals," id. at 590 (internal quotations omitted), on account of voluntary choices made by those individuals alone. That is very different from a law,such as a prohibition on a party making primary endorsements, that "directly hampers the ability of a party to spread its message." Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)
(emphasis added).
Petitioners' few slapdash arguments that West Virginia's sore-loser laws impose a
"severe burden" on them, see Pet. 30-31, 36, are wholly unpersuasive. First, Petitioners argue
13 that the laws impose a severe burden merely because they prevent Mr. Blankenship from
"gaining access to the general election ballot." !d. at 30. But that is both factually and legally mistaken. As explained above, Mr. Blankenship can still compete in the general election as a write-in candidate. More important, the question under the case law is the "general assessment of the burden," not the impact of an election law on any one individual. CraMford v. Marion
CountyElection Bd. , 553 U.S. 181, 207 (2008) (Scalia, J., concurring in judgment). That is why the Supreme Court upheld the disaffiliation law in Storer, even though it "absolutely banned many candidacies." Timmons, 520 U.S. at 369.
Second, Petitioners contend that the laws severely burden the Constitution Party because they do not allow the party "to nominate the candidate of its choice." Pet. 30-31. But the
Supreme Court has unequivocally held that a party's rights are "not severely burden[ed]" simply because "a particular individual may not appear on the ballot as a particular party's candidate."
520 U.S. at 359.
Finally, Petitioners argue that they are severely burdened because "the opportunity may never come again for [Mr. Blankenship] or the Constitution Party." Pet. 36. Again, this argument focuses incorrectly on Petitioners alone and not on the general impact of the laws. But even if such a narrow focus were correct, "this is a predictive judgment which is by no means self-evident." Timmons, 520 U.S. at 362. And even if there were any basis to this sheer conjecture, "[t]he Supreme Court has refused to recognize a statute's incidental effect on a minor party's future viability as justification for overturning an otherwise reasonable, nondiscriminatory regulation." Council of Alternative Political Parties v. Hooks, 179 F.3d 64,
76 (3d Cir. 1999) (Alita, J.).
14 2. West Virginia's sore-loser laws do not improperly discriminate.
Petitioners mainly argue that the sore-loser laws improperly discriminate between recognized and umecognized parties. Noting that the laws forbid sore-loser candidates from the nomination-certificate process of § 3-5-23 but not the party convention process of § 3-5-22,
Petitioners argue that the sore-loser prohibitions improperly discriminate between umecognized minor parties (which must follow the nomination-certificate process) and recognized minor parties (which may use the party convention process). Pet. 27-28. That fundamentally misunderstands the law.
In the election law context, distinguishing between recognized and umecognized parties does not alone constitute improper discrimination. That was the holding of Jenness v. Fortson,
403 U.S. 431 (1971) , and it has been reaffirmed in case after case. In Jenness, the Supreme
Court rejected an equal protection challenge to Georgia's electoral system that provided two paths to the ballot: one for members of established political parties and a different one for all other candidates. The critical fact was that Georgia provided paths to the ballot for all potential candidates, and thus "in no way [sought to] freeze[] the status quo." !d. at 439; see also Burdick,
504 U.S. at 435 n.4 ("In Je nness, . . . the system was constitutional because it did not operate to freeze the political status quo.").
That the paths in Je nness differed did not trouble the Supreme Court. It recognized the
"obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other." 403 U.S. at 441. As a result, Georgia was "not ... guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot." Jd. at 441-42. Indeed, the Court acknowledged that the signature-collection requirement for candidates affiliated with new or small political organizations was arguably an easier path to
15 the general election ballot than winning an established political party's primary election. !d. at
440. It might actually hurt new or small political organizations to subject them to the same obligations as an established party. As the Court observed, "[s ]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." !d. at 442.
The Supreme Court reaffirmed this principle in Storer, where it concluded that
California's one-year disaffiliation law involved "no discrimination against independents," even though the law plainly treated independent candidates differently. 415 U.S. at 733. The Court recognized that the law "work[ed] against independent candidacies prompted by short-range political goals, pique, or personal quarrel," and was "also a substantial barrier to a party fielding an 'independent' candidate to capture and bleed off votes in the general election that might well go to another party." !d. at 735. Nevertheless, the Court reaffirmed that a law merely "aimed at maintaining the integrity of the various routes to the ballot" "involves no discrimination against independents." !d. at 733.
In Timmons,the Supreme Court reiterated the principle again, upholding a fusion ban that prohibited a candidate from serving simultaneously as the nominee for multiple parties. The
Court found no concern with the fact that the law "may, in practice, favor the traditional two party system." 520 U.S. at 367. It explained that "[s]tates need not remove all of the many hurdles third parties face in the American political arena today." !d. What was important was that "Minnesota ha[d] not directly precluded minor political parties from developing and organizing." !d. at 361. "Nor ha[d] Minnesota excluded a particular group of citizens, or a political party, from participation in the election process." !d. As such, the law was merely
16 another '"reasonable, politically neutral regulation[] that ha[ d] the effect of channeling expressive activity at the polls."' !d. at 369 (quoting Burdick, 504 U.S. at 438).
In contrast, the Supreme Court has invalidated state election laws as improperly discriminatory where they have made it "virtually impossible for a new political party ... to be placed on the state ballot." Williams v. Rhodes, 393 U.S. 23, 24 (1968); see Council of
Alternative Political Parties, 179 F.3d at 71 n.9 (citing Williams and Anderson as cases involving "ballot access laws that unfairly discriminate against minor parties"). In Williams, the
Court considered an Ohio electoral regime that made it "virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties." !d. at 25. For example, for any new party to appear on the ballot, it was required to obtain signatures from fifteen percent of the votes cast in the last gubernatorial election. !d. at 25. The law also allowed no path to the ballot for independent candidates. !d. at 26. The Supreme Court found this to be unlawfully discriminatory and a violation of the Equal Protection Clause. "[T]he Ohio system d[id] not merely favor a 'two-party system,"' which the Court recognized is allowed; instead, "it favor[ ed] two particular parties-the Republicans and the Democrats-and in effect tend[ed] to give them a complete monopoly." !d. at 32.
Likewise, the Supreme Court in Anderson struck down an early-filing deadline for independent candidates because it tended to give established political parties "monolithic control." 460 U.S. at 814. The law "place[ d] a particular burden on an identifiable segment of
Ohio's independent-minded voters," thereby "limit[ing] political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status." !d. at 793. That made the law different from the disaffiliation law upheld in
Storer. "Although a disaffiliation provision may preclude [a certain class of] voters from
17 supporting a particular ineligible candidate," it does not tend to exclude them entirely from the political process; those voters "remain free to support and promote other candidates who satisfy the State's disaffiliation requirements." Jd. at 791 n.12.
Here, West Virginia's statutory framework is similar to those upheld in Jenness, Storer, and Timmons. It sets forth two pathways for candidates for public office - one for candidates of recognizedparties and one for candidates of unrecognized parties or groups of citizens. See Daly v. Te nnant, 216 F. Supp. 3d 699, 703 (2016). The first pathway has one method of nomination for "major" recognized parties that have garnered more than 10% of the vote at the preceding gubernatorial general election, and a different method of nomination for "minor" recognized parties that garnered between 10% and 1% of the vote. The second pathway creates a nomination-certificate process for "groups of citizens having no party organization." W. Va.
Code§ 3-5-23.
These various pathways are "politically neutral" because the Code thereby gives all individuals a path to the ballot and treats all individuals using the particular nomination processes exactly the same. Burdick, 504 U.S. at 438. For instance, § 3-5-22 does not favor either of the two "minor" recognized parties - the Libertarian and Mountain Parties - over the other in any way. Both parties are subject to the same rules with respect to nominating candidates for the general election by party convention. The same is true for groups having no party organization. Under § 3-5-23, these individuals each have equal opportunity to nominate any person to the general election ballot provided that the nominee is legally qualified to hold the office, has not been affiliated with a recognized political party within 60 days of filing his or her nomination certificate, and did not seek the nomination of a recognized political party. The law does not require an insurmountable number of signatures: all candidates without a party
18 organization must obtain signatures equal to one percent of the number of votes in the last statewide election. W. Va. Code § 3-5-23(c). As such, the laws do not target "political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status." Anderson, 460 U.S. at 793.
Nor is it obvious that any one pathway is easier than the other. Candidates of a "major" recognized party must enter their party's primary in January, which is more than six months earlier than the August deadline for nomination-certificates under West Virginia Code§ 3-5-23.
Moreover, the votes required to win a recognized party primary are virtually certain to be greater than the number of signatures required for a nomination-certificate candidacy. Here, Mr.
Blankenship was required to obtain approximately 6,600 signatures, while Attorney General
Morrisey won the primary by earning 48,007 votes. As the Supreme Court pointed out in
Jenness, it is certainly arguable that the pathway for candidates of unrecognized parties is the easier one. See also De La Fuente, 214 F. Supp. 3d at 1256-57 ("[T]he 5,000 required signatures will almost always be lower than the votes necessary to win a primary election."). The existence of these different paths merely reflects the "obvious differences in kind between the needs and potentials" of the various types of political organizations. Jenness, 403 U.S. at 441.
West Virginia's sore-loser prohibitions thus are not discriminatory, as Petitioners contend, but rather are "generally-applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson, 460 U.S. at 788 n.9. Like the disaffiliation law in Storer, the sore-loser laws here are "aimed at maintaining the integrity of the various routes to the ballot." 415 U.S. at 733. They ensure that the nomination-certificate process is a valid nominating process for "groups of citizens having no party organization" and
19 not simply an alternative avenue for losing candidates of recognizedparties to continue to pursue their defeated agenda.
B. The State has important interests that justify its sore-loser laws.
Because the sore-loser laws do not impose a severe burden and are nondiscriminatory, they easily pass constitutional muster. The state has numerous "important regulatory interests" that are served by a prohibition on sore-loser candidacies. Clingman, 544 U.S. at 586.
First, courts have found that states have an interest specifically in preventing sore-loser candidacies. For example, the Supreme Court in Burdick upheld Hawaii's ban on write-in voting as "a legitimate means of averting divisive sore-loser candidacies." 504 U.S. at 439. And in
Clingman, the Supreme Court upheld Oklahoma's semi-closed primary because it "advance[d)" the state's "regulatory interest[]" in "guard[ing] against party raiding and 'sore loser' candidacies by spumed primary contenders." 544 U.S. at 594. The prohibitions on sore-loser candidacies in
§ 3-5-23(a) and§ 3-5-23(g) quite obviously further this important state interest.
Second, a sore-loser law advances the state's "legitimate interest in regulating the number of candidates on the ballot." Storer, 415 U.S. at 732 (quoting Bullock, 405 U.S. at 145). "[I)t is both wasteful and confusing to encumber the ballot with the names of frivolous candidates."
Anderson, 460 U.S. at 788 n.9. Thus, states have "an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Storer, 415 U.S. at
732 (internal quotations omitted); see also Timmons, 520 U.S. at 364 (recognizing the state interest in "avoiding voter confusion and overcrowded ballots"). West Virginia's sore-loser laws plainly further this interest by preventing those who have lost in a primary election from accessing the general election ballot through the nomination-certificate process.
Th ird, a prohibition on sore-loser candidacies serves the state's interest in preserving identifiable political parties. The Supreme Court has recognized that states have an "important"
20 regulatory interest in "preserv[ing] the political parties as viable and identifiable interest groups."
Clingman, 544 U.S. at 594 (internal quotations omitted); see also Timmons, 520 U.S. at 366
("The State surely has a valid interest in making sure that minor and third parties who are granted access to the ballot are bona fide and actually supported, on their own merits."). West
Virginia's laws advance this interest by preventing those who lost their party primary from using the nomination-certificate process to "continu[e] intraparty feuds." Storer, 415 U.S. at 735.
Fourth, a sore-loser law is justified by a state's interest in orderly, fair, and efficient procedures for elections. "States certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes as means for electing public officials."
Timmons, 520 U.S. at 364. In Storer, the Supreme Court explained how a sore-loser law helps ensure that primary elections are not just "an exercise or warm-up for the general election but an integral part of the entire election process," in which "[t ]he general election ballot is reserved for major struggles." 415 U.S. at 735. Here, the state's sore-loser prohibitions similarly contribute to "maintaining the integrity of the various routes to the ballot." Id. at 733.
Finally, a sore-loser prohibition furthers a state's "strong interest in the stability of [its] political system." Timmons, 520 U.S. at 366. It has been a concern since the Founding Era "that splintered parties and unrestrained factionalism may do significant damage to the fabric of the government." Storer, 415 U.S. at 736. West Virginia's sore-loser laws help "temper the destabilizing effects of party-splintering and excessive factionalism." Timmons, 520 U.S. at 367.
By prohibiting sore-loser candidates from using the nomination-certificate process, the law
"works against independent candidacies prompted by short-range political goals, pique, or personal quarrel." Storer, 415 U.S. at 735.
21 Petitioners assert that no state interest is adequate because the state's sore-loser laws are under-inclusive. The provisions "deny the Constitution Party the right of nominating a candidate for office when the candidate lost another party's nomination, but allows the Libertarian Party and the Mountain Party - as well as the Democratic and Republican Parties - to do just that."
Pet. 28. Petitioners contend that "the Secretary has no cohesive rationale" to justify the sore loser laws' application to the Constitution Party "without any evidence that allowing a candidacy through such unrecognized party is a greater threat to the cohesion of its two-party system than the two existing minor parties and the two major parties who remain free to nominate a person who lost the nomination of one of the two major parties." !d. at 36.
This argument fails for several reasons. First, Petitioners are improperly trying to apply strict scrutiny. Because the laws do not impose a severe burden and are not discriminatory, "the
State need not narrowly tailor the means it chooses to promote" its interests. Timmons, 520 U.S. at 365. It need not provide any response to Petitioners' chart of eleven purported hypothetical scenarios. Pet. 35. "Nor do [courts] require elaborate, empirical verification of the weightiness of the State's asserted justifications." Timmons, 520 U.S. at 364. "[W]hen a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' ... , 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Burdick, 504 U.S. at 434
(quoting Anderson, 460 U.S. at 788).
Second, Petitioners' entire argument is based on the false premise that "[t]he two kinds of minor parties, both recognized and unrecognized, are similarly situated with respect to the
State's sore loser policy." Pet. 28. Contrary to Petitioners' assertion, recognized and unrecognized minor parties do not "pose the same threats of factionalism, party-splintering, and ballot confusion." !d. Because recognized minor parties must meet the 1% polling threshold
22 from the last gubernatorial election, they are necessarily few in number. Only two such parties exist today: the Mountain Party and the Libertarian Party. As a result, the nomination of sore- losers by recognized minor parties poses a very limited threat to election integrity and political stability. In stark contrast, without § 3-5-23(g) and § 3-5-23(a), there would be effectively no limit on the number of sore-loser candidates through the nomination-certificate process. The nomination of sore-losers by unrecognized minor parties or other groups of citizens obtaining the requisite number of signatures thus poses a very different and significant threat of precisely the sort of "unrestrained factionalism" that the Founding Fathers feared. Storer, 415 U.S. at 736
(emphasis added). In short, though the state need not explain the tailoring of its sore-loser laws, there is in fact a more than "cohesive rationale" behind the Legislature's design.
II. West Virginia Code § 3-5-23(g) Prohibits Mr. Blankenship's Nomination By the Constitution Party.
Recognizing the clear constitutionality of the state's sore-loser laws, Petitioners primarily focus on escaping the application of§ 3-5-23(g). Pet. 10-23. As they must, Petitioners admit that Mr. Blankenship is not permitted a second candidacy under the plain text of the law. !d. at
8. But they argue that if§ 3-5-23(g) is applied to them, its application would be impermissibly retroactive.
Not so. There are no retroactivity concerns for at least two reasons. First, West
Virginia's statute regulating the nominating procedures for unrecognized parties has had a version of a sore-loser law since 2009, found in § 3-5-23(a). The legislature merely clarified that law's impact earlier this year by adding § 3-5-23(g). Second, even if this Court holds that § 3-5-
23(g) barred sore-loser candidacies in West Virginia for the first time (which it did not), the law is only being applied prospectively to conduct completed after the law's effective date.
23 A. The amended sore-loser law merely clarified preexisting law.
Retroactivity is not implicated where a new law or statutory amendment merely clarifies preexisting law. It is well-settled that a new law "operates retroactively" only where it "attaches new legal consequences." Martin v. Hadix, 527 U.S. 343, 357-58 (1999); see Syl. Pt. 2, Public
Citizen, In c. v. First Na t. Bank in Fa irmont, 198 W. Va. 329, 480 S.E.2d 538 (1996) ("A statute that diminishes substantive rights or augments substantive liabilities should not be applied retroactively to events completed before the effective date of the statute (or the date of enactment if no separate effective date is stated) unless the statute provides explicitly for retroactive application."). Amendments that are meant only to clarify the meaning of earlier law do not attach new legal consequences and, therefore, may be applied without regard to retroactivity.
