DO NOT REMOVE FROM HLE fo 2 2o:· l€¦ · 9 A. West Virginia's sore-loser laws do not impose a severe burden and are nondiscriminatory . ..... 11 1. The sore-loser prohibitions

DO NOT REMOVE FROM HLE

fll£ COPY IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

No. 18-0712

STATE OF WEST VIRGINIA, ex rel. DONALD L. BLANKENSHIP,

CANDIDATE FOR U.S. SENATE IN WEST VIRGINIA, and

CONSTITUTION PARTY OF WEST VIRGINIA,

Petitioners, v.

MAC WARNER,

��fo� �2 2o:·�l I l!:!Jf ,, EDYTHE NASH G.I\ISER, CLERK

SUPRErt.E COURT OF APPEALs •. �, .

OF WEST VIRGINIA

IN HIS OFFICIAL CAP A CITY AS WEST VIRGINIA SECRETARY OF STATE

Respondent.

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

ON BEHALF OF

MOVANT-INTERVENOR THE WEST VIRGINIA REPUBLICAN PARTY, INC.

Elbert Lin (WVSB #12171)

Hunton Andrews Kurth LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, Virginia 23219

Telephone: (804) 788-7202

Facsimile: (804) 788-8218

Email: [email protected]

J. Mark Adkins (WVSB #7414)

Richard R. Heath, Jr. (WVSB #9067)

Bowles Rice LLP

600 Quarrier Street (2530 1)

Post Office Box 1386

Charleston, West Virginia 25325-1386

Telephone: (304) 347-1100

Facsimile: (304) 347-1756 Email: [email protected]

[email protected]

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE ........................................................................................................ 3

I. West Virginia's Two Paths To The Ballot.. ............................................................. 3

II. West Virginia's Sore-Loser Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

III. The Secretary of State's Rejection of Mr. Blankenship's Application ............................................................................................................... 5

SUMMARY OF ARGUMENT ....................................................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. West Virginia's Sore-Loser Laws Are Constitutional. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. West Virginia's sore-loser laws do not impose a severe burden and are nondiscriminatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 11

1. The sore-loser prohibitions impose only a minimal burden on both candidates and unrecognized parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . 11

2. West Virginia's sore-loser laws do not improperly discriminate .................................................................................... 15

B. The State has important interests that justify its sore-loser laws . ........................................................................................................... 20

II. West Virginia Code§ 3-5-23(g) Prohibits Mr. Blankenship's Nomination By the Constitution Party ................................................................... 23

A. The amended sore-loser law merely clarified preexisting law .............................................................................................................. 24

B. Application of the amended sore-loser law to Petitioners is not impermissibly retroactive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . 26

III. West Virginia Code§ 3-5-23(a) Prohibits Mr. Blankenship's Nomination . ........................................................................................................... 29

A. The plain language of§ 3-5-23(a) bars unrecognized political parties from nominating sore-loser candidates . ........................... 29

B. The title of the bill that enacted§ 3-5-23(a) passes constitutional muster. ................................................................................. 3 3

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

11

TABLE O F AUTH ORITIES

Page(s)

Cases

ABKCO Music, Inc. v. La Vere, 217 F.3d 684 (9th Cir. 2000) ................................................................................................... 24

Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Backus v. Spears, 677 F.2d 397 (4th Cir. 1982) ........................................................................................... 2, 9, 12

Bedford Corp. v. Price 112 W.Va. 674, 166 S.E.2d 380 (1932) .................................................................................. 37

State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 460 S.E.2d 436 (1995) .................................................................................... 8

Brown v. Thompson,

3 7 4 F .3d 253 (4th Cir. 2004) ................................................................................................... 24

State ex rel. Browne v. Hechler, 197 W.Va. 612, 476 S.E.2d 559 (1996) .................................................................................. 30

Bullock v. Carter,

405 U.S. 134 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20

Burdick v. Takushi,

504 U.S. 428 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

C. C. Spike Copley Garage, Inc. v. Pub. Serv. Com 'n of W Va. , 171 W.Va. 489, 300 S.E.2d 485 (1983) .................................................................................. 36

Campbell v. Kelly, 157 W.Va. 453, 202 S.E.2d 369 (1974) .................................................................................. 34

City of Wheeling ex rel. Carter v. Am. Cas. Co. , 131 W.Va. 584,48 S.E.2d 404 (1948) .............................................................................. 34, 35

City of Huntington v. Chesapeake & Potomac Tel. Co. , 154 W.Va. 634, 177 S.E.2d 591 (1970) .................................................................................. 34

Clingman v. Beaver, 544 U.S. 581 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

111

Coal & Coke Ry. Co. v. Conley,

67 W. Va. 129, 67 S.E. 613 (1910) .......................................................................................... 25

Cookeville Reg '! Med. Ctr. v. Leavitt, 531 F.3d 844 (D.C. Cir. 2008) ................................................................................................. 24

Council of Alternative Political Parties v. Hooks, 179 F.3d 64 (3d Cir. 1999) ................................................................................................. 14, 17

Crawford v. Marion County Election Bd. , 553 U.S. 181 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Crawford v. Parsons, 141 W. Va. 752, 92 S.E.2d 913 (1956) .................................................................................... 34

Dale v. Painter,

234 W. Va. 343, 765 S.E.2d 232 (2014) .................................................................................. 30

Daly v. Tennant,

216 F. Supp. 3d 699 (2016) ..................................................................................................... 18

Davis Mem 'l Hasp. v. W Virginia State Tax Com 'r,

222 W. Va. 677, 671 S.E.2d 682 (2008) .................................................................................. 29

State ex ref. Davis v. Oakley,

156 W. Va. 154, 191 S.E.2d 610 (1972) ............................................................................ 36, 38

De la Fuente v. Merrill,

214 F. Supp. 3d 1241 (M.D. Ala. 2016) .................................................................. 9, 10, 12, 19

State ex rel. Dyer v. Sims,

134 W. Va. 278, 58 S.E.2d 766 (1950) .................................................................................... 34

Eu v. San Francisco Cty. Democratic Cent. Comm. , 489 U.S. 214 (1989) ................................................................................................................. 13

In re Fahey, 779 F.3d 1 (1st Cir. 20 15) ........................................................................................................ 26

State ex ref. Graney v. Sims,

144 W. Va. 72, 105 S.E.2d 886 (1958) ................................................................................... 34

Jenness v. Fortson, 403 U.S. 431 (1971) ..................................................................................................... 15, 18, 19

Landgraf v. US! Film Prods. , 511 U.S. 244 (1994) ..................................................................................................... 25, 27, 28

lV

Leshinsky v. Telvent GIT, SA. ,

873 F. Supp. 2d 582 (S.D.N.Y. 2012) ...................................................................................... 25

Levy v. Sterling Holding Co., LLC, 544 F.3d 493 (3d Cir. 2008) ..................................................................................................... 24

Libertarian Party of Mich. v. Johnson, 905 F. Supp. 2d 751 (E.D. Mich. 2012) ............................................................................... 9, 12

Linger v. Jennings, 143 W. Va. 57, 99 S.E.2d 740 (1957) ................................................................................ 34, 35

State ex rei. Manchin v. Lively, 295 S.E.2d 912 (W. Va. 1982) ........................................................................................... 26, 29

Martin v. Radix, 527 U.S. 343 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

McEvoy v. lEI Barge Servs., Inc. , 622 F.3d 671 (7th Cir. 2010) ................................................................................................... 26

State ex rei. McMillion v. Stahl, 141 W. Va. 233, 89 S.E.2d 693 (1955) .................................................................................... 34

State ex rei. Moore v. Blankenship, 158 W. Va. 939, 217 S.E.2d 232 (1975) .................................................................................. 34

Moore v. Sch. Reform Bd. of City of Detroit, 147 F. Supp. 2d 679 (E.D. Mich. 2000) ................................................................................... 25

State ex ref. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970) .................................................................................. 38

Nat 'l Comm. of US. Taxpayers Party v. Garza,

924 F. Supp. 71 (W.D. Tex. 1996) ....................................................................................... 9, 13

Newark Ins. Co. v. Brown, 218 W. Va. 346, 624 S.E.2d 783 (2005) .................................................................................. 29

Olsen v. Samuel Mcintyre Inv. Co. , 956 P .2d 257 (Utah 1998) ........................................................................................................ 25

Pia mba Cortes v. Am. Airlines, Inc. , 177 F.3d 1272 (11th Cir. 1999) ......................................................................................... 24, 25

Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329,480 S.E.2d 538 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . passim

v

Ringel- Williams v. W Virginia Consol. Pub. Ret. Bd. ,

237 W. Va. 702, 790 S.E.2d 806 (2016) .................................................................................. 26

Salt Lake County v. Kennecott Copper Corp. ,

163 F.2d 484 (lOth Cir. 1947) ................................................................................................. 25

Sizemore v. State Workmen 's Camp. Com 'r, 159 W. Va. 100,219 S.E.2d 912 (1975) .............................................................................. 7, 27

South Carolina Green Party v. South Carolina State Election Comm 'n, 612 F.3d 752 (4th Cir. 2010) ............................................................................................... 9, 13

State v. Mines,

38 W. Va. 125, 18 S.E. 470 (1893) .......................................................................................... 34

Storer v. Brown,

415 U.S. 724 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

T. Weston, Inc. v. Mineral Cnty. ,

219 W. Va. 564,638 S.E.2d 167 (2006) .................................................................................. 31

Teweleit v. Hartford Life & Ace. Ins. Co. ,

43 F.3d 1005 (5th Cir. 1995) ................................................................................................... 24

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . ... . . . . . . . . . . . . . . passim

W Va. Human Rights Comm 'n v. Garretson, 196 W. Va. 118,468 S.E.2d 733 (1996) .................................................................................. 30

Walter Butler Bldg. Co. v. Soto,

142 W. Va. 616,97 S.E.2d 275 (1957) .................................................................................... 34

State ex ref. Walton v. Casey,

179 W. Va. 485, 370 S.E.2d 141 (1988) .................................................................................. 37

Wells v. State ex ref. Miller,

237 W. Va. 731,791 S.E.2d 361 (2016) ..................................................................... .11, 30,32

Williams v. Rhodes, 393 U.S. 23 (1968) ................................................................................................................... 17

Statutes

Cal. Elec. Code § 8003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Colo. Rev. Stat. § 1-4-105 ............................................................................................................... 9

Ga. Code Ann.§ 21-2-137 ............................................................................................................... 9

Vl

Idaho Code§ 34-704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ky. Rev. Stat. Ann . § 118.345 ......................................................................................................... 9

Md. Code Ann., Elec. Law§ 5-706(b) ............................................................................................ 9

Minn. Stat. Ann. § 2048.04 ............................................................................................................. 9

N.J. Stat. Ann.§ 19:13-8.1 ............................................................................................................... 9

Neb. Rev. Stat. § 32-605 .................................................................................................................. 9

S.C. Code Ann.§ 7-11-210 .............................................................................................................. 9

Tenn. Code Ann.§ 2-5-101(£) ......................................................................................................... 9

W. Va. Code§ 3-1-8 ........................................................................................................................ 3

W. Va. Code§ 3-5-1 ...................................................................................................................... 31

W. Va. Code§ 3-5-4 ........................................................................................................................ 3

W. Va. Code§ 3-5-7 ................................................................................................................ 30, 35

W. Va. Code§ 3-5-7(d)(6) ................................................................................................... 5, 27, 28

W. Va. Code§ 3-5-22 .......................................................................................................... 3, 14, 18

W. Va. Code§ 3-5-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . ... . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

W. Va. Code§ 3-5-23(c) ................................................................................................................ 19

W. Va. Code§ 3-5-24 .............................................................................................................. 31, 35

West Virginia Code chapter 30, article 3 ....................................................................................... 37

West Virginia Code§ 3-5-23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

West Virginia Code§ 3-5-23(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

West Virginia Code § 3-6-4a ......................................................................................................... 12

Other Authorities

2009 Leg., Reg. Sess. (W. Va. 2009) ............................................................................................. 30

2012 Leg., Reg. Sess. (W. Va. 2012) ............................................................................................. 26

https://www.merriam-webster.com/dictionary/a1ready ................................................................. 30

Vll

U.S. Constitution, amend. XIV . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

W. Va. Const. art. VI,§ 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 33

West Virginia Drafting Manual ..................................................................................................... 31

V111

QUESTIONS PRESENTED1

1. Whether West Virginia's sore-loser laws, found in West Virginia Code § 3-5-

23(a) and (g), pass constitutional muster because they are minimally burdensome,

nondiscriminatory, and reasonable eligibility requirements?

