IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

September 2016 Term 

FILED 

September 15, 2016 

No. 16-0779 released at 3:00 p.m. 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

ERIK PATRICK WELLS, 

Petitioner/Respondent Below 

v.
 

STATE OF WEST VIRGINIA ex rel. CHARLES T. MILLER,
 

Prosecuting Attorney for Kanawha County,
 

Respondent/Petitioner Below
 

Appeal from the Circuit Court of Kanawha County
 

The Honorable Charles E. King, Judge
 

Civil Action No. 16-P-364
 

AFFIRMED
 

Submitted: September 7, 2016
 

Filed: September 15, 2016
 

Thomas P. Maroney, Esq. Charles T. Miller, Esq.
 

MARONEY, WILLIAMS, WEAVER Laura Young, Esq.
 

& PANCAKE, PLLC Robert William Schulenberg, III, Esq.
 

Charleston, West Virginia Office of the Prosecuting Attorney of
 

Attorney for Petitioner Kanawha County
 

Charleston, West Virginia 

Attorneys for Respondent 

JUSTICE WORKMAN delivered the Opinion of the Court.
 

JUSTICE DAVIS dissents and reserves the right to file a separate opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘Where the issue on an appeal from the circuit court is clearly a 

question of law or involving an interpretation of a statute, we apply a de novo standard of 

review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 

(1995).” Syl. Pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83, 

543 S.E.2d 364 (2001). 

2. “The constitution, in article IV, section 11, gives wide powers to the 

legislature to make all reasonable regulations and restrictions as to preparation of ballots 

and the conduct and returns of elections.” Syl. Pt. 4, Morris v. Bd. of Canvassers of City 

of Charleston, 49 W. Va. 251, 38 S.E. 500 (1901). 

3. West Virginia Code § 3-5-7 (2015) requires any person who is 

eligible and seeks to hold an office or political party position to be filled by election in 

any primary or general election to file a certificate of announcement declaring his or her 

candidacy for the nomination or election to the office. Accordingly, candidates who seek 

to hold an office or political party position pursuant to West Virginia Code § 3-5-23 

(2009) must complete a certificate of announcement in accordance with the provisions of 

West Virginia Code § 3-5-7. 

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4. A candidate who is registered and affiliated with a recognized 

“political party” as defined in West Virginia Code § 3-1-8 (1965) may not become a 

candidate for political office by virtue of the nomination certificate process outlined in 

West Virginia Code § 3-5-23 (2009). 

5. “The State of West Virginia through its Legislature retains the 

authority to prescribe reasonable rules for the conduct of elections, reasonable procedures 

by which candidates may qualify to run for office, and the manner in which they will be 

elected.” Syl. Pt. 4, Sowards v. County Comm’n of Lincoln Cty., 196 W. Va. 739, 474 

S.E.2d 919 (1996). 

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WORKMAN, Justice: 

This is an appeal from the circuit court’s August 18, 2016, order granting 

respondent State of West Virginia’s (hereinafter “respondent”) amended petition for writ 

of quo warranto, disallowing petitioner Erik Patrick Wells’ (hereinafter “petitioner”) 

candidacy for the office of Kanawha County Clerk. The circuit court found that, as a 

registered member of the Democratic Party, petitioner’s candidacy was governed by the 

provisions of West Virginia Code § 3-5-7 (2015) and that petitioner had failed to comply 

with its requirements, disqualifying him as a candidate for the office of Kanawha County 

Clerk. 

Based upon our review of the briefs, legal authorities, appendix record, and 

upon consideration of arguments of counsel, we conclude that West Virginia Code § 3-5­

7 is applicable to any person who seeks to hold an office or political party position to be 

filled by primary or general election. Therefore, in light of petitioner’s failure to comply 

with the requirements of West Virginia Code § 3-5-7, we affirm the circuit court’s order 

granting the petition for writ of quo warranto. 

I. FACTS AND PROCEDURAL HISTORY 

On July 18, 2016, petitioner, a registered Democrat, filed a “Candidate’s 

Certificate of Announcement for 2016 Partisan Elections” and paid the required filing fee 

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to the Kanawha County Clerk’s office. Petitioner left blank1 a portion of the form, which 

states as follows: 

I am a member of and affiliated with the following political 

party: _____________. I am a member of and affiliated with 

this political party as evidenced by my current voter’s 

registration and I have not been registered as a member of 

another political party within sixty days of this date. (W.Va. 

Code § 3-5-7(d)(6)) 

Subsequently, petitioner filed a “Minor Party or Independent Candidate Nomination 

Petition,” seeking to become a certificate nomination candidate pursuant to West Virginia 

Code § 3-5-23 (2009). On this form, in the space provided for “Party,” the certificate 

stated: “Independent.” Petitioner submitted signatures from 1,019 individuals; the 

County Clerk invalidated 119 of the signatures, leaving 900 signatures as valid.2 

On August 10, 2016, respondent filed a petition for writ of quo warranto 

pursuant to West Virginia Code § 53-2-1 et seq. (1923),3 and the following day filed its 

amended petition. The circuit court conducted a hearing on this matter on August 12, 

1 West Virginia Code § 3-5-7(d) requires this information to be submitted “on a 

form prescribed by the Secretary of State” and in the form of a “sworn statement before a 

notary public or other officer authorized to administer oaths[.]” Further, any person who 

“knowingly provides false information on the certificate is guilty of false swearing[.]” 

W. Va. Code § 3-5-7(f). 

2 Of those 1,019 individuals signing the petition, 656 were registered Democrats, 

135 were registered Republicans, and 137 had no party affiliation. 

3

“A writ of quo warranto, or a writ in the nature of a writ of quo warranto lies to 

try and determine the right or the title to a public office. The writ will issue against any 

person who intrudes into or usurps a public office.” State ex rel. Bumgardner v. Mills, 

132 W. Va. 580, 587, 53 S.E.2d 416, 423 (1949) (citations omitted). 

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2016, during which a key issue was petitioner’s failure to fully complete the certificate of 

announcement, having left his party affiliation blank. During the hearing, petitioner 

testified that he was and remained a registered Democrat and had voted on May 10, 2016, 

in the Democratic primary. Petitioner testified that he was running for the office of 

Kanawha County Clerk as an “independent,” as indicated on the “Minor Party or 

Independent Candidate Nomination Petition.” Petitioner further testified that he read and 

was aware of the requirements imposed on a candidate filing a certificate of 

announcement, but had not decided to run for office until after the primary election.4 

By order entered August 18, 2016, the circuit court granted respondent’s 

petition for writ of quo warranto and disallowed petitioner’s candidacy for the office of 

Kanawha County Clerk in the November 8, 2016, general election. Specifically, the 

circuit court found that petitioner failed to fully complete the certificate of announcement 

required by West Virginia Code § 3-5-7 and that regardless, as a registered Democrat, 

4 Petitioner testified that Carol Bright, a deputy clerk for Kanawha County, told 

petitioner he could leave his party affiliation blank in the certificate of announcement. 