Put more simply, issues of retroactivity are a "non-issue" when a statutory amendment merely clarifies existing law. Levy v. Sterling Ho lding Co., LLC, 544 F.3d 493, 506-08 (3d Cir.
2008); see also Cookeville Reg '! Med. Ctr. v. Leavitt, 531 F.3d 844, 849 (D.C. Cir. 2008)
(finding "no problem of retroactivity" where new statute "did not retroactively alter settled law," but "simply clarified an ambiguity in the existing legislation"); Brown v. Th ompson, 374 F.3d
253, 259 (4th Cir. 2004) (recognizing that "constitutional concerns about retroactive application do not arise" when the amendment merely clarifies existing law); ABKCO Music, Inc. v. La Vere,
217 F.3d 684, 689 (9th Cir. 2000) ("Normally, when an amendment is deemed clarifying rather than substantive, it is applied retroactively."); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d
1272, 1283 (11th Cir. 1999) ("[C]oncerns about retroactive application are not implicated when an amendment ... is deemed to clarify relevant law rather than effect a substantive change in the law."); Teweleit v. Hartford Life & Ace. Ins. Co. , 43 F.3d 1005, 1010 (5th Cir. 1995) (holding that retroactivity is not a concern when the law "clarified and emphasized" the original
24 9 legislative intent). "In effect, the court applies the law as set forth in the amendment to the present proceeding because the amendment accurately restates the prior law." Piamba Cortes,
177 F.3d at 1284.
Petitioners' retroactivity challenge therefore stumbles right out of the gate because § 3-5-
23(g) was intended merely to clarify what the Code already prevented. This is apparent from the fact that the Legislature enacted a statute with exactly the same effect as the Secretary of State's interpretation of a prior statute. When the Legislature enacted § 3-5-23(g), it knew that the
Secretary of State had already published guidance interpreting § 3-5-23(a) as barring sore- losers.10 See Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129, 67 S.E. 613, 626 (1910) ("The
Legislature is presumed also to have known the existing law, common, statutory, and organic, as well as exceptions or rights established upon considerations of public policy."); Salt Lake County v. Kennecott Copper Corp., 163 F.2d 484, 489 (lOth Cir. 1947) ("The Legislature is presumed to know the construction placed upon the language of the act by both the Land Board and the State
Auditor."). The Legislature's decision to pass a law tracking that interpretation of§ 3-5-23(a) can reasonably be understood only as an effort to clarify that law.
It does not matter that the amendment used words "significantly" different from the original statutory language. Brown, 374 F.3d at 259 (quoting Piamba Cortes, 177 F.3d at 1283).
The meaning was the same as that given to§ 3-5-23(a) by the Secretary of State, and the same as that fairly known to all candidates and parties, including Mr. Blankenship and the Constitution
Party, from the Secretary of State's Guidebook. See Landgrafv. US! Film Prods. , 511 U.S. 244,
270 (1994). West Virginia Code§ 3-5-23(g) did not attach any new legal consequences to Mr.
9 See also Leshinsky v. Telvent GIT, SA., 873 F. Supp. 2d 582, 590-91 (S.D.N.Y. 2012); Moore v. Sch. Reform Bd. of City of Detroit, 147 F. Supp. 2d 679, 690 (E.D. Mich. 2000); Olsen v. Samuel Mcintyre Inv. Co., 956 P.2d 257, 261 (Utah 1998). 10 Exhibit 5 at 4.
25 Blankenship's candidacy or otherwise deprive him of fair notice, and it therefore raises no questions of retroactivity.
Petitioners contend that it "violate[s] the canon against surplusage" to understand § 3-5-
23(g) as a clarification of§ 3-5-23(a). Pet. 16. That is not correct. First, § 3-5-23(a) is broader in scope than § 3-5-23(g), because it prohibits all primary candidates, including the winners, from becoming a nomination-certificate candidate for an unrecognized party. Second, the rule against superfluity is only a presumption, Ringel-Williams v. W Virginia Consol. Pub. Ret. Bd. ,
237 W. Va. 702, 707, 790 S.E.2d 806, 81 1 (2016), and it cannot overcome the plain language of the statute, see In re Fahey, 779 F.3d 1, 7 (1st Cir. 2015). The legislature "may choose a belt- and-suspenders approach to promote its policy objectives," and it often does so when adding a more specific provision to a statute through a later amendment. McEvoy v. lEI Barge Servs.,
Inc. , 622 F .3d 671, 677 (7th Cir. 201 0). That is what the Legislature did here.
B. Application of the amended sore-loser law to Petitioners is not impermissibly retroactive.
Even if the Court holds that § 3-5-23(g) bars sore-loser candidacies in West Virginia for the first time, it should still apply the law to Petitioners. As a threshold matter, there is no basis to conclude that the Legislature intended to exclude the 2018 general election from the statute's reach. The Legislature is presumed to act with awareness of upcoming elections. State ex ref.
Ma nchin v. Lively, 295 S.E.2d 912, 916 (W. Va. 1982). No doubt that is true here. Moreover, the Legislature has specified in the past when an election law will not go into effect until after the upcoming election,11 and it did not do so here.
11 For example, the legislature considered a voter registration bill in 2012-an election year-and specified that it would not go into effect until the following year. S.B. 431, 2012 Leg., Reg. Sess. (W. Va. 201 2).
26 Nor would the application of§ 3-5-23(g) to Petitioners make it impermissibly retroactive.
Retroactivity is not simply a matter of timing. A law is not impermissibly retroactive "merely because part of the factual situation to which it is applied occurred prior to its enactment." Syl.
Pt. 3, Sizemore, 159 W. Va. At 107, 219 S.E.2d at 916. If that were the case, many
"uncontroversially prospective statutes" would be considered impermissibly retroactive.
Landgraf, 511 U.S. at 269 n.24. For example, "a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire property," and "a new law banning gambling harms the person who had begun to construct a casino before the law's enactment or spent his life learning to count cards." !d. It is a fact of life that a new statute may
"unsettle expectations and impose burdens on past conduct." !d. That does not make the law retroactive.
Rather, the question is whether the law "operates upon transactions which have been completed" prior to a law's passage. Syl. Pt. 3, Sizemore, 159 W. Va. at 107, 219 S.E.2d at 916; see also Syl. Pt. 2, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329, 480
S.E.2d 538 (1996) (emphasis added). Here,§ 3-5-23(g) regulates the activity of "becoming a candidate for political office by virtue of the nomination-certificate process." W. Va. Code§ 3-
5-23(g). It does not regulate the activity of running in or losing a party's primary. As a result, the critical issue is the date by which Petitioners completed the process for Mr. Blankenship to become the Constitution Party's candidate.
The critical date here came months after the passage of§ 3-5-23(g) and weeks after its effective date. Mr. Blankenship did not file to "becom[ e] a candidate for political office by virtue of the nomination-certificate process" until six weeks after the effective date of § 3-5-
23(g). In fact, he was not even eligible to do so until that time. Like many states, West Virginia
27 has a disaffiliation law that prohibits candidates from being a party's nominee if they were affiliated with another political party within sixty days of filing. W. Va. Code§ 3-5-7(d)(6); see
Billings, 194 W. Va. at 309 (holding disaffiliation law constitutional). Mr. Blankenship was registered as a Republican until May 21, 2018, when he changed his registration to the
Constitution Party. Though Petitioners assert that Mr. Blankenship "secured [the Constitution
Party's] nomination" on May 18,see Pet. 17, he was legally ineligible even to file as a candidate for the Constitution Party until July 20, 2018-weeks after the effective date of§ 3-5-23(g) and just a few days before he filed to become the Constitution Party's candidate. Applying § 3-5-
23(g) to Petitioners is not impermissibly retroactive.
Petitioners argue for a blanket rule that § 3-5-23(g) simply cannot apply until the next
"election cycle" because minor parties came into this election cycle with the "rights" to
"nominate unsuccessful recognized party candidates as their general election candidates." Pet.
24. That argument is simply incorrect under the law. Parties do not have unalterable rights (in
"this" election cycle or any other) to nominate any particular candidate. Timmons, 520 U.S. at
359 (holding that parties are not "absolutely entitled to have its nominee appear on the ballot as that party's candidate"). At most, a party might have a reasonable expectation. But as discussed above, a law is not retroactive simply because it "upsets expectations based in prior law."
Landgraf, 511 U.S. at 269. To trigger retroactivity concerns, the law must operate on a previously completed transaction. Petitioners' argument would require this Court to ignore decades of settled precedent of both this Court and the U.S. Supreme Court.12 See, e.g., State ex
12 Petitioners' hyperbolic assertion that § 3-5-23(g) "literally prohibits [covered] individuals from ever again seeking ballot access as a minor political party's general election candidate," Pet. 24 (emphasis added), is based on an unnecessarily expansive reading of the statute. The law prohibits any person who, "after fa iling to win the nomination of his or her political party," seeks to "become a candidate fo r the same political offi ce by virtue of the
28 rel. Manchin v. Lively, 170 W. Va. 672,295 S.E.2d 912 (1982) (rejecting retroactivity challenge to application of recount law to a primary election, where law became effective after the election concluded but recount itself "occurred after the effective date" of the law).
In sum,§ 3-5-23(g) is constitutional and applies prospectively to Petitioners, and the writ should therefore be denied.
III. West Virginia Code § 3-5-23(a) Prohibits Mr. Blankenship's Nomination.
If this Court holds that § 3-5-23(g) may not be applied to prohibit Mr. Blankenship's nomination, it should hold that § 3-5-23(a) does so. Under § 3-5-23(a), groups like the
Constitution Party "may nominate candidates who are not already candidates in the primary
election." W. Va. Code§ 3-5-23(a) (emphasis added). The only plausible reading of that statute is that it prohibits an unrecognized political party from nominating anyone who participated in the primary election,both winners and losers,like Mr. Blankenship.
A. The plain language of § 3-5-23(a) bars unrecognized political parties from nominating sore-loser candidates.
The primary goal in interpreting a statute is to give effect to the legislature's intent.
Davis Mem 'l Hasp. v. W Vi rginia State Tax Com 'r, 222 W. Va. 677, 683, 671 S.E.2d 682, 688
(2008). Thus, "when this Court is asked to resolve a question regarding a matter of statutory construction,[it] first consider[s] the intent of the Legislature in enacting the subject provision."
Newark lns. Co. v. Brown, 218 W. Va. 346,351,624 S.E.2d 783,788 (2005). Then, "[o]nce the legislative intent underlying a particular statute has been ascertained, we proceed to consider the precise language thereof." !d. The plain language controls, but the meaning of that language is
nomination-certification process." W. Va. § 3-5-23(g) (emphasis added). "[T]he same political office" may quite reasonably be read as referring back to the particular "nomination of his or her political party" that the candidate failed to win. Thus, Mr. Blankenship cannot be the Constitution Party's candidate for the U.S. Senate in this fall's general election because he lost in a primary election this past spring for the "same political office."
29 always "informed when necessary by the policy that the statute was designed to serve." W Va .
Human Rights Comm 'n v. Garretson, 196 W. Va. 118, 123,468 S.E.2d 733, 738 (1996).
The disputed provision was added to § 3-5-23(a) at the same time West Virginia first needed a sore-loser law. In 2009, when the disputed provision was added to § 3-5-23(a), the
Legislature extended the deadline for filing a nomination certificate to August 1. 13 Prior to 2009, nomination certificates were required to be filed the day before the primary election, which meant the results of the primary elections were unknown on the day of filing to be a third-party candidate. The possibility of a primary candidate also seeking a nomination-certificate was unlikely. But the creation of a two-month gap between the primary election and the deadline to be a third-party's nominee substantially increased the possibility that an individual who had competed in the primary, especially one who lost, would seek to continue his or her campaign as a nomination-certificate candidate. The Legislature simultaneously addressed that increased likelihood of sore-loser campaigns by limiting nomination-certificate candidacies to those who
"are not already candidates in the primary election."14
The plain language of the provision supports this intent. Unrecognized parties "may nominate candidates who are not already candidates in the primmy election." W. Va. Code§ 3-
5-23(a) (emphasis added). "Already" is a backward-looking term. It means "prior to a specified or implied ... time," or "previously."15 The use of the word "the" before "primary election" refers to the particular primary election that had just "previously" occurred. See Dale v. Painter,
13 H.B. 2981, 2009 Leg., Reg. Sess. (W. Va. 2009). 14 At the time, there was no other filing deadline for nomination-certificate candidacies. This Court had held that the January filing deadline in § 3-5-7 for certificate of announcements did not apply to nomination-certificate candidates. See We lls v. State ex rel. Miller, 237 W. Va. 731, 737, 791 S.E.2d 361, 367 (2016) (discussing State ex rel. Browne v. Hechler, 197 W. Va. 612,476 S.E.2d 559 (1996)). 15 https://www.merriam-webster.com/dictionary/already
30 234 W. Va. 343, 351, 765 S.E.2d 232, 240 (2014). Nomination-certificate candidates thus may only be individuals who are not persons that previously stood as candidates in the primary election. That does not include Mr. Blankenship.
The use of the present tense "are" suggests that the prohibition could be read to apply only during the pendency of the primary election, but that is not a reasonable reading of the statute. If the prohibition applied only during the pendency of the primary election, it could be so easily circumvented as to be meaningless. The deadline for filing a certificate of nomination is August 1. See W. Va. Code§ 3-5-24. That deadline always falls after the date of the primary election, which is statutorily required to take place on the second Tuesday in May. See W. Va.
Code § 3-5-1. A candidate could simply wait until the conclusion of the primary election to file his nomination-certificate. The prohibition in § 3-5-23(a) would be no limitation at all. See T.
Weston, Inc. v. Mineral Cnty. , 219 W. Va. 564, 568, 638 S.E.2d 167, 171 (2006) ("It is always presumed that the legislature will not enact a meaningless or useless statute.").
The better explanation for the present tense "are" is that the Legislature wished to exempt from the prohibition any individuals who entered but then timely withdrew from the primary election. If the statute used the past tense "were," it would sweep within the prohibition every individual who had been at some time a candidate in the primary election, whether the individual won, lost, or timely withdrew. By using the present tense "are," the statute can reasonably be read to cover only those who never withdrew from the primary election and thus are still considered primary election candidates, even after all the voting and tabulating concludes.
The choice of the present tense "are" also comports with the State's legislative drafting protocols. The West Virginia Legislative Drafting Manual, like many drafting manuals, recommends phrasing all legislation m the present tense. See
31 www.wvlegislature.gov/legisdocs/misc/pub/Drafting Manual.pdf ("Avoid future tense ... Use present tense"); see also Senate Office of the Legislative Counsel, Legislative Drafting Manual
§ 103(a) (1997) ("Always use the present tense unless the provision addresses only the past, the future, or a sequence of events that requires use of a different tense"); House Legislative
Counsel's Manual on Drafting Style, HLC No. 104-1,§ 102(c) ("STAY IN THE PRESENT.
Whenever possible, use the present tense (rather than the past or future").
Finally, at least one Justice of this Court has previously interpreted § 3-5-23(a) as including a sore-loser prohibition that "prevent[s] unsuccessfulprimary election candidates from subsequently running as independent candidates." Wells, 237 W. Va. at 749, 791 S.E.2d at 379
(Davis, J., dissenting). The other Justices did not specifically speak to that question, but they did point to the prohibition in § 3-5-23(a) as evidence of the Legislature's intent to preclude members of recognized political parties from using the nomination-certificate process for
"political opportunism." !d. at 743, 791 S.E.2d at 373 (majority op.). As they explained, it is
"apparent that it was the Legislature's intention that West Virginia Code § 3-5-23 was for use exclusively by unaffiliated or minor party candidates." !d. Instead, "members of recognized political parties are to be nominated by their party during the primary election." !d. As even
Petitioners concede, the nomination-certificate process is for those "who would otherwise 'have no means of entering the election process."' Pet. 14 (quoting Wells, 237 W. Va. at 743, 791
S.E.2d at 373). Again, that does not include Mr. Blankenship.