2. Whether § 3-5-23(g), which merely clarified the sore-loser prohibition in § 3-5-

23(a), raises retroactivity concerns when applied to a nomination-certificate filed weeks after

§ 3-5-23(g) took effect?

3. Whether § 3-5-23(a) includes a validly enacted sore-loser prohibition that bars an

unrecognized political party from nominating to the general election ballot a candidate who

voluntarily participated in a recognized political party's primary election and lost?

INTRODUCTION

Don Blankenship wants a do over. He voluntarily sought to gain the benefit of being the

West Virginia Republican Party's nominee for the United States Senate but failed, receiving only

twenty percent of the Republican primary vote.2 Disgruntled by the result, Mr. Blankenship

announced two weeks later that he would run as a "third-party candidate" for the United States

Senate in the 2018 General Election.3 A long-time Republican, 4 Mr. Blankenship then changed

his party registration to the "Constitution Party."5 The problem for Mr. Blankenship, however, is

1 Movant-Intervenor The West Virginia Republican Party, Inc. (the "Party") moved for leave to intervene on August 14, 2018, and its motion remains pending. If this Court does not grant leave to intervene, the Party respectfully requests that it be permitted to submit this brief as amicus curiae.

2 2018 Official Election Results, Attached as Exhibit 1. 3 See "Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat,

Attached as Exhibit 2. 4 Mr. Blankenship was previously registered to vote as a member of the West Virginia

Republican Party on December 7, 1998. 5 See WV Voter Registration Information, Attached as Exhibit 3.

that the West Virginia Legislature has enacted laws, consistent with the state and federal

constitutions, to prohibit precisely this kind of sore-loser candidacy.

Trying to force his way onto the printed ballot, Mr. Blankenship and the Constitution

Party ("Petitioners") ignore decades of U.S. Supreme Court precedent in trying to persuade this

Court to be the first in the country's history to strike down a sore-loser law. More than forty

states have enacted sore-loser laws, and no court has ever upheld a constitutional challenge.

Almost thirty years ago, the Fourth Circuit rejected such a challenge as "frivolous." Backus v.

Spears, 677 F.2d 397, 399 (4th Cir. 1982). As the Supreme Court has said often and again:

"[T]here must be a substantial regulation of elections if they are to be fair and honest and if some

sort of order, rather than chaos, is to accompany the democratic process." Storer v. Brown, 415

U.S. 724, 730 (1974). Sore-loser laws that bar losing primary candidates like Mr. Blankenship

from lingering on the ballot are the paradigm of such regulation, preventing elections from

devolving into free-for-alls. After all, "the function of the election process is 'to winnow out and

finally reject all but the chosen candidates,' not to provide a means of giving vent to 'short-range

political goals, pique, or personal quarrel[s]."' Burdick v. Takushi, 504 U.S. 428, 438 (1992)

(quoting Storer, 415 U.S. at 735).

Recognizing the futility of their constitutional claims, Petitioners primarily argue that

West Virginia Code § 3-5-23(g), passed by the Legislature earlier this year to clarify the state's

previous sore-loser law, would be impermissibly retroactive if applied to them. But the doctrine

of retroactivity provides no refuge for Petitioners. West Virginia has had a version of the sore­

loser law for almost ten years. Petitioners have had ample fair notice, and the Legislature's

clarification of the law earlier this year raises no retroactivity concerns. And even if§ 3-5-23(g)

were the state's first ever sore-loser law (which it is not), the Secretary of State correctly applied

2

the law prospectively in denying Petitioners' attempted nomination-certificate. Mr. Blankenship

did not even become eligible to be the Constitution Party's candidate, much less complete the

filing process to do so, until late July, months after the passage of§ 3-5-23(g) and weeks after

the law went into effect.

Mr. Blankenship willingly took the risk of running to be the Republican Party nominee

because the potential reward outweighed the cost of giving up a run as a minor party or

independent candidate. His gamble failed, and the Secretary of State rightly refused him a do

over. The Petition should be refused.

STATEMENT OF THE CASE

I. West Virginia's Two Paths to The Ballot

Like many states, West Virginia distinguishes between how recognized parties and

unrecognized parties get their candidates on the ballot. A recognized party is one whose

candidate for governor received at least one percent of the total votes cast in the last general

election. W. Va. Code § 3-1-8. Recognized parties are then split into two groups (sometimes

called "major" and "minor" recognized parties): if they received more than ten perfect of the

vote, they nominate parties through a primary election; if they received more than one percent

but less than ten, they may nominate by a party convention. W. Va. Code§ 3-5-4; W. Va. Code

§ 3-5-22.

At present, there are four recognized political parties in West Virginia: the Democratic

Party, the Republican Party, the Mountain Party, and the Libertarian Party. 6 The Democratic and

Republican Parties received over ten percent of the vote for governor in 2016, so they nominated

their candidates by primary election. The Mountain and Libertarian Parties received over one

percent but less than ten percent, so they nominated their candidates by party convention.

6 See Recognized Political Parties in WV, Attached as Exhibit 4.

3

Petitioner Constitution Party of West Virginia (the "Constitution Party") has never been a

recognized political party. Since its formation in 2004, it has nominated no gubernatorial

candidate that has polled at least one percent of the total number of votes cast for that office.

The Constitution Party's candidates must therefore follow the pathway for unrecognized

parties-a nomination-certificate process that requires gathering a certain amount of signatures

from registered voters. W. Va. Code § 3-5-23. This pathway acknowledges that unrecognized

parties have not shown an ability to organize and gamer a critical mass of votes, and thus

provides a different mechanism for proving a base level of support before being printed on the

ballot.

II. \Vest Virginia's Sore-Loser Laws

There are two sore-loser provisions at issue here, subsection (a) and subsection (g) of

West Virginia Code § 3-5-23. The first was enacted in 2009, allowing unrecognized parties to

nominate only those candidates "who are not already candidates in the primary election for

public office otherwise than by conventions or primary elections." W. Va. Code § 3-5-23(a).

The Secretary of State published an official guidebook for potential candidates that interpreted

subsection (a) as a sore-loser law: "Candidates affiliated with a recognized political party who

run for election in a primary election and who lose the nomination cannot change her or his voter

registration to a minor party organization/unaffiliated candidate to take advantage of the later

filing deadlines and have their name on the subsequent general election ballot."7 That guidebook

was published in December 2017, before Mr. Blankenship declared his intention to run as a

candidate in the Republican primary.

7 See Running for Office in West Virginia (Exhibit 5) at 4.

4

On March 10, 2018, the West Virginia Legislature clarified the existing sore-loser law by

adding subsection (g). That provision states that a candidate cannot be the nominee of an

unrecognized party if he or she already lost the nomination of a recognized party:

any person who was a candidate for nomination by a recognized political party as defined in §3-1-8 of this code may not, after failing to win the nomination of his or her political party, become a candidate for the same political office by virtue of the nomination-certification process as set forth in this section.

W. Va. Code§ 3-5-23(g) (emphasis added).

Petitioners unequivocally admit that § 3-5-23(g) "would altogether disallow [Mr.

Blankenship's] third-party candidacy" if it were applied to his situation. Pet. at 8. The effective

date of§ 3-5-23(g) was June 5, 2018. Six weeks later, on July 24, 2018, Mr. Blankenship filed a

certificate of nomination to be the Constitution Party's nominee for the United States Senate. He

had to wait until the end of July to file because his previous affiliation with the Republican Party

independently prohibited him from becoming the candidate of any other party until that time,

under a different state law that is not challenged here, W. Va. Code§ 3-5-7(d)(6).

Ill The Secretary of S tate's Rejection of Mr. Blankenship's Application

The Secretary of State rejected Mr. Blankenship's attempted second candidacy, finding

that the sore-loser provisions of West Virginia Code § 3-5-23 prohibit him from utilizing the

nomination-certificate process since he previously sought the nomination of the Republican

Party. Mr. Blankenship now asks this Court to issue a writ of mandamus ordering the West

Virginia Secretary of State to list him as a candidate on the General Election ballot for United

States Senate.

SUMMARY OF ARGUMENT

I. No court has ever struck down a prohibition on sore-loser candidacies as

unconstitutional, and this Court should not be first. To evaluate both free association and equal

5

protection challenges to "candidate eligibility requirements," the U.S. Supreme Court has long

applied a balancing test, which this Court has also adopted. Under that flexible standard,

regulations that impose severe burdens are subject to strict scrutiny, but laws that impose lesser

burdens need only be justified by a state's important regulatory interests. Petitioners contend

that West Virginia's sore-loser laws violate their rights to free association and equal protection,

but the laws easily pass constitutional muster.

West Virginia's sore-loser laws only minimally burden Petitioners, while supporting the

state's several legitimate interests in protecting integrity and order in its elections. The laws only

slightly burden a sore-loser candidate's ability to run for his or her desired office. Indeed, Mr.

Blankenship has already appeared on a ballot for the U.S. Senate; he is prohibited from the

general election ballot only because he chose to compete in the Republican primary and lost.

Moreover, "[t]hat a particular individual may not appear on the ballot as a particular party's

candidate does not severely burden that party's associational rights." Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 359 (1997). At the same time, the laws serve numerous state

interests, including its interests in "regulating the number of candidates on the ballot," Storer,

415 U.S. at 732, "protecting the integrity, fairness, and efficiency of their ballots," Timmons, 520

U.S. at 364, and "temper[ing] the destabilizing effects of party-splintering and excessive

factionalism," id. at 367.

II. Applying § 3-5-23(g) to Petitioners raises no retroactivity concerns. First, a law

is not retroactive when it merely clarifies a preexisting law. That is what happened here. In

enacting § 3-5-23(g), the Legislature sought to clarify that § 3-5-23(a), which had been in effect

since 2009, prohibited sore-loser candidacies. That was the interpretation of§ 3-5-23(a) adopted

6

by the Secretary of State, of which all candidates and parties were aware, and§ 3-5-23(g) merely

enacted language tracking that interpretation.