However, Ms. Bright testified that petitioner refused to provide that information; 

therefore, she ultimately told petitioner that the deputy clerk would take the certificate of 

announcement as presented and that the clerk’s office would “deal with it later.” Ms. 

Bright, however, specifically denied telling petitioner that he did not have to complete 

that portion of the certificate. David Dodd, Chief Deputy County Clerk, testified that he 

advised Ms. Bright to accept the certificate and that they would “deal with it later.” The 

circuit court found that “the deputy clerks did not act to relieve [petitioner] from fully 

completing his certificate of announcement, nor could they under the law.” We note that 

petitioner did not assign as error any of the circuit court’s findings regarding these factual 

issues, nor did petitioner argue that estoppel precludes application of the circuit court’s 

legal conclusions as a result. 

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petitioner could not avail himself of the certificate nomination process under West 

Virginia Code § 3-5-23. As pertained to the certificate of announcement, the circuit court 

reasoned that 

[b]y failing to include the party affiliation in the certificate of 

announcement, the . . . [petitioner] created confusion for the 

voters regarding precisely who is running for office and what 

party and party philosophies [petitioner] is affiliated with. 

Further, the failure to include a party affiliation in the 

certificate of announcement will create an impossible 

situation for election officials in preparing the ballet [sic] and 

for voters when voting. 

The circuit court stated that if petitioner’s name appeared on the ballot as a Democrat, it 

would create the impression that he was on the ballot because he either won the primary 

election or had his name placed on the ballot by the Kanawha Democratic Executive 

Committee or its chairperson. On the other hand, if his name appeared as “independent,” 

it would be inaccurate because petitioner is a registered Democrat. The circuit court 

further found that West Virginia Code § 3-5-23 was for use by “persons who seek 

elective office and who are not members of an organized party having a nominating 

election or a nominating convention.” 

The circuit court further rejected petitioner’s contention that he presented a 

viable, constitutionally-based “ballot access” challenge because “as a registered 

Democrat, [petitioner] had access to the ballot” and found that petitioner could have 

simply followed the various requirements to run for office. Specifically, the circuit court 

noted that petitioner could have filed a certificate of announcement for county-wide 

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office or pursued having the Kanawha County Democratic Executive Committee place 

his name on the ballot. 5 This appeal followed. 

II. STANDARD OF REVIEW 

Petitioner’s appeal raises the issues of the application and scope of West 

Virginia Code § 3-5-7 and West Virginia Code §§ 3-5-23 and -24. In this regard, we have 

held that “‘[w]here the issue on an appeal from the circuit court is clearly a question of 

law or involving an interpretation of a statute, we apply a de novo standard of review.’ 

Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” 

Syl. pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83, 543 S.E.2d 

364 (2001). Mindful of this applicable standard, we now consider the substantive issues 

raised by the parties. 

III. DISCUSSION 

Petitioner raises three assignments of error. First, petitioner asserts that the 

circuit court erred in concluding that the certificate of announcement requirements 

contained in West Virginia Code § 3-5-7(d)(6) are applicable to a candidate seeking 

5 Petitioner raised below the issue of his military service, suggesting that he could 

not have filed to run in the primary because he was deployed. Respondent countered that 

petitioner was released from active duty on February 16, 2016, well in advance of the 

March 1, 2016, deadline for a political party’s executive committee to act. Respondent 

further argued that pursuant to the Hatch Act, 5 U.S.C.A. §§ 7321-7326, and under the 

military regulations as contained in the Department of Defense Directive Number 

1344.10, petitioner could have filed to run for office. These issues were not briefed and 

therefore are not properly before the Court. 

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nomination by certificate. Second, petitioner contends that the circuit court erred in 

concluding that, as a registered Democrat, he could not avail himself of the certificate 

nomination process outlined in West Virginia Code § 3-5-23. Finally, petitioner asserts 

that in denying petitioner’s candidacy, the circuit court denied him ballot access, in 

violation of the First and Fourteenth Amendments of the United States Constitution and 

Article III, Sections 7, 16 and 17 and Article IV, Sections 1 and 4 of the West Virginia 

Constitution. 

Before we address petitioner’s arguments, we note that the West Virginia 

Constitution reserves to the Legislature the ability to make laws concerning public 

officials and the manner in which those officials assume office. In syllabus point four of 

Morris v. Board of Canvassers of City of Charleston, 49 W. Va. 251, 38 S.E. 500 (1901), 

this Court held: “The constitution, in article IV, section 11, gives wide powers to the 

legislature to make all reasonable regulations and restrictions as to preparation of ballots 

and the conduct and returns of elections.”6 

Article IV, section 8 provides that “[t]he Legislature, in cases not provided 

for in this constitution, shall prescribe, by general laws, the terms of office, powers, 

duties and compensation of all public officers and agents, and the manner in which they 

6 We further recognize that “[a] State’s power to determine how its officials are to 

be elected is a quintessential attribute of sovereignty.” California Democratic Party v. 

Jones, 530 U.S. 567, 590 (2000) (J. Stevens dissenting). 

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shall be elected, appointed and removed.” Additionally, Article IV, Section 11 provides 

that 

[t]he Legislature shall prescribe the manner of conducting and 

making returns of elections, and of determining contested 

elections; and shall pass such laws as may be necessary and 

proper to prevent intimidation, disorder or violence at the 

polls, and corruption or fraud in voting, counting the vote, 

ascertaining or declaring the result or fraud in any manner 

upon the ballot. 

This Court is further mindful that the Legislature “inevitably must, enact reasonable 

regulations of parties, elections, and ballots to reduce election- and campaign-related 

disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). 

A.	 Applicability of West Virginia Code § 3-5-7 to certificate nomination candidates 

under West Virginia Code § 3-5-23 

As indicated above, petitioner, a registered Democrat, seeks to be a 

candidate for the office of Kanawha County Clerk by utilizing the “certificate 

nomination” process outlined in West Virginia Code § 3-5-23. The statute provides, in 

pertinent part: 

Groups of citizens having no party organization may 

nominate candidates who are not already candidates in the 

primary election for public office otherwise than by 

conventions or primary elections. In that case, the candidate 

or candidates, jointly or severally, shall file a nomination 

certificate in accordance with the provisions of this section 

and the provisions of section twenty-four of this article. 

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W. Va. Code § 3-5-23(a).7 The nominating certificate must state the name and residence 

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

subscribers are legally qualified and duly registered as voters and desire to have the 

candidates placed on the ballot; and “may designate, by not more than five words, a brief 

name of the party which the candidates represent and may adopt a device or emblem to 

be printed on the official ballot.” W. Va. Code § 3-5-23(d). Upon fulfillment of these 

criteria, the statute provides that “[a]ll candidates nominated by the signing of the 

certificates shall have their names placed on the official ballot as candidates, as if 

otherwise nominated under the provisions of this chapter.” Id. 