Petitioners contend that § 3-5-23(a) constitutes a "cross-filing" prohibition for the general election ballot. See Pet. 7. They argue that it is meant to preclude candidates from "being listed on multiple ballot lines in the same election." !d. Thus, "a candidate seeking a place on the general election ballot as a major party candidate could not also use the nomination-certificate
32 route to gain an additional line as an independent candidate on that November ballot for that same office." !d. ; see also id. at 14. In other words, the law's only function is to prohibit
Attorney General Patrick Morrisey and Senator Joe Manchin, who won their respective primary elections, from seeking additional nominations by unrecognized political parties.
This self-serving reading of the statute cannot be squared with the text. The statute allows groups like the Constitution Party to "nominate candidates who are not already candidates in the primmy election." W. Va. Code§ 3-5-23(a) (emphasis added). Nothing in the text limits its application only to those candidates who won the primary election. On its face, the law applies equally to anyone who stood as a candidate in the primary election. The only plausible question is whether the prohibition is limited by the present tense "are" to the pendency of the primary election, and for the reasons described above, it is not. But there is no support whatsoever for Petitioners' attempt to limit the prohibition artificially to only those who prevailed in the primary election. 16
B. The title of the bill that enacted § 3-5-23(a) passes constitutional muster.
With little hope of success on their other claims, Petitioners reach deep into the legislative archives for a last-ditch argument, contending that the 2009 bill that enacted § 3-5-
23(a) violated the constitutional requirement that the object of an act "shall be expressed in the title." W. Va. Const. art. VI, § 30. Of course, Petitioners raise no such complaint about § 3-5-
23(g), which alone provides sufficient basis to bar Mr. Blankenship's second candidacy and to deny the writ. See supra Part II. But if this Court reaches this issue, the title of the amendment was constitutionally sufficient.
16 In fact, such a reading of the statute would be bizarre. It is difficult to imagine that the Legislature would have sought to bar only the recognized nominees of the major political parties from seeking the additional nomination of an unrecognized party, while permitting those individuals who lost in the primary election a second opportunity to get on the general election ballot as the nominee of an unrecognized party.
33 To begin with, Petitioners carry a heavy burden. The presumption is in favor of finding the title sufficient, and titles will be construed liberally to that end. City of Wheeling ex rei.
Carter v. Am. Cas. Co. , 131 W. Va. 584, 594, 48 S.E.2d 404, 410 (1948). Indeed, given that presumption, this Court has routinely refused to strike down laws on this basis.17 Courts "have always permitted substantial compliance" with section 30. State ex ref. Moore v. Blankenship,
158 W. Va. 939, 951, 217 S.E.2d 232, 239 (1975). And that makes sense: courts should be
"more than usually cautious" in striking down laws years after they were passed, as here, during which time West Virginia citizens depended on them in ordering their affairs. State v. Mines, 38
W. Va. 125, 18 S.E. 470, 474 (1893).
As to the merits of the argument, the Constitution requires much less than Petitioners suggest. The question is simply whether someone interested in a bill's subject matter would know to read it. City of Wheeling, 131 W. Va. at 595, 48 S.E.2d at 41 0; see State ex ref. Graney v. Sims, 144 W. Va. 72, 80, 105 S.E.2d 886, 892 (1958). The title need not tell the reader of every specific change; if it alerts the reader to the broader topics of the bill and does not affirmatively mislead, that is enough. See id. In fact, this Court has repeatedly held that a title is sufficient if it just designates the chapter and section of the Code that is to be amended. !d. at
593; Wa lter Butler Bldg. Co. v. Soto, 142 W. Va. 616, 638, 97 S.E.2d 275, 288 (1957).
Here, Petitioners claim that the title of H.B. 2981 does not give sufficient notice of the
"eligibility requirement for those seeking certificate nomination" that was embodied in § 3-5-
17 See, e.g., Blankenship, 158 W. Va. at 951; Campbell v. Kelly, 157 W. Va. 453, 475, 202 S.E.2d 369, 382 (1974); City of Huntington v. Chesapeake & Potomac Tel. Co., 154 W. Va. 634, 643, 177 S.E.2d 591, 598 (1970); State ex ref. Graney v. Sims, 144 W. Va. 72, 80, 105 S.E.2d 886, 892 (1958); Linger v. Jennings, 143 W. Va. 57, 61, 99 S.E.2d 740, 743 (1957); Wa lter Butler Bldg. Co. v. Soto, 142 W. Va. 616, 639, 97 S.E.2d 275, 288 (1957); Crawford v. Parsons, 141 W. Va. 752, 758, 92 S.E.2d 913, 916 (1956); State ex ref. McMillion v. Stahl, 141 W. Va. 233, 234, 89 S.E.2d 693, 693-96 (1955); State ex ref. Dyer v. Sims, 134 W. Va. 278, 288, 58 S.E.2d 766, 772 (1950); State v. Mines, 38 W.Va. 125, 18 S.E. 470, 474 (1893).
34 23(a). Pet. 20. The title of H.B. 2981 began, "AN ACT to amend and reenact § 3-5-7,§ 3-5-23 and§ 3-5-24 of the Code of West Virginia, 1931, as amended, all relating to elections generally."
It went on to say that the act changed several requirements for "nomination of third-party candidates," including reducing the number of signatures and changing the requirements for the signers of petitions. Contrary to Petitioners' implication, see Pet. 19 (adding bracketed language), the title did not specify any subsections of § 3-5-23 (or §§ 3-5-7 and 3-5-24), but rather pointed the reader to the entirety of those statutory sections.
Not every provision in a bill needs to be included in the title. Ancillary matters "may be included in the statute without being stated in the title." City of Wheeling, 131 W.Va. at 595,48
S.E.2d at 410. That is particularly true when, as here, the bill imposes restrictions that are not included in the title. For example, this Court has upheld a title that said the bill "relat[ed] to the provision of and payment for transcripts of testimony and proceedings in trials of indigent persons convicted of' a crime. Linger v. Jennings, 143 W. Va. 57, 61, 99 S.E.2d 740, 743
(1957). But the bill contained a restriction, "confining its application to criminal cases in which the court has appointed counsel." !d. This Court held the title was sufficient: "We see no merit in this position, as the title of the statute is all-embracing and the restriction is contained in the body of the statute itself." !d. Those who want to know more about indigent persons receiving transcripts are alerted by the title to read the bill; in the bill, they would see the further restrictions.
So, too, here. The title of H.B. 2981 told readers that it related to elections generally, the
"nomination of third-party candidates," and § 3-5-23, which is entitled "Certificate nominations; requirements and control; penalties." The restriction of who could be nominated-the sore-loser prohibition in § 3-5-23(a)-was contained in the body of the bill itself. The title alerted those
35 interested in third-party candidates to read the bill; in the bill, they would see the sore-loser limitation on certificate nominations.
Conceding that this Court has repeatedly "held that a general title is sufficient,"
Petitioners assert that this Court has imposed further requirements on the Legislature when it chooses to write a title that "get[s] into specifics." Pet. 21. Where a title is "enormously specific," Petitioners contend, the Legislature is held to a "different" standard. Id. And that standard was violated here, where the Legislature "detail[ed]" many changes in the title of H.B.
2981 but included no specific reference to the sore-loser prohibition being added to§ 3-5-23(a).
There is no such requirement in this Court's cases. Rather, the cases cited by Petitioners make the unremarkable point that a title must not "actively mislead[]." C.C. Sp ike Copley
Garage, In c. v. Pub. Serv. Com 'n of W Va ., 171 W. Va. 489, 92, 300 S.E.2d 485,488 (1983). In other words, a title may not say the bill relates to oranges when it actually relates to apples: if there is "an additional class of persons" that is not named in the title, that class of persons would not know to read the bill. State ex ref. Davis v. Oakley, 156 W. Va. 154, 191 S.E.2d 610, 611
(1972).
In Petitioners' primary case,this Court struck down a bill not because its title was "vague and unspecific," but rather because the title was "positively misleading." Copley Garage, 171
W. Va. at 491, 300 S.E.2d at 487. There, an omnibus bill radically changed the procedures of the Public Service Commission, but also deregulated wrecker services. The title did not mention either deregulation or wreckers. Instead, the title indicated that the bill primarily increased regulation on other industries; for example, it stated the bill "creat[ed] a legislative oversight committee to monitor the public service commission" and "requir[ed] that certain studies be made relating to natural gas and electric utilities." Id. at 490 n.1, 300 S.E.2d at 486 n.1. A
36 person interested in learning more about wrecker services or which industries were to receive
less oversight "would reasonably conclude that the act did not touch th[ ose] subject[ s]." Id. at
491, 300 S.E.2d at 487.
The same is true in State ex rel. Wa lton v. Casey, 179 W.Va. 485, 486, 370 S.E.2d 141,
142 (1988). In that case, a provision allowing for licenses to medical doctors was hidden in a bill
regulating osteopathic physicians. Medical doctors are licensed under West Virginia Code
chapter 30, article 3; osteopathic physicians are licensed under a different article of chapter 30,
article 14. The bill in question changed the rules for medical doctors to receive licenses, but its
title stated that it amended article 14 and was "all relating to" osteopathy. It did not reference
either medical doctors or article 3. Id. at 489. Again, a person interested in medical doctors'
licenses would not know to read a bill whose title said it was about osteopathic physicians.
Likewise, Bedfo rd Corp. v. Price involved a bill that went "beyond the subject matter of
the sections proposed to be amended." 112 W.Va. 674, 166 S.E.2d 380, 381 (1932). The title
of the bill read: "An Act to amend and re-enact sections six, seven and ten of article nine of
chapter eleven and section eighteen of article six of chapter eleven of the official code of West
Virginia, one thousand nine hundred and thirty-one, relating to tax levies and collections." Id.
The amendment at issue had made "drastic changes" to the collection of municipal taxes. Id.
But none of the sections enumerated in the title "rna[de] any reference in any manner to the
collection of municipal taxes"; rather, they concerned only "state, county and district (magisterial
and school) taxes." Id.
The title of H.B. 2981 does not commit the sin of these cases. The specificity of the title
is only a problem when it points a reader away from a bill by talking about electric utilities
instead of wreckers, or osteopathic physicians instead of medical doctors, or county and school
37 taxes instead of municipal taxes. When it points a person to the topic at hand-here, the nominating procedures of third-party candidates-it does not matter that it also gives other specifics. See Davis, 156 W. Va. at 154, 191 S.E.2d at 611.
Petitioners also argue that the title of H.B. 2981 is unconstitutional because it was passed on the last day of the legislative session. Pet. 22. But Petitioners point to no case or constitutional provision that makes a bill's title unlawful merely because the bill was passed on the last day of the legislative session. Nor was this bill "rushed through" the legislative process.
Id. The bill was first introduced over a month before it was enrolled, and the House passed it twenty days later, still ten days before its enrollment.
Lastly, Petitioners contend that the title is insufficient because H.B. 2981 "creat[ ed] a new crime." Pet. 23. But the bill did not create a new crime. Prior to the amendment,§ 3-5-
23(£) already provided for a criminal fine of $1,000, and that provision was not substantively amended. The case cited by Petitioners is entirely inapposite. It struck down a law creating a new felony for price fixing of commodities because the title of the bill repealed and enacted a new code. State ex rel. My ers v. Wo od, 154 W. Va. 431, 437, 175 S.E.2d 637, 642 (1970). The
Court specifically noted that where an act "amends the code and reenacts fo rmer acts," as here, the title need not reference a criminal provision. Id. at 644 (emphasis added).
38 CONCLUSION
The Petition should be refused.
THE WEST VIRGINIAREPUBLICAN PARTY, INC.
By counsel,
Elbert Lin (WVSB #12171) HUNTON ANDREWS KURTH LLP Riverfront Plaza, East Tower 95 1 East Byrd Street Richmond, Virginia 23219 Telephone: (804) 788-7202 Facsimile: (804) 788-8218 Email: [email protected]
J. Mark Adkins (WVSB #74 14) Richard R. Heath, Jr. (WVSB #9067) BOWLES RICE LLP 600 Quarrier Street (2530 1) Post OfficeBox 1386 Charleston, West Virginia 25325-1386 Telephone: (304) 347-1100 Facsimile: (304) 347-1756 Email: [email protected] [email protected]
39 CONCLUSION
The Petition should be refused.
THE WEST VIRGINIAREPUBLICAN PARTY, INC.
By counsel,
Elbert Lin (WVSB #12171) HUNTON ANDREWS KURTH LLP Riverfront Plaza, East Tower 95 1 East Byrd Street Richmond, Virginia 23219 Telephone: (804) 788-7202 Facsimile: (804) 788-8218 Email: [email protected]
J. Mark Adkins (WVSB #74 14) Richard R. Heath, Jr. (WVSB #9067) BOWLES RICE LLP 600 Quarrier Street (2530 1) Post OfficeBox 1386 Charleston, West Virginia 25325-1386 Telephone: (304) 347-1100 Facsimile: (304) 347-1756 Email: [email protected] [email protected]
39 "'7/3 1/2018 WV - Election Night Reporting f U.S. HOUSE OF REPRESENTATIVES, 3rd Congressional District - REP (Vote For 1)
Counties Reporting: 18 I 18
REP AYNE AMJAD 7.46% 2,795
REP MARTY GEARH EART 18.19% 6,814
REP CONRAD LUCAS 18.07% 6,771
REP CAROL MILLER 23.81% 8,923
REP PHILIP PAYTON 2.30% 861
REP RUPIE PHILLIPS 19.53% 7,319
REP RICK SNUFFER 10.64% 3,987
37,470
� STATE
DEMOC RATIC CONTESTS
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UPDATES
May 14, 2018 at 04:45 PM On 5/14/2018, each county's board of canvassers meets to canvass Primary Election returns. Upon completion of canvass, the board of canvassers publicly declares the election results. Any recount requests must be submitted within 48 hours after results are declared (d o not count Saturdays, Sundays and legal holidays). 48 hours after results are declared, the board of canvassers shall certify results for races fo r which no recount was requested. 0/J.Va. Code §§3-5-17, 3-6-9, 3-6-10) See more
Counties Reporting
E1 Completely Reported Not Reporting
" Partially Reported
http://results. enr.cla rityelections .com/WV17 448 71Web02-state .2069991#1 213 '1/3 1/2018 WV-Election Night Reporting
...... ········ ······· ...... ···· ··· .. .. COUNTIES REPORTING ...... 55/55
...... ·· ····· ···· . ·· · ··········· .... PRECINCTS REPORTING ...... 1758/1758
Voter Turnout
TOTAL 26.13%
Ballots Cast 320,937
Registered Voters 1,228,196
Copyright 2018 - www.scytl.com
http://results. en r.cla rityelections .com!WV17 4487/Web02-state .206999/#/ 3/3 I 7/3 1/2018 Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat - The New Yo rk Times
Don Blankenship Announces Th ird-PartyBid fo r We st Virginia Senate Seat
May 21, 20 18
WAS HINGTON - Don Blankenship, the ex-convict coal baron who lost his bid for the Republican Senate nomination in West Virginia this month, said on Monday that he would run as a third party candidate - raising the prospect that he could spoil one of Republi<;ans' best chances to pick up a Democratic seat in November.
But before Senator Joe Manchin III, a Democrat running for re-election in the deep-red state, celebrates a candidacy that could split the Republican vote, Mr. Blankenship must overcome West Virginia's "sore loser" law, designed to keep failed primary candidates off the ballot.
Mr. Blankenship, who lost a brutal proxy fight with party leaders in the Republican primary, was already anticipating a court fight with "the establishment" over the matter.
"We are confident that - if challenged - our legal position will prevail absent a politically motivated decision by the courts," he said in a news release on Monday.
Mr. Blankenship did not provide evidence or a legal argument to support the claim. But scholars who have studied the law said they could see a reasonable argument to overcome it.
For Democrats, the prospect of a third-party entry in West Virginia is a gift. Democrats have been trying to foment Republican divisions, especially in races against sitting Democratic senators in states that President Trump won.
In Ohio, they have highlighted misgivings that another losing primary candidate, Mike Gibbons, has with the Republican winner, Representative James B. Renacci, who will face Senator Sherrod Brown in November. In Wisconsin, they have egged on the Republican combatants slugging it out for the right to challenge Senator Tammy Baldwin in the fall. And intraparty fighting in Arizona could imperil Republicans' effort to maintain the seat being vacated by Senator Jeff Flake.
Mr. Blankenship would have little chance of winning the Senate seat outright, but if he could make it onto the ballot, he could siphon off support for West Virginia's attorney general, Patrick Morrisey, who won the Republican nomination. That could propel Mr. Manchin to re-election.
EXHIBIT https:/twvw;.nyti me s .com/20 1 8/05/21 /us/poiitics/don-bl anke ns hip-third-party-s enate .html 2 1/3 7i31/2018 Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat - The New York Times
I And even if his legal challenge fails, Democrats said on Monday that Mr. Blankenship could torment Mr. Morrisey with negative ads, and reach deep into his pockets to demonize the Republican leadership in Washington.