Second, even if this Court holds that § 3-5-23(g) barred sore-loser candidacies in West

Virginia for the first time, the law is only being applied prospectively to conduct completed after

the law's effective date. A law is not retroactive "merely because part of the factual situation to

which it is applied occurred prior to its enactment" and thereby unsettles expectations. Syl. Pt. 3,

Sizemore v. State Workmen 's Camp. Com 'r, 159 W. Va. 100,219 S.E.2d 912 (1975). Rather, the

question is whether the law "operates upon transactions which have been completed." !d. Here,

§ 3-5-23(g) regulates the activity of "becoming a candidate for political office by virtue of the

nomination-certificate process." W. Va. Code § 3-5-23(g). Petitioners did not complete that

activity until late July 2018 when Mr. Blankenship attempted to file as a candidate for the

Constitution Party-weeks after§ 3-5-23(g) took effect.

III. Even if this Court holds that § 3-5-23(g) may not be applied to prohibit Mr.

Blankenship's nomination, it should hold that § 3-5-23(a) does so. Under § 3-5-23(a), groups

like the Constitution Party "may nominate candidates who are not already candidates in the

primary election ." W. Va. Code§ 3-5-23(a) (emphasis added). The only reasonable reading of

that statute is that it prohibits an unrecognized political party from nominating anyone who

participated in the primary election, both winners and losers, like Mr. Blankenship. The use of

the present tense "are" suggests that the prohibition could be read to apply only during the

pendency of the primary election, but that is not a reasonable reading of the statute. Under that

reading, any participant in the primary election could simply file for a nomination-certificate in

the two-month gap between the primary election and the August 1 filing deadline, making the

prohibition in§ 3-5-23(a) so easily circumvented as to be meaningless.

7

Petitioners contend that the 2009 bill that enacted § 3-5-23(a) violated the constitutional

requirement that the object of an act "shall be expressed in the title." W. Va. Const. art. VI,§ 30.

But Petitioners do not carry their heavy burden under that constitutional provision. A bill's title

need not tell the reader of every specific change; if it alerts the reader to the broader topics of the

bill and does not affirmatively mislead, that is enough. Here, the title of H.B. 2981 told readers

that it related to elections generally, the "nomination of third-party candidates," and § 3-5-23.

That was more than sufficient.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is unnecessary because no rule to show cause is warranted. This case

presents the straightforward application of unambiguous statutes that, under governing precedent

of this Court and the U.S. Supreme Court, are unquestionably constitutional.

If this Court desires oral argument, Rule 20 argument would be appropriate, and the Party

respectfully requests an opportunity to participate as an intervenor or as amicus curiae. See

supra note I. As explained in its motion to intervene, the Party's interests differ from those of

the Secretary of State, and its participation at oral argument would therefore be beneficial to the

Court's consideration of this matter.

ARGUMENT

Petitioners do not satisfy the high burden for a writ of mandamus. To be entitled to

mandamus, Petitioners must prove that Mr. Blankenship had a clear and indisputable legal right

to be on the ballot as the nominee of the Constitution Party after having lost the Republican

primary, and that the Secretary of State had a duty to place him on the ballot. See State ex rel.

Billings v. City of Point Pleasant, 194 W. Va. 301, 304, 460 S.E.2d 436, 439 (1995) (denying

mandamus in challenge to disaffiliation statute). !d. They have proven neither.

8

I. West Virginia's Sore-Loser Laws Are Constitutional.

No court has ever found a prohibition on sore-loser candidacies, like that set forth in § 3-

5-23(g) and § 3-5-23(a), to be unconstitutional. More than forty states have enacted such laws.8

And every constitutional challenge has failed. See South Carolina Green Party v. South Carolina

State Election Comm'n, 612 F.3d 752, 756 (4th Cir. 2010) (rejecting challenge under First and

Fourteenth Amendments to South Carolina "sore-loser statute"); Backus, 677 F.2d at 399

(finding "frivolous" a constitutional challenge to "South Carolina's prohibition of candidates in a

primary from appearing independently on the [general election] ballot"); De la Fuente v. Merrill,

214 F. Supp. 3d 1241, 1256 (M.D. Ala. 2016) (refusing to grant preliminary injunction of

"Alabama's sore loser statute" on free association and equal protection grounds); Libertarian

Party of Mich. v. Johnson, 905 F. Supp. 2d 751, 759 (E.D. Mich. 2012) (upholding "Michigan

sore-loser law" against challenge under First and Fourteenth Amendments); Nat 'l Comm. of US

Taxpayers Party v. Garza, 924 F. Supp. 71, 75 (W.D. Tex. 1996) (refusing preliminary

injunction of "Texas 'sore loser' statute").

Moreover, in both majority opinions and dissents, justices of the U.S. Supreme Court

have repeatedly held out sore-loser laws as a paradigmatic example of a constitutionally

permissible restriction on candidate eligibility. In Storer, the Court upheld a one-year

disaffiliation requirement for independent candidates because it "carrie[ d] very similar

credentials" to California's sore-loser law. 415 U.S. at 735. In Anderson v. Celebrezze, 460 U.S.

780 (1983), the Court struck down an early-filing deadline for independent candidates, but took

care to distinguish it from state sore-loser laws. 460 U.S. at 804 & n.31. In Timmons, Justice

8 See, e.g. , Cal. Elec. Code § 8003; Colo. Rev. Stat. § 1-4-105; Ga. Code Ann. § 21-2-13 7; Idaho Code § 34-704; Ky. Rev. Stat. Ann. § 118.345; Md. Code Ann., Elec. Law § 5-706(b); Minn. Stat. Ann.§ 204B.04; Neb. Rev. Stat. § 32-605; N.J. Stat. Ann.§ 19:13-8.1; S.C. Code Ann.§ 7-11-210; Tenn. Code Ann.§ 2-5-101(£).

9

Stevens in dissent criticized the majority for upholding an "anti-fusion" law because, among

other things, it "would not prevent sore-loser candidates." 520 U.S. at 377 (Stevens, J.,

dissenting). Similarly, in Burdick, Justice Kennedy agreed in dissent that states have an interest

in preventing "undesirable sore loser candidacies," but argued that the prohibition on write-in

candidacies upheld by the majority did not adequately do so. 504 U.S. at 449 (Kennedy, J.,

dissenting).

It should come as little surprise, therefore, that West Virginia's sore-loser prohibitions

easily pass constitutional muster under the federal constitution. The U.S. Supreme Court has

long applied a balancing test for evaluating the constitutionality of "candidate eligibility

requirements." Anderson, 460 U.S. at 786. It weighs the "magnitude of the asserted injury to the

rights protected by the First and Fourteenth Amendment that the plaintiff seeks to vindicate"

against the "interests put forward by the State as justifications for the burden imposed by its

rule." Id. at 789. This is a "flexible standard," Burdick, 504 U.S. at 434, under which "strict

scrutiny is appropriate only if the burden is severe," Clingman v. Beaver, 544 U.S. 581, 592

(2005). "Regulations that impose severe burdens . . . must be narrowly tailored to serve a

compelling state interest." Clingman, 544 U.S. at 586. But when a law imposes a lesser burden,

"a State's important regulatory interests will usually be enough to justify reasonable,

nondiscriminatory restrictions." Jd. As explained below, the statutory provisions here only

minimally burden Petitioners, while supporting the state's several legitimate interests in

protecting integrity and order in its elections.

This analysis dooms both Petitioners' free association and equal protection claims under

the U.S. Constitution. When reviewing candidate eligibility requirements, the Supreme Court's

"analysis under the Equal Protection Clause follows the same lines as an analysis under the First

10

and Fourteenth Amendments." De La Fuente, 214 F. Supp. 3d at 1259. For example, though

Anderson was a free association case, the Supreme Court expressly "rel[ied] . . . on the analysis in

a number of [its] prior election cases resting on the Equal Protection Clause of the Fourteenth

Amendment." 460 U.S. at 786 n.7. Likewise, in setting forth the "flexible standard" for

"considering a challenge to a state election law," the Supreme Court in Burdick drew on cases

involving both free association and equal protection claims. 504 U.S. at 434 (citing Anderson

(free association) and Bullock v. Carter, 405 U.S. 134 (1972) (equal protection)).

The same analysis also defeats Petitioners' arguments under state constitutional law.

Though their brief is unclear at times, Petitioners appear in at least one instance to assert that any

candidate eligibility requirement must be justified by a "compelling state interest." Pet. 10

(internal quotations omitted). That is not the law. This Court has expressly adopted the flexible

standard set forth by the Supreme Court in Anderson and Burdick. Indeed, this Court has

specifically acknowledged that '"limiting the choice of candidates to those who have complied

with state election law requirements is the prototypical example of a regulation that, while it

affects the right to vote, is eminently reasonable."' Wells v. State ex ref. Miller, 23 7 W. Va. 731,

747, 791 S.E.2d 361, 377 (2016) (quoting Burdick, 504 U.S. at 440 n.10).

A. West Virginia's sore-loser laws do not impose a severe burden and are

nondiscriminatory.

1 . The sore-loser prohibitions impose only a minimal burden on both

candidates and unrecognized parties.

West Virginia's laws barring sore-loser candidacies, such as Mr. Blankenship's, only

slightly burdens those candidates' ability to run for their desired offices. It has not stopped Mr.

Blankenship from doing so: He has already appeared on a ballot for the U.S. Senate and, had he

won the primary election, he would be on the general election ballot as the nominee of the

Republican Party. Nor do the laws absolutely prohibit him from appearing on the general

11

election ballot as an independent or nominee of an unrecognized party: Mr. Blankenship is only

barred because he voluntarily chose to compete for the benefit of being the Republican Party's

nominee. The only burden that the sore-loser laws impose on candidates like Mr. Blankenship is

that they must choose between the two paths to a printed spot on the general election ballot: the

path for recognized parties or the one for independents and unrecognized parties. See De La

Fuente, 214 F. Supp. 3d at 1256 ("It cannot be over-emphasized that Mr. De La Fuente is only

barred from the ballot because of his voluntary participation in the Democratic Primary."). And

even now, Mr. Blankenship still has the opportunity to compete in the general election. Under

West Virginia Code § 3-6-4a, Mr. Blankenship has until September 18 to register as an official

write-in candidate.

The sore-loser prohibitions are certainly "far less burdensome [on candidates] than the

disaffiliation rule upheld in Storer," a benchmark often used by the Supreme Court and other

courts to measure the burden imposed by an election law. Timmons, 520 U.S. at 369; see also

Burdick, 504 U.S. at 437 (comparing Hawaii's prohibition on write-in candidacies to the law

upheld in Storer); Backus, 677 F.2d at 400 (comparing South Carolina's sore-loser law to the law

upheld in Storer); Libertarian Party of Mich. , 905 F. Supp. 2d at 763 ("Storer offers significant

support for a finding that the less-restrictive Michigan sore loser statute passes constitutional

muster."). Under the disaffiliation law at issue in Storer, "any person affiliated with a party at

any time during the year leading up to the primary election was absolutely precluded from

appearing on the ballot as an independent or as the candidate of another party." Timmons, 520

U.S. at 369. That law "limited the field of candidates by thousands." !d. In contrast, West

Virginia's sore-loser laws bar just those who have sought and failed to win the nomination of a

recognized party from appearing on the general election ballot either as an independent or as the

12

nominee of an unrecognized party. They "preclude[] only a handful who freely choose to be so

limited." ld.

