No. 16-0013

– S t a t e o f We s t V i r g i n i a e x r el. Belinda Biafore, Chair of the W est Virginia State Demo c r a tic Committee; and Stephen Davis, Linda Klopp, David Thompson, Linda Phillips, Stephen Evans, and Patricia Blevins, Members of the W est Virginia Democrati c E x e cutive Committee for the Ninth Senatorial District v. Earl Ray Tomblin, Governor of the State of W est Virginia; and Beverly R. Lund, Justin M. Arvon, Sue “

N a o m i ” C line, Tony Paynter, John Doe, and Jane Doe, Members of the W

est Virginia Republican Executive Committee for the N i n t h Senatorial District, and State of W est Virginia, by its Att o r n e y General Patrick Morrisey

Davis, Justice, dissenting:

As observed by the m ajority , the Court’s decision in this case “is grounded in law, not in ideology or politics.” I could not agree m ore with this sentim ent, but I strongly d i sagree with how the law was applied in the Court’s decision of this case be c a u s e t h e

m ajority has let the exception to statutory construction swallow the rule. Like proverbial deer in the headlights, the parties to the instant proceeding have virtually f rozen when f

aced with the f ull m easure of the leg a l question presented by this case: the proper construction and application of W

. Va. Code § 3-10-5 (2013) (Repl. Vol. 2013). W hile it was considerate f or the parties to evade the pivotal question of this statute’s constitutionality t o f acilitate the Court’s decision of this case, such niceties were neither necessary nor prudent. This Court regularly considers and decides issues involving this State’s C o n s t i t u t ion, and, while addressing the constitutionality of a statutory provision i s not alway s a routine part of this 

### FILED Januar y 2 7, 2 016 RORY L . PERRY I I , CLERK SUPR EM E COURT OF APPEALS OF W EST VI RGI NI A

1Court’s statutory construction, som etim es the constitutional im plicatio n s o f a statute’s construction require venturin g i nto that realm

. Discerning the m eaning and application of W

. Va. Code § 3-10-5 requires such a constitutional analy sis. Though, on i t s f a c e , t h e statutory language appears innocuous, a closer exam ination of the statute’s wording in light of the Legislature’s intent in prom ulgating this provision dem onstrates that W

. Va. Code § 3- 10-5 cannot constitutionally be a p plied as it is written because the express language is internally inconsistent, contravenes the underly ing legislative intent, and violates the W est Virginia Constitution. Because the m ajority of this Court has insisted on f ollowing the lead of the parties and skirted around both the recognition and t h e r e s o lution of this pivotal constitutional issue, I resolutely dissent.

Propriety of Addressing Statute’s Constitutionality W hen this Court encounters a m atter of statutory construction, it is custom ary to adopt an interpretation that is consistent with the com m ands of this State’s Constitution. See Sy l. pt. 5, Community Antenna Se rv., Inc. v. Charter Commc’ns VI, LLC , 227 W

. Va. 595, 712 S.E.2d 504 (2011) (“‘A statute should be so read and applied as to m ake it accord with the spirit, purposes and objects of the general sy stem of law of which it is intended to f orm a p a rt; it being presum ed that the legislators who draf ted and passed it were f

am iliar with all existing law, applicable to the subje c t ma t ter, whether constitutional, statutory or

com m on, and intended the statute to harm o nize com pletely with the sam e and aid in the

2ef

f ectuation of the general purpose and design thereof , if its term s are consistent therewith.’ Sy l. Pt. 5, State v. Snyder, 64 W

. Va. 659, 63 S.E. 385 (1908).”). In t h is regard, the Court has determ ined that “‘whenever an act of the legislature can be so construed and applied as to avoid a conf

lict with the constitution, and give it the f orce of law, such construction will be adopted by the court.’” Morris v. Crown Equip. Corp. , 219 W