Mr. Manchin, who served as the state's governor before winning a Senate seat in 2010, remains a popular moderate Democrat. But Republicans see the seat, in a state where they have won by huge margins in recent years, as one of their best pickup opportunities this fall.
Nachama Soloveichik, a spokeswoman for Mr. Morrisey, said that the campaign would comment on ballot issues "as they may arise" but did not mention Mr. Blankenship by name.
"Patrick Morrisey is the only candidate who can defeat Senator Joe Manchin and who will stand with President Trump for West Virginians," she said.
A spokesman for Mr. Manchin declined to comment.
Mr. Blankenship has run a populist campaign not unlike Mr. Trump's, complete with nativist attacks and allegations that the Justice Department under President Barack Obama corruptly prosecuted him for his role in a 2010 mine explosion that killed 29 men.
Senator Mitch McConnell of Kentucky, the majority leader, coordinated an aggressive campaign to sink Mr. Blankenship in the Republican primary, even getting Mr. Trump to voice opposition to his candidacy. In the weeks since Mr. Blankenship's loss, Mr. Trump and other Republican leaders have expressed relief, saying they avoided a situation like Alabama, where a Democrat claimed a safely Republican Senate seat.
Mr. McConnell's Senate campaign team went further, taunting Mr. Blankenship the night of his loss with a reference from "Narcos," a Netflix series.
Mi'r'cH Te am Mitch ;):=.-. @Team_Mitch
https://www.nytimes .com/20 1 8/05/2 1 /us/politics/don-bla nkensh ip-thi rd-party-senate .html 2/3 f/31/2018 Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat - The New York Times Thanks for playing, @Don Blankenship. #VVVSen 10:11 PM - May 8, 2018
12.9K 6,013 people are talking about this
Mr. Blankenship did not appreciate the gesture and responded a few days later with an ad that blasted Mr. McConnell for making light of drug use and warning the Republican leader that "It's Not Over."
But it will not be easy for Mr. Blankenship to keep up the fight. West Virginia's "sore loser" or "sour grapes" law appears designed to head off efforts like Mr. Blankenship's. It states that a candidate who runs for the nomination of a major political party and loses "cannot change her or his voter registration to a minor-party organization/unaffiliated candidate to take advantage of the later filing deadlines and have their name on the subsequent general election ballot."
Steven Allen Adams, a spokesman for Mac Warner, West Virginia's secretary of state, made clear that Mr. Warner believes the law bans a candidate like Mr. Blankenship from seeking to step around the primary process.
Still, scholars said that the state had written the text in a way that leaves it vulnerable to challenge.
"It looks to me like West Virginia intended for there to be a ban on sore losers, including in legislation this year. It looks like they were intended to stop someone like Blankenship," said Barry C. Burden, the director of the Elections Research Center at the University of Wisconsin at Madison. "However, the law is not written perfectly."
The State Legislature passed a bill in March seeking to clarify the law, but it does not take effect until June.
Mr.Blan kenship, for his part, painted himself as a natural fit for the Constitution Party, which champions the "Christian character and heritage of our state, and the Bible as the basis of morality on which the legitimacy of our laws rest." He cited his legal case as presenting himself as an "especially appropriate" representative of its values.
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A version of this article appears in print on May 22, 2018, on Page A12 of the New Yo rk edition with the headline: Senate Bid by Blankenship Could Spoil G.O.P. Hopes
https://www. nytimes.com/20 1 8/05/2 1 /us/politics/don-bla n kensh ip-third-party-senate .html 3/3 West Virginia Secretary of State Mac Warner
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Recognized Political Parties In WV
In West VIrginia, a group of citizens may gain party recognition by having a candidate for governor attain 1% of the total votes oast for governor In the most recent election. Recognized political parties may nominate candidates for the general election In the primaryelection or by convention. Everyone else may only appear on the general election ballot by collecting signatures. Recognized political parties also elect people to form executive committees. The parties listed below are the major, recognized polltloal parties In West VIrginia.
Democratic Party
www.wvdemocrats.com State Chair: Belinda Blafore Executive Director: Curt Zlcl Republican Party www.wvgop.org State Chair: Melody Potter Headquarters: P. O. Box 2711, Charleston, WV 25330 Phone: (304) 768-04930 Mountain Party vVV\"'I'.mountalnpartywv. com State Chair: Jesse Johnson Vlce·Chalr: Travis Booth Headqua·ters: 121 VIllage Green Road, Salem WV 26426 Phone: (304) 989-162�'] � --····· ·· - ·· ---� ---·- Libertarian Party www.lpwv.org Chairman: Michael 8. Wilson Executive Director: David Moran (VIce-Chair) Headquarters: P. O. Box 135 Jane Lew, WV 26378 Phone: (855) 687·5798[] EXHIBIT 4 .... https://sos.vN. gov/electlons/Pages!Recognlzed-Politicai·Parties-Jn-WV.aspx 1/1 2018 RUNNING FOR OFFICE IN WEST VIRGINIA Office of the West Virginia Secretary of State Elections Division State Capitol Building Charleston, WV 25305 Toll-Free: 1-866-SOS-VOTE Office: 1-304-558-6000 Fax: 1-304-558-8386 EXHIBIT Email: [email protected] Website: www.sos.wv.gov 5 Running fo r Office (2018) RUNNING FOR OFFICE IN WEST VIRGINIA - 2018 Primary Election - May 8, 20 18 General Election - November 6, 2018 (Second Tuesday in May) (Tuesday fo llowing first Monday in November) TABLE OF CONTENTS Section 1: Deciding to Run fo r Office The Decision to Become a Candidate ...... 3 Recognized Political Parties in WV ...... 4 Minor/Unaffiliated Political Parties in WV ...... 4 Elections in 2018...... 5 Are You Eligible to Run for Office? ...... 5 Running for Office and Your Current Employment ...... 6 Section II: Becoming a Candidate Filing as a Pre-Candidate ...... 7 When to File as a Pre-Candidate ...... 8 Reporting Requirements of a Pre-Candidate ...... 8 Creating a Committee Name ...... 8 Committee Bank Account ...... 9 The Certificate of Announcement ...... 9 Where to File...... I 0 Changing Political Parties Prior to an Election ...... I 0 Payment of Filing Fees ...... 10 Allowable Nicknames on the Ballot ...... 11 Ballot Positioning...... 11 Last Day to Withdraw ...... 11 Filing with the Ethics Commission ...... 11 Federal Offices ...... l2 State 0ffices...... l3-15 County Offices...... 16 County Clerk Phone Numbers ...... 17 Unexpired Terms ...... 17 Party Executive Committees ...... 18 No Party Organization/Minor Party/Unaffi liated Candidates ...... 19-20 Write-In Candidates ...... 21 Municipal Elections ...... 22 Filing Pre-Candidacy Registration Form (Municipal Candidate) ...... 22 Filing the Municipal Certificate of Announcement ...... 22 Candidate Requirements (Municipal Candidates Eligibility) ...... 22 Campaign Finance (Generally) ...... 23 Section III: Managing Campaign Finances New Law in Effect: Mandatory Online Electronic Campaign Finance Report Filing .. 24-25 Exemptions ...... 25 The Code of Fair Campaign Practices ...... 25-26 Who Must Keep and Disclose Financial Records? ...... 26 Which Financial Records Must Be Kept? ...... 26 Financial Responsibility ...... 26 Running for Office (2018) TABLE OF CONTENTS (cont.) Amending Reports ...... 27 Political Contributions ...... 27 Contribution Limitations ...... 27-28 Cash Contributions ...... 28 Unlawful Financial Activities ...... 28 Anonymous Contributions Prohibited ...... 29 Candidate Committee Election Cycles ...... 29 Fund-Raising Events ...... 30 Expenditure of Funds (i.e. Spending Money) ...... 30 Allowable Expenditures Under W. Va. Code § 3-8-9 ...... 30 Political Action Committee Contributions ...... 31 Contributions fr om Business Entities ...... 31 Record Keeping and Things to Remember ...... 31 Campaign Finance Reporting ...... 32 2018 Election Year Campaign Finance Reporting Schedule ...... 32 Consequences fo r Early and Late Reports ...... 33 The Campaign Finance Reporting System (CFRS) ...... 33-34 The Waiver...... 34 Political Communications: Independent Expenditures, Electioneering, and Soliciting Funds ······················ ··············· ························································································ ········· 34-35 Reporting Requirements ...... 35-36 Determining Which Form to Use ...... 36 Paper Forms ...... 36-37 Additional Report Types ...... 37 Reporting Contributions ...... 37-38 Reporting Other Income and In-Kind Contributions ...... 38-39 Reporting Loans ...... 39 Afterthe Election ...... 39-40 How to Close a Committee ...... : ...... 40 20 18 Primary Election Dates ...... 40-41 2018 General Election Dates ...... 41-42 2019 Important Dates ...... 42 Additional Resources ...... 43 References to state and federal laws and regulations are current as of the time of publication. All other information represents the interpretation of the Office of the Secretary of State and should not be regarded as settled law or legal advice. It is a candidate's responsibility to know and comply with the law. Please consult an attorney for legal advice. 2 Running for Office (2018) SECTION I DECIDING TO RUN FOR OFFICE THE DECISION TO BECOME A CANDIDATE FOR PUBLIC OFFICE Serving the State of West Virginia in an elected office is a major commitment of public service to the citizens of West Virginia, and an honor that should be given significant fo rethought. Deciding to become a candidate fo r public office should be well-thought and intentional. Public office holders have the wonderful opportunity and responsibility of representing not only their constituents, but also our society's best interests. Before deciding to run for office, consider all your current and future professional and personal responsibilities and choose an office that fits your goals, aspirations and abilities best. Running fo r all public offices have benefits and risks, so make an informed decision to run. 3 Running for Office (2018) RECOGNIZED POLITICAL PARTIES IN WV Pursuant to the provisions of W. Va. Code § 3-1-8, there are fo ur ( 4) recognized political parties in West Virginia: Democratic Party Libertarian Party Mountain Party Republican Party These recognized parties nominate candidates fo r offices on the General Election ballot in the Primary Election by convention or other means of selection as determined by party rules. Party rules also dictate the eligibility of a citizen to run for officeas a candidate for one of these parties. Generally, fo r partisan elections, citizens wishing to run as a candidate affiliated with one of the recognized political parties must be registered with that political party. If, however, a candidate wishes to run fo r office as a candidate fo r a party other than the party the candidate is affiliated with, the candidate must update her or his voter registration at least sixty (60) days prior to fi ling a Certificate of Announcement. (W. Va. Code § 3-5-7.) Parties may also elect Delegates to the National Convention during the Primary Election. Please contact the party's Chairperson fo r more information on their nomination process. MINOR/UNAFFILIATED POLITICAL PARTIES IN WV Candidates affiliated with all other non-recognized political parties, or who are not affiliated with any political party, are considered "minor" or "unaffiliated" party candidates. These candidates must fo llow the filing requirements listed in W. Va. Code §§ 3-1-13, 3-5-23 and 3-5-24. Such candidates must obtain and submit to the appropriate election official the requisite number of signatures with a Nomination Certificate and the candidate's Certificate of Announcement by August I preceding the November General Election. (See Opinion of the Attorney General regarding applicable fi ling deadline fo r minor party and unaffiliated candidates to appear on the General Election ballot (July 7, 2017); link to WV Attorney General public resources page: http://ago. wv. gov/pub I icresources/Pages/defau lt.aspx.) THE "SORE LOSER" or "SOUR GRAPES"LAW (W. Va. Code §§ 3-5-7(d)(6) and 3-5-23) Candidates affi liated with a recognized political party who run fo r election in a primary election and who lose the nomination cannot change her or his voter registration to a minor party organization/unaffi liated candidate to take advantage of the later filing deadlines and have their name on the subsequent general election ballot. 4 Running for Office (2018) ELECTIONS IN 2018 Primary Election: An election held fo r the purpose of nominating candidates by political parties fo r officeson the General Election ballot. Nonpartisan elections will be held simultaneously with the primary nomination process. General Election: An election to choose from candidates that have officially been certified as candidates on the ballot or as a certified write-in candidate. Candidates fo r the fo llowimz offi ces will be nominated and elected in the 2018 election cycle: • U.S. Senate • U.S. House of Representatives • State Senator • House of Delegates • County Commission • Board of Education • Conservation District Supervisor • Greater Huntington Park & Recreation District • State Executive Committee • District Executive Committee (Congressional, Senatorial & Delegate) • County Executive Committee • Any vacancy that must be fi lled by either the Primary Election or General Election ARE YOU ELIGIBLE TO RUN FOR OFFICE? It is every West Virginian 's fu ndamental Constitutional right to run fo r office, but that right has some limitation depending on the officeyou seek and other factors. Please review the requirements fo r the office you seek to ensure you meet the prerequisites fo r minimum age, residency and others that may exist. Some offices, such as House of Delegates and State Senate, require candidates to be a resident fo r a length of time before the election, by the time of filing for office or by the time oftaking office. Generally, only West Virginia residents (who also meet the age and other requirements) are eligible to run fo r office. "Residence" has been defined by the WV Supreme Court as the place where you actually live and intend to live indefinitely. (See Wh ite v. Ma nchin, 318 S.E.2d 4 70, 173 W.Va. 526 (W. Va. 1984).) A business location is not a residence. Simply owning property in this State does not establish residency. A Post Office Box does not establish residency. Also, some WV residents are otherwise prohibited from holding office due to convictions under certain civil or criminal laws under the U.S. Constitution, WV Constitution, or W. Va. Code. Eligibility determinations are made by a court of competent jurisdiction; not the Secretary of State, county clerks or municipal recorders. 5 Running for Office (2018) RUNNING FOR OFFICE AND YOUR CURRENT EMPLOYEMNT State Employment: Many factors can affect your ability to run fo r office. Below are the most common examples of employment positions affected by running fo r and/or holding public office: • Board of Education members • Judicial officers • Members of other state or county boards or commissions Persons employed in the above positions usually must resign upon filing fo r any other partisan office.Addi tionally, employees in those positions may be restricted from participating in political activity. Federal Employment/State Employment Paid with Federal Funds: The Hatch Act covers federal civil service employees and some state employees working fo r programs funded or administered under federal loans or grants. The Hatch Act was amended in 2012. The most current specifics of the Hatch Act can be reviewed on this website: https :/lose. 2:ov/Pa2:e s/HatchAct.aspx. General Questions Re2:ardin2:Employ ment: As a good rule of thumb, you should avoid the appearance of potential impropriety between running fo r office and your obligations to your current employment. If you think a conflict might exist fo r you, consult your employer's human resources division, personnel director, or otherwise consult an attorneyto advise you of your rights and obligations under the law. 6 Running for Office (2018) SECTION II BECOMING A CANDIDATE FILING AS A PRE-CANDIDATE Filing for pre-candidacy is not declaring your candidacy fo r that office. Rather, it is a procedural tool that provides prospective candidates the ability to raise money in support of their candidacy prior to fi ling their Certificate of Announcement. (W. Va. Code § 3-8-Se.) You must file a Pre-Candidacy Registration Form before raising money fo r possible candidacy. Candidates may expend personal finances without filing a Pre-candidacy Registration Form. However, all campaign-related financial activities are subject to disclosure requirements. The candidate must designate a Treasurer who is responsible fo r their committee's fi nancial transactions. It is the Treasurer's responsibility to receive, keep and disburse all sums of money, and fi le the required campaign finance reports on time and according to the law. Candidates may act as their own Treasurer of their committee, with the exception of judicial candidates, who are prohibited from being her or his own Treasurer. 