West Virginia Libertarian Party v. Manchin

rule, Mrs. would Pnakovich, narrower than Jordan higher benefit. recover Compensation as in Hudson v. State

Just Workmen’s Commissioner, _ W.Va. _, it is 256 S.E.2d 864 travesty majority here denies Mrs. Jordan equal protection of and those like circumstances law. Virginia Party, Libertarian West Virginia Workers 1980 West Socialist Campaign Committees, Moriarty, Tom B. Intervenor, As John Anderson

Petitioners Secretary State, A. James Manchin, Respondent (No. 14863) September 16, 1980. Decided DiSalvo, peti- R. Robert M. Bastress and Charles for tioners. Brown, Bowles, McDavid, Love, Rieklin & Wil- Graff Robertson, Rogo- liam R. Elizabeth J. Mitchell Keefer

vin, for intervenor Anderson. Robert S. Baker for amicus curiae.

Chauncey Browning, Attorney General, H. Larry R. Frail, Attorney General, respondent. Assistant Miller, Justice: petitioners original proceed-

The mandamus ing Virginia Party; West Libertarian West —the Committee; Compaign Tom Virginia Workers Socialist candi- gubernatorial Moriarty, Workers’ the Socialist challenge the constitution- date; B. and John Anderson — Virginia Code provisions of the West ality of various the 1980 the ballot govern their access election. April this Court filed with petitions were cause, mak- show May 6, granted a rule to we 1980. On Shortly May argument 20. full ing date for the return B. An- argument, petitioner John date of full before the intervene.1 permitted was derson was im- primary election of June Because had to be minent May part 22 in order on an we issued filed June relief, requested denying the part granting and in with our was in accordance opinion follow. This an preclude time considerations prior practice where ex rel. Bromelow opinion. State a full See preparation (1979); n. 1 Daniel, 258 S.E.2d v. 163 W.Va. Wilson, 150 S.E.2d 151 W.Va. Brewer v. ex rel. State Hatfield, 145 W. Va. (1966); ex rel. Cline State O’Brien, 145 (1960); rel. Duke v. ex State 116 S.E.2d 117 S.E.2d W. Va. are con- election statutes challenges to our State

The relating 3-5-8(a), First, Va. Code stitutional in nature. W. Equal fees, a violation filing claimed to be is by Party, retained represented counsel the same The Citizens Campaign Party, Commit Workers the Socialist the Libertarian intervene, Moriarty, which tee, a motion to also filed and candidate Party grant. motion of the Citizens Because the did not the Court in law and stated, paragraph were “identical their claims filed, already petitions the Court in the raised in fact” to those any judgment petition unnecessary, since intervention deemed Party. As an the Citizens the benefit of inure to ers’ favor would candidate, party political in- rather than candidate The therefore claims. Court asserted different Anderson tervenor justified. issued its adjudged After the Court intervention to be relief, denying part the Citizens part granting and in order case under the Party appealed Court to the United States (docketed Manchin, Party June No. 79-1989 caption v. of Citizens 1980). 3850. 49 U.S.L.W. See Protection Clauses our State and Federal Constitu- tions because it denies ballot access to un- pay filing able to Second, 3-5-23, fee. W. Va. Code is purportedly attacked because it denies the fundamental right access to the ballot an aligned political party. not with a challenge A third is made to the same on requirement statute the basis of its persons circulating nominating re- must magisterial side in the same persons sign district as who petitions. challenge against The fourth is directed also W. Va. Code, 3-5-23, requirement per- on its centers soliciting signatures sons nominating petition on a must first complaint obtain a credentials certificate. Another lodged against provision of this statute which disqualifies persons signing those nominating voting primary complaint in the election. This coupled with relating the final claim to W. Va. Code 3-5- nominating peti- sets the deadline day tions as the before the election. Petitioners provisions, separately contend that these either effect, their combined constitute an undue burden on ballot access.

This Court has not had recent occasion to consider Virginia relating third-party West statutes candi- Cunningham Cokely, dates. 79 W.Va. 90 S.E. 546 3-5-23, we dealt with a forerunner to W. Va. Code requirement found its an not be undue restriction political party. There, ballot access for a minor Party sought by way Prohibition had ballot access of a nominating then-existing State convention. Our statute permit procedure political did for a minor which had not obtained 5% of the total vote Con- gressman the last election. The Prohibition preceding gener- had not obtained this vote statute, however, al election. enabled through signature pe- to obtain ballot access representing titions of participating 5% the voters sought, the last election for the office and we found this to be sufficient. years, the United States

During past ten rather access the field ballot has entered Court decisions, predicated fashion, it is its and dramatic states, binding on the provisions made constitutional apply.2 we must I FEES FILING Party Virginia Libertarian petitioner West The for Presi- attempting sponsor Edward Clark to [WVLP] Kelly President, for Jack dent, and Koch for Vice David Virginia The election. West in the 1980 Governor Campaign at- [WVSWCC] Committee Socialist Workers Pulley, Matilda Zimmer- sponsor tempting Andrew President, Moriarty its for and Tom man Governor, respectively. All of these Vice President filing pay fee they are unable assert respective office. their for 3-5-8(a), Code, fee for the