. Va. 347, 355, 633 S.E.2d 292, 300 (2006) (quoting Peel Splint Coal Co. v. State , 36 W . Va. 802, 815, 15 S.E. 1000, 1 0 0 4 (1892) (citation om itted)). See also Sy l. pt. 29, Coal & Coke Ry. Co. v. C o n l e y , 6 7 W. Va. 129, 67 S.E. 613 (1910) (“Courts will never im pute to the legislature intent t o contravene the constitution of either the state or the United States, by construing a statute so

as to m ake it unconstitutional, if such construction can be avoided, consistently with law, in giving ef f ect to the statute, and this ca n a l way s be done, if the purpose of the act is not bey ond legislative power in whole or in part, and there is no languag e i n i t expressive of specif ic intent to violate the organic law.”).

Nevertheless, while statutory construction generally coun s e ls against constitutionality inquiries, such an analy s is m ay , and sim ply m ust, be perf

orm ed when conf ronted with a statute that clearly violates the express language of the Constitution of this State. Thus, where, as here, the constitutional question has been raised by the parties, it is 1

W hile not artf

ully addressed o r t h o roughly brief ed, the issue of the 1 constitutionality of the subject statute was undeniably raised and interjected into the parties’ (continued...) 3certainly perm issible to undertake such an analy sis when necessary to thoroughly ascertain

the m eaning o f t h e s u b

ject statute and, m ore particularly , where other constructions of the

s a me statute would lead to unjust, absurd, inconsistent, or unconstitutional results. Wh e n conducting such a constitutional inquiry , this Court is guided by its holding in Sy llabus point 1 of State ex rel. Appalachian Power Co. v. Gainer , 149 W

. Va. 740, 143 S.E.2d 351 (1965):

In considering the constitutionality of a legislative enactm ent, courts m

ust exercise due restraint, in recognition of the principle of the separation of powers in governm ent am ong the judicial, legislative and executive b r a nches. Every reasonable construction m ust be res o r t e d to by the courts in order to sustain constitutionality , and any reasonable doubt m ust be resolved in f

avor of the constitutionality o f t h e legislative enactm ent in question. Courts are not concerned with questions relating to legislative policy

. T h e general powers of the legislature, within constitutional lim its, ar e a l most plenary

. In considering the constitutionality of an act of the legislature, the negation of legislative power m ust appear bey ond r e asonable doubt. Despite this countenance, a statute m ay be invalidated as unconstitutional when it inf ringes a right specif

ically guaranteed by

this State’s Constitution. It is no objection to the r e me d y i n [ a] case, that the statute, the application of which in the particular case is sought to be prevented, is not void on its f ace, but is com

plained of only because its operation in the particular instance works a violation of a constitutional right. S y l

. pt. 8, Conley , 67 W

. Va. 129, 67 S.E. 613. Accord Sy l. pt. 12, Farley v . G r a n e y , 1 4 6

(...continued) 1 argum ents regarding the proper construction of W . Va. Code § 3-10-5. 4W

. Va. 22, 119 S.E.2d 833 (1960) (“An act of the legislature m ay be val i d in its general

scope and br o a d o u t line but invalid to the extent that the restrictions im posed thereby are

c l e arly arbitrary and unreasonable in their application to specif ic property .”); Harbe r t v . Harrison Cnty. Court, 129 W

. Va. 54, 69, 39 S.E.2d 177, 188 (1946) (“A statute, however,

m ay be unconstitutional and void in its application to a part of its subject m atter and valid as to the rem ainder. It m ay be constitutional in operation with respect to one state of f acts and

u n constitutional as to another.” (citation om itted)). It is pursuant to this standa r d t h a t t h e Court should have decided the case sub judice

.