7 Running for Office (2018) WHEN TO FILE AS A PRE-CANDIDATE A candidate may filefo r pre-candidacy no more than fo ur (4) years before the term of a position that is up fo r election. If the term ofthe position you are seeking begins in less than fo ur (4) years, then a candidate may only filefo r pre-candidacy during the election cycle prior to the next election, but no later than the candidate filing period scheduled fo r that election cycle. For the 2018 election cycle, the filing period fo r candidates affiliated with a recognized political party (see supra p.3) runs from January 8, 2018, until midnight on January 27, 2018. For minor/unaffiliated party candidates, the fi ling period begins January 8, 2018, and continues until August 1, 2018. However, if a minor/unaffiliated party candidate wishes to raise money prior to filing a Certificate of Announcement, Nomination Certificate and requisite petition signatures (see supra p.3), such candidate must filefo r pre-candidacy before raising money. REPORTING REQUIREMENTS OF A PRE-CANDIDATE Every sum of money, service, or thing of value received, as well as all expenditures made, and liabilities incurred, must be reported during the appropriate campaign finance reporting period. Pre-candidates are required to filean Annual Report in accordance with the reporting schedule fo r campaign finances. The Annual Report must identify all contributions and expenditures received and made subsequent to the previous report filed, if applicable. Because it is a Treasurer's responsibility to manage all candidate committee fu nds, it is highly recommended that candidates designate a Treasurer early in the campaign. Remember that fa iling to file required campaign finance reports may result in criminal charges being filed against the responsible person. CREATING A COMMITTEE NAME* The name of a candidate's committee can be anything relevant to the candidacy. Some common committee names include: • Committee to Elect (candidate's name) • (Candidate's name) fo r Delegate 2018 • Friends of (candidate name) *Remember that a committee name may be needed fo r campaign materials and advertisements, indicating who fu nded the expenditure(s) . So choose a name thatfits your campaign best. 8 Running for Office (2018) COMMITTEE BANK ACCOUNT It is strongly recommended that your committee's bank account be separate and distinct from your personal bank account. It is against the law to use campaign money for personal benefit. Mixing personal and campaign fu nds may lead to criminal charges. Some banks require certain official documentation of a candidate's committee before issuing a bank account fo r the campaign. Please have your Treasurer consult with a banking professional to help guide you through the requirements of setting up a bank account for your campaign. THE CERTIFICATE OF ANNOUNCEMENT Candidates must submit the Certificate of Announcement Form to declare candidacy fo r public office.All required information on the fo rm must be provided, and the fo rm must be signed and notarized. Forms missing any info rmation or signatures will be rejected. Importantly, candidates cannot re-fi le a corrected Certificate of Announcement after the filing deadline. Also, you should know that the information provided in the Certificate of Announcement must be accurate and correct. Providing fa lse information may result in a criminal prosecution. For the 2018 election cycle, candidates must file a Certificate of Announcement during the fo llowing period: Monday, January 8, 2018, through midnight on Saturday, January 27, 2018. At the time of fi ling your Certificate of Announcement, you must also pay the filing fee or submit equivalent documentation to meet the fee requirements. Many of the fi ling fees are based on the salary ofthe position you are seeking. If the salary ofthe position you seek changes, the filing fe e will change accordingly. The Certificate of Announcement cannot be accepted prior to January 8, 2018. If the fo rm is received or postmarked before January 8, 2018, it will be rejected and returned. Filings that are mailed must be postmarked by the U.S. Postal Service before midnight on January 27, 2018. If you use an express shipping service (UPS, FedEx, DHL, etc.) your fi ling must be received by midnight on January 27, 2018, at the correct filing office. The dates provided by these services are not equivalent to postmarks. Check with the appropriate filing officefo r hours of operation on the last day of filing. 9 Running for Office (2018) WHERE TO FILE The filing office fo r a candidate's Certificate of Announcement depends on which public office the candidate seeks. Filing your Certificate of Announcement on time is critical, and fa ilure to file a completed application with the correct office by the fi ling deadline will result in rejection and your inability to run fo r office during that election cycle. Late filings will not be accepted. Please review the fo llowing options to identify your appropriate fi ling office: Secretary of State's Office: Candidates fo r Federal office, Statewide office, State Senate, House of Delegates, judicial offices (excluding magistrates) and those running fo r an office in more than one county. County Clerk's Office: Candidates fo r an officethat is entirely within one county, which are not listed above as filing with the Secretary of State's Office,which includes magistrates. Municipal Recorder/Town Clerk: Candidates fo r a local municipal office. (Please note that some cities/towns/villages designate a Town Clerk, rather than a Recorder, by Charter or Ordinance as the local election official.Co ntact your local municipal officialsfo r more information.) CHANGING POLITICAL PARTIES PRIOR TO AN ELECTION Candidates registered as a voter in a party other than the one named in the Certificate of Announcement during the sixty (60) days immediately preceding the fi ling of the Certificate may be refused certification of candidacy by the Secretary of State or board of ballot commissioners, as the case may be. EXCEPTION : Candidates who are not registered with a political party (e.g. unaffiliated or no party) may change their registration to become affiliated with a political party at any time prior to filing the Certificate of Announcement. PAYMENT OF FILING FEES If you are filing with the Secretary of State, you may pay by check, credit card, cash or money order. If payment is by check and it is returned fo r insuffi cient funds, you will not be certified as a candidate until the filing is resubmitted with sufficient payment. Checks should be made payable to the West Virginia Secretary of State's Office. Please contact your county clerk or municipal recorder/town clerk fo r specific fees fo r county or municipal officesand the type of payment they can accept. 10 Running for Office (2018) ALLOWABLE NICKNAMES ON THE BALLOT A nickname may be used on the ballot by using quotation marks, parenthesis, or in lieu of the candidate's firstname. (WV Code of State Rules § 153-14-1 et seq.) A candidate may not use a title or position, such as "Dr.," "Rev.," "Sen." or "Sheriff," or a common meaning of status, such as "Sarge," "Coach" or "Doc." A nickname shall also be limited to one word, and the length ofthe name on the ballot cannot be more than 25 characters. BALLOT POSITIONING (W. Va. Code §§ 3-5-13a and 3-6-2) Ballot positions shall be selected fo r any officeor division fo r which more than one candidate is to be nominated. A candidate's name position on a ballot will be determined by a drawing by lot conducted in the county clerk's office (ormu nicipal recorder's office fo r municipal elections) in each county. The drawing for Primary Election ballot position will be held at 9:00 a.m. on February 20. 2018 (fourth Tuesday fo llowing the close of candidate filing) and for the General Election at 9:00 a.m. on August 28. 2018 (seventieth day preceding the election). LAST DAY TO WITHDRAW(W. Va. Code § 3-5-11) A candidate's last day to withdraw her or his name from the ballot and decline to run as a candidate fo r public office is February 13. 2018 (third Tuesday fo llowing close of candidate filing), and in the General Election is August 14. 2018 (eighty (84) days before the election). Such candidates must filea Certificate of Withdrawal in the same filing office as required for the Certificate of Announcement. This filing must be received in the correct filing office by the deadline; postmark date does not apply. Withdrawals after those dates may occur only with approval of the SEC. FILING WITH THE ETHICS COMMISSION (W. Va. Code §§ 6B-2-6, 7) In addition to campaign finance filings, within ten (1 0) days of filing the Certificate of Announcement candidates must also file a Candidate Financial Disclosure Statement with the WV Ethics Commission. If this Statement is not returned to the Ethics Commission, the candidate's name may not be placed on the ballot or the candidate may not be allowed to take the oath of office. The Ethics fo rms are available where you fi le your Certificate of Announcement, or you may print the fo rm off the Ethics Commission's website at www.ethics.wv.gov. Please note that political party executive committee candidates are not required to file this fo rm. All questions regarding the Candidate Financial Disclosure Statement must be answered on the fo rm prior to submission to the Ethics Commission. These financial statements are a matter of public record and can be inspected at the Ethics Commission Office. If there are any questions regarding this fo rm, please contact the Ethics Commission at (304) 558-0664 or (toll free) 1-866- 558-0664. These fo rms are to be returned to the fo llowing address: WV Ethics Commission 210 Brooks St., Suite 300 Charleston, WV 25301-1804 11 Running for Office (2018) FEDERAL OFFICES Candidates fo r federal office must filea Certificate of Announcement with the Secretary of State's Officeto be on the ballot in West Virginia. Additionally, federal candidates must also fo llow the filing and reporting regulations of the Federal Election Commission (FEC). Information on federal candidate filing and reporting requirements can be fo und at www.fec.gov or call the FEC at 1-800- 424-9530 or 1-202-694-1000. U.S. SENATE Term: 6 years Minimum Age: 30 years Salary: $174,000* Residence: 9-year citizen of the U.S. Filing Fee: $ 1 ,740* WV inhabitant when elected One (1) person will be elected to the U.S. Senate in 2018. The term begins in January 2019. U.S. HOUSE OF REPRESENTATIVES Term: 2 years Minimum Age: 25 years Salary: $174,000* Residence: 7-year citizen of the U.S. Filing Fee: $ 1,740* WV inhabitant when elected One (1) person will be elected from each ofthe three (3) Congressional Districts. The term begins in January 2019. CONGRESSIONAL DISTRICTS First District Second District Third District Barbour Berkeley Boone Brooke Braxton Cabell Doddridge Calhoun Fayette Gilmer Clay Greenbrier Grant Hampshire Lincoln Hancock Hardy Logan Harrison Jackson Mason Marion Jeffe rson McDowell Marshall Kanawha Mercer Mineral Lewis Mingo Monongalia Morgan Monroe Ohio Pendleton Nicholas Pleasants Putnam Pocahontas Preston Randolph Raleigh Ritchie Roane Summers Taylor Upshur Wayne Tucker Wirt Webster Tyler Wyoming Wetzel Wood *Salaries and.filing fe es are based on .figures available at publication. 12 Running for Office (2018) STATE OFFICES Candidates fo r state officemust file a Certificate of Announcement with the Secretary of State's Officeto be on the ballot in West Virginia. STATE SENATE Term: 4 years Minimum Age: 25 years Salary: $20,000* Residence: WV 5 years prior to election. Filing Fee: $200 District & county one year prior to election. Seventeen (17) of the Thirty-Four (34) seats in the State Senate will be up for election to fu ll terms in 2018. No candidate may fi le from a county already represented by a seated senator within the same district. SENATORIAL DISTRICTS* *Bold indicates counties that are entirely within the district. District Counties in District 1 Brooke, Hancock, Marshall, Ohio 2 Calhoun, Doddridge, Gilmer, Marion, Marshall, Monongalia, Ritchie, Tyler, Wetzel 3 Pleasants, Roane, Wirt, Wood 4 Jackson, Mason, Putnam, Roane 5 Cabell, Wayne 6 McDowell, Mercer, Mingo, Wayne 7 Boone, Lincoln, Logan, Mingo, Wayne 8 Kanawha, Putnam 9 McDowell, Raleigh, Wyoming 10 Fayette, Greenbrier, Monroe, Summers 1 1 Grant, Nicholas, Pendleton, Pocahontas, Randolph, Upshur, Webster 12 Braxton, Clay, Gilmer, Harrison, Lewis 13 Marion, Monongalia 14 Barbour, Grant, Hardy, Mineral, Monongalia, Preston, Taylor, Tucker 15 Berkeley, Hampshire, Mineral, Morgan, 16 Berkeley, Jeffe rson 17 Kanawha 13 Running for Office (2018) HOUSE OF DELEGATES Term: 2 years Minimum Age: 18 years Salary: $20,000* Residence: Resident of district (and county, Filing Fee: $100 if limited) for 1 year prior to Election. All one-hundred (100) seats in the House ofDelegates will be on the ballot in 2018. The candidate must know the correct district number before filing. The Secretary of State's Officeor your County Clerk can help you identify your district. HOUSE OF DELEGATES DISTRICTS** *Bold indicates a countyen tirely within one (1) district. **District 28 - the two (2) members cannot be from the same county. DISTRICT # #ELECTED COUNTIES IN DISTRICT 1 2 Brooke, Hancock 2 I Brooke, Ohio 3 2 Ohio 4 2 Marshall, Ohio 5 Monongalia, Wetzel 6 Doddridge, Pleasants, Tyler 7 I Pleasants, Ritchie 8 1 Wood 9 1 Wirt, Wood 10 3 Wood 11 I Jackson, Roane 12 1 Jackson 13 2 Jackson, Mason, Putnam 14 Mason, Putnam 15 1 Putnam 16 3 Cabell, Lincoln 17 2 Cabell, Wayne 18 1 Cabell 19 2 Wayne 20 1 Logan, Mingo 21 1 McDowell, Mingo, Wyoming 22 2 Boone, Lincoln, Logan, Putnam 23 I Boone 24 2 Boone, Logan, Wyoming 25 1 McDowell, Mercer, Wyoming 26 1 McDowell, Mercer 27 3 Mercer, Raleigh 28** 2 Mo nroe, Raleigh, Summers 29 Raleigh 30 Raleigh 31 1 Raleigh, Wyoming 32 3 Clay, Fayette, Kanawha, Nicholas, Raleigh 14 Running for Office (2018) DISTRICT # #ELECTED COUNTIES IN DISTRICT 33 1 Calhoun, Clay, Gilmer 34 1 Braxton, Gilmer 35 4 Kanawha 36 3 Kanawha 37 1 Kanawha 38 1 Kanawha, Putnam 39 Kanawha 40 1 Kanawha 41 1 Greenbrier, Nicholas 42 2 Greenbrier, Monroe, Summers 43 2 Pocahontas, Randolph 44 1 Nicholas, Randolph, Upshur, Webster 45 1 Upshur 46 1 Lewis, Upshur 47 1 Barbour, Tucker 48 4 Harrison, Taylor 49 1 Marion, Monongalia, Taylor 50 3 Marion 51 5 Monongalia 52 1 Preston 53 1 Preston, Tucker 54 1 Grant, Mineral, Pendleton 55 Hardy, Pendleton 56 Mineral 57 Hampshire, Mineral 58 Hampshire, Morgan 59 Berkeley, Morgan 60 Berkeley 61 Berkeley 62 1 Berkeley 63 1 Berkeley 64 1 Berkeley 65 Jefferson 66 Jefferson 67 Jefferson 15 Running for Office (2018) COUNTY OFFICES All candidates fo r county office must file with their respective county clerk. The filing fee fo r county offices is one percent of the annual salary, except for the Board of Education (filing fe e is fixedat $25). Because county classification is used to determine salary, please contact your county clerk fo r the filing fee. All candidates fo r county office must be qualified voters and some offices have additional qualifications. For more information, you may contact the West Virginia Association of Counties at (304) 346-0591. COUNTY COMMISSION Term: 6 years Minimum Age: 18 years Filing Fee: Contact County Clerk Residence: Open magisterial district BOARD OF EDUCTION Term: 4 years Minimum Age: 18 years Filing Fee: $25 Residence: Open magisterial district Other: High School diploma or GED; training required prior to taking office. Each of the fifty-five(5 5) county school systems is governed by a five (5) member nonpartisan board of education. No more than two (2) members may be elected or serve from the same magisterial district. The residence of incumbent board members continuing in officeafter July I, 2018 will govern which magisterial districts have openings. New terms begin July 1, 2018. CONSERVATION DISTRICT SUPERVISOR Term: 4 years Minimum Age: n/a Filing Fee: $10 Salary: n/a Requirements: Landowner in district; education or experience in conservation. At least one supervisor wi II be elected in each county within the fourteen ( 14) conservation districts in West Virginia. Because of population, Berkeley and Kanawha Counties will elect two (2). Candidates fo r supervisor may only run fo r the office in the county in which they reside. For any questions regarding this position, contact the West Virginia Conservation Agency at (304) 558-2204 or www.wvca.us. GREATERHUNTINGTON PARK & RECREATION DISTRICT SUPERVISORS Term: 6 years Minimum Age: 18 years Salary: N/A Residence: Must reside in district in Filing Fee: $10 which they are elected One (I) commissioner will be elected to fu ll terms from Districts 1, 2, and 4. (Note: GHPR candidates filewit h the Secretary of State's Office.) 16 Running for Office (2018) COUNTY CLERK PHONE NUMBERS BARBOUR 304-457-2232 KANAWHA 304-357-0130 POCAHONTAS 304-799-4549 BERKELEY 304-264-1989 LEWIS 304-269-8215 PRESTON 304-329-0070 BOONE 304-369-7330 LINCOLN 304-824-3336 PUTNAM 304-586-0202 BRAXTON 304-765-2833 LOGAN 304-792-8620 RALEIGH 304-252-8681 BROOKE 304-737-3668 MARION 304-367-5447 RANDOLPH 304-636-0543 CABELL 304-526-8633 MARSHALL 304-845-1220 RITCHIE 304-643-2164 CALHOUN 304-354-6725 MASON 304-675-1997 ROANE 304-92 7-2860 CLAY 304-587-4259 MCDOWELL 304-436-8544 SUMMERS 304-466-7104 DODDRIDGE 304-873-263 1 MERCER 304-487-8338 TAYLOR 304-265-1401 FAYETTE 304-574-4225 MINERAL 304-788-3924 TUCKER 304-4 78-2414 GILMER 304-462-7641 MINGO 304-235-0339 TYLER 304-758-2102 GRANT 304-257-4550 MONONGALIA 304-291-7230 UPSHUR 304-4 72-1068 GREENBRIER 304-647-6604 MONROE 304-772-3096 WAYNE 304-272-6370 HAMPSHIRE 304-822-5 112 MORGAN 304-25 8-8547 WEBSTER 304-847-2508 HANCOCK 304-564-331 1 NICHOLAS 304-872-7820 WETZEL 304-455-8224 HARDY 304-530-0250 OHIO 304-234-3750 WIRT 304-275-4271 HARRISON 304-624-8675 PENDLETON 304-358-2505 WOOD 304-424-1860 JACKSON 304-373-2232 PLEASANTS 304-684-3542 WYOMING 304-732-8000 JEFFERSON 304-728-3246 UNEXPIRED TERMS If a vacancy occurs due to retirement, resignation, death, disqualification or removal, an election may be required to complete the term. The candidate wishing to run fo r an unexpired term must fi le a Certificate of Announcement and specify it is fo r the unexpired term with the correct fi ling office.The Certificate of Announcement must be filed during the fi ling period fo r full terms and the candidate must pay the required fe e fo r that office, unless a special fi ling period has been proclaimed. Please check with the appropriate fi ling officefo r possible unexpired terms that may be on the ballot in 2018. 