W. mandates Va. “equiv- President, and Governor President offices Vice salary of the office.”3 percent the annual one alent procedure petition Code, 3-5-23(a), regulating W. Va. parties, third re- of candidates the nomination for obtaining quires in advance of the candidate principles involving ballot of the various A detailed discussion e.g., Elder, following J. commentaries: be found access Candidates, L. Dick. Rev. 387 Political the Ballot Access to Third-Party Nominating Requirements (1979); Note, Petition for Access, Rev. 974 Independent 11 Suff. U.L. Ballot Candidate Elections, (1977); Developments L. 88 Harv. Rev. in the Law — Kester, (1975); on Political Restrictions Constitutional 1114-1212 Primary (1974); Note, Parties, Elections: The 60 Va. L. Rev. 735 Comment, (1974); Interest, Rutgers The Rev. 298 Real Candidates, Qualifying Constitutionality Fees Political for Pa. L. Rev. 109 U. 3-5-8(a), states: of W. Va. text States, vice-presi- president for for United “A candidate senator, States, for member of for United States of the United dent governor representatives, all States house of the United percent pay equivalent to one a fee elective offices shall other state salary an- which the candidate of the office for of the annual nounces; ...”

211 signatures to candidacy file a of declaration “pay filing by required Thus, the fee law.”4 ballot access all predicated for payment on the of the filing 3-5-8. fees under W. Va.

The United Panish, States Court in Lubin v. 709, 415 U.S. L. Ed. 2d 94 S.Ct. 1315 Carter, Bullock v. 405 U.S. 31 L. Ed. 2d 92 S.Ct. (1972), recognized requirement that the filing of a placement fee for legitimate on the ballot fulfills a state deterring interest —that of frivolous candidacies. Under lying this interest is the desire to limit the size of the ballot in order to avoid voter confusion and to further possibility avoid the increased of runoff elections. acknowledged Lubin and Bullock also a countervailing open interest plays access to the ballot a vital role in giving opportunity an to candidates and voters espouse political viewpoints various and social es- —an part right sential expression guaranteed of free by Rhodes, the First Amendment. See Williams Ed. 2d 89 S.Ct. 5 attempt

In an competing interests, reconcile these Bullock and Lubin determined a state could not solely upon condition payment ballot access the of a filing Bullock, fee. In filing the Court invalidated fees as high $9,000, which were later termed in Lubin as Code, 3-5-23(a), reads: text of W. Va. “Groups having organization party may of citizens no nominate public by pri- office otherwise than conventions or mary case, candidates, jointly elections. In such the candidate or or severally, containing politi- shall file declaration of the name the they propose represent, platform, principles cal he or its or secretary purposes, by with the of if the be filled state office is to county, the voters of more than one clerk of or with the the circuit county by court of if the the office is to be filled the voters of one county political thereof; or subdivision such declaration to be filed thirty days prior filing provid- at least to the time of the certificate by twenty-four article, ed [§ 3-5-24] section of this at the time filing pay filing of such declaration each candidate shall fee required law, and if such declaration or not so filed paid secretary fee so shall not certificate be received state, court, be;” clerk as the case L. Ed. exclusionary.” n. at 715 “patently [415 U.S. Texas involved a Bullock 1319]. 2d at S.Ct. means alternative provided no reasonable statute support public for a candidate. testing strength of statute Lubin, down California the Court struck payment more modest required of a much an amount approximately nevertheless $700 —but sum — pay. Significantly, the California could not the candidate procedure for satis- provided alternative no statute also depth gauging fying legitimate state interest support. clear that public Lubin made of the candidate’s an alternative: petition requirement was such impose politi- may, example, on minor “States demonstrating the precondition of parties the cal quantum of voter of some reasonable existence parties petitions by requiring to file support such signed by percentage place on the ballot for a prior Ameri- voted in a election. See of those who White, US, p 767, L 39 Texas v. 415 can of Similarly, a candidate 1296. Ed 2d S.Ct pay filing fee that he cannot who establishes may be required place on the ballot for a required the ‘seriousness’ of to demonstrate candidacy by persuading number of a substantial point, sign a in his behalf. voters to genuinely course, be that ballot access must all, subject requirements. open to reasonable to Fortson, 431, 439, 29 L Ed 2d v. 403 US Jenness (1971).” 718-19, 39 L. U.S. [415 91 S Ct 1321]. 2d at 94 S.Ct. at Ed. ex rel. Piccirillo a related issue State

We addressed City Follansbee, v. 160 W.Va. 233 S.E.2d public (1977), right file for that to and determined right Equal under our Protection office is a fundamental Virginia Clause, III, Con- Article 17 of West Section property stitution, imposing a that a statute $100 ownership requirement unconstitu- on candidates was Bullock, However, and Piccirillo cannot be Lubin tional. filing requirements. abrogate fee Their teach- read to all pay the ing to those candidates who cannot as fee, gaining to the filing alternative mode of access some provided, ballot must be containing such as signatures. voter Code, 3-5-8,