West V irginia Code § 3-10-5 V

iolates West V

irginia Constitution Article II, Section 2 W hile I agree with the m ajority ’s f acial interpretation of the express language of W

. Va. Code § 3-10-5, I disagree that that lim ited analy sis concludes the Court’s inquiry

. This Cou r t repeatedly has stated that “[ t]he prim ary object in construing a statute is to ascertain and give ef

f ect to the intent of the Le g i s l a t u r e . ” S y l. pt. 1, Smith v. State W orkmen’s Comp. Comm’r , 159 W

. Va. 108, 219 S.E.2d 361 (1975). Moreover, “[ i]n ascertaining legislative intent, ef f ect m ust be given to each part of the sta t ute and to the
statute as a whole so as to accom plish the general purpose of the legislation.” Sy l. pt. 2, id (em phasis added)

. However, when determ ining the Legislature’s intent in prom ulga ting a particular prov i s i on, no single statute can be viewed in isolation; rather, the tenor of all of the statutes that com

prise a given body of law are instructive to ascertaining the legislative

5intent inherent within a statute. In other words, “[ s]tatutes which relate to the sam e subject

m atter should be read and applied together so that the Legislature’s intention can be gathered f rom the whole of

the enactm ents.” Sy l. pt. 3, id. Thus, [ s]tatutes which relate to the sam e persons or things, or to the sam e class of persons or things, or statutes which have a com m on purpose will b e regarded in pari materia to assure recognition and im

plem entation of t h e legislative intent. Accordingly , a court should not lim it its consideration to any single part, provision, s ection, sentence, phrase or word, but rather review the act o r statute in its entirety to ascertain legislative intent properly

. Sy l. pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co. , 159 W

. Va. 14, 217 S.E.2d 907 (1975).

T h e L e g islature enacted W

. Va. Code § 3-10-5 as part of the volum inous chapter of laws governing elections in this State. See W

. Va. C o d e § 3-1-1 (1963) (Repl. Vol. 2013) (“This chapter shall constitute and m ay be cited as the ‘W est Virginia Elections Code’ and contem

plates and com

prehends a code o f laws f or the establishm ent, adm inistration and regulation of elections and election p r o c e dures in the state of W est Virginia.”). As a legislative enactm ent, it is to be presum ed that this section com plies with the m andates of the W est Virginia Constitution, and, in particular, article II, section 2 which provides that “[ t]he powers of governm ent reside in all the citizens of the State, and can be rightf ully exercised only in accordance with their will and appointm ent.” B y i t s e xpress term s, this constitutional com m and secures the m andate of the electorate in their choice of
6the people wh o w i l l r e p resent them and their interests in this State’s governm ent. “A

constitution is the f

undam ental law by which all people of the state are governed. It is the
very genesis of governm ent. Unlike ordinary legislation, a constitution is enacted by the people them selves in their sovereign capacity and is theref ore the param ount law.” State ex rel. Smith v. Gore , 150 W . Va. 71, 77, 143 S.E.2d 791, 795 (1965). Thus, it is not f or this Court to decide whether it will heed this clear constitutional com m and. Rather, enf orcem ent of rights secured by the Constitution of this great State is engrained in this Court’s inherent duty to neutrally and im

pa r t i a l ly interpret and apply the law. In other words, “[ c]ourts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is m erely to carry out the p r o v i s i ons of the plain language stated in the constitution.” Sy l. pt. 3, State ex r e l

. C asey v. Pauley , 158 W

. Va. 298, 210 S.E.2d 649 (1975). This is so because “[ t]he provisions of the Constitution, the organic and f undam ental law of the lan d , stand upon a higher plane than statutes, and they will as a rule be held

m andatory in prescribing the exact and exclusive m ethods of perf orm ing the acts perm itted or required.” Sy l. pt. 2, Simms v. Sawyers , 85 W . Va. 245, 101 S.E. 467 (1919).