17 Running for Office (2018) PARTY EXECUTIVE COMMITTEES Executive committee members are elected in the Primary Election to fo ur (4) year terms. Candidates fo r State executive committees will file with the Secretary of State, except fo r candidates in Senate District 17. Candidates fo r District and county executive committee positions will filewith the County Clerk. When electing executive committee members, the two (2) candidates with the highest votes shall be elected first, and the other candidates shall be qualified based on vote tallies, gender and county of residence. A current listing of all executive committee members shall be filed with the Secretary of State by the end of July each year. Any appointments to fillvaca ncies on an executive committee do not take effect if the updated list of committee members has not been submitted to the Secretary of State within ten (1 0) days of the appointment. STATE EXECUTIVE COMMITTEE* Districts: Members will be elected from Senate Districts District Members: Two (2) men and two (2) women are selected from each Senate District. Filing Fee: $20.00 *No more than two (2) committee members can be electedfrom the same county. DISTRICT EXECUTIVE COMMITTEES** (Congressional, Senate and Delegate) Districts: Members will be elected from each county in a multi-county District District Members One (1) man and one (1) woman from each county in the district Filing Fee: $5.00 **Does not app ly to single-countysenate or delegate districts. COUNTY EXECUTIVE COMMITTEE Districts: Members will be elected from Magisterial or Executive Committee Districts. District Members: If there are three (3) districts in the county then two (2) men and (2) women will be elected from each district. Ifthere are more than three (3) districts, then one (1) man and (1) woman will be elected from each district. Filing Fee: $10.00 18 Running for Office (2018) NO PARTY ORGANIZATION/MINOR PARTY!UNAF FILIATED CANDIDATES (W. Va. Code §§ 3-5-23 and 3-5-24) An individual may run fo r public office without belonging to a recognized political party in West Virginia (Democratic, Libertarian, Mountain, and Republican; see page 3). Candidates who are not affiliated with any political party or who are affiliated with a non recognized political party are commonly referred to as either "minor," "independent," "no party" or "unaffiliated" party candidates. These candidates must follow the filing requirements listed in W. Va. Code §§ 3-1-13, 3-5-23 and 3-5-24. A candidate running with no party organization will not appear on the Primary Election ballot. MINOR PARTY/UNAFFILIATED CANDIDATE CREDENTIALS, NOMINATION CERTIFICATE AND CERTIFICATE OF ANNOUNCEMENT The process fo r individuals seeking to run as minor party/unaffiliated candidates in the General Election is slightly diffe rent than the process for candidates affi liated with a recognized political party in WV. (See pages 3-4.) There are a few basic requirements to be such a candidate, which include obtaining an Official Credentials form, gathering the requisite number of signatures, and submitting a Nomination Certificate with a Certificate of Announcement. These fo rms are available at your local County Clerk's office, the Secretary of State's Office and website at www.sos.wv.!WV. These fo rms and associated procedures are discussed in more detail below. Official Credentials Form*: The first step to becoming a no party organization/minor party candidate is to be officially authorized by your County Clerk to collect signatures in support of your candidacy. Candidates apply fo r authorization to each County Clerk in every county the candidate wishes to run (e.g. in multi-county districts, a candidate must apply to each County Clerk in that multi-county district.) Upon approval, the County Clerk(s) will issue an OfficialCredenti als fo rm to the candidate. This Credentials fo rm is proof that the candidate has the authority to gather signatures in that county. *Important Note: this fo rm must be displayed to each voter canvassed or solicited. Nomination Certificate/Petition**: After a minor party/unaffiliated candidate receives her or his Official Credentials fo rm, the candidate must then utilize the Nomination Certificate (also referred to as the "Minor Party or Independent Candidate Nomination Petition") fo r gathering signatures. This Certificate may be acquired at the time an individual obtains her or his OfficialCreden tials. **Important Note : Individuals seeking an of fice on the ballot in more than one (1) county must use a separate No mination Certificate/Petition fo rm fo r each county. 19 Running for Office (2018) MINOR PARTY/UNAFFILIATED CANDIDATE CREDENTIALS, NOMINATION CERTIFICATE AND CERTIFICATE OF ANNOUNCEMENT (cont.) Signatures: After a minor party/unaffi liated candidate receives her or his Official Credentials form and obtains the Nomination Certificate from the County Clerk, such candidates are required to obtain not less than one (1) percent of the entire vote cast at the last preceding general election for the office being sought, but which shall never be less than twenty-five (25) total signatures. • Any signature gathered must be signed by the voter in his or her own handwriting or by his or her marks duly witnessed • In order fo r a voter's signature to count, he or she must be a duly registered resident within the county, district, or other political division represented by the office sought Certificate of Announcement: A recent West Virginia Attorney General (WVAG) Opinion clarified the law regarding minor party/unaffiliated candidate deadlines to fi le a Certificate of Announcement. Specifically, the Opinion directed the filing requirements fo r major recognized political party candidate would not withstand a Constitutional challenge in a court of competent jurisdiction. (See Opinion of the Attorney General regarding applicable filing deadline for minor party and unaffiliated candidates to appear on the General Election ballot (July 7, 2017); link to WV Attorney General public resources page: http://ago. wv.gov/publicresources/Pages/default.aspx.) Therefore, the deadline fo r a minor party/unaffiliated candidate to file her or his Certificate of Announcement, Nomination Certificates and filing fee with the appropriate office is no later than August 1. 2018. Such candidates may fileat any time prior to the filing deadline, but no late submissions will be accepted. Pre-Candidacy Requirements fo r Raising Money Even though minor party/unaffi liated candidates do not have to fi le a Certificate of Announcement until August 1 preceding the General Election, such candidates must fi le a Pre-Candidacy Form prior to raising money fo r a political campaign. However, candidates may spend personal funds fo r a campaign that has yet to be announced without filing a Pre-Candidacy Form; such candidates are only prohibited from raising funds without filing a Pre-Candidacy Form. 20 Running for Office (2018) WRITE-IN CANDIDATES* (W. Va. Code § 3-6-4a) Of ficial write-in candidates are not listed on any ballot. Rather, a list of officialwrite- in candidates will be posted at each polling place during early voting and on Election Day. Only votes fo r of ficial write-in candidates are counted. Write-in candidates are not required to pay a filing fe e or collect signatures. An individual meeting the requisite eligibility requirements fo r a specific office may fileas an official write-in candidate fo r offices to be elected in the primary, general, or special election by filing the Write-In Candidate's Certificate of Announcement with the appropriate filing office. Those officesel ected in the Primary Election are: • Judges (Justice of the Supreme Court, Circuit Court Judge, Family Court Judge, and Magistrate; in 2018, only unexpired terms to fillju dicial vacancies are on the ballot); • Board of Education; and • Conservation District Supervisors • Executive Committees *Important No te : a write-in candidate may not run fo r Delegate to National Convention. Additionally, an exception to the filing deadline exists when a vacancy occurs in the nomination of candidates fo r an offi ce on the ballot resultingfrom the death, disqualification or removal of a nominee from the ballot by a court of competent jurisdiction. Such vacancy must occur not earlier than the fo rty-eight (48) days nor later than the jive (5) days before the General Election. In such case, a Wr ite-In Candidate 's Certificate of Announcement shall be received no later than the close of business five (5) days before the election or the close of business on the day fo llowing the occurrence of the vacancy, whichever is later. Deadlines to File: The deadline to filea Write-In Candidate's Certificate of Announcement by any eligible person who seeks to be elected by write-in votes for any office at any election shall be received no later than the fo rty-ninth ( 491h) day before the election at which the office is to be fi lled. (W. Va. Code § 3-6-4a(c) . ) Primary Election: a Write-In Candidate's Certificate of Announcement shall be received no later than the close of business March 20. 2018. General Election: a Write-In Candidate's Certificate of Announcement shall be received no later than the close of business September 18. 2018. 21 Running for Office (2018) MUNICIPAL ELECTIONS (W. Va. Code § 8-1-1 et seq.) Any part of a county or counties may be incorporated as a city, depending upon the population, either as a Class I, Class II or Class III city, or a Class IV town or village. Municipalities generally elect a mayor, municipal recorder or clerk, and a council. Together they form the governing body ofthe municipality. Many West Virginia municipalities have framed and adopted a Charter, which include specific provisions setting fo rth the method and time for filing of Certificates of Announcement, nominating candidates, conducting primary and regular municipal elections, and determining and certifying the results of elections. If a Charter does not provide procedures fo r the administration of elections, municipalities must fo llow West Virginia State Code provisions as they apply to counties. Furthermore, because each municipality may have diffe rent filing dates and procedures fo r candidacy and campaign finance reporting other than those fo r county and statewide offices, a municipal candidate should contact their municipal recorder or clerk for info rmation regarding specificrequ irements fo r the municipality. FILING PRE-CANDIDACY REGISTRATION FORM Any candidate who wishes to raise money for a campaign before the officialcandi date filing period must file a Pre-Candidacy Registration Form with the municipal recorder/clerk before raising any fundsfo r the candidate's campaign. This Form can be obtained from the municipal recorder/clerk or online at www.sos.wv.!wv. However, nothing precludes a candidate from spending personal fu nds during a campaign without filing a Pre-Candidacy Registration Form, so long as such candidate is not raising money. FILING THE MUNICIPAL CERTIFICATE OF ANNOUNCEMENT The Municipal Candidate's Certificate of Alillouncement and Municipal Write-In Candidate's Certificate of Announcement must be filed with the municipal recorder/clerk during the appropriate filing periods set forth by the municipality's Charter. If no Charter has been passed by the municipality, then the filing periods shall be the same as those set fo rth fo r county and statewide candidates. (See page 8; see also Section III - Managing Campaign Finances, beginning on page 24.) CANDIDATE REQUIREMENTS Unless otherwise provided by Charter provision or Ordinance, the mayor, recorder and council members must be residents of the municipality and must be qualified voters entitled to vote fo r members of its governing body. (W. Va. Code § 8-5-7; see also page 4, "Are You Eligible to Run?") 22 Running for Office (2018) CAMPAIGN FINANCE* , Any person who files a Candidate's Certificate of Announcement is required to file Campaign Finance Reports except for political party executive committees and those that filewit h the Federal Election Commission (FEC). All fu nds received must be reported by name of contributor and the amount received, no matter how small the amount. There are typically four (4) reports due at diffe rent times during each municipal election cycle. Contact your municipal recorder/clerk fo r specificreport ing dates. Remember that fa iling to filerequi red campaign finance reports may result in criminal charges being filed against the responsible person. *For more detailed campaign finance guidance, please see Section IlL below. 23 Running for Office (2018) SECTION III MANAGING CAMPAIGN FINANCES NEW LAW IN EFFECT: MANDATORY ONLINE ELECTRONIC CAMPAIGN FINANCE REPORT FILING Beginning January 1, 2018, all financial statements that are required to be filed with the Secretary of State, by or on behalf of a candidate fo r any elective office, shall be filed electronically through the website that has been established by the Secretary of State. (W. Va. Code § 3-8-Sb.) 24 Running fo r Office (2018) MANDATORY ONLINE ELECTRONIC CAMPAIGN FINANCE REPORT FILING If a candidate is unable to electronically fi le the campaign financial statement through or by no fa ult of the candidate, the candidate shall file the statement in person, via facsimile or other electronic means of transmission, or by certified mail at the first reasonable opportunity. EXEMPTIONS: Committees required to report electronically may apply to the State Election Commission fo r an exemption from mandatory electronic filing in the case of hardship. An exemption may be granted at the discretion of the State Election Commission. In the case of mailing, the filing date of a financial statement shall be the date of the postmark of the United States Postal Service. In the case of hand delivery or delivery by facsimile or other electronic means oftransmission, the date delivered to the office of the Secretary of State or to the office ofthe clerk ofthe county commission. All filings (electronic and exempt by mail/hand/other delivery) must be delivered to the Secretary of State's Office or, when appropriate, to the officeof the clerk of the county commission "during regular business hours of that office." (W. Va. Code § 3-8-Sb(e).) If any fi ling is submitted after business hours, it will be accepted the next business day. THE CODE OF FAIR CAMPAIGN PRACTICES (W. Va. Code § 3-lB-5) At the time of filing fo r office, candidates will have an opportunity to voluntarily subscribe to the Code of Fair Campaign Practices. The Code is a voluntary pledge to adhere to guidelines and is intended to promote ethical, constructive and equitable campaigning. Pledging to adhere to the Code of Fair Campaign Practices requires subscriber to do the fo llowing: • Adhere to the campaign spending limitations (see table below); • Conduct your campaign openly and publicly; • Condemn fa lse advertising or communications which are not fact-based; • Refrain from coercing or unduly influencing individuals under your authority to give contributions or election help; and • Defend and uphold the right of every qualified voter to fu ll and equal participation in the electoral process. VOLUNTARY SPENDING LIMITATIONS OFFICE PRIMARY GENERAL Governor $1,000,000 $1,000,000 Constitutional Officers $150,000 $150,000 Supreme Court $150,000 $150,000 Circuit Judge $50,000 $50,000 State Senate $50,000 $50,000 House of Delegates $25,000 $25,000 25 Running for Office (2018) THE CODE OF FAIR CAMPAIGN PRACTICES (cont.) If a candidate who has endorsed and subscribed to the Code of Fair Campaign Practices exceeds the campaign spending limitations, such candidate's opponent(s) who have also subscribed to the Code (and who have not exceeded the spending limitations) are automatically released from the aforementioned voluntary campaign spending limitations. Expenditures that do not exceed the limits designated fo r the Primary Election are not added to the limits for the general election. WHO MUST KEEP AND DISCLOSE FINANCIAL RECORDS? Every candidate, treasurer, person and association of persons, and organization of any kind including every corporation, who or which directly or by independent expenditure supports a political committee or engages in permitted campaign activities wherein such person or entity expressly advocates the election or defeat of a clearly identified candidate fo r any office (municipal, county, district or state) "shall keep detailed accounts of every sum of money or other thing of value received by him or her, including all loans of money or things of value and of all expenditures and disbursements made, liabilities incurred, by the candidate, financial agent, person, association or organization or committee, fo r political purposes, or by any of the of ficers or members of the committee, or any person acting under its authorityor on its behalf " (W. Va. Code § 3-8-5 (emphasis added).) Remember that fa iling to file required campaign finance reports may result in criminal charges being fi led against the responsible person. WHICH FINANCIAL RECORDS MUST BE KEPT? Candidates "and all persons supporting, aiding or opposing the nomination, election or defe at of any candidate shall keep fo r a period of six months records of receipts and expenditures which are made fo r political pwposes." (W. Va. Code § 3-8-2 (emphasis added).) The committee should keep the receipts of all financial transactions fo r accounting purposes. However, the Secretary of State or County Clerk may conduct an audit, and the receipts must be presented fo r review. (W. Va. Code § 3-8-7.) If any violations are found, the committee may be held accountable fo r transactions fo r up to five(5) years. (W. Va. Code § 3-8-5d.) Therefore, it is highly recommended that receipts be kept fo r the entire five (5) year period. FINANCIAL RESPONSIBILITY The Treasurer of the committee is responsible fo r all of the committee's finances, and he or she must handle or be involved with all financial transactions and reporting requirements. Agents of the committee may make transactions and accept contributions on behalf of the committee, and be reimbursed fo r lawful expenses incurred by the agent. However, the contributions must be approved by the treasurer to ensure the contributions meet the legally permitted criteria. 26 Running fo r Office (2018) AMENDING REPORTS A report submitted by the committee may be altered to reflectthe accurate financial activity if a mistake is discovered. An amended report may be submitted at any time and with no penalty. If an amended report is submitted, it must include the same information as the previously submitted report with the errors corrected. All financial transactions fo r the reporting period must be included in the amended report, not just the portion that has been changed by the amendment. POLITICAL CONTRIBUTIONS "Contribution" means a gift, subscription, loan, assessment, payment fo r services, dues, advance, donation, pledge, contract, agreement, fo rbearance or promise of money or other tangible thing of value, whether conditional or legally enforceable, or a transfer of money or other tangible thing of value to a person, made fo r the purpose of influencing the nomination, election or defeat of a candidate. An offe r or tender of a contribution is not a contribution ifexpr essly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided without compensation: Provided, That a nonmonetary contribution is to be considered at fa ir market value fo r reporting requirements and contribution limitations. (W. Va. Code § 3-8-1 a(7).) Best Practice Tip: Get all of the info rmation required fo r your campaign finance report from your contributors at the time they make their donation. This best practice will save substantial-and precious-time in the fu ture tracking down this information later. CONTRIBUTION LIMITATIONS (W. Va. Code § 3-8-12) An individual may give to any political committee a total of $1,000 per primary election, and $1,000 per general election. An individual may also give a committee up to $1,000 during a general election period to pay fo r debts incurred during the preceding primary election period so long as that individual did not contribute the maximum $1 ,000 contribution during the primary election period and the total amount contributed during the primary election period added to the amount contributed towards the primary election period debt does not exceed $1 ,000 in the aggregate. Example: Smith fo r House Committee receives $500 from Jane Doe during primary election period. Later, during the general election period, Jane Doe contributes $1,000 to Smith for House Committee, and contributes an additional $500 towards debts incurred by the Committee during the primary election period. All such contributions are permitted. (Continued on next page) 27 Running for Office (2018) CONTRIBUTION LIMITATIONS (cont.) Active political committees are restricted to the types of contributions they may give and receive. The capacity to give or receive a contribution depends on the type of committee established. Below is a list of possible contribution types indicating whether the contributions to the specific committee are acceptable: As a State Candidate you may give up to $1,000 to: • Executive Committee • Legislative Caucus Committee As a State Candidate you may NOT give a contribution to the following: • Another State Candidate • PAC • Federal Committee As a State Candidate you may receive up to $1,000 from: • Individuals • State Political Action Committee (PAC) • Executive Committee • Federal Committee • Corporate PAC As a State Candidate you may NOT receive money from an Independent Expenditure PAC. CASH CONTRIBUTIONS A cash contribution can be accepted up to $50. The name of the contributor must be recorded and reported or it must be donated to the General Revenue Fund of the State. All contribution amounts above $50 must be by means other than cash. (See W. Va. Code § 3-8-5d(a), which provides, "A ny person who makes or receives a contribution of currency of the Un ited States or currency of any fo reign countryof more thanfifty dollars in value is guiltyof a misdemeanor, and, upon conviction, shall be fineda sum equal to three times the amount of the contribution.") UNLAWFUL FINANCIAL ACTIVITIES It is unlawful fo r the committee to spend any contributed fu nds that exceed the contribution limit. When a contribution exceeds the limit, the excess must be returned to the contributor. All items of value (cash and in-kind contributions) given to a committee count towards this $1,000 limit. Candidates may contribute as much as they desire to their own campaign; however, a campaign borrowing financial resources from anyone cannot be reimbursed unless it is treated as a loan instead of reporting as contribution to the campaign. 