As noted above, the circuit court found that, even assuming petitioner was a 

proper certificate nomination candidate, he was required to file the certificate of 

announcement described in West Virginia Code § 3-5-7(d) and because petitioner refused 

to identify his party affiliation in the certificate of announcement, the certificate was 

noncompliant and therefore precluded his candidacy. 

West Virginia Code § 3-5-7(a) provides as follows: 

Any person who is eligible and seeks to hold an office or 

political party position to be filled by election in any primary 

or general election held under the provisions of this chapter 

7 The statute further provides that a person soliciting signatures of duly qualified 

voters on the nomination certificate must first obtain credentials from the county clerk 

and that the certificate must be signed by duly registered voters in an amount equal to at 

least one percent of the entire vote cast in the last general election for the office being 

sought. W. Va. Code § 3-5-23(b) and (c). 

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shall file a certificate of announcement declaring his or her 

candidacy for the nomination or election to the office. 

(emphasis added). Significantly, West Virginia Code 3-5-7(c) states that such certificate 

of announcement must be filed no earlier than the second Monday in January and no later 

than the last Saturday in January; petitioner filed his certificate of nomination in July, six 

months after the time period prescribed in the statute. Moreover, for partisan elections 

such as the Kanawha County Clerk, the certificate must contain 

the name of the candidate’s political party and a statement 

that the candidate: (A) Is a member of and affiliated with that 

political party as evidenced by the candidate’s current 

registration as a voter affiliated with that party; and (B) has 

not been registered as a voter affiliated with any other 

political party for a period of sixty days before the date of 

filing the announcement . . . 

W. Va. Code § 3-5-7(d). In spite of the broad, compulsory language of the statute 

requiring “[a]ny person” seeking office in a primary “or general election” to file a 

certificate of announcement of his candidacy for the “nomination or election to the 

office,” petitioner makes two arguments in support of its inapplicability to his certificate 

nomination candidacy. W. Va. Code § 3-5-7(a) (emphasis added). 

First, petitioner argues that our decision in State ex rel. Browne v. Hechler, 

197 W. Va. 612, 476 S.E.2d 559 (1996), is dispositive. In Browne, the Court held that 

the 1991 version of West Virginia Code § 3-5-7 applied only to primary elections and 

therefore certificate nomination candidates were “not required to file a declaration of 

candidacy pursuant to W. Va. Code § 3-5-7 (1991).” Syl. Pt. 2, in part, Browne. 

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Respondent correctly counters, however, that West Virginia Code § 3-5-7 has undergone 

a critical amendment since that time. 

In Browne, the Court sought to ascertain the deadline for the filing of a 

nomination certificate and fee under the 1986 version of West Virginia Code § 3-5-23, 

which used the terms “declaration”8 and “certificate” in a manner creating ambiguity as 

to the filing deadlines. 197 W. Va. at 613-14, 476 S.E.2d at 560-61. Respondent 

suggested that the “declaration” referred to therein was distinguishable from the 

nomination certificate and actually referred to the certificate of announcement required 

by West Virginia Code § 3-5-7. Id. at 614, 476 S.E.2d at 561. The Browne Court 

quickly rejected this argument, observing that West Virginia Code § 3-5-7(f) stated that 

“[t]he provisions of this section shall apply to the primary election . . . .” and was 

therefore “by its own terms, inapplicable” to a certificate nomination candidate, who does 

not participate in the primary election. Id.

9 

This provision of West Virginia Code § 3-5-7, as it existed at the time of 

Browne, seemingly confining applicability to candidates participating in a primary 

8 The term “declaration” has since been replaced with “nomination certificate” and 

the statute rewritten. 

9 The Browne Court did not address the opening sentence of the 1991 version of 

West Virginia Code § 3-5-7 which, like its current incarnation, stated that “[a]ny person 

who is eligible to hold and seeks to hold an office or political party position to be filled 

by election in any primary or general election . . . shall file a certificate of 

announcement[.]” (emphasis added). 

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election survived each of the Legislature’s various amendments enacted in 1998, 2005, 

2007, and 2009. However, the 2015 amendments to the statute eliminated this provision 

in its entirety. Accordingly, there is no longer any wording contained within the 

language of the statute stating that its provisions apply exclusively to candidates 

participating in the primary election. In fact, the sole reference to its applicability is now 

the long-standing opening statement that the statute and its requirements are mandatory 

upon “[a]ny person who is eligible and seeks to hold an office or political party position 

to be filled by election in any primary or general election[.]” W. Va. Code § 3-5-7(a) 

(emphasis added). 

What this Court is left with, then, is the plain language of West Virginia 

Code § 3-5-7 which unmistakably makes itself applicable to all candidacies, including 

certificate nomination candidacies, and clearly mandates that all those seeking office in a 

primary or general election file a statutorily-compliant certificate of announcement. 

Whether this was the intention of the Legislature in making the 2015 amendments to the 

statute is not for this Court to speculate: “Where the language of a statute is free from 

ambiguity, its plain meaning is to be accepted and applied without resort to 

interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 715, 172 S.E.2d 384, 

385 (1970). What is clear, however, is that the Court’s decision in Browne is no longer 

valid as pertains to this issue in light of the 2015 amendments to West Virginia Code § 3­

5-7. 

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Petitioner argues alternatively that West Virginia Code § 3-5-7 is 

inapplicable to a certificate nomination candidate because such candidacy is governed 

exclusively by West Virginia Code § 3-5-23, which requires no such certificate of 

announcement and mandates that upon filing of the certificate of nomination, a candidate 

“shall” be placed on the ballot. W. Va. Code § 3-5-23(d). The Court, however, cannot 

countenance such a myopic view of our election code. This Court has made clear that 

[s]tatutes which relate to the same persons or things, or to the 

same class of persons or things, or statutes which have a 

common purpose will be regarded in pari materia to assure 

recognition and implementation of the legislative intent. 

Accordingly, a court should not limit its consideration to any 

single part, provision, section, sentence, phrase or word, but 

rather review the act or statute in its entirety to ascertain 

legislative intent properly. 

Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 

S.E.2d 907 (1975). Certainly our state election code presents a comprehensive “code of 

laws for the establishment, administration and regulation of elections and election 

procedures in the state of West Virginia.” W. Va. Code § 3-1-1 (1963). 

Petitioner provides no support for the notion that statutes purporting to have 

a broad reach become completely inoperable when more specific statutes delineate 

additional requirements specifically applicable to certain individuals or processes. West 

Virginia Code § 3-5-23 contains no exclusivity language, nor is there anything inherently 

inconsistent with requiring a candidate to file both a certificate of announcement pursuant 

to West Virginia Code § 3-5-7 and a nomination certificate containing all of the required 

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signatures and representations required by West Virginia Code § 3-5-23. As stated in 

Browne, the certificate of announcement serves to “ensure the orderly administration of . 