It is apparent f

r o m r e a d i ng the various statutes enacted by the Legislature in its def inition of this State’s election laws that it recognized and heeded t he constitutional

com m and announced by article II, section 2. R e p l e te in this body of law are num erous provisions that saf

eguard a voter’s choice of candidate and ensure that his/her vote will be

7recorded as it was cast. See, e.g. , W

. Va. Code § 3-1-45 (2003) (Repl. V o l. 2013)

(authorizing m andam

us proceeding to com

pel perf orm ance of duties required under State’s election laws); W

. Va. Code § 3

- 1 A

- 1 (2010) (Repl. Vol. 2013) (f orm ing State Election Com m ission); W

. Va. Code § 3-5-19 (2007) (Repl. Vol. 2013) (def ining procedure f

or f illing
vacancy in nom ination); W

. Va. Code § 3-9-9 (1986) (Repl. Vol. 2013) (ensuring secrecy of voter’s ballot); W

. Va. Code § 3-9-17 (1963) (Repl. Vol. 2013) (im posing crim inal penalties f or alteration of voter’s ballot). See also W

. Va. Code § 3-3-1 et seq. (delineating procedures f or absentee voting and handling of such ballots); W

. Va. Code § 3-3A-1 et seq. (establishing pilot program f

or voting by m ail and process to govern collection and counting of ballots cast i n t his m anner); W

. Va. Code § 3-3B-1 et seq. (f orm ing unif

orm ed services and ove r s e a s voter pilot program and def ining procedure f

or tabulating such ballots). Still other statutes

ensure the integrity of the election process, itself , by requiring candidates f or of f ice to pledge
to conduct their cam

paigns in such a m anner so as to uphold “the f ull and f ree expression of the will of the voters” and to def end “the right of every qualif ied voter to f

ull a n d e q ual participation in the electoral process.” W

. Va. Code § 3-1B-5 (1995) (Repl. Vol. 2013). See also W

. Va. Code § 3-5-7(d)(6)(B) (2015) (Supp. 2015) (requiring cand i d a t e t o maintain allegiance to his/her stated political pa r t y f o r specif ied period by verif

y ing that he/she has been m em

ber of sam e political party f or sixty day s preceding f

iling of his/her “certif

icate of

announcem ent”). And, included within this body of election law is, of course, the nef arious § 3-10-5 which stands at the center of the instant controversy

.

8I agree with m y colleagues that, on its f ace, this seem ingly innocuous provision
p r o vides the guidance sought by the parties. However, a closer reading of this s t a t u t e inevitably reveals internal inconsistencies that I subm it render it unconstitutional because it cannot, as it is written, carry out the will of the voters. In subsection a of W

. Va. Code § 3- 10-5, the Legislature ref erences “the party with which the p e r s o n h olding the of f ice im m ediately

preceding the vacancy was af f iliated,” which the m ajority correctly interprets

as ref erring to the party that the outgoing legis l a t o r b e longed to at the tim e he/she vacated his/her of f ice. However, subsection c of this sam e code section requires “the party executive

com m ittee of the state senatorial district in which the vacating senator resided at the time of his or her election or appointment ” to supply the Governor with the list of nam es f rom which

a replacement senator is to be appointed. (Em phasis added). These incongruous directives sim ply do not m ake sense if the Legislature, as is this Court, is duty -bound to abide by the will of the voters vis-à-vis their choice of elected of

f icials.

I understand subsection c to ref er to the party executive com m ittee of the state senatorial district f

rom which the outg o i n g s e n a t o r was elected so as to ensure that the representational balance of the Senate is m aintained even if the senatorial districts m ight be reconf igured, as has happened in this case between the time of Senator Hall’s election and his resignation. Such balance can be achieved only by m aintaining the status quo sanctioned by the voters, i.e. , ensuring both the sam e geographical area and the sam e political party that

9e l e c t e d t

h e v a c a t i n g s e n a t o r a

r e responsible f

or nom inating his/her replacement. Recognizing and saf eguarding the will of the voters in this m anner “serv[ es] to protect the m andate of the preceding election[ ,]

. . . preserve[ s] the ‘legislative balance’ until the next general election is held[ , and]

. . . m ake [ s ] p rovision f or continuity of party representation.” Rodriguez v. Popular Democratic Party , 457 U.S. 1, 13, 102 S. Ct. 2194, 2 2 0 1