Under Va.W. there is no mechanism except payment filing ballot access of the In fee. light Equal of the principles Protection Clause set out Lubin, Bullock and we pro conclude failure to filing vide reasonable impecu alternative to fees nious candidates to obtain access to the ballot renders filing requirement fee 3-5-8, of W. Va. unconsti may tutional such candidates. The State re not quire, therefore, payment fee the WVLP and WVSWCC.5

II RESTRICTION OF BALLOT TO CANDIDATES OF POLITICAL PARTIES complains Intervenor John B. Anderson that W. Va. Code, 3-5-23, precludes an from seeking petition signatures order have his name placed disability on the ballot. This arises the stat- requirement ute’s the candidate’s declaration candidacy political party must contain “the name of the propose[s] represent, ... platform, he principles its [§3-5-23(a)]. purposes.” Brown, Storer L. Ed. 2d

S.Ct. Court held that ballot access political par- be limited to ties, independent but must be extended to well: political party independent

“[T]he and the candi- approaches political activity date entirely to are satisfactory different a neither is substitute party organization the other. A new contem- plates statewide, ongoing organization political goal typical- distinctive character. Its ly machinery gain gov- to control of of the state by electing public ernment its candidates to of- ground. Intervenor Anderson does seek relief At the filing candidacy, paid time of his declaration he the fee. potential support- standpoint of a

fice. From the party would mean er, the new affiliation with party or up sacrific- ties with another giving his status, though his independent even ing his own party the centers around possible new interest particular office. For for a particular candidate himself, it mean undertak- would the candidate party qualified responsibilities ing the serious law, status, as the conduct of such [state] under conventions, holding party and the primary, platforms. party But more fun- promulgation candidate, damentally, definition who one, independent remain must and desires to an man, surrendering party himself a now consider necessarily independent he status. Must if he to political route wants choose the election? We appear on the ballot 745-46, 2d at not.” U.S. at Ed. [415 think at 1286]. 94 S.Ct. McCarthy Briscoe, 429 50 L. Ed. 2d See chambers). (1976) (Powell, J., in 97 S.Ct. Storer, W. that under little doubt

There seems to be constitutionally failure infirm in its Code, 3-5-23, is Va. political permit an without candidate petition signatures. party affiliation to seek Code, 3-5-23, We, violates therefore, hold W. Va. Equal the United States Protection Clause of both it Virginia extent and the West Constitutions the same fails to extend to political party right as that candi- to ballot access date.6

Ill MAGISTERIAL DISTRICT RESTRICTIONS 3-5-23(b) (c) under provisions of W. Va. requirement relate in this case attack Chapter 26, Legislature, Acts of the Section Under Code, 3-5-23, independent an which was earlier version of W. Va. right signa apparently through had the to ballot access Commissioners, George petitions. v. Board Ballot ture See 213, 90 S.E. 550 W.Va.

215 person soliciting signatures petition on the candidate’s magisterial must do so within the district in which he only residing mag- resides and that voters that same sign may petition.7 isterial district majority of the United States Court question that decisions relate involved state stat imposing type require utes some of voter distribution generally required ment. These laws the candidate obtain signatures specified a minimum number of political of Ordinarily, subdivisions the state. an attack equal protection was made under principles with the party third or claiming candidate requirement by supported any created burden compelling E.g., state interest. Illinois Board State of Party, Elections Socialist Workers 440 59 U.S. L. (1979); Ed. 99 Ogilvie, 2d S.Ct. 983 Moore v. 394 U.S. L. (1969); Ed. 2d 89 S.Ct. 1493 Communist Party Elections, Illinois v. Board State F.2d of of (7th 1975), denied, Cir. cert. Ed. 2d 303, 96 394. S.Ct.

The above cases dealt with various Illinois election Moore, require- statutes. the Court struck down the ment a third for statewide office petition signatures obtain qualified of at least voters fifty in each of least the state’s counties. Socialist requirement Workers involved a Chicago signatures equal obtain persons voting 5% of number in the last elec- tion, approximately 36,000 signatures, or while con- portion Code, 3-5-23(b), The material provides: of W. Va. person persons soliciting canvassing signatures “The or or duly qualified certificates, voters on such or certificate shall be qualified, registered voters, magisterial residents dis- county canvassing made, trict of which such solicitation or duly registered solicit or canvass voters resident within respective magisterial their own ....” district part Code, 3-5-23(c), The relevant Va. of W. states: signed by personally duly registered “The certificate shall be magisterial voters ... who must be residents within district of county wherein such canvass or solicitation is made person persons duly authorized.” only secure had to trast, office for statewide violative disparity held to be signatures. This was 25,000 the state could principles equal protection because requiring a candi- any compelling interest not show signa- higher number city to obtain office date for Party candidate. Communist than a statewide tures of than requirement that not more Illinois overturned in 25,000 signatures be obtained could 13,000 of county. single Ogilvie, supra, federal lower Moore v. the wake of