. . elections and to provide notice to the electorate of the identity of candidates[.]” 197 

W. Va. at 614, 476 S.E.2d at 561. Petitioner offers no reason why such goals should be 

rendered inapplicable to certificate nomination candidates. 

Nonetheless, petitioner highlights a purported “conflict” in West Virginia 

Code § 3-5-7 and § 3-5-23 in support of his suggestion that he is not required to complete 

the certificate of announcement. The certificate of announcement requires a candidate to 

identify, among other housekeeping matters, the date of the election, the office sought, 

the district, the candidate’s legal name, county of residence, and address. W. Va. Code § 

3-5-7(d)(1) through (5). Subsection (d)(6), however, requires a candidate in a partisan 

election to identify his or her political party and swear, under oath, that the candidate is a 

member of and affiliated with that political party and has not been registered as a voter 

affiliated with any other party for the preceding sixty days. W. Va. Code § 3-5-7(d)(6). 

West Virginia Code §3-5-23(d) provides merely, however, that the nomination certificate 

“may” designate a party name, device or emblem. In spite of petitioner’s insistence to 

the contrary, we perceive no appreciable conflict in these provisions, much less one 

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which would render the provisions of West Virginia Code § 3-5-7(d)(6) wholly 

inapplicable to a nomination certificate candidate.10 

The certificate of announcement described in West Virginia Code § 3-5-7 

(and in fact the entire statute) pertains to the candidate himself. The certificate seeks 

information which identifies the candidate, the office for which the candidate is running, 

and information designed to ensure the candidate is a proper one for the office he or she 

seeks. The Legislature has made clear in enacting the requirements of West Virginia 

Code § 3-5-7(d)(6) that voters are entitled to know with which political party, if any, a 

candidate is affiliated and that the candidate has not been otherwise affiliated in the 

10 Petitioner did not assert a specific constitutional challenge to West Virginia 

Code § 3-5-7(d)(6)’s requirement that he declare his party affiliation in the certificate of 

announcement; rather, he challenged merely the statutory applicability thereof to his 

candidacy. Our normal practice, from which we see no reason to depart on this occasion, 

is to refrain from addressing issues not raised. “‘Courts are not constituted for the 

purpose of making advisory decrees or resolving academic disputes.” Syl. Pt. 2, in part, 

Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991).” 

Nonetheless, this Court is cognizant of its decision in West Virginia Libertarian 

Party v. Manchin, 165 W. Va. 206, 270 S.E.2d 634 (1980), which tersely and with little 

discussion found that the predecessor requirement of West Virginia Code § 3-5-23(d) that 

a candidate “file a declaration containing the name of the political party he or they 

propose to represent, its platform, principles or purposes” violated the Equal Protection 

rights of an unaffiliated candidate. As repeatedly noted throughout this opinion, 

petitioner is not an unaffiliated candidate; he therefore lacks standing to litigate the issue. 

See generally Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 95, 576 S.E.2d 

807, 822 (2002). Even so, we do not perceive an issue of constitutional dimension with 

West Virginia Code § 3-5-7(d)(6)’s requirement that all candidates, including unaffiliated 

candidates, identify their political party, if any. To the extent a candidate is not a 

“member of and affiliated with,” a political party, i.e. unaffiliated or “independent,” the 

truthful and complete answer to this inquiry is simply “none.” 

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preceding sixty days. The substantial ends of these disclosures is clear: voters are 

entitled to know the party or principles for which a candidate stands, to the extent a 

candidate has so affiliated himself or herself, such that they can make a knowledgeable 

decision in casting their votes. This statute seeks to prevent candidates from engaging in 

chicanery regarding their political affiliations, if any, designed to inure entirely to their 

individual political benefit and mislead the electorate. See Lippitt v. Cipollone, 337 F. 

Supp. 1405, 1406 (N.D. Ohio 1971) (upholding similar requirements to preclude 

candidates from “altering their political party affiliations for opportunistic reasons.”). 

The provisions of West Virginia Code § 3-5-23, however, are geared 

toward ascertaining information about the “groups of citizens” who purport to by-pass the 

primary election and nominate a candidate by certificate. While the certificate itself is 

required to be filed by the candidate, the provisions of West Virginia Code § 3-5-23 deal 

virtually exclusively with the qualifications of the citizens who seek to nominate the 

candidate and the certificate by which they seek to do so. Subsection (b) governs the 

credentialing required of those who solicit or canvass voter signatures on the nomination 

certificate. Subsection (c) details the criteria for becoming a signator of the nomination 

certificate and the number of such signators required. Subsections (e) and (f) outline the 

duties of the Secretary of State to investigate the “validity of the certificates and the 

signatures thereon” and any penalties for violation of the statute. Subsection (d), which 

petitioner suggests “conflicts” with the requirements of a candidate to aver his or her 

registered party affiliation provides simply that the group of citizens which seeks to 

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nominate a candidate “may” designate a name or emblem for themselves. It does not 

speak to the registered party affiliation, if any, of the candidate. 

Petitioner offers absolutely no argument or rationale before this Court as to 

why requiring the certificate of announcement delineated in West Virginia Code § 3-5-7 

of certificate nomination candidates under West Virginia Code § 3-5-23 is impractical, 

impossible, or inequitable. Indeed he likely cannot inasmuch as, despite his insistence 

that he was not required to complete a certificate of announcement, it was he who took it 

upon himself to file one, albeit incomplete and untimely. Any inefficacies in requiring 

nomination certificate candidates to complete the form are not only immaterial to our 

application of the statute as drafted by the Legislature, but merely theoretical.11 In fact, 

we note that the certificate of announcement itself as promulgated by the Secretary of 

State appears to expressly contemplate execution by certificate nomination candidates 

who effectively by-pass the primary election. The Secretary of State’s Official Form C-1 

entitled “Candidate’s Certificate of Announcement for 2016 Partisan Elections” requests 

the candidate to indicate the “Date of Election” and requests the candidate to “Check 

one” of the following: primary, general, or unexpired term. Should the form be 

11 Insofar as filing deadlines are concerned, West Virginia Code § 3-5-7 simply 

requires a nomination certificate candidate to announce his or her candidacy in January. 

Such candidate still has until August 1 to collect the signatures required on the 

nomination certificate. This Court has cited with approval cases in which courts have 

rejected challenges to election laws affecting third-party or independent candidates based 

on the argument that such provisions require the candidate anticipate his or her candidacy 

too early. See Manchin, 165 W. Va. 206, 223-226, 270 S.E.2d 634, 644-646 (collecting 

cases). 

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applicable only to those candidates participating in the primary election, there would be 

no need to make an allowance for a candidate to check only “general” election, unless 

that candidate may by-pass the primary and run only in the general election as 

nomination certificate candidates do. 

The critical importance of the frank disclosure of a candidate’s party 

affiliation is well-illustrated in the case at bar. As indicated above, petitioner is a 

registered Democrat, yet seeks to run by nomination certificate as an “independent.” 