28 Running for Office (2018) ANONYMOUS CONTRIBUTIONS PROHIBITED All contributions must be identified with the fu ll name ofthe person or group of persons that gave the contribution. Anonymous direct and indirect contributions, including contributions made in a fictitious name used to conceal the identity of the source ofthe contribution, are illegal to accept. Activities such as "passing the hat" are not permitted. If, however, an anonymous contribution is accepted or the identification of the donor of a contribution cannot be determined, the contribution must be (I) recorded as such on the candidate's financial statement, and (2) donated in-full to the General Revenue Fund of the State. Thereafter, at the time of filing, the financial statement shall include a statement of distribution of anonymous contributions, which total amount shall equal the total of all anonymous contributions received during the period. (W. Va. Code § 3-8-Sa(h), Q).) EXCEPTION: POLITICAL PARTY COMMITTEES: Notwithstanding the above, a political party committee may report gross receipts for fu nd raisin!! events fo r the sale of fo od, beverages, services, novelty items, raffleti ckets or memorabilia, except that any receipt of more than fifty (50) dollars from an individual or organization shall be reported as a contribution. Such alternative reporting procedure may be fo llowed by a political party committee in filing financial reports if the total profitdo es not exceed fivethousand dollars per year. A political party committee using this alternative method of reporting shall report all of the fo llowing: • The name ofthe committee; • The type of fu nd-raising activity undertaken; • The location where the activity occurred; • The date ofthe fundraiser; • The name of any individual who contributed more than fifty dollars worth of items to be sold; • The name and amount received from any person or organization purchasing more than fifty dollars' worth of fo od, beverages, services, novelty items, raffleti ckets or memorabilia; • The gross receipts of the fundraiser; and • The date, amount, purpose and name and address of each person or organization from whom items with a fa ir market value of more than fifty dollars were purchased for resale. CANDIDATE COMMITTEE ELECTION CYCLES There are two possible contribution periods fo r a candidate committee within the election year. A contribution to a candidate committee is considered in connection with the primary election if it is received on or before the Primary Election Day. A contribution is considered in connection with the general election if it is received after the day of the primary election and if the committee has paid all of its financial obligations after the general election. A contribution given after the primary election period can be considered in connection with the primary election if, with the consent of the contributor, it is clearly marked on the financial statement as a contribution fo r the previous contribution period, provided that the fu nds are used to repay unpaid bills, loans or debts incurred during that contribution period. 29 Running for Office (2018) FUND-RAISING EVENTS "Fund-raising event" means an event such as a dinner, reception, testimonial, cocktail party, auction or similar affa ir through which contributions are solicited or received by such means as the purchase of a ticket, payment of an attendance fe e or by the purchase of goods or services. (W. Va. Code § 3-8-la(IS) (emphasis added).) A committee may pay fo r fo od, drink and entertainment costs that are incurred in holding a fund raising event. The committee must be careful determining the methodology of the fund-raising event and be certain that personal gifts are not given to attendees from committee fu nds. Fund raising transactions are reported separately from other transactions. The total amount raised, after expenses, is reported as the net receipt of funds for each event. (W. Va. Code § 3-8-Sa) EXPENDITURE OF FUNDS (i. e. SPENDING MONEY) The committee has now raised money (via contributions, money transfers from previous campaign accounts, loans, out of pocket expenses, etc.) and is ready to spend the funds fo r electioneering purposes. No money may be spent from committee funds unless it is expressly permitted by W. Va. Code § 3-8-9 or WV Code of State Rules § 146-3-6. Such prohibitions are intended is to ensure that the funds are spent on electioneering purposes only, without exception. ALLOWABLE EXPENTURES UNDER W. Va. Code § 3-8-9 A candidate or political committee may make expenditures only fo r the fo llowing purposes: • Officeexpenses, overhead costs fo r headquarters, and fo r costs related to postage • Candidates who do not have headquarters may purchase or rent filing cabinets, other office equipment and fu rnishings, computers, computer hardware and software, scanners, typewriters, calculators, audio visual equipment • Paid legitimate advertisements fo r the promotion of the candidate on the ballot • Costs from public meetings and political conventions (e.g. fo od, drink, entertainment, etc.) • Necessary travel and hotel expenses • Costs incurred with petitions fo r nomination of candidates • Lists of registered voters, investigating an individual's right to vote and conducting proceedings to prevent unlawful registration or voting • Taking voters to the polls • Publishing info rmation relevant to an election in newspapers, radio, and TV broadcasting • Conducting a public opinion poll or polls • Legitimate advertising agency services • The purchase of memorials, flowers or citations by political party executive committees or political action committees representing a political party • The purchase of nominal, noncash expressions of appreciation fo llowing the close of the polls of an election or within thirty days thereafter • Paying dues of any political party's national, state, local, or legislative caucus committee • To employ persons to perform fu nctions enumerated in WV Code §3-8-9, either on a fu ll time, part-time, or temporary basis 30 Running for Office (2018) POLITICAL ACTION COMMITTEE CONTRIBUTIONS A political action committee may not contribute to another political action committee or receive contributions from another political action committee: Provided, a political action committee may receive contributions from its national affiliate, if any. (W. Va. Code § 3-8-9(b).) CONTRIBUTIONS FROM BUSINESS ENTITIES A candidate or political committee may not accept contributions from a corporation. However, a corporate Political Action Committee (PAC) may make contributions to the candidate or political committee within lawful financial limits. Sole proprietors, partners in a partnership, or members in a limited liability company, may make contributions from their business fu nds within lawful financial limits if they are not incorporated. Contributions given from business funds are to be attributed on a pro rata basis to the ownership of the business and must be with the permission from all contributors. RECORD KEEPING AND THINGS TO REMEMBER Records of all transactions are to be kept fo r six (6) months after date of the transaction. The information to be kept fo r reporting purposes are: • The name of the person or business to which the expenditure was given; • The date of the transaction; • The purpose of the transaction; and • Amount of the expenditure. Things to Remember About Spending Money: • All expenditures must be reported, including detailed accounts of all expenditures and disbursements made, and liabilities incurred. • Money spent out-of-pocket on the election must be reported as an expenditure. If money is spent on behalf of a candidate, and is not reimbursed by the committee, it must be reported as an in-kind contribution, and is subject to contribution limitations. • All loans must be listed in the loan section on the campaign finance report. • An active candidate's committee (before the election date of the candidate) cannot give donations to other candidate's committees, political action committees, or charitable organizations. • An active committee (candidate, PAC or executive committee) cannot give a donation to a charitable organization, however can purchase tickets to events if it has a political purpose. • All expenditures must be made at a rate and an amount which is "proper and reasonable" to the services purchased citation. • Expenditures are reported on the date the check is written or the date the transfer of fu nds takes place. • Contributions are reported on the date that the check, cash or other thing of value is received by the treasurer or agent of the political committee. 31 Running for Office (2018) CAMPAIGN FINANCE REPORTING (W. Va. Code § 3-8-5) Every candidate, pre-candidate and elected official is required to file campaign finance reports until the committee is closed. Candidates running fo r or elected to executive committee positions are not required to file campaign finance statements. As provided on pages 23 and 24, beginning January 1, 2018, all financial statements that are required to be filed with the Secretary of State, by or on behalf of a candidate for any elective office, shall be filed electronically by means of the internet program that has been established by the Secretary of State. (W. Va. Code § 3-8-Sb.) There are two important time periods fo r campaign finance reports: • The transaction period is the specific timeperiod committees must track all contributions and expenditures fo r their campaign finance reports. • Financial activity tracked during each transaction period must be recorded on the campaign financial statement and submitted during the appropriate time period in which the report is due. 2018 Election Year Campaign Finance Reporting Schedule REPORT TRANSACTION PERIOD REPORT DUE Primary- March 25, 201 7-March 30, 2018 March 31, 201 8-April 6, 2018 First/ 2018 Annual Pre-Primary March 31,201 8-April 22, 2018 April 23, 201 8-April 27, 2018 Post-Primary April 23, 2018-May 20, 2018 May21,2018-June 18, 2018 General-First May 21, 201 8-September 23, 2018 September 24, 2018-September 28, 2018 Pre-General September 24, 2018-October 21, October 22, 201 8-October 26, 2018 2018 Post-General October 22, 2018-November 18, November 19, 2018-December 17, 2018 2018 2019 November 19, 2018- March 29, March 30, 2019-April 5, 2019 Annual* 2019 *20 19 Annual fo r candidates in past elections with open campaign accounts and pre-candidates fo r fu ture elections: TRANSACTION PERIOD REPORT DUE March 31, 2018-March 29, 2019 March 30, 2019- April 5, 2019 32 Running for Office (2018) CONSEQUENCES FOR EARLY AND LATE REPORTS Any report that is filed prior to the fi ling period will be returnedto the committee and will not be considered as received. The committee must then resubmit the report and it must be received by the deadline or it will be considered late and could incur a fine. In the case of mailing, the filing date of a financial statement shall be the date of the U.S. Postal Service postmark. In the case of hand delivery or delivery by facsimile or other electronic means of transmission, the date delivered to the officeof the Secretary of State or to the office of the clerk of the county commission. If the postmarked date is prior to the opening of the filing period, the report will be returned. If a report arrives in the officeaft er the close of the filing period, but is postmarked within the filing period, it will be considered timely filed. For hand delivery, the filing date is the date of delivery to the proper filing officerduring their regular business hours. If your committee submits a late report, you may be subject to a fine issued by the Secretary of State of $25 per day. Furthermore, if a candidate nominated by primary election or appointed by the executive committee or executive committee chair fails to filethe ir campaign fi nance report by the eighty-fourth (84th) day before the general election, he or she will be disqualified and will not appear on the general election ballot. (W. Va. Code §3-8-7.) If a committee files late or grossly inaccurate campaign financereports, the committee will be contacted by a member of the Elections Division with instructions fo r proper resolution. (W. Va. Code §3-8-7.) Remember that failing to fi le required campaign finance reports may result in criminal charges being filed against the responsible person. THE CAMPAIGN FINANCE REPORTING SYSTEM The Campaign Finance Reporting System (CFRS) is designed to allow candidates and committees to file their financial reports in an efficient and accessible online method. Beginning January 1, 2018, all financial statements that are required to be filed with the Secretary of State, by or on behalf of a candidate fo r any elective office, shall be filed electronically in the CFRS. Candidates and committees must request access to use the system by completing the CFRS Online Authorization fo rm and submit it to the Secretary of State's Office. Once the Authorization fo rm is received and processed, the candidate/committee will receive electronic confirmation that access to the CFRS has been granted, along with initial login credentials needed to access the CFRS. The CFRS will prompt uses to enter certain information, and required information must be input before the CFRS will allow users to continue onto the next screen. 33 Running for Office (2018) THE CAMPAIGN FINANCE REPORTING SYSTEM (cont.) The CFRS system allows committees to keep a record of contributions and expenditures in one convenient location which can be reviewed and corrected before submitting the report. This system performs the calculations and informs the user of errors which need to be corrected. Reports cannot be submitted unless the reporting period is open, therefore, the CFRS is an efficient way to track your activities throughout the election cycle. If a candidate or committee has difficulty accessing or using the CFRS, please contact the Elections Division at the Secretary of State's Office at 1-304-558-6000 or 1-866-SOS-VOTE and ask to speak with a campaign finance specialist. THE WAIVER A "waiver" may be filed in place of the Annual, First Primary and/or the First General Report if the committee meets certain criteria. Any activity that is not reported by submitting a waiver must be shown in the next reporting period. (W. Va. Code § 3-8-5.) The Annual or First Primary Report may be waived if the total amount of all financialact ivity equals less than $500 since the last report filed. The First General Report may be waived if the total amount of all fi nancial activity equals less than $500 since the last report filed and if there are no outstanding loans to report. POLITICAL COMMUNICATIONS: INDEPENDENT EXPENDITURES, ELECTIONEERING, AND SOLICITING FUNDS ELECTIONEERING COMMUNICATIONS "Electioneering communication" means any paid communication made by broadcast, cable or satellite signal, mass mailing, telephone bank, billboard advertisement or published in any newspaper, magazine or other periodical that: 1. Refers to a clearly identified candidate fo r Governor, Secretary of State, AttorneyGeneral, Treasurer, Auditor, Commissioner of Agriculture, Supreme Court of Appeals or the Legislature; 2. Is publicly disseminated within either (1) thirty (30) days before a primary election at which the nomination fo r office sought by the candidate is to be determined; or (2) sixty (60) days before a general or special election at which the officesought by the candidate is to be fi lled; and 3. Is targeted to the relevant electorate. Any electioneering communication must have a disclaimer clearly stating the name of the person or organization authorizing the communication. If the communication is made for broadcast, cable or satellite transmission, it must be both spoken clearly and appear in a written fo rmat at the end ofthe communication. (Continued on next page) 34 Running for Office (2018) POLITICAL COMMUNICATIONS: INDEPENDENT EXPENDITURES, ELECTIONEERING, AND SOLICITING FUNDS (cont.) SOLICITATION OF FUNDS OR SUPPORT FROM STATE. COUNTY OR MUNICIPAL EMPLOYEES Soliciting fu nds from a state employee or an employee of a political subdivision of the state is not allowable. However, if a mass solicitation is done, it should include a disclaimer such as "Please disregard if you are a public employee" to prevent you from violating this provision. (WV Code of State Rules § 146-3-10.7.) Written communications, asking fo r money or other support or votes, delivered to the workplace of state, county or municipal employees are illegal. The "please disregard" disclaimer does not legally excuse knowingly delivering communications to a workplace or government email account. (W. Va. Code §3-8-12(c).) INDEPENDENT EXPENDITURES Any expenditure that is done by a person or organization without the consultation or coordination of a candidate or a candidate's committee is considered an independent expenditure. A disclaimer must be present on any communication paid for by an independent expenditure, which clearly states that the communication is not authorized by the candidate or representative of the candidate and clearly identifies the person making the expenditure. If the communication is made fo r broadcast, cable or