- 0 2 , 7 2 L. Ed. 2d 628 (1982) (citation and f

ootnote om itted). If the Legislature recognizes that it m ust uphold the voters’ right to select their representatives so as to require the replacement senator be chosen f rom the same senatorial district as it existed at the time of the election , it seem s, too, that the only way to be certain that the voters’ prerogative, as it existed at the time of the election , is realized i s to also require that the replacement senator be chosen f rom the same political party as that f

rom which the vacating senator served as candidate when he/she was elected
to of f ice. Indeed, “‘party selection is m ore likely to ref l e c t t h e w i l l o f the voters

. . . f or it was the f orm er representative’s party

. . . that won the prior seat.’” Rodriguez , 457 U.S. at 12 n.12, 102 S. Ct. at 2201 n.12, 72 L. Ed. 2d 628 (quoting Garcia v. Barcelo , 671 F.2d 1, 6 (1st Cir. 1982)).

To interpret W

. Va. Code § 3-10-5 in this m anner, though, m akes it internally inconsistent, as subsection a pref ers the vacating senator’s party af f iliation at the tim e he/she leaves of f ice, while subsection c , to com ply with the constit u t i o n a l m andate of the voters secured by article II, section 2, requires the vacating senator’s party at the tim e he/she was

10elected to nom inate his/her replacement. In light of this incongruous and inconsistent result,

W

. Va. Code § 3-10-5 m

ust be deem ed unconstitutional. See Sy l. pt. 6, City of Fairmont v. Pitrolo Pontiac-Cadillac Co. , 172 W

. Va. 505, 308 S.E.2d 527 (1983) (“Generally , when a statute or ordinance is d e c lared unconstitutional, it is inoperative, as if it had never been passed.”).

This reading of the statute is even m ore com pelling when viewed in the context of the instant controversy

. W hile i t goes without say ing that the party -changing scenario presented by the case sub judice was not def initively addressed by the subj e c t s t atute, and perhaps was never even contemplated when it was enacted or amended, that, nevertheless, is the f act pattern to which § 3-10-5 m ust be interpreted to apply in this case. Although the respondents m ake m

uch of the changing nature of the election results in recent contests as indicating a change in party support by the voters, t h a t t r e n d s i m ply is not relevant to the instant inquiry

. Neither voter dem ographics nor the political party af f iliation of candidates elected in 2014 is instructive to a determ ination of the will of the voters who elected Senator Hall, as a Dem ocrat, in 2012. It is Senator Hall who has vacated his seat, and who m ust be replaced by the Governor, not a subsequently elected or dif f e r e n t ly af f iliated candidate. Moreover, it m

ust be rem em

bered that substant i a l l e g islative redistricting took place f ollowing the 2010 Census, the ef f ects of which were not f

elt until the 2014 election at which tim e the same Ninth Senato r i a l D i s t r ict m ay have represented different voters in the 2014

11election than it did in the 2012 election. T h u s , allegiance to the will of the voters who

elected Senator Hall as a Senator f rom the Ninth District in 2012 requires that a replacement candidate f

rom both the same geographic area and the same political party as that represented by then-candidate Hall during the 2012 election be appointed. As noted previously , the only
way the m andate of the Ninth District’s 2012 electorate, as secured by article II, section 2 of the W est Virginia Constitution, can be f aithf ully upheld within the current f actual context is to declare W. Va. Code § 3-10-5 to be unconstitutional.

West V irginia Code § 3-10-5 V

iolates West V

irginia Constitution Article II, Section 4 I also f ind W

. Va. Code § 3-10-5 to be unconstitutional under article II, section 4 of this State’s Constitution b e cause this code provision operates to disenf ranchise the
voters of the political party f or whom the vacating legislator served as a candidate when, as here, that legislator subsequently changes political parties and, upon his/her departure f rom of f ice, is replaced by a person f rom the legislator’s new political party

. Article II, section 4 states that “[ e]very

citizen shall be entitled to equal representation in the government, and, in all apportionm ents of

representation, equality

of num bers of those entitled thereto, shall

as f ar as practicable, be preserved.” This Court previously has determ ined this language to be plain: “[ w]e believe that Article II, Section 4 of our Constitution is clear in its term s and that the intention thereof is m anif est f rom the language used. It provides f or equal representation in go vernm ent and, additionally , in all apportionm ents of representation.”