In of voter distribution a number have invalidated courts nominating petitions. See requirements for candidate McCarthy Illinois, supra; v. Party Gar Communist Party (D.R.I 1978); Supp. Communist rahy, F. 1042 460 1972) (three- (N.D. Ill. Supp. Ogilvie, F. 105 Illinois v. 357 (D. Davoren, Supp. court); F. 515 Baird v. 346 judge Party court); v. 1972) Labor (three-judge Socialist Mass. 1970) (S.D. (three-judge Supp. Rhodes, F. 1262 Ohio 318 Gilligan, mem., v. 409 court), nom. sub Sweetenham aff'd (1972); 214, 942, 282 Socialist L. Ed. 2d 93 S.Ct. U.S. 34 (S.D. Supp. Rockefeller, F. 984 N.Y. Party v. 314 Workers mem., 806, 1970) court), 27 L. (three-judge 400 U.S. aff'd Hare, v. 65; 38, Workers 2d 91 S.Ct. Socialist Ed. 1969). (E.D. Supp. 534 Mich. 304 F. upheld hand, have voter a few decisions the other

On Bowen, F. v. 419 requirements. See Udall distribution mem., 1976) court), (S.D. (three-judge Supp. Ind. 746 aff'd 1720; 191, Zautra v. 96 S.Ct. 48 L. Ed. 2d 425 U.S. 1972) (D. (three-judge Supp. Miller, F. 847 Utah 348 York, 42 court); New N.Y.2d Moritt v. Governor of (1977), appeal dis 1285 366 N.E.2d N.Y.S.2d 98 S.Ct. 758 missed, 54 L. Ed. 2d 434 U.S. (1978). Moritt, provision the distribution and Udall signatures from substan required a certain number difficulty congressional One tially equal districts.8 (D. 1972), Miller, Supp. Utah the court F. In Zautra v. signatures requirement in each of 29 upheld dispersal ten significantly Zautra has been criti burdensome. as not counties analysis one-man, v. failing apply of Moore one-vote cized for See Ogilvie, L. Ed. 2d 89 S.Ct.

any geographic requirement distribution is that it dis against represent geographi criminates candidates who cally constituents, giving concentrated an effective veto minority. See, e.g., of ballot access to an insular McCar thy Garrahy, supra, 1047-48; Tribe, Supp. 460 F. § American Constitutional Law 13-20 at 781 n. 22. view, magisterial In our district in restriction present significantly case is more onerous than the con gressional upheld district restrictions Udall Mor- magisterial itt. components Our districts are small counties, congressional our which in turn form our dis Moreover, magisterial tricts. restriction canvass severely geographic mobility. ers inhibits their possible justification A magisterial State for the re- Code, 3-5-23(b) (c), striction contained Va. W. solicitor would be familiar with the magisterial they, turn, voters of his district would have more stranger. confidence in him than in a However, “certified,” the solicitor as we discuss greater opinion, detail in the next section of this so allay any part his credentials should fear on the the voter as to his bona fides. It is doubtful whether even residing magisterial the solicitor in the district would knowledge qualified have that a voter was under our statute, rely elections and he on therefore would the voter’s assertion that he was. imposed

Substantial burdens are on a or by magisterial the district re- magisterial generally striction. The district is a small geographic candidate, unit and the with his solicitors districts, magisterial localized in their own is forced into relatively signature petition campaign. a immobile Since compelled magisterial he is to recruit for each solicitors district, frag- hampered the candidate further a mented drive and increased costs. The restric- hampers tion also solicitation in locations where citi- McCarthy Garrahy, (D. Supp. 1042, 1978); 460 F. n. 7 R.I. Developments Elections, 88 Harv. L. n. Rev. Law— numbers, down- large such as congregate to zens tend theaters, parks centers, public and areas, shopping town rarely are congregating in those areas persons since the magisterial in which area district residents facility is located. magisterial districts

Finally, the boundaries since the and, consequently, neither to ascertain are difficult may location of aware of the be the solicitor voter nor appear on boundary lines,9 signatures invalid the nominating hampering drive. the petition, further the imposed by substantial burdens face of these In the requirement, has coun- which no magisterial district candidates, regular respect terpart fail. compelling interest must attempt to show State’s magisterial district We, therefore, conclude 3-5-23(b) (c), Code, cannot found in W. Va. restriction justified compelling interest under State be and Federal Con- Equal of the State Protection Clauses stitutions.

IV REQUIREMENT THE CREDENTIALS 3-5-23(b), require- within W. Va. Included petition signatures must “first ment solicitor county such court of which the clerk of obtain resident, is a credentials or solicitor canvasser or solicited.” voter canvassed must be exhibited each applica- provides “upon proper further The section county clerk “shall provided,” made as herein tion keep shall a record thereof.” credentials issue such Mayor Oradell, 425 Hynes v. Relying primarily (1976), WVLP, 2d Ed. S.Ct. Moriarty require- this Code claim that the WVSWCC the United First Amendment ment violates Code, 7-2-2, survey plat of W. Va. not mandate a field does county permits magisterial district boundaries. This section upon gener- periodically adjust magisterial districts commission to County publication al residents of the district. See notice Bailey, W. Va. 125 S.E. 253 Court Hynes, States Constitution. the Court invalidated a Jersey required, New part, ordinance which in material “Federal, a State, County solicitor for a or Munici- pal political campaign notify police cause” the local department only.” advance “for identification Dis- turbed of breadth the terms “cause” and “identi- fication,” the Court held impermissibly the ordinance vague significant, under First Amendment. It however, Hynes Court conceded that the mean- ing phrase “political campaign” of the “fairly was clear.” [425 U.S. at 2d L. Ed. 96 S.Ct. at 1761]. W. Va. 3-5-23(b), Code reasonably explicit as to the required nature they credentials. It states “may following be in the form or effect:” County Virginia, of_,