The laws also are only minimally burdensome on unrecognized political parties, such as

Petitioner Constitution Party. "That a particular individual may not appear on the ballot as a

particular party's candidate does not severely burden that party's associational rights." 520 U.S.

at 359. Such a limitation, like a sore-loser law, does not "restrict the ability of the [unrecognized

party] and its members to endorse, support, or vote for anyone they like." I d. at 363. The sore­

loser prohibitions here do not "directly limit [an unrecognized] party's access to the ballot," but

merely "reduce the universe of potential candidates who may appear on the ballot as the party's

nominee." ld. In fact, the unrecognized party is always "free to try to convince" its desired

candidate "to refrain from seeking the nomination of another political party," South Carolina

Green Party, 612 F .3d at 757, or to run its desired candidate in the next election cycle, Nat '!

Comm. of U.S. Taxpayers Party, 924 F. Supp. at 74.

Put another way, "[t]he burdens [a]re not severe because [the unrecognized party] and its

members remain[] free to govern themselves internally and to communicate with the public as

they wish[]." Clingman, 544 U.S. at 589. They "simply c[an]not nominate as their candidate

any of [a] few individuals," id. at 590 (internal quotations omitted), on account of voluntary

choices made by those individuals alone. That is very different from a law, such as a prohibition

on a party making primary endorsements, that "directly hampers the ability of a party to spread

its message." Eu v. San Francisco Cty. Democratic Cent. Comm. , 489 U.S. 214, 223 (1989)

(emphasis added).

Petitioners' few slapdash arguments that West Virginia's sore-loser laws impose a

"severe burden" on them, see Pet. 30-31, 36, are wholly unpersuasive. First, Petitioners argue

13

that the laws impose a severe burden merely because they prevent Mr. Blankenship from

"gaining access to the general election ballot." !d. at 30. But that is both factually and legally

mistaken. As explained above, Mr. Blankenship can still compete in the general election as a

write-in candidate. More important, the question under the case law is the "general assessment

of the burden," not the impact of an election law on any one individual. CraMford v. Marion

County Election Bd. , 553 U.S. 181, 207 (2008) (Scalia, J., concurring in judgment). That is why

the Supreme Court upheld the disaffiliation law in Storer, even though it "absolutely banned

many candidacies." Timmons, 520 U.S. at 369.

Second, Petitioners contend that the laws severely burden the Constitution Party because

they do not allow the party "to nominate the candidate of its choice." Pet. 30-31. But the

Supreme Court has unequivocally held that a party's rights are "not severely burden[ed]" simply

because "a particular individual may not appear on the ballot as a particular party's candidate."

520 U.S. at 359.

Finally, Petitioners argue that they are severely burdened because "the opportunity may

never come again for [Mr. Blankenship] or the Constitution Party." Pet. 36. Again, this

argument focuses incorrectly on Petitioners alone and not on the general impact of the laws. But

even if such a narrow focus were correct, "this is a predictive judgment which is by no means

self-evident." Timmons, 520 U.S. at 362. And even if there were any basis to this sheer

conjecture, "[t]he Supreme Court has refused to recognize a statute's incidental effect on a minor

party's future viability as justification for overturning an otherwise reasonable,

nondiscriminatory regulation." Council of Alternative Political Parties v. Hooks, 179 F.3d 64,

76 (3d Cir. 1999) (Alita, J.).

14

2. West Virginia's sore-loser laws do not improperly discriminate.

Petitioners mainly argue that the sore-loser laws improperly discriminate between

recognized and umecognized parties. Noting that the laws forbid sore-loser candidates from the

nomination-certificate process of § 3-5-23 but not the party convention process of § 3-5-22,

Petitioners argue that the sore-loser prohibitions improperly discriminate between umecognized

minor parties (which must follow the nomination-certificate process) and recognized minor

parties (which may use the party convention process). Pet. 27-28. That fundamentally

misunderstands the law.

In the election law context, distinguishing between recognized and umecognized parties

does not alone constitute improper discrimination. That was the holding of Jenness v. Fortson,

403 U.S. 431 (1971 ) , and it has been reaffirmed in case after case. In Jenness, the Supreme

Court rejected an equal protection challenge to Georgia's electoral system that provided two

paths to the ballot: one for members of established political parties and a different one for all

other candidates. The critical fact was that Georgia provided paths to the ballot for all potential

candidates, and thus "in no way [sought to] freeze[] the status quo." !d. at 439; see also Burdick,

504 U.S. at 435 n.4 ("In Jenness, . . . the system was constitutional because it did not operate to

freeze the political status quo.").

That the paths in Jenness differed did not trouble the Supreme Court. It recognized the

"obvious differences in kind between the needs and potentials of a political party with

historically established broad support, on the one hand, and a new or small political organization

on the other." 403 U.S. at 441. As a result, Georgia was "not . . . guilty of invidious

discrimination in recognizing these differences and providing different routes to the printed

ballot." Jd. at 441-42. Indeed, the Court acknowledged that the signature-collection requirement

for candidates affiliated with new or small political organizations was arguably an easier path to

15

the general election ballot than winning an established political party's primary election. !d. at

440. It might actually hurt new or small political organizations to subject them to the same

obligations as an established party. As the Court observed, "[ s ]ometimes the grossest

discrimination can lie in treating things that are different as though they were exactly alike." !d.

at 442.

The Supreme Court reaffirmed this principle in Storer, where it concluded that

California's one-year disaffiliation law involved "no discrimination against independents," even

though the law plainly treated independent candidates differently. 415 U.S. at 733. The Court

recognized that the law "work[ ed] against independent candidacies prompted by short-range

political goals, pique, or personal quarrel," and was "also a substantial barrier to a party fielding

an 'independent' candidate to capture and bleed off votes in the general election that might well

go to another party." !d. at 735. Nevertheless, the Court reaffirmed that a law merely "aimed at

maintaining the integrity of the various routes to the ballot" "involves no discrimination against

independents." !d. at 733.

In Timmons, the Supreme Court reiterated the principle again, upholding a fusion ban that

prohibited a candidate from serving simultaneously as the nominee for multiple parties. The

Court found no concern with the fact that the law "may, in practice, favor the traditional two­

party system." 520 U.S. at 367. It explained that "[s]tates need not remove all of the many

hurdles third parties face in the American political arena today." !d. What was important was

that "Minnesota ha[d] not directly precluded minor political parties from developing and

organizing." !d. at 361. "Nor ha[d] Minnesota excluded a particular group of citizens, or a

political party, from participation in the election process." !d. As such, the law was merely

16

another '"reasonable, politically neutral regulation[] that ha[ d] the effect of channeling

expressive activity at the polls."' !d. at 369 (quoting Burdick, 504 U.S. at 438).

In contrast, the Supreme Court has invalidated state election laws as improperly

discriminatory where they have made it "virtually impossible for a new political party . . . to be

placed on the state ballot." Williams v. Rhodes, 393 U.S. 23, 24 (1968); see Council of

Alternative Political Parties, 179 F.3d at 71 n.9 (citing Williams and Anderson as cases

involving "ballot access laws that unfairly discriminate against minor parties"). In Williams, the

Court considered an Ohio electoral regime that made it "virtually impossible for any party to

qualify on the ballot except the Republican and Democratic Parties." !d. at 25. For example, for

any new party to appear on the ballot, it was required to obtain signatures from fifteen percent of

the votes cast in the last gubernatorial election. !d. at 25. The law also allowed no path to the

ballot for independent candidates. !d. at 26. The Supreme Court found this to be unlawfully

discriminatory and a violation of the Equal Protection Clause. "[T]he Ohio system d[id] not

merely favor a 'two-party system,"' which the Court recognized is allowed; instead, "it favor[ ed]

two particular parties-the Republicans and the Democrats-and in effect tend[ ed] to give them

a complete monopoly." !d. at 32.

Likewise, the Supreme Court in Anderson struck down an early-filing deadline for

independent candidates because it tended to give established political parties "monolithic

control." 460 U.S. at 814. The law "place[ d] a particular burden on an identifiable segment of

Ohio's independent-minded voters," thereby "limit[ing] political participation by an identifiable

political group whose members share a particular viewpoint, associational preference, or

economic status." !d. at 793. That made the law different from the disaffiliation law upheld in

Storer. "Although a disaffiliation provision may preclude [a certain class of] voters from

17

supporting a particular ineligible candidate," it does not tend to exclude them entirely from the

political process; those voters "remain free to support and promote other candidates who satisfy

the State's disaffiliation requirements." Jd. at 791 n.12.

Here, West Virginia's statutory framework is similar to those upheld in Jenness, Storer,

and Timmons. It sets forth two pathways for candidates for public office - one for candidates of

recognized parties and one for candidates of unrecognized parties or groups of citizens. See Daly

v. Tennant, 216 F. Supp. 3d 699, 703 (20 1 6) . The first pathway has one method of nomination

for "major" recognized parties that have garnered more than 1 0% of the vote at the preceding

gubernatorial general election, and a different method of nomination for "minor" recognized

parties that garnered between 1 0% and 1 % of the vote. The second pathway creates a

nomination-certificate process for "groups of citizens having no party organization." W. Va.

Code§ 3 -5-23 .

These various pathways are "politically neutral" because the Code thereby gives all

individuals a path to the ballot and treats all individuals using the particular nomination

processes exactly the same. Burdick, 504 U.S. at 43 8 . For instance, § 3 -5 -22 does not favor

either of the two "minor" recognized parties - the Libertarian and Mountain Parties - over the

other in any way. Both parties are subject to the same rules with respect to nominating

candidates for the general election by party convention. The same is true for groups having no

party organization. Under § 3 -5-23, these individuals each have equal opportunity to nominate

any person to the general election ballot provided that the nominee is legally qualified to hold the

office, has not been affiliated with a recognized political party within 60 days of filing his or her

nomination certificate, and did not seek the nomination of a recognized political party. The law

does not require an insurmountable number of signatures: all candidates without a party

1 8

organization must obtain signatures equal to one percent of the number of votes in the last

statewide election. W. Va. Code § 3-5-23(c). As such, the laws do not target "political

participation by an identifiable political group whose members share a particular viewpoint,

associational preference, or economic status." Anderson, 460 U.S. at 793.

Nor is it obvious that any one pathway is easier than the other. Candidates of a "major"

recognized party must enter their party's primary in January, which is more than six months

earlier than the August deadline for nomination-certificates under West Virginia Code§ 3-5-23.

Moreover, the votes required to win a recognized party primary are virtually certain to be greater

than the number of signatures required for a nomination-certificate candidacy. Here, Mr.

Blankenship was required to obtain approximately 6,600 signatures, while Attorney General

Morrisey won the primary by earning 48,007 votes. As the Supreme Court pointed out in

Jenness, it is certainly arguable that the pathway for candidates of unrecognized parties is the

easier one. See also De La Fuente, 214 F. Supp. 3d at 1256-57 ("[T]he 5,000 required signatures

will almost always be lower than the votes necessary to win a primary election."). The existence

of these different paths merely reflects the "obvious differences in kind between the needs and

potentials" of the various types of political organizations. Jenness, 403 U.S. at 441.