12S t a t e e

x r el. Smith v. Gore , 150 W

. Va. at 76, 143 S.E.2d at 794. Thus, it is clear that the
voters of this State have the r i g h t , guaranteed by this State’s Constitution, to elect the individuals who will represent them , and their interests, in this State’s Legislature.

Moreover, “[ n]o right is m ore precious in a f ree country than that of having a voice in the election of those who m ake the laws under which , a s g o o d citizens, we m ust live.” W esberry v. Sanders , 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481 (1964). As this Court previously

has recognized, the ‘one person, one vote’ principle is now f irm ly established in broad gen e r al term s without qualif ication or exception. Certainly the right of the voter to equal protection, the right to protection against the dilution or debasement of the weig h t or force of an individual’

s v o t e , is fully as sound, sacred and important when he is voting on issues involving taxation, public revenue and the prom otion of an adequate public school sy stem , as when he is voting for the no mi n a t i o n or election of a constable, a state senator , a governor or any other public of f icial to represent the voter in government

. The f act rem ains that our state constitution has ext e n d e d the r ight of the voter into these areas; and when the voter was constitutionally granted the right to vote on these im portant issues, he thereby becam e guaranteed the equal protection of the l a w under the Fourteenth Am endm ent and the constitutional right to have his vote accorded the sam e weight, ef f ect and f orce as that of any other persons’s vote, a n d thereby he becam e protected by the c o n s t i t u tional right to have the weight, f orce and ef f ect of his vote not debased or diluted when considered in relation to the vote of

any other person. Lance v. Board of

Educ. of Cnty. of

Roane , 153 W

. Va. 559, 572-73, 170 S.E.2d 783, 790-91

13(1969) (em

phasis added), rev’d on other grounds sub nom ., Gordon v. Lance , 403 U.S. 1, 91 S. Ct. 1889, 29 L. Ed. 2d 273 (1971).

I would be rem iss if I did not acknowledge that persons who are elected to political of

f ice also have a constitutionally protected right: the right to join the political party of their choosing. Sy l. pt. 3, State ex rel. Billings v. City of Point Pleasant , 194 W

. Va. 301, 460 S.E.2d 436 (1995) (“Restrictions that lim it an individual’s ability to select and change his or her party af

f iliation im

plicate the speech and associational f reedom s guaranteed by the First Am endm ent to the United States Constitution a nd by S e c t ions 7 and 16 of Article III of the W est Virginia Constitution. Such restrictions cannot be im posed on these rights unless the restrictions are necessary to acco m plish a legitim ate and com pelling governm ental interest and there is no less restrictive m eans of satisf y ing such interest.”). That is not to say , however , t h a t t h e whim of the one m ay trum p the will of the m any . W hile the express language of W. V a . Code § 3-10-5 m ay require replacing a vacating legislator with an individual of the last political party of which the vacating legislator was a mem ber, where,

as here, that legislator has changed pa r ties such that the person replacing him /her is a

m em ber of a dif

f erent political party than the one that sponsored the legislator as a candidate f or political of

f ice at the tim e he/she was elected, such a replacement procedure ef f ectively f rustrates the voters’ right to elect the candidate of their choice. “Political candidacies are essentially a com ing together of voters to support a particular platf o r m, c a u se, or leader.