Although this term is commonly used to refer to individuals who eschew party affiliation, 

West Virginia does not recognize an official designation of “Independent.” Rather, those 

who are “unaffiliated” are registered as such.12 To run as unaffiliated or “independent,” 

petitioner may not merely declare himself “independent” or lacking in party affiliation; 

he must change his registration to reflect accordingly. West Virginia Code § 3-5-7(d)(6) 

requires that he declare his party affiliation, if any, and aver that he has not otherwise 

12See W. Va. Code § 3-2-5 (d)(2) (2013) (identifying requested information for 

voter registration application including “[t]he applicant’s choice of political party 

affiliation, if any, or an indication of no affiliation.”); see also West Virginia Secretary of 

State Natalie E. Tennant, “Voter Registration Totals,” 

http://www.sos.wv.gov/elections/history/Pages/Voter_Registration.aspx (last visited 

September 14, 2016) (“‘No Party’ refers to individuals who specifically do NOT affiliate 

themselves with any particular party and are sometimes commonly referred to as 

‘Independents.’”); “West Virginia Voter Registration Application,” West Virginia 

Secretary of State, Natalie E. Tennant, 

http://www.sos.wv.gov/elections/forms/Documents/Forms%20­

%20Voter/mail%20in%20voter%20registration%20application.pdf (last visited 

September 14, 2016) (designating six options for “party choice”: Democratic, 

Republican, Mountain, Libertarian, unaffiliated, or other”). 

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been affiliated in the 60 days preceding the filing. This Court has observed that such 

requirements “promote political stability, preserve party integrity . . . and prevent voter 

confusion.” State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 307, 460 

S.E.2d 436, 442 (1995); see also Bendinger v. Ogilvie, 335 F. Supp. 572, 575 (N.D. Ill. 

1971) (noting that without such requirements “party swapping and changing might 

become so prevalent that the average political party could no longer function properly”). 

However, upon filing his certificate of announcement—six months late— 

petitioner failed or refused to identify his political party, thereby wholly usurping the 

paramount purpose of the nomination certificate. On the nomination certificate and in 

sworn testimony, petitioner purported to identify as having no party affiliation or 

“independent,” all while maintaining his registered Democrat status. Simply put, 

petitioner is a registered Democrat and any attempt to otherwise identify himself or 

“disaffiliate” with the Democratic party can only be accomplished by changing his 

registration; to permit otherwise would perpetrate a fraud on the electorate. As we have 

previously stated, “the State’s interests in preserving the integrity of the political process . 

. . . are put at risk by candidates who skip from one party to another just prior to an 

election campaign to take advantage of a political opportunity.” Billings, 194 W. Va. at 

308, 460 S.E.2d at 443. If “skipping” from party to party to take advantage of a political 

opportunity puts the State’s election interests at risk, it is fairly inarguable that allowing a 

candidate to masquerade as something he is not makes an utter mockery of those 

interests. 

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The statute as currently constituted, requiring all candidates to file a 

certificate of announcement in January, appears to reflect a Legislative intent that voters 

and candidates should know at the outset who is running for elected office. Certificate 

nomination candidates then obviously have until August 1—an additional approximate 

six months—to collect the signatures necessary to secure their nomination. This prevents 

certificate nomination candidates from first emerging near the end of the election season 

to the surprise of an unwitting recognized political party candidate. 

We therefore hold that West Virginia Code § 3-5-7 requires any person 

who is eligible and seeks to hold an office or political party position to be filled by 

election in any primary or general election to file a certificate of announcement declaring 

his or her candidacy for the nomination or election to the office. Accordingly, candidates 

who seek to hold an office or political party position pursuant to West Virginia Code § 3­

5-23 must complete a certificate of announcement in accordance with the provisions of 

West Virginia Code § 3-5-7. It is undisputed that petitioner filed his certificate of 

announcement six months late and that when he did so, his failure to state his political 

party made his untimely filing also incomplete. Therefore, we conclude that the circuit 

court committed no reversible error in disallowing his candidacy. 

B. Certificate Nomination Candidacies by Recognized Political Party Members 

Our above holding notwithstanding, we turn now to petitioner’s argument 

that the circuit court erred in finding that, as a registered Democrat, the certificate 

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nomination process contained in West Virginia Code § 3-5-23 was not available to him. 

Although effectively unnecessary to the resolution of this matter given our above 

holding, the Court chooses to consider this properly raised issue given its importance. 

See generally Syl. Pt. 1, Israel by Israel v. West Virginia Secondary Schools Activities 

Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989) (permitting consideration of issues 

presenting “sufficient collateral consequences” resulting from failure to address 

“questions of great public interest”). As noted above, the circuit court found that the 

certificate nomination process is available only to third-party or independent candidates, 

rather than individuals affiliated with a recognized political party13 who neglect or refuse 

to participate in the primary process or seek nomination by the executive committee of 

their party or convention. 14 

Without question, this Court has historically recognized West Virginia 

Code § 3-5-23 as “providing the method for ballot access for third-party and independent 

13 As utilized herein, the term “recognized political party” should be read to 

include those parties which qualify as a “political party” as defined by West Virginia 

Code § 3-1-8. See West Virginia Secretary of State, Natalie E. Tennant, “Recognized 

Political Parties in WV,” http://www.sos.wv.gov/elections/candidatescommittees/Pages/Recognized-Political-Parties-in-WV.aspx (last visited September 14, 

2016) (identifying current recognized political parties as: Democratic, Republican, 

Mountain, and Libertarian). 

14 West Virginia Code 3-5-4 requires nomination by primary election of the 

candidates of “each political party.” Vacancies in candidacy may be filled by political 

party executive committees pursuant to West Virginia Code 3-5-11(c). Political parties 

polling at less than ten percent of the total vote for Governor at the preceding general 

election may nominate candidates by party convention per West Virginia Code § 3-5-22. 

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party candidates.” Write-In Pritt Campaign v. Hechler, 191 W. Va. 677, 681, 447 S.E.2d 

612, 616 (1994) (emphasis added). Moreover, in Manchin, 165 W. Va. at 222, 270 

S.E.2d at 644, this Court stated that the statute “constitute[s] a method for third-party or 

independent candidates to gain access to the general election ballot . . . . [and] that the 

petition process serves as the functional equivalent of a primary election.” (emphasis 

added). Notably, the West Virginia Secretary of State’s official credentialing form and 

nomination petition expressly state that they are for “independent” or “minor party” 

candidates.15 There is nothing on these forms remotely suggesting this process is for use 

by individuals with recognized political party affiliation. 