“State West ss: This that_, duly registered certifies voter of Pre- _ -, District, county cinct No. of this State;10 post-office is_, whose address is here- by authorized duly regis- solicit and canvass _ [residing tered voters District this county]11 sign purporting a certificate to nomi- -(here place nate heading name of candidate of_ certificate) list on for the office and oth- ers, represent the_Party]12 [to at the 19_ on_, election to be held my my “Given under hand and the seal of of- 19._ _day of_, fice this Clerk, County Court

of_ County.” statutory foregoing form, credentials as modified holdings brackets to conform to our earlier petitioners None of the raised issue of whether out-of-State signatures. We, therefore, solicitors could canvass do not reach question. 11By holding opinion respect virtue our III Part of this magisterial restriction, language to the district this bracketed inoperative. be would rendered holding opinion As result our in Part II of this toas necessity party candidate, language this bracketed would be rendered invalid. 220 information clearly limits the case, and defines

present issuing by the creden- the official can be obtained solici- be informed is entitled to The official tials. address, precinct number and name, post office tor’s name and district, magisterial the candidate’s nar- pertinent facts These are all seeks. which he office petition of the mechanics rowly the actual confined to terminology such as vagueness in is There no procedure. Hynes, supra. in the Court influenced cited, recognized it Hynes, and those decisions preclude from a state does the First Amendment enacting a suitable statute: solicita- fraudulent protect its citizens from “[To] community, stranger by requiring

tion publicly funds for permitting to solicit him before identity and his any purpose, his establish purports authority which he to act for cause 618-19, L. Ed. 2d at 48 represent. U.S. at [425 1759-60; v. quoting 252, Cantwell 96 S.Ct. from 1213, L. Connecticut, 84 Ed. 310 U.S. (1940)].13 60 S.Ct. 904 registra- requirement, a form of Here, the credentials assuring the tion, State interest serves substantial process. pre- It integrity solicitation solicitor, bogus opportunity for the or reduces vents candidates, pool of adversary to reduce promoted drive, signers petition a fraudulent potential supporter misrepresent himself as the candidate’s toor by alienating them then abuse electorate generally legitimate solicitors. See candidate’s (S.D. 1978); Acito, Supp. N.Y. Berger 457 F. v. Mayor Oradell, Hynes quoted approval Also 243, 252, 610, 619, was Ed. 96 S. Ct. 48 L. 2d book, following Zechariah Chafee's statement from Professor (1954): Speech in the United States Free ideas, spreading unpopular [house-to- “Of all the methods of protection. canvassing] least entitled to extensive seems the house slight compared possibilities persuasion cer- with the are annoyance. exposing citizens to as is the value of Great tainties ought views, place where man to be able novel home one up if he desires.” himself own ideas shut Note, Nominating Requirements Petition Third-Party Independent Access, Candidate Ballot Suff. U. (1977). Rev. 1010-1011 “dirty The utilization of such tricks” is not campaign practices. unknown to our See C. Woodward, Bernstein & B. All the President’s Men 112- We, therefore, require- conclude that the credentials Code, 3-5-23, ment set out in W. Va. and as modified holdings our opinion, places earlier in this no unconsti- tutional burden candi- dates. scope It narrow in the of the information re- quired vague and does not contain terms which would permit issuing the routinely official to do more than issue the credentials.

V DISQUALIFICATION FROM VOTING IN THE PRIMARY AND EARLY DATE FILING Code, W. Va. 3-5-23(c), prohibits person signs who third-party independent or candidate’s certifi cate voting primary the election.14 W. Va. 3-5-24, requires that signa the candidate must file his petitions day preceding ture later primary no than the the petitioners ction.15 urge herein the ele requirements combined effect of these two to create portion Code, 3-5-23(c), The relevant W. Va. reads: person signing any primary “No such shall certificate vote at election to be held to nominate candidates for office to be voted for signing the election to be held next after the date of such certificate; .. Code,'3-5-24, states: W. Va. nominating “All pre- certificates candidates for office the under ceding 3-5-23], including [§ section a candidate for the office of presidential elector, filed, shall be in the of a case candidate to be by by any voted for the voters of the entire State or subdivision single county, secretary state, thereof other than a the county magisterial of all case district offices, including single all offices to be filled of a voters county, county, with the clerk of circuit court of the later day preceding than the on date which the election held. After such date no such certificate shall be received such officers.” attempt petitioners’ on burden an unconstitutional thereby gain access. We dis ballot solicit agree. provi- these two Code kept in mind that must be