West Virginia's sore-loser prohibitions thus are not discriminatory, as Petitioners

contend, but rather are "generally-applicable and evenhanded restrictions that protect the

integrity and reliability of the electoral process itself." Anderson, 460 U.S. at 788 n.9. Like the

disaffiliation law in Storer, the sore-loser laws here are "aimed at maintaining the integrity of the

various routes to the ballot." 415 U.S. at 733. They ensure that the nomination-certificate

process is a valid nominating process for "groups of citizens having no party organization" and

19

not simply an alternative avenue for losing candidates of recognized parties to continue to pursue

their defeated agenda.

B. The State has important interests that justify its sore-loser laws.

Because the sore-loser laws do not impose a severe burden and are nondiscriminatory,

they easily pass constitutional muster. The state has numerous "important regulatory interests"

that are served by a prohibition on sore-loser candidacies. Clingman, 544 U.S. at 586.

First, courts have found that states have an interest specifically in preventing sore-loser

candidacies. For example, the Supreme Court in Burdick upheld Hawaii's ban on write-in voting

as "a legitimate means of averting divisive sore-loser candidacies." 504 U.S. at 439. And in

Clingman, the Supreme Court upheld Oklahoma's semi-closed primary because it "advance[ d)"

the state's "regulatory interest[]" in "guard[ing] against party raiding and 'sore loser' candidacies

by spumed primary contenders." 544 U.S. at 594. The prohibitions on sore-loser candidacies in

§ 3-5-23(a) and§ 3-5-23(g) quite obviously further this important state interest.

Second, a sore-loser law advances the state's "legitimate interest in regulating the number

of candidates on the ballot." Storer, 415 U.S. at 732 (quoting Bullock, 405 U.S. at 145). "[I)t is

both wasteful and confusing to encumber the ballot with the names of frivolous candidates."

Anderson, 460 U.S. at 788 n.9. Thus, states have "an interest, if not a duty, to protect the

integrity of its political processes from frivolous or fraudulent candidacies." Storer, 415 U.S. at

732 (internal quotations omitted); see also Timmons, 520 U.S. at 364 (recognizing the state

interest in "avoiding voter confusion and overcrowded ballots"). West Virginia's sore-loser laws

plainly further this interest by preventing those who have lost in a primary election from

accessing the general election ballot through the nomination-certificate process.

Third, a prohibition on sore-loser candidacies serves the state's interest in preserving

identifiable political parties. The Supreme Court has recognized that states have an "important"

20

regulatory interest in "preserv[ing] the political parties as viable and identifiable interest groups."

Clingman, 544 U.S. at 594 (internal quotations omitted); see also Timmons, 520 U.S. at 3 66

("The State surely has a valid interest in making sure that minor and third parties who are

granted access to the ballot are bona fide and actually supported, on their own merits."). West

Virginia's laws advance this interest by preventing those who lost their party primary from using

the nomination-certificate process to "continu[e] intraparty feuds." Storer, 4 1 5 U.S. at 735 .

Fourth, a sore-loser law is justified by a state's interest in orderly, fair, and efficient

procedures for elections. "States certainly have an interest in protecting the integrity, fairness,

and efficiency of their ballots and election processes as means for electing public officials."

Timmons, 520 U.S. at 3 64. In Storer, the Supreme Court explained how a sore-loser law helps

ensure that primary elections are not just "an exercise or warm-up for the general election but an

integral part of the entire election process," in which "[ t ]he general election ballot is reserved for

major struggles." 4 1 5 U.S. at 735 . Here, the state's sore-loser prohibitions similarly contribute

to "maintaining the integrity of the various routes to the ballot." I d. at 733 .

Finally, a sore-loser prohibition furthers a state's "strong interest in the stability of [its]

political system." Timmons, 520 U.S. at 3 66 . It has been a concern since the Founding Era "that

splintered parties and unrestrained factionalism may do significant damage to the fabric of the

government." Storer, 4 1 5 U.S. at 736 . West Virginia's sore-loser laws help "temper the

destabilizing effects of party-splintering and excessive factionalism." Timmons, 520 U.S. at 3 67 .

By prohibiting sore-loser candidates from using the nomination-certificate process, the law

"works against independent candidacies prompted by short-range political goals, pique, or

personal quarrel." Storer, 4 1 5 U.S. at 735 .

2 1

Petitioners assert that no state interest is adequate because the state's sore-loser laws are

under-inclusive. The provisions "deny the Constitution Party the right of nominating a candidate

for office when the candidate lost another party's nomination, but allows the Libertarian Party

and the Mountain Party - as well as the Democratic and Republican Parties - to do just that."

Pet. 28. Petitioners contend that "the Secretary has no cohesive rationale" to justify the sore­

loser laws' application to the Constitution Party "without any evidence that allowing a candidacy

through such unrecognized party is a greater threat to the cohesion of its two-party system than

the two existing minor parties and the two major parties who remain free to nominate a person

who lost the nomination of one of the two major parties." !d. at 36 .

This argument fails for several reasons. First, Petitioners are improperly trying to apply

strict scrutiny. Because the laws do not impose a severe burden and are not discriminatory, "the

State need not narrowly tailor the means it chooses to promote" its interests. Timmons, 520 U.S.

at 365 . It need not provide any response to Petitioners' chart of eleven purported hypothetical

scenarios. Pet. 35 . "Nor do [courts] require elaborate, empirical verification of the weightiness

of the State's asserted justifications." Timmons, 520 U.S. at 3 64. "[W]hen a state election law

provision imposes only 'reasonable, nondiscriminatory restrictions' . . . , 'the State's important

regulatory interests are generally sufficient to justify' the restrictions." Burdick, 504 U.S. at 434

(quoting Anderson, 460 U.S. at 788).

Second, Petitioners' entire argument is based on the false premise that "[t]he two kinds of

minor parties, both recognized and unrecognized, are similarly situated with respect to the

State's sore loser policy." Pet. 28. Contrary to Petitioners' assertion, recognized and

unrecognized minor parties do not "pose the same threats of factionalism, party-splintering, and

ballot confusion." !d. Because recognized minor parties must meet the 1 % polling threshold

22

from the last gubernatorial election, they are necessarily few in number. Only two such parties

exist today: the Mountain Party and the Libertarian Party. As a result, the nomination of sore-

losers by recognized minor parties poses a very limited threat to election integrity and political

stability. In stark contrast, without § 3-5-23(g) and § 3-5-23(a), there would be effectively no

limit on the number of sore-loser candidates through the nomination-certificate process. The

nomination of sore-losers by unrecognized minor parties or other groups of citizens obtaining the

requisite number of signatures thus poses a very different and significant threat of precisely the

sort of "unrestrained factionalism" that the Founding Fathers feared. Storer, 415 U.S. at 736

(emphasis added). In short, though the state need not explain the tailoring of its sore-loser laws,

there is in fact a more than "cohesive rationale" behind the Legislature's design.

II. West Virginia Code § 3-5-23(g) Prohibits Mr. Blankenship's Nomination By the

Constitution Party.

Recognizing the clear constitutionality of the state's sore-loser laws, Petitioners primarily

focus on escaping the application of§ 3-5-23(g). Pet. 10-23. As they must, Petitioners admit

that Mr. Blankenship is not permitted a second candidacy under the plain text of the law. !d. at

8 . But they argue that if§ 3-5-23(g) is applied to them, its application would be impermissibly

retroactive.

Not so. There are no retroactivity concerns for at least two reasons. First, West

Virginia's statute regulating the nominating procedures for unrecognized parties has had a

version of a sore-loser law since 2009, found in § 3-5-23(a). The legislature merely clarified that

law's impact earlier this year by adding § 3-5-23(g). Second, even if this Court holds that § 3-5-

23(g) barred sore-loser candidacies in West Virginia for the first time (which it did not), the law

is only being applied prospectively to conduct completed after the law's effective date.

23

A. The amended sore-loser law merely clarified preexisting law.

Retroactivity is not implicated where a new law or statutory amendment merely clarifies

preexisting law. It is well-settled that a new law "operates retroactively" only where it "attaches

new legal consequences." Martin v. Hadix, 527 U.S. 343, 357-58 ( 1 999); see Syl. Pt. 2, Public

Citizen, Inc. v. First Nat. Bank in Fairmont, 1 98 W. Va. 329, 480 S.E.2d 538 (1996) ("A statute

that diminishes substantive rights or augments substantive liabilities should not be applied

retroactively to events completed before the effective date of the statute (or the date of enactment

if no separate effective date is stated) unless the statute provides explicitly for retroactive

application."). Amendments that are meant only to clarify the meaning of earlier law do not

attach new legal consequences and, therefore, may be applied without regard to retroactivity.

Put more simply, issues of retroactivity are a "non-issue" when a statutory amendment

merely clarifies existing law. Levy v. Sterling Holding Co. , LLC, 544 F.3d 493, 506-08 (3d Cir.

2008); see also Cookeville Reg '! Med. Ctr. v. Leavitt, 531 F.3d 844, 849 (D.C. Cir. 2008)

(finding "no problem of retroactivity" where new statute "did not retroactively alter settled law,"

but "simply clarified an ambiguity in the existing legislation"); Brown v. Thompson, 374 F.3d

253, 259 (4th Cir. 2004) (recognizing that "constitutional concerns about retroactive application

do not arise" when the amendment merely clarifies existing law); ABKCO Music, Inc. v. La Vere,

217 F.3d 684, 689 (9th Cir. 2000) ("Normally, when an amendment is deemed clarifying rather

than substantive, it is applied retroactively."); Piamba Cortes v. Am. Airlines, Inc. , 1 77 F.3d

1272, 1283 (11 th Cir. 1 999) ("[C]oncerns about retroactive application are not implicated when

an amendment . . . is deemed to clarify relevant law rather than effect a substantive change in the

law."); Teweleit v. Hartford Life & Ace. Ins. Co. , 43 F.3d 1 005, 1 010 (5th Cir. 1 995) (holding

that retroactivity is not a concern when the law "clarified and emphasized" the original

24

legislative intent).9 "In effect, the court applies the law as set forth in the amendment to the

present proceeding because the amendment accurately restates the prior law." Piamba Cortes,

177 F.3d at 1284.

Petitioners' retroactivity challenge therefore stumbles right out of the gate because § 3-5-

23(g) was intended merely to clarify what the Code already prevented. This is apparent from the

fact that the Legislature enacted a statute with exactly the same effect as the Secretary of State's

interpretation of a prior statute. When the Legislature enacted § 3-5-23(g), it knew that the

Secretary of State had already published guidance interpreting § 3-5-23(a) as barring sore-

losers.1 0 See Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129, 67 S.E. 613, 626 (1910) ("The

Legislature is presumed also to have known the existing law, common, statutory, and organic, as

well as exceptions or rights established upon considerations of public policy."); Salt Lake County

v. Kennecott Copper Corp. , 163 F.2d 484, 489 ( lOth Cir. 1947) ("The Legislature is presumed to

know the construction placed upon the language of the act by both the Land Board and the State

Auditor."). The Legislature's decision to pass a law tracking that interpretation of§ 3-5-23(a)

can reasonably be understood only as an effort to clarify that law.

It does not matter that the amendment used words "significantly" different from the

original statutory language. Brown, 374 F.3d at 259 (quoting Piamba Cortes, 177 F.3d at 1283).