The language of West Virginia Code § 3-5-23 presents some ambiguity in 

that it does not expressly forbid a member of a recognized political party from becoming 

a certificate nomination candidate. However, the language of the statute plainly suggests 

that it is a mechanism by which only unaffiliated or minor party candidates may enter the 

election process. In fact, the statute begins with the statement that “[g]roups of citizens 

15 The face of the State of West Virginia “Official Credentials” Form P-1, states 

“As prescribed by WV Code §3-5-23 Authorization to Solicit Petition Signatures for 

Independent and Minor Party Candidates in the _____ Election.” The “Nomination 

Petition” Form P-3 itself is entitled “State of West Virginia Minor Party or Independent 

Candidate Nomination Petition for the ___ General Election” and notes at the bottom 

“Issued by the Office of the Secretary of State (WV Code §3-5-23)”. See also West 

Virginia Secretary of State Natalie E. Tennant, “No Party Candidates,” 

http://www.sos.wv.gov/elections/candidates-committees/Pages/nopartyaffiliation.aspx 

(last visited September 14, 2016) (“Citizens who want to run independently or under the 

banner of a minor party must petition the voters within the state by gathering signatures 

to get on the General Election ballot). 

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having no party organization may nominate candidates who are not already candidates in 

the primary election for public office . . . .” The use of the phrases “no party 

organization” and reference to candidates “who are not already candidates in the primary 

election” unquestionably suggests that it is for use by candidates who do not belong to 

one of the recognized “political part[ies]” in West Virginia. See W. Va. Code § 3-1-8 

(1965) (“Any affiliation of voters representing any principle or organization which, at the 

last preceding general election, polled for its candidate for Governor at least one percent 

of the total number of votes cast for all candidates for that office in the state, shall be a 

political party . . .”). Moreover, subsection (d) permitting the designation “by not more 

than five words, a brief name of the party which the candidates represent and may adopt a 

device or emblem to be printed on the official ballot” further suggests that the statute is 

designed for independent or third party candidates, recognized party candidates having no 

need to effectively “create” a name, emblem or device to reflect their party. 

Having determined that the statute is ambiguous, we turn then to our 

canons of statutory construction. This Court has repeatedly held that “in the 

interpretation of a statute, the legislative intention is the controlling factor; and the 

intention of the legislature is ascertained from the provisions of the statute by the 

application of sound and well established canons of construction.” State v. Gen. Daniel 

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 144, 107 S.E.2d 353, 

358 (1959). Critically, 

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[t]he only mode in which the will of the legislature is spoken 

is in the statute itself. In the construction of statutes, it is the 

legislative intent manifested in the statute that is important 

and such intent must be determined primarily from the 

language of the statute. . . . and the general rule is that no 

intent may be imputed to the legislature other than that 

supported by the face of the statute itself. . . .. A statute is to 

be taken, construed and applied in the form in which it is 

enacted. 

Id. at 144-45, 207 S.E.2d at 358. (emphasis added). As we previously stated herein, 

“statutes which have common purpose will be regarded in pari materia . . . [and] a court 

should . . . review the act or statute in its entirety to ascertain legislative intent properly.” 

Syl. Pt. 5, in part, Fruehauf Corp., 159 W. Va. 14, 217 S.E.2d 907. As the Supreme 

Court of Massachusetts observed in reference to similar “imprecisions” in its election 

laws, 

[t]hey simply goad us to undertake a holistic evaluation of the 

election law regime, and to ascertain as we must “the intent of 

the statute from all its parts and from the subject matter to 

which it relates.” DiGiacomo v. Metropolitan Prop. & Cas. 

Ins. Co., 66 Mass.App.Ct. 343, 346, 847 N.E.2d 1107 (2006). 

See Sterilite Corp. v. Continental Cas. Co., supra at 839, 494 

N.E.2d 1008 (courts “should not accept the literal meaning of 

the words of a statute without regard for that statute’s purpose 

and history”). Thus, we turn to the statutory scheme “as a 

whole,” Wolfe v. Gormally, supra, mindful that “[t]he general 

purpose of the Legislature in enacting the statutes regulating . 

. . elections was to make a reasonably consistent and 

harmonious body of law . . . which should have the final 

result of filling the offices required by law.” Thacher v. 

Secretary of the Commonwealth, 250 Mass. 188, 190, 145 

N.E. 256 (1924). 

Libertarian Assoc. of Mass. v. Sec’y of the Commonwealth, 969 N.E.2d 1095, 1105-06 

(2012). 

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In examining the election laws in pari materia, it becomes 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. Our election code provides that “[a]t each 

primary election, the candidate or candidates of each political party”—which quite 

obviously includes the Democratic party—“shall be nominated by the voters of the 

different political parties . . . [by a] plurality of the votes cast[.]” W. Va. Code § 3-5-4(a). 

Quite simply, members of recognized political parties are to be nominated by their party 

during the primary election. In view of the fact that the primary process is available only 

to candidates of “each political party,” individuals who do not belong to these parties, as 

defined by statute, or any minor political party ostensibly have no means of entering the 

election process in absence of the provisions of West Virginia Code § 3-5-23. 

West Virginia Code § 3-5-23, therefore, provides for the certificate 

nomination process and quite understandably reads in terms of groups of citizens who 

“hav[e] no party organization” and candidates who “are not already candidates in the 

primary election.” W. Va. Code § 3-5-23(a). The absence of any provision even 

suggesting that the certificate nomination process is available to a recognized party 

candidate compels a conclusion to the contrary. As noted above, “no intent may be 

imputed to the legislature other than that supported by the face of the statute itself.” Gen. 

Daniel Morgan Post No. 548, 144 W. Va. at 145, 107 S.E.2d at 358. This Court 

therefore may not impute the availability of the certificate nomination process to a 

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recognized party candidate inasmuch as the face of the statute quite simply does not 

support any such usage. 

The evolution of the statute lends further credence to our conclusion that it 

was not designed for, and therefore does not permit, a member of a recognized political 

party to avail himself of its process. The 1916 version of the statute provided that 

nomination by certificate was available to “[p]olitical parties having national 

organization,” but having cast less than ten percent of the total vote cast for governor at 

the general election. W. Va. Code § 3-5-23 (1916) (emphasis added).16 Clearly, this 

16 An appreciation of how substantially West Virginia Code § 3-5-23 differed from 

the current version of the statute in its earliest incarnation is critical to placing our case of 

George v. Board of Ballot Comm’rs, 79 W. Va. 213, 90 S.E. 550 (1916), into its proper 

context. George addressed whether a Republican candidate who was defeated in the 

primary election could then run as the nomination certificate candidate of the 

“Independent Republican Party.” Id. The Court noted that “[a]s to whether [the 

candidate] may have been previously a candidate for nomination by another party, or may 

be a candidate of some party other than named in the certificate, the statute is silent.” Id. 

at 215, 90 S.E. at 551. With respect to its intended reach, the statute at that point 

provided simply that “[c]andidates for public office may be nominated otherwise than by 

direct primary election.” W. Va. Code § 3-5-23 (1915). There was no mention, as the 

statute currently contains, of “groups of citizens having no party organization,” or 

nomination of candidates “who are not already candidates in the primary election.” That 

the Court in George concluded that the statute’s silence would not preclude such 

candidacy is fairly immaterial to the case at bar as we now have additional direction on 

the face of the statute suggesting its proper application. 