It third-party or a method sions constitute ballot,16 gain election access to required engage in the are not as such candidates major-party can- two primary process are the as normal clear, as to the voters at least It is also didates. petition process parties, serves of third ranks equivalent primary election. of a the functional alleged equal protection any analysis viola- of an context, task is to determine election tion an higher significantly imposed a has whether the state burden on imposed major-party Wil- on candidates. See

than it has 24, 30, 31, Rhodes, Ed. 2d 31- liams v. (1968); Lyons, 586 S.W.2d S. Thomas v. Ct. 1979). though (Ky. there are constitutional Even 713-14 elections, governing state statutes limitations recognized, States Court Storer United Brown, 724, 729-30, 39 L. Ed. 2d 415 U.S. that:

S.Ct. suggested [our decisions] “It has never been every automatically re- substantial [invalidate] right vote or to Nor on the to associate. striction may 3-5-22, avoid candidates Va. Under W. undertaking process by if a convention its gover party polled percent cast less ten of the total vote for than entirety general its election. statute in reads: nor at last percent “Any political party polled than less ten only governor vote at the election immediate- total cast for ly may preceding and select committees nominate conventions, party provided nominations are made and the such provid- in manner filed within the time and certificates thereof twenty-four article, [§ 3-5-24] of this or certificate ed in section groups make manner as of citizens nominations the same following provided 3-5-23]. [§ section delegates person participating delegate in the selection “No any primary shall vote in election held under section year.” could this be the under our case Constitution given where the States are the initial task of determining qualifications of voters who will Congress. I, § elect members of Art. 1. cl. Also §1, Art. cl. pre- authorizes the States to Times, holding scribe ‘[t]he Places and Manner of Representatives.’ Elections for Senators Moreover, practical matter, as a there must abe regulation they substantial if of elections are to be order, fair and if honest some sort chaos, accompany rather than is to the demo- * * *” processes. cratic Storer involved a required California statute which Congress, alia, inter to have any political been party one-year disaffiliated from period immediately preceding election and immediately also not to have voted in the preceding primary. It was claimed that these restrictions were an burden, undue since the candidate had to anticipate candidacy prior at least twelve months primary, possibly years, two if had he voted in immediately preceding primary. upholding provisions, these Storer observed

that:

“Otherwise, qualifications required of the in- dependent very to, candidate are similar or iden- with, tical imposed party those candidates. 1974) (Supp. Section imposes disquali- a flat upon any seeking fication run party primary ‘registered if he been has as affili- political party ated politi- with a other than that party cal the nomination of which he seeks with- immediately prior 12 months to the declaration.’ ...” [415 U.S. L. Ed. 2d at at 1280]. S.Ct. The Court also relied on the earlier case of Rosario v. Rockefeller, Ed. 2d 93 S.Ct. 1245 imposed where a York New statute an eleven- waiting period change month for voters who wanted to provision their affiliation. This was found not unconstitutional, interest the valid state it served be raiding. against interparty protecting periods time parallel between disaffiliation the time limi- independent or petitions filing signature their rests tations instance, is forced to the candidate in each fact to assume third- early on whether make an decision parallel made independent was or status. This Bradley, explicit v. 432 U.S. more Mandel even (1977), where the Court L. Ed. 2d 97 S.Ct. declaring three-judge un- district court order reversed a Maryland required inde- statute which constitutional pendent to file their days election. While the Court to 240 before analysis an extended in Mandel declined make facts, it did ob- of the lack of sufficient issue because the district court: serve that conflicting through evidence not sift

“[D]id findings difficulty fact as to the and make early obtaining signatures meet in time to filing It the extent did not consider deadline. Maryland electoral which other features period during system as the unlimited —such collected, signatures be unre- which potential petition signers pool of stricted —moder- the deadline creates. See ate whatever burden Elections, L Developments 88 Harv the Law — analyze It Rev 1142-1143 did experience past independent what candi- might office indicate about dates for statewide imposed seeking those ballot ac- the burden Instead, assumption cess. the District Court’s per se itself was ille- deadline upon gal expedited well as the basis —as necessarily was decided —resulted in a the case apply an- the constitutional standards failure to statutory provisions to the nounced Storer Ed. 2d at [432 here at issue.”17 at 2241]. 97 S.Ct. Stevens, only Mandel, would have held Justice dissenter discriminatory of its treat the statute unconstitutional because ment of candidates: Fortson, Jenness 403 U.S. 29 L. Ed. 2d S.Ct. 1970 the Court was not troubled Geor gia’s gave third-party election law that days signature petitions candidates 180 to obtain required petitions that such be filed the same dead line —in regular party June —that a filing candidate in a primary Bryant, must meet. Supp. See Rock v. F. 459 64 (E.D. Ark.), (8th aff'd, 1978); 590 F.2d 340 Cir. LaRouche Guzzi, (D. 1976).18 Supp. v. 417 F. Mass.