The meaning was the same as that given to § 3-5-23(a) by the Secretary of State, and the same as

that fairly known to all candidates and parties, including Mr. Blankenship and the Constitution

Party, from the Secretary of State's Guidebook. See Landgrafv. US! Film Prods. , 511 U.S. 244,

270 (1994). West Virginia Code§ 3-5-23(g) did not attach any new legal consequences to Mr.

9 See also Leshinsky v. Telvent GIT, SA. , 873 F. Supp. 2d 582, 590-91 (S.D.N.Y. 2012); Moore v. Sch. Reform Bd. of City of Detroit, 147 F. Supp. 2d 679, 690 (E.D. Mich. 2000); Olsen v. Samuel Mcintyre Inv. Co. , 956 P.2d 257, 261 (Utah 1998).

10 Exhibit 5 at 4.

25

Blankenship's candidacy or otherwise deprive him of fair notice, and it therefore raises no

questions of retroactivity.

Petitioners contend that it "violate[ s] the canon against surplusage" to understand § 3-5-

23(g) as a clarification of§ 3-5-23(a). Pet. 16. That is not correct. First, § 3-5-23(a) is broader

in scope than § 3-5-23(g), because it prohibits all primary candidates, including the winners,

from becoming a nomination-certificate candidate for an unrecognized party. Second, the rule

against superfluity is only a presumption, Ringel- Williams v. W Virginia Consol. Pub. Ret. Bd. ,

237 W. Va. 702, 707, 790 S.E.2d 806, 8 1 1 (201 6), and it cannot overcome the plain language of

the statute, see In re Fahey, 779 F.3d 1, 7 (1st Cir. 2015). The legislature "may choose a belt-

and-suspenders approach to promote its policy objectives," and it often does so when adding a

more specific provision to a statute through a later amendment. McEvoy v. lEI Barge Servs. ,

Inc. , 622 F .3d 671, 677 (7th Cir. 20 1 0). That is what the Legislature did here.

B. Application of the amended sore-loser l aw to Petitioners is not impermissibly

retroactive.

Even if the Court holds that § 3-5-23(g) bars sore-loser candidacies in West Virginia for

the first time, it should still apply the law to Petitioners. As a threshold matter, there is no basis

to conclude that the Legislature intended to exclude the 201 8 general election from the statute's

reach. The Legislature is presumed to act with awareness of upcoming elections. State ex ref.

Manchin v. Lively, 295 S.E.2d 9 1 2, 916 (W. Va. 1 982). No doubt that is true here. Moreover,

the Legislature has specified in the past when an election law will not go into effect until after

the upcoming election, 1 1 and it did not do so here.

1 1 For example, the legislature considered a voter registration bill in 201 2-an election year-and specified that it would not go into effect until the following year. S.B. 431 , 2012 Leg., Reg. Sess. (W. Va. 201 2).

26

Nor would the application of§ 3-5-23(g) to Petitioners make it impermissibly retroactive.

Retroactivity is not simply a matter of timing. A law is not impermissibly retroactive "merely

because part of the factual situation to which it is applied occurred prior to its enactment." Syl.

Pt. 3, Sizemore, 159 W. Va. At 107, 219 S.E.2d at 916. If that were the case, many

"uncontroversially prospective statutes" would be considered impermissibly retroactive.

Landgraf, 511 U.S. at 269 n.24. For example, "a new property tax or zoning regulation may

upset the reasonable expectations that prompted those affected to acquire property," and "a new

law banning gambling harms the person who had begun to construct a casino before the law's

enactment or spent his life learning to count cards." !d. It is a fact of life that a new statute may

"unsettle expectations and impose burdens on past conduct." !d. That does not make the law

retroactive.

Rather, the question is whether the law "operates upon transactions which have been

completed" prior to a law's passage. Syl. Pt. 3, Sizemore, 159 W. Va. at 107, 219 S.E.2d at 916;

see also Syl. Pt. 2, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329, 480

S.E.2d 538 (1996) (emphasis added). Here, § 3-5-23(g) regulates the activity of "becoming a

candidate for political office by virtue of the nomination-certificate process." W. Va. Code§ 3-

5-23(g). It does not regulate the activity of running in or losing a party's primary. As a result,

the critical issue is the date by which Petitioners completed the process for Mr. Blankenship to

become the Constitution Party's candidate.

The critical date here came months after the passage of§ 3-5-23(g) and weeks after its

effective date. Mr. Blankenship did not file to "becom[ e] a candidate for political office by

virtue of the nomination-certificate process" until six weeks after the effective date of § 3-5-

23(g). In fact, he was not even eligible to do so until that time. Like many states, West Virginia

27

has a disaffiliation law that prohibits candidates from being a party's nominee if they were

affiliated with another political party within sixty days of filing. W. Va. Code§ 3-5-7(d)(6); see

Billings, 194 W. Va. at 309 (holding disaffiliation law constitutional). Mr. Blankenship was

registered as a Republican until May 21, 2018, when he changed his registration to the

Constitution Party. Though Petitioners assert that Mr. Blankenship "secured [the Constitution

Party's] nomination" on May 18, see Pet. 17, he was legally ineligible even to file as a candidate

for the Constitution Party until July 20, 2018-weeks after the effective date of§ 3-5-23(g) and

just a few days before he filed to become the Constitution Party's candidate. Applying § 3-5-

23(g) to Petitioners is not impermissibly retroactive.

Petitioners argue for a blanket rule that § 3-5-23(g) simply cannot apply until the next

"election cycle" because minor parties came into this election cycle with the "rights" to

"nominate unsuccessful recognized party candidates as their general election candidates." Pet.

24. That argument is simply incorrect under the law. Parties do not have unalterable rights (in

"this" election cycle or any other) to nominate any particular candidate. Timmons, 520 U.S. at

359 (holding that parties are not "absolutely entitled to have its nominee appear on the ballot as

that party's candidate"). At most, a party might have a reasonable expectation. But as discussed

above, a law is not retroactive simply because it "upsets expectations based in prior law."

Landgraf, 511 U.S. at 269. To trigger retroactivity concerns, the law must operate on a

previously completed transaction. Petitioners' argument would require this Court to ignore

decades of settled precedent of both this Court and the U.S. Supreme Court. 1 2 See, e.g. , State ex

1 2 Petitioners' hyperbolic assertion that § 3-5-23(g) "literally prohibits [covered] individuals from ever again seeking ballot access as a minor political party's general election candidate," Pet. 24 (emphasis added), is based on an unnecessarily expansive reading of the statute. The law prohibits any person who, "after failing to win the nomination of his or her political party," seeks to "become a candidate for the same political office by virtue of the

28

rel. Manchin v. Lively, 170 W. Va. 672,295 S.E.2d 912 (1982) (rejecting retroactivity challenge

to application of recount law to a primary election, where law became effective after the election

concluded but recount itself "occurred after the effective date" of the law).

In sum, § 3-5-23(g) is constitutional and applies prospectively to Petitioners, and the writ

should therefore be denied.

III. West Virginia Code § 3-5-23(a) Prohibits Mr. Blankenship 's Nomination.

If this Court holds that § 3-5-23(g) may not be applied to prohibit Mr. Blankenship's

nomination, it should hold that § 3-5-23(a) does so. Under § 3-5-23(a), groups like the

Constitution Party "may nominate candidates who are not already candidates in the primary

election." W. Va. Code§ 3-5-23(a) (emphasis added). The only plausible reading of that statute

is that it prohibits an unrecognized political party from nominating anyone who participated in

the primary election, both winners and losers, like Mr. Blankenship.

A. The plain language of § 3-5-23(a) bars unrecognized political parties from

nominating sore-loser candidates.

The primary goal in interpreting a statute is to give effect to the legislature's intent.

Davis Mem 'l Hasp. v. W Virginia State Tax Com 'r, 222 W. Va. 677, 683, 671 S.E.2d 682, 688

(2008). Thus, "when this Court is asked to resolve a question regarding a matter of statutory

construction, [it] first consider[s] the intent of the Legislature in enacting the subject provision."

Newark lns. Co. v. Brown, 218 W. Va. 346,351,624 S.E.2d 783,788 (2005). Then, "[o]nce the

legislative intent underlying a particular statute has been ascertained, we proceed to consider the

precise language thereof." !d. The plain language controls, but the meaning of that language is

nomination-certification process ." W. Va. § 3-5-23(g) (emphasis added). " [T]he same political office" may quite reasonably be read as referring back to the particular "nomination of his or her political party" that the candidate failed to win. Thus, Mr. Blankenship cannot be the Constitution Party's candidate for the U.S. Senate in this fall's general election because he lost in a primary election this past spring for the "same political office."

29

always "informed when necessary by the policy that the statute was designed to serve." W Va.

Human Rights Comm 'n v. Garretson, 196 W. Va. 118, 123,468 S.E.2d 733, 738 (1996).

The disputed provision was added to § 3-5-23(a) at the same time West Virginia first

needed a sore-loser law. In 2009, when the disputed provision was added to § 3-5-23(a), the

Legislature extended the deadline for filing a nomination certificate to August 1. 1 3 Prior to 2009,

nomination certificates were required to be filed the day before the primary election, which

meant the results of the primary elections were unknown on the day of filing to be a third-party

candidate. The possibility of a primary candidate also seeking a nomination-certificate was

unlikely. But the creation of a two-month gap between the primary election and the deadline to

be a third-party's nominee substantially increased the possibility that an individual who had

competed in the primary, especially one who lost, would seek to continue his or her campaign as

a nomination-certificate candidate. The Legislature simultaneously addressed that increased

likelihood of sore-loser campaigns by limiting nomination-certificate candidacies to those who

"are not already candidates in the primary election." 14

The plain language of the provision supports this intent. Unrecognized parties "may

nominate candidates who are not already candidates in the primmy election." W. Va. Code§ 3-

5-23(a) (emphasis added). "Already" is a backward-looking term. It means "prior to a specified

or implied . . . time," or "previously." 15 The use of the word "the" before "primary election"

refers to the particular primary election that had just "previously" occurred. See Dale v. Painter,

1 3 H.B. 2981, 2009 Leg., Reg. Sess. (W. Va. 2009). 1 4 At the time, there was no other filing deadline for nomination-certificate candidacies.

This Court had held that the January filing deadline in § 3-5-7 for certificate of announcements did not apply to nomination-certificate candidates. See Wells v. State ex rel. Miller, 237 W. Va. 731, 737, 791 S.E.2d 361, 367 (2016) (discussing State ex rel. Browne v. Hechler, 197 W. Va. 612,476 S.E.2d 559 (1996)).

15 https://www.merriam-webster.com/dictionary/already

30

234 W. Va. 343, 351, 765 S.E.2d 232, 240 (2014). Nomination-certificate candidates thus may

only be individuals who are not persons that previously stood as candidates in the primary

election. That does not include Mr. Blankenship.

The use of the present tense "are" suggests that the prohibition could be read to apply

only during the pendency of the primary election, but that is not a reasonable reading of the

statute. If the prohibition applied only during the pendency of the primary election, it could be

so easily circumvented as to be meaningless. The deadline for filing a certificate of nomination

is August 1. See W. Va. Code§ 3-5-24. That deadline always falls after the date of the primary

election, which is statutorily required to take place on the second Tuesday in May. See W. Va.

Code § 3-5-1. A candidate could simply wait until the conclusion of the primary election to file

his nomination-certificate. The prohibition in § 3-5-23(a) would be no limitation at all. See T.