14Political parties, which are—f or better or worse—an integral part of our dem ocratic sy stem ,
m easure their success through their candidates.” Billings , 194 W

. Va. at 305, 460 S.E.2d at 440. Theref

ore, it is inevitable that candidates’ rights are necessarily tied to voters’ rights. Clearly , “[ t]he right to vote f

reely f or the candidate of one’s choice is of the essence of a dem ocratic society , and any restrictions on the right strike at the heart of representative dem ocracy .” Reynolds v. Sims, 377 U.S. 533 , 5 55, 84 S. Ct. 1362, 1378, 12 L. Ed. 2d 506, 523 (1964). A citizen’s right to vote i s not worth m uch if the law denies his or her candidate of choice the opportunity to run. “The rights of voters and the rig hts of candidates do not lend them selves to neat separation; laws that af f ect candidates alway s have at least som e theoretical, corr e l a t ing ef f ect on voters.” Bullock v. Carter, 405 U.S. 134, 1 4 3 , 9 2 S. Ct. 849, 856, 31 L. Ed. 2d 92, 99 (1972). As the United States Suprem e Court observed in Powell v. McCormack, 395 U.S. 486, 548, 89 S. Ct. 1944, 1977, 23 L. Ed. 2d 491, 531 (1969): “A f undam ental principle of our rep r e s entative demo c r a cy is, in Ham ilton’s words, ‘that the people should choose whom they please to govern them .’ 2 Elliot’s Debates, 257. . . .” Billings , 194 W . Va. at 305, 460 S.E.2d at 440.

In the case sub judice , the voters of the Ninth Senatorial Di s t r ict chose the
person who they wanted to represent them during the 2012 senatorial election: Daniel Hall,

a candidate representing the Dem ocratic Party

. As was his consti t u t ionally -guaranteed prerogative, Senator Hall subsequently parted way s with the Dem ocratic Party and joined the ranks of the Republican Party

. Upon his departure f rom of f ice, however, application of the

15express lan g u a g e o f W. Va. Code § 3-10-5 to nam e his replacement operates to

disenf ranchise the voters of the Ninth Senatorial District who, at the tim e of t h e 2 0 1 2 election, selected Daniel Hall of the Democratic Party to represent them

. This construction, dictated by the statute’s plain language, ef f ectively silences the voters’ voice and cannot be

re c o n c i l e d w ith the voters’ constitutional right to select a representative of their choosing guaranteed by

article II, section 4. “The right to vote f

reely f or the candidate of one’s choice is of the essence of a dem ocratic society , and any restrictions on that right strike at the heart of representative gov e r n ment. And the right of suffrage can be denied by a deba s e m e nt or dilution of the weight of a citizen’s vote just as effect i v e l y a s by wholly prohibit i n g t

h e free exercise of

the franchise. ” (Italics supplied.) Lance v. Board of Educ. of Cnty. of Roane , 153 W

. Va. at 569, 170 S.E.2d at 789 (quoting Reynolds v. Sims , 377 U.S. at 555, 84 S. Ct. at 1378, 12 L. Ed. 2d 506 (f ootnote om itted)). See also Harper v. Virginia State Bd. of Elections , 383 U.S. 663, 655, 86 S. Ct. 1079, 1081, 16 L. Ed. 2d 169 (1966) (“[ O]nce the f ranchise is granted to the electorate, lines m ay not be drawn which are inc o n s i s t e n t with the Equal Protection Clause of the Fourteenth Am endm ent.”). Application of W

. Va. Code § 3-10-5 as endorsed by the m ajority deprives the voters of

their right to elect a candidate of their choosing, and, thus, is unconstitutional

as violative of article II, section 4 of the W est Virginia Constitution. Because “the judiciary

. . . has a role to play in ensuring the [ electoral] process retains its integrity and f unctions as

an accurate reflection of the people’s will,” Billings , 194 W

. Va. at 307, 460 S.E.2d at 442 (f ootnote om itted), I sim

ply cannot countenance this incongruous result.