Similarly, nor does our extraordinarily brief case of State ex rel. Frazier v. Board 

of Ballot Comm’rs of Wayne County, 112 W. Va. 650, 166 S.E. 363 (1932), compel a 

different conclusion. In Frazier, a candidate who had likewise been defeated in the 

primary sought to utilize the nomination certificate process to reach the general election 

ballot. Id. at 650, 166 S.E. at 364. The Court found that Frazier’s nomination certificate 

was not timely filed and therefore his candidacy was precluded. Id. at 651, 166 S.E. at 

(continued . . .) 

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language contemplates minor party candidates. Presumably in view of the fact that the 

statute, as then constructed, did not appear to allow for unaffiliated candidates, the statute 

was amended in 1941 to make itself available to “groups of citizens having no party 

organization[.]” W. Va. Code § 3-4-29 (1941) (emphasis added). 

Not only is this conclusion consistent with the statutory scheme and 

compelled by our canons of statutory construction, its equity is apparent. In light of our 

above conclusion that candidates must file a certificate of announcement declaring their 

party affiliation, to permit recognized political party candidates to then by-pass the 

primary and use the nomination certificate process allows him or her to then appear on 

the ballot ostensibly as the candidate of one of the recognized parties. To suggest that 

this would create voter confusion is putting it mildly. These requirements seek to avoid 

“political opportunism which is [] likely to threaten the State’s interests”, Billings, 194 

W. Va. at 308, 460 S.E.2d at 443, and are necessary to maintain “order, rather than 

chaos” in the nomination process. Storer v. Brown, 415 U.S. 724, 730 (1974). As in this 

case, petitioner was a registered Democrat, yet held himself out for purposes of obtaining 

nomination certificate signatures as “independent.” Accordingly, to allow him to appear 

on the ballot as “independent” or “unaffiliated” is patently false; to allow him to appear 

on the ballot as “Democrat” suggests that he is his party’s nominee—also patently false. 

364. The Court did not address, in any fashion, the propriety of an unsuccessful primary 

candidate’s use of the certificate nomination process. 

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These considerations inexorably lead to the conclusion that in order to 

“maintain[] the integrity of different routes to the ballot and [] stabiliz[e] the political 

system,” West Virginia Code § 3-5-23 is available only to unaffiliated or minor party 

candidates. Polly v. Navarro, 457 So.2d 1140, 1143 (Fla. App. 1984). Plainly, this same 

conclusion was reached by the State’s chief elections official, as evidenced by the form 

promulgated by her office entitled “Minor Party or Independent Candidate Nomination 

Petition.”17 We therefore hold that a candidate who is registered and affiliated with a 

recognized “political party” as defined in West Virginia Code § 3-1-8 may not become a 

candidate for political office by virtue of the nomination certificate process outlined in 

West Virginia Code § 3-5-23. 

C. Constitutional Issues 

Petitioner asserts that he has fully complied with the substantive and 

procedural requirements of West Virginia Code §§ 3-5-23 and -24, and therefore has the 

fundamental constitutional right to ballot access through the signature petitions. 

Petitioner maintains that his right to become a candidate for public office is a 

fundamental right, see Garcelon v. Rutledge, 173 W. Va. 572, 318 S.E.2d 622 (1984), 

and there is nothing preventing him, a registered Democrat, from running as an 

17 West Virginia Code of State Regulations § 153-26-5 provides that “[o]nly forms 

which satisfy the prescribed statutory requirements shall be authorized by the Secretary 

of State as the official election forms” and that the Secretary of State “shall amend any 

official election form when it is necessary to conform the form with statutory 

requirements[.]” 

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unaffiliated candidate pursuant to the provisions set forth in West Virginia Code § 3-5­

23. He reminds this Court that candidates’ rights are necessarily tied to voters’ rights. See 

Bullock v. Carter, 405 U.S. 134, 143 (1972). Petitioner states that the circuit court’s 

decision effectively denied 900 Kanawha County voters the right to nominate and vote in 

the general election for a candidate of their choice. 

Respondent counters that Petitioner is not being denied access to the 

general election ballot because of any arbitrary and capricious action by those who 

supervise the election process and ballot for Kanawha County elections. Rather, 

Respondent maintains that petitioner should not be included on the general election ballot 

because he chose to ignore all of the options which would have permitted him to be on 

the ballot as a representative of the party to which he belongs, the Democratic party. 

Having decided at the last minute to fling his “Democratic hat into the ring,” petitioner 

failed to change his registration to unaffiliated at least sixty-one days before filing his 

certificate of candidacy under West Virginia Code § 3-5-7; he compounded that problem 

by refusing to fully complete the Candidate’s Certificate of Announcement, leaving his 

party affiliation blank. 

In Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and Burdick v. 

Takushi, 504 U.S. 428, 433-34 (1992), the United States Supreme Court established a 

balancing test to evaluate challenges to state ballot access requirements: 

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A court considering a challenge to a state election law must 

weigh the character and magnitude of the asserted injury to 

the rights protected by the First and Fourteenth Amendments 

that the plaintiff seeks to vindicate against the precise 

interests put forward by the State as justifications for the 

burden imposed by its rule, taking into consideration the 

extent to which those interests make it necessary to burden 

the plaintiff’s rights. 

Burdick, 504 U.S. at 434 (citation and internal punctuation omitted). The required 

analysis “depends upon the extent to which a challenged regulation burdens First and 

Fourteenth Amendment rights.” Id. For “severe” restrictions, the regulation must be 

“narrowly drawn to advance a state interest of compelling importance.” Id. (quoting 

Norman v. Reed, 502 U.S. 279, 289 (1992)). For “reasonable, nondiscriminatory 

restrictions,” the “State’s important regulatory interests are generally sufficient to justify 

the restrictions.” Id. (citation and internal punctuation omitted). 

Without question, “[t]he impact of candidate eligibility requirements on 

voters implicates basic constitutional rights.” Anderson, 460 U.S. at 786. Nonetheless, 

“not all restrictions imposed by the States on candidates’ eligibility for the ballot impose 

constitutionally-suspect burdens on voters’ rights to associate or to choose among 

candidates.” Id. at 787. “[A]s a practical matter, there 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 processes.” Storer, 415 U.S. at 730.18 In syllabus point four of 

18 In Storer, the United States Supreme Court upheld a California election statute 

that denied ballot access to an independent candidate seeking elective public office if the 

(continued . . .) 