Weston, Inc. v. Mineral Cnty. , 219 W. Va. 564, 568, 638 S.E.2d 167, 171 (2006) ("It is always

presumed that the legislature will not enact a meaningless or useless statute.").

The better explanation for the present tense "are" is that the Legislature wished to exempt

from the prohibition any individuals who entered but then timely withdrew from the primary

election. If the statute used the past tense "were," it would sweep within the prohibition every

individual who had been at some time a candidate in the primary election, whether the individual

won, lost, or timely withdrew. By using the present tense "are," the statute can reasonably be

read to cover only those who never withdrew from the primary election and thus are still

considered primary election candidates, even after all the voting and tabulating concludes.

The choice of the present tense "are" also comports with the State's legislative drafting

protocols. The West Virginia Legislative Drafting Manual, like many drafting manuals,

recommends phrasing all legislation m the present tense. See

31

www.wvlegislature.gov/legisdocs/misc/pub/Drafting Manual.pdf ("Avoid future tense ... Use

present tense"); see also Senate Office of the Legislative Counsel, Legislative Drafting Manual

§ 103(a) (1997) ("Always use the present tense unless the provision addresses only the past, the

future, or a sequence of events that requires use of a different tense"); House Legislative

Counsel's Manual on Drafting Style, HLC No. 104-1, § 102(c) ("STAY IN THE PRESENT.­

Whenever possible, use the present tense (rather than the past or future").

Finally, at least one Justice of this Court has previously interpreted § 3-5-23(a) as

including a sore-loser prohibition that "prevent[s] unsuccessful primary election candidates from

subsequently running as independent candidates." Wells, 237 W. Va. at 749, 791 S.E.2d at 379

(Davis, J., dissenting). The other Justices did not specifically speak to that question, but they did

point to the prohibition in § 3-5-23(a) as evidence of the Legislature's intent to preclude

members of recognized political parties from using the nomination-certificate process for

"political opportunism." !d. at 743, 791 S.E.2d at 373 (majority op.). As they explained, it is

"apparent that it was the Legislature's intention that West Virginia Code § 3-5-23 was for use

exclusively by unaffiliated or minor party candidates." !d. Instead, "members of recognized

political parties are to be nominated by their party during the primary election." !d. As even

Petitioners concede, the nomination-certificate process is for those "who would otherwise 'have

no means of entering the election process."' Pet. 14 (quoting Wells, 237 W. Va. at 743, 791

S.E.2d at 373). Again, that does not include Mr. Blankenship.

Petitioners contend that § 3-5-23(a) constitutes a "cross-filing" prohibition for the general

election ballot. See Pet. 7. They argue that it is meant to preclude candidates from "being listed

on multiple ballot lines in the same election." !d. Thus, "a candidate seeking a place on the

general election ballot as a major party candidate could not also use the nomination-certificate

32

route to gain an additional line as an independent candidate on that November ballot for that

same office." !d.; see also id. at 1 4 . In other words, the law's only function is to prohibit

Attorney General Patrick Morrisey and Senator Joe Manchin, who won their respective primary

elections, from seeking additional nominations by unrecognized political parties.

This self-serving reading of the statute cannot be squared with the text. The statute

allows groups like the Constitution Party to "nominate candidates who are not already

candidates in the primmy election." W. Va. Code§ 3-5-23(a) (emphasis added). Nothing in the

text limits its application only to those candidates who won the primary election. On its face, the

law applies equally to anyone who stood as a candidate in the primary election. The only

plausible question is whether the prohibition is limited by the present tense "are" to the pendency

of the primary election, and for the reasons described above, it is not. But there is no support

whatsoever for Petitioners' attempt to limit the prohibition artificially to only those who

prevailed in the primary election. 1 6

B. The title of the bill that enacted § 3-5-23(a) passes constitutional muster.

With little hope of success on their other claims, Petitioners reach deep into the

legislative archives for a last-ditch argument, contending that the 2009 bill that enacted § 3-5-

23(a) violated the constitutional requirement that the object of an act "shall be expressed in the

title." W. Va. Const. art. VI, § 30. Of course, Petitioners raise no such complaint about § 3-5-

23(g), which alone provides sufficient basis to bar Mr. Blankenship's second candidacy and to

deny the writ. See supra Part II. But if this Court reaches this issue, the title of the amendment

was constitutionally sufficient.

1 6 In fact, such a reading of the statute would be bizarre. It is difficult to imagine that the Legislature would have sought to bar only the recognized nominees of the major political parties from seeking the additional nomination of an unrecognized party, while permitting those individuals who lost in the primary election a second opportunity to get on the general election ballot as the nominee of an unrecognized party.

33

To begin with, Petitioners carry a heavy burden. The presumption is in favor of finding

the title sufficient, and titles will be construed liberally to that end. City of Wheeling ex rei.

Carter v. Am. Cas. Co. , 131 W. Va. 584, 594, 48 S.E.2d 404, 410 (1948). Indeed, given that

presumption, this Court has routinely refused to strike down laws on this basis. 1 7 Courts "have

always permitted substantial compliance" with section 30. State ex ref. Moore v. Blankenship,

158 W. Va. 939, 951, 217 S.E.2d 232, 239 (1975). And that makes sense: courts should be

"more than usually cautious" in striking down laws years after they were passed, as here, during

which time West Virginia citizens depended on them in ordering their affairs. State v. Mines, 38

W. Va. 125, 18 S.E. 470, 474 (1893).

As to the merits of the argument, the Constitution requires much less than Petitioners

suggest. The question is simply whether someone interested in a bill's subject matter would

know to read it. City of Wheeling, 131 W. Va. at 595, 48 S.E.2d at 41 0; see State ex ref. Graney

v. Sims, 144 W. Va. 72, 80, 105 S.E.2d 886, 892 (1958). The title need not tell the reader of

every specific change; if it alerts the reader to the broader topics of the bill and does not

affirmatively mislead, that is enough. See id. In fact, this Court has repeatedly held that a title is

sufficient if it just designates the chapter and section of the Code that is to be amended. !d. at

593; Walter Butler Bldg. Co. v. Soto, 142 W. Va. 616, 638, 97 S.E.2d 275, 288 (1957).

Here, Petitioners claim that the title of H.B. 2981 does not give sufficient notice of the

"eligibility requirement for those seeking certificate nomination" that was embodied in § 3-5-

1 7 See, e.g. , Blankenship, 158 W. Va. at 951; Campbell v. Kelly, 157 W. Va. 453, 475, 202 S.E.2d 369, 382 (1974); City of Huntington v. Chesapeake & Potomac Tel. Co. , 154 W. Va. 634, 643, 177 S.E.2d 591, 598 (1970); State ex ref. Graney v. Sims, 144 W. Va. 72, 80, 105 S.E.2d 886, 892 (1958); Linger v. Jennings, 143 W. Va. 57, 61, 99 S.E.2d 740, 743 (1957); Walter Butler Bldg. Co. v. Soto, 142 W. Va. 616, 639, 97 S.E.2d 275, 288 (1957); Crawford v. Parsons, 141 W. Va. 752, 758, 92 S.E.2d 913, 916 (1956); State ex ref. McMillion v. Stahl, 141 W. Va. 233, 234, 89 S.E.2d 693, 693-96 (1955); State ex ref. Dyer v. Sims, 134 W. Va. 278, 288, 58 S.E.2d 766, 772 (1950); State v. Mines, 38 W.Va. 125, 18 S.E. 470, 474 (1893).

34

23(a). Pet. 20. The title of H.B. 2981 began, "AN ACT to amend and reenact § 3-5-7, § 3-5-23

and§ 3-5-24 of the Code of West Virginia, 1931, as amended, all relating to elections generally."

It went on to say that the act changed several requirements for "nomination of third-party

candidates," including reducing the number of signatures and changing the requirements for the

signers of petitions. Contrary to Petitioners' implication, see Pet. 19 (adding bracketed

language), the title did not specify any subsections of § 3-5-23 (or §§ 3-5-7 and 3-5-24), but

rather pointed the reader to the entirety of those statutory sections.

Not every provision in a bill needs to be included in the title. Ancillary matters "may be

included in the statute without being stated in the title." City of Wheeling, 131 W.Va. at 595, 48

S.E.2d at 410. That is particularly true when, as here, the bill imposes restrictions that are not

included in the title. For example, this Court has upheld a title that said the bill "relat[ed] to the

provision of and payment for transcripts of testimony and proceedings in trials of indigent

persons convicted of' a crime. Linger v. Jennings, 143 W. Va. 57, 61, 99 S.E.2d 740, 743

(1957). But the bill contained a restriction, "confining its application to criminal cases in which

the court has appointed counsel." !d. This Court held the title was sufficient: "We see no merit

in this position, as the title of the statute is all-embracing and the restriction is contained in the

body of the statute itself." !d. Those who want to know more about indigent persons receiving

transcripts are alerted by the title to read the bill; in the bill, they would see the further

restrictions.

So, too, here. The title of H.B. 2981 told readers that it related to elections generally, the

"nomination of third-party candidates," and § 3-5-23, which is entitled "Certificate nominations;

requirements and control; penalties." The restriction of who could be nominated-the sore-loser

prohibition in § 3-5-23(a)-was contained in the body of the bill itself. The title alerted those

35

interested in third-party candidates to read the bill; in the bill, they would see the sore-loser

limitation on certificate nominations.

Conceding that this Court has repeatedly "held that a general title is sufficient,"

Petitioners assert that this Court has imposed further requirements on the Legislature when it

chooses to write a title that "get[s] into specifics." Pet. 21. Where a title is "enormously

specific," Petitioners contend, the Legislature is held to a "different" standard. Id. And that

standard was violated here, where the Legislature "detail[ ed]" many changes in the title of H.B.

2981 but included no specific reference to the sore-loser prohibition being added to§ 3-5-23(a).

There is no such requirement in this Court's cases. Rather, the cases cited by Petitioners

make the unremarkable point that a title must not "actively mislead[]." C. C. Spike Copley

Garage, Inc. v. Pub. Serv. Com 'n of W Va. , 171 W. Va. 489, 92, 300 S.E.2d 485,488 (1983). In

other words, a title may not say the bill relates to oranges when it actually relates to apples: if

there is "an additional class of persons" that is not named in the title, that class of persons would

not know to read the bill. State ex ref. Davis v. Oakley, 156 W. Va. 154, 191 S.E.2d 610, 611

(1972).

In Petitioners' primary case, this Court struck down a bill not because its title was "vague

and unspecific," but rather because the title was "positively misleading." Copley Garage, 171

W. Va. at 491, 300 S.E.2d at 487. There, an omnibus bill radically changed the procedures of

the Public Service Commission, but also deregulated wrecker services. The title did not mention

either deregulation or wreckers. Instead, the title indicated that the bill primarily increased

regulation on other industries; for example, it stated the bill "creat[ ed] a legislative oversight

committee to monitor the public service commission" and "requir[ ed] that certain studies be

made relating to natural gas and electric utilities." I d. at 490 n.1, 300 S.E.2d at 486 n.1. A

36

person interested in learning more about wrecker services or which industries were to receive

less oversight "would reasonably conclude that the act did not touch th[ ose] subject[ s ]." I d. at

491, 300 S.E.2d at 487.