16Courts are Constituted to Faithfully Interpret and Apply the Law, Not to Advance the Personal Objectives of Individual Justices As with all of the views espoused in m y opinions, I reach m y conclusion that W

. Va. Code § 3-10-5 is unconstitutional o n l y a f t er caref ul consideration and thorough analy sis of the p a r ties’ argum ents and the law governing the subject controversy

. As a Justice of this State’s highest court, I am honored to have been elected by this State’s voters and strive, in every

case upon which I sit, to “support the Constitution of the United States and the Constitution of this State” and to “f aithf ully discharge the duties of [ m y ] of f ice to the best of [ m y ] skill and judgm ent.” W

. Va. Const. art

. I V, § 5. I also endeavor to f aithf ully f ollow the Canons of Judicial Conduct, which requi r e p e r s o n s elected to judicial of f ice to “participate in establishing, m ainta i n i n g, and enf orcing high standards of conduct” and to “personally

observe those standards so that the integrity and independence of the judiciary will be preserved.” W

. Va. Code Judicial Conduct Canon 1. See also W

. Va. Code Judicial Conduct Canon 2 (requiring judge “not to allow f am ily , social, pol i t i c a l, or other relationships to inf

luence the judge’s judicial conduct or judgment”).

W hen I disagree wi t h a decision endorsed by the m ajority of this Court, I do

so because I interpret the law dif f erently than m

y brethre n . Sim

ply because I do not share

m y colleagues’ point of view, though, does not m ean that I do not still respect them both as individuals and f

or their legal acum en. Rather, I reiterate the eloquent words of President Hay m ond, who explained his decision to dissent f rom the ma

j o rity of the Court thusly : “It
17should be clearly understood that in expressing m y dissentient views, however, in this honest

and sincere disagreem ent between m y associates and m e, m y criticism s are directed, not to them , but to their direction.” Lance v. Board of Educ. of Cnty. of

Roane , 153 W

. Va. at 574, 170 S.E.2d at 791 (Hay

m ond, President, dissenting).

W e are all , all five of us Justices, constitutionally bound to uphold the laws of this State to the best of our ability and to do so with the neutrality expected of the judiciary

. As of f icers of the Court, we are not beholden to personal agendas and do not use our position in the judiciary to advance our private interests. This is what the voters of the State entrusted

us to do when they elected us, and this is what we do every day we serve as a Justice of this H o n o r a ble Court. The citizens of W est Virginia deserve to understand the views I h a v e expressed in this separate opinion explaining the Constitution’s vital role in protecting not only their sacred right to vote but also in preserv i n g the sanctity of the choices they m ake when they cast their ballots. In light of this obligation we all have assum ed to interpret and apply the law to accom

plish justice, I f

in d it prof

oundly troubling that a com m entary suggesting bias or im

pugning the integrity of a justice would ever have a place in a separate, concurring opinion–particularly when, by the very virtue of their assum ption of of

f ice, it is axiom atic that all of the Justices of this Court exhibit neutrality and im p a r t i a l i ty in their decisions interpreting the law.

18It goes without say ing that the case sub judice presented an interesting

challenge f

or the Court’s resolution. On the o n e h a n d , t h e instant proceeding involved a rather straightf

orward m atter of statutory construction. On the other hand, there is entwined with this inquiry a constitutional concern of such great m agnitude that the f irst step in such

a statutory analy sis, i.e. , ascertaining and adhering to the legislative intent, cannot possibly be accom plished without consideri n g and deciding the constitutionality of the subject l e gislative enactm ent. W hile the parties have conceded that they largely abando n e d t h e i r constitutional argum ents in f avor of proposing a m ore sim plistic statutory construction analy si s , s u c h s t r ategy gives short shrif t to the ability of this Court to undertake and determ ine com

plicated questions of statutory construction and works a great disservice to the
voters of this State whose right to be represented by the candidate of their choosing is at the
very heart of their controv e r s y . Although not artf ully or thoroughly raised, the Petitioners did interject the constitutionality of W

. Va. Code § 3-10-5 into this proceeding so as to perm it the Court to determ ine whether this provision m eets constitutional m uster. Because the

ma j o r i t y ignored this invitation, and its duty , to decide this singularly dispositive issue, I respectf ully dissent.

19