satellite transmission, it must be both spoken clearly and appear in a written fo rmat at the end of the communication. REPORTING REQUIREMENTS In addition to reporting contributions received and expenditures made, all liabilities incurred by a committee must be reported. The fo llowing descriptions detail those requirements. LOANS A candidate, spouse of a candidate or a lending institution may give a loan to the committee. When a loan is taken, the treasurer must include a copy of the loan agreement for each loan with the next campaign finance report. The loan agreement must state the date, amount, interest amount (if any), a description of collateral and fu ll names and addresses of all persons involved in the loan. If a loan is to be forgiven, the loan should then be considered as a contribution from the candidate or spouse to the candidate's committee. To report the fo rgiving of a loan, report the remaining amount of the loan as a contribution to the committee from the candidate or spouse. In the loans section ofthe finance report, show such loan as paid; this will show the committee no longer carries the liability. UNPAID BILLS All liabilities incurred by a committee must be reported. This includes all bills or promises of payment that have been left unpaid at the end of the reporting period. Listing unpaid bills will prevent the committee from having a negative ending cash balance and show all transactions that 35 Running for Office (2018) have taken place. The transaction date of an unpaid bill will be the date that the vendor provides a bill fo r payment. OTHER INCOME Receipts of income that are not considered contributions must also be reported. These include refunds on bills paid, interest on investments, checking accounts or saving accounts, sale of equipment, or any income not reported as a contribution or an in-kind contribution. ADVERTISING AGENCIES When lump sum payments are made to an advertising firmor campaign management firm that will disburse the money on behalf of a committee, the advertising agency must also filea campaign finance report under the same expenditure guidelines as your own committee. All disbursements of fu nds must be disclosed and tracked to its final recipient and are subject to West Virginia campaign finance laws. DETERMINING WHICH FORM TO USE Beginning January 1, 2018, the filings fo r all statewide offices responsible fo r filing with the Secretary ofState's Officemust filevia the Campaign Finance Reporting System (CFRS) provided by the Secretary of State. (See pages 23 and 24.) Each election cycle reporting period covers a certain time span during the election cycle fo r which candidates and committees must report financialtransac tions. These reports are to be filed in succession of one another. The online CFRS will remind users which reports are due, whether reports include insufficient information, and when deadlines are coming up. PAPER FORMS If a committee applies fo r and is granted an exemption by the State Election Commission from mandatory electronic filingin the case of hardship, such committee must fillout and submit either the Long Form or Short Form during each reporting period (unless a waiver applies). These fo rms require both the candidate or committee name and the Treasurer's contact information. The candidate, agent, or Treasurer must also sign the oath or affirmation at the end of the fo rm. The Long Form Campaign Financial Statement Includes all activities that are required by WV Code §3-8-Sa. If a candidate's committee answers YES to any of the fo llowing questions, he or she must filethe Long Form: • Has your committee received any loans? • Has your committee held any fu ndraisers? • Has your committee received any miscellaneous receipts, such as refunds or checking account interest? • Does your committee have any unpaid bills or loans? • Have you or anyone else given an in-kind contribution to your campaign? • Has your committee given or received a transfer of excess campaign fu nds? (Continued on next page) 36 Running for Office (2018) PAPER FORMS (cont.) Short Form Campaign Financial Statement Designed to accommodate committees that do not have transactions beyond simple contributions and expenditures. It does not cover any other reporting requirements, such as loans and in-kind contributions, which are required by W. Va. Code § 3-8-5a. ADDITIONAL REPORT TYPES Annual Report Due annually during off-election years. Candidates and committees open during a non-election cycle must report during the correct calendar year as indicated on the form. Amended Report An amended report may be fi led to replace a previously submitted report to correct information. The CFRS will automatically recalculate amount totals in all affected reports when an amendment is filed, and the amended report will have on it the word, "AMENDMENT" or "AMENDED REPORT." Final Report To close your account, you must filea final report. If the finalreport is submitted during a required reporting period, the reporting period must be indicated on the fo rm. The committee's ending balance must be zero dollars ($0.00) if fi ling a final report. REPORTING CONTRIBUTIONS REPORTING CONTRIBUTIONS $250 OR LESS For each contribution of $250 or less, the committee must include (1) the fu ll name of the individual, association, or committee donating; (2) the amount of the contribution; and (3) the date the contribution was made. REPORTING CONTRIBUTIONS OVER $250 Once contributions from an individual, association or committee reach an accumulated total of more than two-hundred fifty dollars ($250) during an election cycle, the committee must collect and record additional information on the campaign finance report. Additionally, the fo llowing information is required from contributors of more than $250: • Full name; • Amount of contribution; • Date the contribution was made; and • Residential and mailing addresses (Continued on next page) 37 Running fo r Office (2018) REPORTING CONTRIBUTIONS (cont.) For individual contributors, only the fo llowing information is required: • Occupation (e.g. teacher, nurse, attorney,doctor, homemaker, retired, unemployed); and • Employer (this is the contributor's primary employer; if self-employed it should be noted; if a homemaker or retired, write "not applicable"). For political committees only the fo llowing info rmation is required: • Political affiliation of the committee (or if the donation comes from a business-affiliated PAC, the business that the PAC is sponsored by). REPORTING A FUND-RAISING EVENT If a committee hosts a fund-raising event, such as a dinner or reception for the purpose of raising money fo r the campaign, the Long Form Campaign Financial Statement must be used to report committee finances. Fund-Raising Event: All contributions received at a fu nd-raising event must only be reported on the fu nd-raising events page of the campaign financial statement. Committees must report contributor information under the same requirements fo r reporting contributions as outlined above. Total Monetary Contributions: Total of money received (cash or check) in connection with this particular fu nd-raising event. Total Expenditures: All committee fu nds spent in relation to the fu nd-raising event. These expenditures are to be listed on the itemized expenditures page of the campaign financial statement. Net Receipts: The total amount of funds accumulated in relation to the fu nd-raising event minus all committee expenses. In-Kind Contribution: A donation of goods or services used toward the fu nd-raising event that can be assigned a monetary value. In-kind contributions must be itemized in the in-kind contributions section ofthe campaign financial statement. Fund-Raising Events by Legislative Candidates During Session: A candidate for legislative office, including those currently in office, as well as those seeking office,who hold a fu nd-raising event during any Session ofthe Legislature, must report to the Secretary of State on specificfo rms, the existence of the event and certain financial disclosures within five (5) days of the event. This is in addition to all other applicable reporting requirements. REPORTING OTHER INCOME AND IN-KIND CONTRIBUTIONS If the committee receives "other income" or an in-kind contribution, the Long Form Campaign Financial Statement must be used to report the committee finances. (Continued on next page) 38 Running for Office (2018) REPORTING OTHER INCOME AND IN-KIND CONTRIBUTIONS (cont.) Other Income: Income that does not fitthe definition of a contribution, such as interest on a bank account, refunds, or the sale of equipment. Information required for the other income category includes the date of the receipt, source of the income, the type of receipt (brief description), and the amount of the transaction. In-Kind Contributions: a donation of goods or services used toward the campaign. The amount of an in-kind contribution should be reported at the fa ir market value of the goods received or services rendered. The committee should include the fu ll name of the contributor, date of the transaction, description of the contribution, and the value. If the value of the contribution is over $250, additional contributor information is required: address; occupation and employer if it is an individual; and affi liation if it is a PAC. REPORTING LOANS If a loan is taken for a candidate's committee, the information required on the loans page of the Long Form Campaign Financial Statement must be completed, and a copy of the loan agreement must be included with the same financialstate ment. The fo llowing info rmation must be reported on outstanding loans: • The name and address of the bank, candidate, or candidate's spouse making the loan • The balance of the loan carried from the previous report • The amount of all new loans received during this period • Repayments made during the reporting period • The outstanding balance at the end of the reporting period fo r each loan listed AFTER THE ELECTION (WV Code of State Rules § 146-3-7) Amounts of fu nds received by a candidate as contributions that are in excess of the amount of expenditures for the election are considered "Excess Campaign Funds". No person may receive or utilize excess campaign fu nds fo r personal economic gain. ALLOWABLE USES OF EXCESS CAMPAIGN FUNDS The only allowable expenditures of excess campaign fu nds are outlined below (if it's not on the list, then it's not allowed): • Transfer of funds from a candidate's committee to the same candidate's committee fo r a subsequent election year. o The candidate must fo rm a new committee by filing a Pre-Candidacy Statement for the subsequent election year prior to making the transfer of fu nds. There is no limitation of the amount of fu nds that may be transferred. • Contribution to another candidate's committee, political action committee, or a local executive committee. o The limit on these contributions is $1,000 per cycle. (Continued on next page) 39 Running for Office (2018) AFTER THE ELECTION (cont.) • Contribution to any state political party executive committee or a legislative caucus committee. o The limit on this contribution is $15,000 in a calendar year. • Return of contributions on a pro-rata basis to each donor. • Transfer to any national committee of any political party. o The limit on these contributions is in accordance with federal requirements. • Offsetting any usual and customary expense incurred in connection with the duties as a holder of public office. • Any items purchased will become the property of the State, or the district, county, or municipality of the office that is held. • Making a charitable contribution. o There is no monetary limitation fo r charitable contributions. HOW TO CLOSE A COMMITTEE When a committee no longer has outstanding debts or liabilities and has a zero balance in their campaign account, the committee may close. To close a committee, one must filea Final Report itemizing all transactions made since the last report was filed. The report must reflect the zero ($0.00) balance. Filing a proper Final Report ends all reporting requirements for that particular committee. 2018 PRIMARY ELECTION DATES Jan. 8-27 Candidate filingperiod. Certificates of Announcement & fi ling fe es must be received in appropriate offi ce or postmarked by U. S. Postal Service before midnight, January 27 Jan. 18 - Feb. 6 Candidates fi le personal financial disclosure with Ethics Commission within 10 days after fi ling certificate of announcement Feb. 13 Deadline fo r candidates to withdraw. Filing officer must receive written notice signed by candidate and notarized by close of business or name may not be removed from ballot Feb. 13 Secretary of State certifies and posts list of candidates filed with the Secretary of State's Office and begins to prepare a certification fo r each county Feb. 20 Uniform drawing date fo r ballot position begins at 9 a.m. in all counties fo r all offices Feb. 27 Secretary of State's certification of candidates must be received at county clerk's Office byth is date 40 Running for Office (2018) Mar. 20 Write-in candidate filing deadline for the election of Board of Education, Soil Conservation District Supervisor and Executive Committees Mar. 31 - Apr. 6 First Primary campaign finance report due Apr. 10 Last day fo r candidate or political committee to file statement of organization and designation of treasurer or financial agent fo r Primary Election. Apr. 17 Voter Registration deadline fo r Primary Election Apr. 23 - Apr. 27 Pre-Primary campaign finance report due Apr. 25 - May 5 Early Voting in person May S PRIMARY ELECTION DAY (§3-5-1) May 14 Primary election canvass begins. If no candidate requests recount, canvass board certifiesel ection results 48 hours after the last county publicly declares results • Election contest must be filed within 10 days after certification of election May 21 - June 18 Post-Primary campaign finance report due 2018 GENERAL ELECTION DATES July 1 Board of Education and Conservation District Supervisors terms begin July 7 Secretary of State and Clerk of County Commission give notice to Prosecuting Attorney fo r the candidates, agents or treasurers who failed to file required financial reports Aug. 1 Deadline to file Nomination Certificates/Petitions, Certificates of Announcement and Pay Fee fo r no political party organizations Aug. 22 -27 Secretary of State certifies names of candidates fo r the ballot Aug. 28 Drawing for order of candidate names on the ballot Sept. 18 Write-in candidate filing deadline fo r General Election Sept. 24 - 28 First General campaign finance report due (Continued on next page) 41 Running for Office (2018) Oct. 9 Last day for candidate or political committee to file statement of organization and designation of treasurer or financial agent Oct. 16 Voter registration deadline fo r General Election Oct. 22 -26 Pre-General campaign finance report due Oct. 24 - Nov. 3 Early Voting in person Nov. 6 GENERALELECTION DAY (WV Const. §4-7) Nov. 12 General election canvass begins • If no candidate requests recount, canvass board certifies election results 48 hours after the last county publicly declares results • Election contest must be fi led within 10 days after certification of election Nov. 19 - Dec. 17 Post-General campaign finance report due 2019 IMPORTANT DATES Jan. 7 Secretary of State and Clerk of County Commission give notice to Prosecuting Attorney fo r the candidates, agents or treasurers who fa iled to filereq uired financial reports Mar. 30 -April 5 2019 Annual campaign finance report due 42 Running for Office (2018) ADDITIONAL RESOURCES Federal Election Commission Information on fe deral campaign 999 E Street, NW laws, financialreporting requirements, Washington, DC 20463 and fo rms fo r fe deral (800) 424-9530 candidates. www.fec.gov or [email protected] U.S. Election Assistance Commission Serves as a national clearinghouse 1335 East West Highway, Suite 4300 fo r information and reviews Silver Spring MD 20910 procedures fo r fe deral elections. (866) 747-1471 www.eac.gov Election Division Information on state election laws WV Secretary of State, and regulations, candidate filing, Building I, Suite 157-K campaign financereporting 1900 Kanawha Blvd., East requirements, fo rms, official Charleston, WV 25305 election returns fo r statewide offices, (304) 558-6000 legislative offices and voter registration www.wvsos.com or [email protected] information. State Election Commission Voter info rmation and voting system c/o WV Secretary of State approval, filling vacancy on general Building I, Suite 157-K election ballot when candidate with 1900 Kanawha Blvd., East draws fo r extenuating circumstances, Charleston, WV 25305 campaign financeis sues. www.wvsos.com or [email protected] WV Ethics Commission Forms and information on filing 210 Books Street, Suite 300 personal financial disclosures, Charleston, WV 2530 I questions regarding conflicts of (304) 558-0664 interest between outside employment www.ethics.wv.gov and public office. State Democratic Executive Committee Information on Democratic Party 717 Lee Street, Suite 214 political activities, fu nctions of Charleston, WV 25301 executive committees, delegates and (304) 342-8121 party rules. www. wvdemocrats.com State Republican Executive Committee Information on Republican Party PO Box 271 1 political activities, fu nctions of Charleston, WV 25330 executive committees, delegates and (304) 768-0493 party rules. www.wvgop.org State Mountain Party Executive Committee Information on Mountain Party RR I, Box 108 political activities, fu nctions of Ripley, WV 25271 executive committees and party (304) 989-1629 rules. www.mtparty.org State Libertarian Party Executive Committee Information on Libertarian Party PO Box 135 political activities, fu nctions of Jane Lew, WV 26378 executive committees and party (855) 687-5798 rules. www.lpv.'V.org 43 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 18-0712 STATE OF WEST VIRGINIA, ex rel. DONALD L. BLANKENSHIP, CANDIDATE FOR U.S. SENATE IN WEST VIRGINIA, and CONSTITUTION PARTY OF WEST VIRGINIA, Petitioners, v. MAC WARNER, IN HIS OFFICIAL CAPA CITY AS WEST VIRGINIA SECRETARY OF STATE Respondent. CERTIFICATE OF SERVICE I, Richard R. Heath, Jr., do hereby certify that on the 22nd day of August 2018, I have caused a copy of the forgoing Response to Petition fo r Writ of Ma ndamus on Behalf of Movant- In tervenor Th e West Vi rginia Republican Party, Inc., to be served upon the following individuals via hand delivery or U.S. Mail: The Honorable Mac Warner Patrick Morrisey Secretary of State AttorneyGeneral State Capitol, Building 1, Suite 157-K State Capitol, Room 26-E 1900 Kanawha Boulevard East 1900 Kanawha Boulevard East Charleston, West Virginia 25305 Charleston, West Virginia 25305 Marc E. Williams Robert M. Bastress, Jr. Nelson Mullins Riley & Scarborough LLP Post Office Box 1295 949 Third Avenue, Suite 200 Morgantown West Virginia 26507 ,r Huntington, West Virginia 25701 . (WVSB #9067) 1 10379330.1