There Code, are no 3-5-23, limitations under W. Ya. third-party independent when a candidate begin signature petition only drive. The stricture is day pre- candidate’s must be filed the ceding primary 3-5-7, election. Under W. Va. regular-party candidate must file his certificate of candi- dacy Saturday no later than “the last of March next preceding primary day.” election argue filing

Petitioners that our deadline under W. Va. Code, 3-5-24, must be deemed light burdensome in of the provision “second chance” of the Texas statute consid- Party White, ered in American Texas v. 415 U.S. (1974). However, 39 L. Ed. 2d 94 S.Ct. 1296 we do not analogous, believe case to be since the second applied only chance statute candidates who requisite had failed to obtain the voters in a rather complicated precinct system convention as outlined in my judgment Maryland unfairly “In statute discriminates against respect. requires one It the in- dependent to make his decision to become a candidate much sooner political party. than a member of a national merely required “A member is to file a certificate of candi dacy days primary procedure before the election. That is so simple may postpone very day that he his decision until satisfy legal requirements candidacy.” still all [432 U.S. at 180- 81I, 53 L. Ed. 2d at 2242-43]. 97 S.Ct. at invalidating filing For decisions deadlines that were substan tially earlier than for candi dates, (D. McCarthy Noel, Supp. 1976); see v. 420 F. R.I. McCar thy (W.D. Kirkpatrick, Supp. 1976); 420 F. Mo. MacBride v. cf. (8th 1977). Exon, 558 F.2d 443 Cir. Party at American Texas U.S. [415 Note 6 of 756, 94 at 1303]. Ed. 2d at S.Ct. provision, chance the Texas Even under the second procedure signatures foreclosed of those voters who had help regular primary. voted in the We cannot but b.elieve straightforward standard is that our precinct much less burdensome than the Texas conven- tion and second chance scheme. closely provision analogous inde- Texas

Our petition statute, pendent set out Note 7 of Texas, supra. American Court characterized the attack on this statute this fashion: argument unduly burdensome “[T]he statute approaches at L.Ed. 2d [415 the frivolous.” 1310]. 94 S.Ct. at light regular-party of the deadline for candi- light length dates and of time that a third- independent procure sig- or candidate has to petitions, nature we do not believe that W. Va. Code 3-5- burden, constitutes an unreasonable and therefore it Equal does not violate Protection Clause of our State or Federal Constitutions. prohibition against signing petition

The a voter third-party independent voting or and then regular-party primary contained W. Va. 13-5-23(c).19 It must be remembered that this statute provides the method for ballot access third-party and candidates for the election in primary bypass the fall. It thus serves as a election Party White, In such candidates. American Texas v. 39 L. Ed. 2d S.Ct. 1296 problem in Court addressed this the context of a Texas provided persons statute which who had voted in party primaries prohibited signing signature were pertinent part Code, 3-5-23(c), of W. Va. states: person signing any primary “No such certificate shall vote at election to be held to nominate candidates for office to be voted for signing at the election to held after be next the date of such certificate;” and candidates fol-

lowing primary declining In election. to invalidate provision, Court stated:

“Appellants restriction, but, such, attack this nothing it is prohibition against any more than a casting elector’s proc- more than one vote in the nominating particular ess candidates for a of- only fice. party pri- Electors vote in one mary; apparent why and it is not to us the new party seeking support smaller voter should be get signatures entitled to of those who have al- ready nominating voted in another already have preference demonstrated their other petition- for the same office the ing party seeks to fill. ...” [415 U.S. 39 L. Ed. 2d at 94 S.Ct. at 1308]. point, confirmation of this the American Court following

made the observation in Note 17: parties brought “The have not to our attention any holding decision as a constitutional matter, obligated a State is to allow a voter party primary sign vote in a nominating petition. Georgia system It is true that under Fortson, supra, ap Jenness v the State had parently legitimate goals decided that its would compromised by allowing sign be voters to though they signed even have others participated party primary. Nothing in a decision, however, impose can be read to upon duty States affirmative to allow freely voters to move from one to the other nominating method of for the same public reading office. This becomes all the more light Ogil evident of the fact that Jackson v (ND vie, Supp 1971), 325 F 864 Ill was affirmed day decided, on the same Jenness was 403 925, Indeed, US 29 L Ed 2d 91 S Ct 2247. federal court decisions with which we are famil agree Ogilvie iar v Jackson and reflect adopt See, e.g., views we here. v Moore Board of Columbia, Elections for the District 319 F (DC 1970); Putterman, Supp 437 Wood v 316 F (Md), aff'd, Supp L 400 US Ed 2d (1970); Party v S Ct Socialist Workers (SD Rockefeller, Supp 1970), aff'd, 314 F NY 400 US 27 L Ed 2d 91 S 65.” [415 Ct 1308], Ed. 2d at 94 S. Ct. at possible practical It to make a distinction between third-party independent candidates on the basis third-party might expected that a be to field at least a partial candidates, independent list of state whereas presidential Yet, candidate stands alone. we do not be- lieve that this distinction can be elevated to a constitu- principle require permit tional which would a state to complete primary voters to retain a franchise except all they signed those for whom had petitions. why may There are several sound reasons a state im- pose restriction, a such as that found in W. Va. 3-5- 23, barring voting regular-party a voter pri- mary signed third-party once he has petition. First, regular-party candidate’s even voters are primary often faced with a ballot on which their has been unable to secure to fill all offices.20 Thus, extent, sign to a certain voters who third-party run the same risk as do voters belonging regular party to a not field a com- plete However, slate of candidates. fact does not compel third-party constitutional conclusion permitted voters right should be to retain their to vote regular-party in their primary.