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Sowards v. County Comm’n of Lincoln Cty., 196 W. Va. 739, 474 S.E.2d 919 (1996), we 

held: 

The State of West Virginia through its Legislature 

retains the authority to prescribe reasonable rules for the 

conduct of elections, reasonable procedures by which 

candidates may qualify to run for office, and the manner in 

which they will be elected. 

candidate had a registered affiliation with a qualified political party within one year prior 

to the immediately preceding primary election. Id. at 736. In finding California’s 

disaffiliation requirement constitutional, the Supreme Court stated as follows: 

The requirement that the independent candidate not have been 

affiliated with a political party for a year before the primary is 

expressive of a general state policy aimed at maintaining the 

integrity of the various routes to the ballot. It involves no 

discrimination against independents. 

. . . . 

The general election ballot is reserved for major struggles; it 

is not a forum for continuing intraparty feuds. The provision 

against defeated primary candidates running as independents 

effectuates this aim, the visible result being to prevent the 

losers from continuing the struggle and to limit the names on 

the ballot to those who have won the primaries and those 

independents who have properly qualified. The people, it is 

hoped, are presented with understandable choices and the 

winner in the general election with sufficient support to 

govern effectively. 

. . . [The disaffiliation statute] protects the direct primary 

process by refusing to recognize independent candidates who 

do not make early plans to leave a party and take the 

alternative course to the ballot. It works against independent 

candidacies prompted by short-range political goals, pique, or 

personal quarrel. It is 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. 

Storer, 415 U.S. at 733-35. 

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While he raised a constitutional argument as an assignment of error, 

petitioner does not set forth constitutional challenges to any specific provision of our 

State’s election code. In particular, he fails to advance the argument that the January 

deadline set forth in West Virginia Code § 3-5-7 for the filing of a certificate of 

announcement creates a burden that falls unequally to a candidate seeking ballot access 

through West Virginia Code § 3-5-23. In the same fashion, petitioner does not assert that 

the substantive requirements imposed by West Virginia Code § 3-5-7 impose any 

particular burden on those candidates.19 

Instead, petitioner contends that groups of citizens under West Virginia 

Code § 3-5-23 are free to nominate any qualified citizen and there is no compelling state 

interest in requiring their candidate to file a certificate of announcement under West 

Virginia Code § 3-5-7. On this issue, petitioner confuses the right of citizen voters with 

19 In Billings, this Court did address a specific constitutional challenge to the 

disassociation requirement of West Virginia Code § 3-5-7, and held that: 

The provision in W. Va. Code, 3-5-7(b)(6) (1991), 

which effectively disqualifies from running for political office 

individuals who change their political party affiliation within 

sixty days of filing their announcements of candidacy, is 

necessary to accomplish the compelling governmental interest 

in preserving the integrity of the political process, promoting 

party stability, and avoiding voter confusion. The provision, 

therefore, does not violate either the fundamental right of 

candidacy or the right to change political party affiliations. 

Syl. Pt. 4, Billings, 194 W. Va. 301, 460 S.E.2d 436. 

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his own and therein misapprehends the proper test for reasonable, nondiscriminatory 

regulations on the candidate. See Timmons, 520 U.S. at 358-59 (noting state need not 

establish that ballot access restrictions are narrowly tailored and necessary to promote its 

interests unless restrictions severely burden rights). Ultimately, the focal point of our 

inquiry is whether a “reasonably diligent” candidate can be expected to satisfy the 

requirement. See Storer, 415 U.S. at 742. In this regard, petitioner has failed to establish 

or even argue that he could not satisfy the requirements set forth in West Virginia Code § 

3-5-7. He simply maintains those requirements are inapplicable to his candidacy. As 

discussed above, we reject that argument because it goes against the plain language of the 

statute. 

We do not disagree with petitioner’s claim that pursuant to West Virginia 

Code § 3-5-23, a group of citizens has the right to associate together to express their 

support for a candidate and select its “standard bearer.” Such a group would have similar 

constitutional protections as those who are members of a majority political party because 

the freedom of association protected by the First and Fourteenth Amendments includes 

political organizations.20 Elrod v. Burns, 427 U.S. 347, 357 (1976); Buckley v. Valeo, 424 

20 The United States Supreme Court has recognized the special place occupied by 

alternative candidates in our political system. In Illinois State Board of Elections v. 

Socialist Workers Party, 440 U.S. 173 (1979), Justice Marshall, writing for the majority, 

emphasized the important rights implicated by restrictions on access to the ballot and the 

role that third parties play in the exercise of those rights: 

(continued . . .) 

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U.S. 1, 15 (1976). “The right to associate with the political party of one’s choice is an 

integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U.S. 51, 57 

(1973). The First Amendment protects not only an individual’s right to associate with the 

political party of his or her choice, it also protects citizens’ right “to band together in 

promoting among the electorate candidates who espouse their political views.” See 

California Democratic Party, 530 U.S. at 574 (2000) (holding California’s proposition 

which converted State’s primary election from closed to blanket primary in which voters 

could vote for any candidate regardless of voter’s or candidate’s party affiliation violated 

political parties’ First Amendment right of association); Clingman v. Beaver, 544 U.S. 

581, 600 (2005) (O’Connor, J., concurring) (“constitutional protection of associational 

rights is especially important in th[e] context [of primary elections] because the 

aggregation of votes is, in some sense, the essence of the electoral process. To have a 

meaningful voice in this process, the individual voter must join together with like-minded 

others at the polls. And the choice of who will participate in selecting a party’s candidate 

obviously plays a critical role in determining both the party’s message and its prospects 

of success in the electoral contest.”). 

The States’ interest in screening out frivolous candidates must 

be considered in light of the significant role that third parties 

have played in the political development of the Nation. 

Abolitionists, Progressives, and Populists have undeniably 

had influence, if not always electoral success. As the records 

of such parties demonstrate, an election campaign is a means 

of disseminating ideas as well as attaining political office. 

Id. at 185. 

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It does not follow, though, that a third party or unaffiliated group of citizens 

who nominates a candidate pursuant to the provisions set forth in West Virginia Code § 

3-5-23 is absolutely entitled to have its nominee appear on the ballot. See Libertarian 

Party of New Hampshire v. Gardner, 759 F. Supp. 2d 215, 225 (D.N.H. 2010), aff’d, 638 

F.3d 6 (1st Cir. 2011) (holding right to nominate candidate does not translate into right to 

control whose name appears on election ballot). A particular candidate might be 

ineligible for office, unwilling to serve, or, as here, fail to comply with the State election 

law. “It seems to us 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.” Burdick, 504 U.S. at 440 n.10. 

Accordingly, we agree with respondent that this is not a ballot access case. 

As discussed more fully above, petitioner, a registered Democrat, had the opportunity to 

seek ballot access through the provisions of West Virginia Code 3-5-7 but simply failed 

to do so. 

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IV. CONCLUSION 

For the reasons stated herein, we therefore affirm the circuit court’s August 

18, 2016, order granting respondent’s amended petition for writ of quo warranto, 

disallowing petitioner’s candidacy for the office of Kanawha County Clerk, in the 

November, 2016 general election. 

Affirmed. 

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