          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.




                                             i
              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).




                                            ii
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




                                             1

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).

                                                2

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.

                                              3

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


                                                4

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.

                                              5

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).


                                              6

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.




                                            7

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).

                                             8

              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.


                                              9

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).

                                                10

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.



                                             11

              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


                                            12

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




                                             13

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.”

                                              14

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

                                              15

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).

                                              16

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


       12
          See 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”).

                                              17

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.

                                              18

              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

                                             19

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/candidates­
committees/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.


                                            20

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).

                                             21

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,



                                             22

              [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).


                                               23

              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

                                              24

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 . . .)
                                               25

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.

                                             26
              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[.]”

                                            27

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:




                                             28

              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 . . .)
                                              29

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.

                                             30

             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.

                                            31

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 . . .)
                                            32

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.

                                             33

              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.




                                             34

                                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.




                                           35