Second, because signa- ture day need not be filed until preceding primary, practical election problem officials face the Virginia, West this has sometimes occurred in the Republican Party, historically has been weaker than the primary election, Democratic in this State. In the 1980 Republican Party did not have a state candidate for either Attorney Virginia Supreme Office of General or the West Court of Appeals. identifying persons signed those signa- who have petition.

ture necessary This would be under a statute permit voter-signer that would right to retain the regular-party vote for primary in the election other than the sought by for the same office signed. candidate whose he had are, course,

There problem. two solutions One constitutionally is to require that a state enact no stat- prohibiting persons ute voting regular— from in their party primaries though they signed even have third- independent petitions. However, candidates’ as we have seen in Texas, Storer and American the United States Court has declined to extend requirement equal protection under principles Constitution, the United States and we decline to do so Virginia under the West Constitution.

The other alternative is for the State to advance the filing signature petitions deadline of the to a time sufficiently in advance of the election date so signatures identification of the can be undertaken regard to candidates for whom the voter will be ineli- gible regular-party primary. to vote in his Obviously, any system poses such substantial difficulties for elec- officials, only tion mechanics, the identification transmitting but this information to election officials precinct Moreover, where the voter resides. ad- vancing filing against date works the interest candidates, since it reduces period they engage the time in which can in effective signature candidacy petitions. solicitation for their See McCarthy Noel, (D. 1976). Supp. 420 F. R.I. foregoing reasons,

For the we decline to hold either W. Code, 3-5-24, setting filing Va. date for Code, 3-5-23(c), prohibiting petitions, voters or W. Va. sign voting who such regular- in their party primary, setting an unconstitutional burden Equal under Protection Clauses State Federal Constitutions. stated, summary, hereinabove for the reasons May 22, 1980, order of we with this Court’s

in accordance following portions election law of this State’s find the unconstitutional: under requirement of a fee W. Va.

1. The Code, 3-5-8, incorporated reference which is Code, 3-5-23, as it relates to an W. Va. insofar impecunious candidate. provision Code, 3-5-23,

2. The in W. Va. candi- to those limits nominations party in lieu of are members of a third dates who permitting candidate who is not an eligible any party being for affiliated nomination. 3-5-23, requirement Code,

3. in The W. Va. person soliciting signatures on behalf of such magis- of the same candidate must be resident terial district as that in which the voters he so- licits reside. unconstitutionality other claims of as to

Petitioners’ following partic- are refused in the our election statutes ulars: 3-5-23, Code, which portion of W. Va.

1. That prohibits persons signing a candidate’s certifi- voting primary cate from at the election held signing next after the date of such certificate. Code, 3-5-23, portion 2. which That of W. Va. requires persons soliciting signatures to obtain credentials.

3. 3-5-24, The in W. Va. which provision requires certificates to be filed no later than day preceding date which election is held. foregoing principles, a moulded accordance with

writ of mandamus is awarded. as moulded

Writ awarded. concurring part dissenting in

McGraw, Justice, part: pre-election

At the time a order entered in was case, I said: dispose

Justice McGraw would of the case dif ferently, saying imper first are fees qualification candidacy missible as a under [Qualifications Constitution the State. which imper exceed constitutional mandates are _ Zink, _, missible. Marra W.Va. (1979); City S.E.2d 581 ex State rel. Piccirillo v. (1977).] Follansbee, _ W.Va. _, 233 S.E.2d 419 opinion Justice McGraw further of the Constitutions, Equal Federal State their Clauses, Protection forbid a State election law operates special privilege confer or ad any vantage upon association, parti candidate or Every qualified san. partici voter is entitled pate every step process. This electoral right parti professing not restricted to those Independent san affiliation. The voter has the right same constitutional his ballot cast Independent choice, of his election, upon same terms and same con ditions, partisan does voter. Law, Chapter Election embodied 3 of Virginia applied

the West can be to enable Independent participate pri voter to mary respondent election June 1980. The specify should be directed to ballots blank for by Independent polling use voter his place. Independent voter write could thereon vote, which would then be tabulated receiving election and all officials requisite percentage necessary quali of votes fy should be certified to the November qualified election ballot consideration all voters. ^[1] In the election held June write-in ballot was

provided County which, to all Kanawha if it voters had been case, keeping in my on this reflections As I conclude arti- opinion, I think of majority’s crafted well mind the I Virginia Constitution section 230 West cle proposition with which why it is such a difficult wonder keep faith. state, persons throughout would have enabled all used parties participate in the elec main line affiliated with the two tion.

Case Details

Case Name: West Virginia Libertarian Party v. Manchin

Court Name: West Virginia Supreme Court

Date Published: Sep 16, 1980

Citation: 270 S.E.2d 634

Docket Number: 14863

Court Abbreviation: W. Va.