The same is true in State ex rel. Walton v. Casey, 179 W.Va. 485, 486, 370 S.E.2d 141,

142 (1988). In that case, a provision allowing for licenses to medical doctors was hidden in a bill

regulating osteopathic physicians. Medical doctors are licensed under West Virginia Code

chapter 30, article 3; osteopathic physicians are licensed under a different article of chapter 30,

article 14. The bill in question changed the rules for medical doctors to receive licenses, but its

title stated that it amended article 14 and was "all relating to" osteopathy. It did not reference

either medical doctors or article 3. Id. at 489. Again, a person interested in medical doctors'

licenses would not know to read a bill whose title said it was about osteopathic physicians.

Likewise, Bedford Corp. v. Price involved a bill that went "beyond the subject matter of

the sections proposed to be amended." 112 W.Va. 674, 166 S.E.2d 380, 381 (1932). The title

of the bill read: "An Act to amend and re-enact sections six, seven and ten of article nine of

chapter eleven and section eighteen of article six of chapter eleven of the official code of West

Virginia, one thousand nine hundred and thirty-one, relating to tax levies and collections." Id.

The amendment at issue had made "drastic changes" to the collection of municipal taxes. Id.

But none of the sections enumerated in the title "rna[ de] any reference in any manner to the

collection of municipal taxes"; rather, they concerned only "state, county and district (magisterial

and school) taxes." Id.

The title of H.B. 2981 does not commit the sin of these cases. The specificity of the title

is only a problem when it points a reader away from a bill by talking about electric utilities

instead of wreckers, or osteopathic physicians instead of medical doctors, or county and school

37

taxes instead of municipal taxes. When it points a person to the topic at hand-here, the

nominating procedures of third-party candidates-it does not matter that it also gives other

specifics. See Davis, 156 W. Va. at 154, 191 S.E.2d at 611.

Petitioners also argue that the title of H.B. 2981 is unconstitutional because it was passed

on the last day of the legislative session. Pet. 22. But Petitioners point to no case or

constitutional provision that makes a bill's title unlawful merely because the bill was passed on

the last day of the legislative session. Nor was this bill "rushed through" the legislative process.

Id. The bill was first introduced over a month before it was enrolled, and the House passed it

twenty days later, still ten days before its enrollment.

Lastly, Petitioners contend that the title is insufficient because H.B. 2981 "creat[ ed] a

new crime." Pet. 23. But the bill did not create a new crime. Prior to the amendment, § 3-5-

23(£) already provided for a criminal fine of $1,000, and that provision was not substantively

amended. The case cited by Petitioners is entirely inapposite. It struck down a law creating a

new felony for price fixing of commodities because the title of the bill repealed and enacted a

new code. State ex rel. Myers v. Wood, 154 W. Va. 431, 437, 175 S.E.2d 637, 642 (1970). The

Court specifically noted that where an act "amends the code and reenacts former acts," as here,

the title need not reference a criminal provision. I d. at 644 (emphasis added).

38

CONCLUSION

The Petition should be refused.

Elbert Lin (WVSB # 1 2 1 7 1 ) HUNTON ANDREWS KURTH LLP Riverfront Plaza, East Tower 95 1 East Byrd Street Richmond, V irginia 232 1 9 Telephone: (804) 7 8 8-7202 Facsimile: (804) 788-82 1 8 Email : [email protected]

J. Mark Adkins (WVSB #74 1 4) Richard R. Heath, Jr. (WVSB #9067) BOWLES RICE LLP 600 Quarrier Street (2530 1 ) Post Office Box 1 3 86

THE WEST VIRGINIA REPUBLICAN PARTY, INC.

By counsel,

Charleston, West Virginia 25325- 1 386 Telephone: (304) 347- 1 1 00 Facsimi le: (304) 347- 1 756 Email : [email protected]

[email protected]

39

CONCLUSION

The Petition should be refused.

Elbert Lin (WVSB # 1 2 1 7 1 ) HUNTON ANDREWS KURTH LLP Riverfront Plaza, East Tower 95 1 East Byrd Street Richmond, V irginia 232 1 9 Telephone: (804) 7 8 8-7202 Facsimile: (804) 788-82 1 8 Email : [email protected]

J. Mark Adkins (WVSB #74 1 4) Richard R. Heath, Jr. (WVSB #9067) BOWLES RICE LLP 600 Quarrier Street (2530 1 ) Post Office Box 1 3 86

THE WEST VIRGINIA REPUBLICAN PARTY, INC.

By counsel,

Charleston, West Virginia 25325- 1 386 Telephone: (304) 347- 1 1 00 Facsimi le: (304) 347- 1 756 Email : [email protected]

[email protected]

39

"'7/31/20 1 8 WV - Election Night Reporting

f U.S. HOUSE OF REPRESENTATIVES, 3rd Congressional District - REP (Vote For 1)

Counties Report ing: 18 I 18

REP AYN E AMJAD

R E P MARTY G EARH EART

REP CO N RAD LUCAS

R E P CARO L MILLER

REP P H I LI P PAYTON

REP RU PIE PHILLIPS

REP RIC K S N U F F E R

� STATE

D E M OC RATIC CO NTESTS

M O U NTAIN C O N TE STS

N O N - PA RTISAN C O N T E STS

U P DATES

May 14, 2018 at 04:45 PM

7.46%

18. 19%

18 .07%

23.81%

2.30%

19.53%

10.64%

2,795

6,814

6,771

8,923

861

7,319

3,987

37,470

On 5/14/2018, each cou nty's boa rd of canvassers m eets to ca nvass Prima ry E lect ion retu rns. U pon complet ion

of canvass, the boa rd of ca nvassers publ icly declares the e lection resu lts. Any recount requ ests must be

subm itted with in 48 hou rs after resu lts a re dec lared (d o not count Saturdays, Sundays and legal ho l idays). 48 hours after resu lts a re declared, the board of canvassers sha l l certify resu lts for races fo r which no recou nt was

requested . 0/J. Va. Code §§3-5-17, 3-6-9, 3-6-10) See more

Counties Report ing

E1 Completely Reported Not Reporting

" Partia l ly Reported

http://results. enr.cla rityelections .com/WV 17 448 71Web02-state .2069991#1 213

'1/3 1/2018

COUNTIES REPORTING . ........... .

PRECINCTS REPORTING .............. ... . ....... .. .. .. .. .. . . . . .. . .

Voter Tu rnout

TOTAL

Bal lots Cast

Registered Voters

Copyright 2018 - www.scytl.com

http://results. en r.cla rityelections .com!WV 17 4487/Web02-state .206999/#/

WV - Election Night Reporting

. . . .. ...... . . ····· · · · ······· .. .. .. .. .. .. . · ··· ··· .. .. 5 5/55

......................... .. . ... . ·· ····· ···· . · · · ··········· .... 1758/1758

26.13%

3 20, 937

1 ,228, 196

3/3

I 7/31/201 8 Don B lankenship Announces Third-Party Bid for West Virgi nia Senate Seat - The New York Times

Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat

May 2 1 , 20 1 8

WAS HINGTON - Don Blankenship, the ex-convict coal b aron who lost his bid for the Republican

Senate nomination in West Virginia this month, s aid on Monday that he would run as a third­

party candidate - raising the prospect that he could spoil one of Republi<;ans' best chances to

pick up a D emocratic seat in November.

But before Senator Joe Manchin I II, a Democrat running for re-election in the d eep-red state,

celebrates a candid acy that could split the Republican vote, Mr. Blankenship must overcome West

Virginia's "sore loser" law, designed to keep failed primary candidates off the ballot.

Mr. Blankenship, who lost a brutal proxy fight with party leaders in the Republican primary, was

already anticipating a court fight with "the establishment" over the matter.

"We are confident that - if challenged - our legal position will prevail absent a politically

motivated decision by the courts," he said in a news release on M onday.

Mr. Blankenship did not provide evidence or a legal argument to support the claim. But scholars

who have s tudied the law s ai d they could see a reasonable argument to overcome it.

For Democrats, the prospect of a third-party entry in West Virginia is a gift. Democrats have been

trying to foment Republican divisions, especially in races against sitting Democratic senators in

states that President Trump won.

In Ohio, they have highlighted misgivings that another losing primary candidate, Mike Gibbons,

has with the Republican winner, Representative James B. Renacci, who will face Senator Sherrod

Brown in November. In Wisconsin, they have egged on the Republican combatants slugging it out

for the right to challenge S enator Tammy Baldwin in the fall. And intraparty fighting in Arizona

could imperil Republicans' effort to maintain the seat being vacated by Senator Jeff Flake.

Mr. Blankenship would have little chance of winning the Senate seat outright, but if he could

make it onto the ballot, he could siphon off support for Wes t Virginia's attorney general, Patrick

Morrisey, who won the Republican nomination. That could propel Mr. Manchin to re-election.

EXH IBIT https:/twvw;. nyti me s .com/20 1 8/05/21 /us/poiitics/don-bl anke nship-third-party-s enate .html 2 1 /3

I 7i3 1 /2018 Don Blankenship Announces Third-Party Bid for West Virginia Senate Seat - The New York Times

And even if his legal challenge fails, Democrats said on Monday that Mr. Blankenship could

torment Mr. Morrisey with negative ads, and reach deep into his pockets to demonize the

Republican leadership in Washington.

Mr. Manchin, who served as the state's governor before winning a Senate seat in 2010, remains a

popular moderate Democrat. But Republicans see the seat, in a state where they have won by

huge margins in recent years, as one of their best pickup opportunities this fall .

Nachama S oloveichik, a spokeswoman for Mr. Morrisey, said that the campaign would comment

on ballot issues "as they may arise" but did not mention Mr. Blankenship by name.

"Patrick Morrisey is the only candidate who can defeat Senator Joe Man chin and who will stand

with President Trump for West Virginians," she said.

A spokesman for Mr. Manchin declined to comment.

Mr. Blankenship has run a populist campaign not unlike Mr. Trump's, complete with nativist

attacks and allegations that the Justice Department under President B arack Obama corruptly

prosecuted him for his role in a 2010 mine explosion that killed 29 men.

Senator M itch McConnell of Kentucky, the maj ority leader, coordinated an aggressive campaign

to sink M r. Blankenship in the Republican primary, even getting Mr. Trump to voice opposition to

his candidacy. In the weeks since Mr. Blankenship's loss, Mr. Trump and other Republican leaders

have expressed relief, saying they avoided a situation like Alabama, where a Democrat claimed a

safely Republican Senate seat.

Mr. McConnell's Senate campaign team went further, taunting Mr. Blankenship the night of his

loss with a reference from "Narcos," a Netflix series.

Mi'r'c H Team M itch ;):=.-. @Team_Mitch

https://www. nytimes .com/20 1 8/05/2 1 /us/politics/don-bla nkensh ip-thi rd-party-senate .html 2/3

f/31 /20 1 8 Don Blankenship Announces Third-Party B i d for West Virg inia Senate Seat - T h e New York Times

Thanks for p laying , @Don B lankensh ip . #VVVSen 1 0 : 1 1 PM - May 8 , 20 1 8

1 2 .9K 6 ,0 1 3 people are talking about this

Mr. Blankenship did not appreciate the gesture and responded a few days later with an ad that

blasted M r. McConnell for making light of drug use and warning the Republican leader that "It's

Not Over."

But it will not be easy for Mr. Blankenship to keep up the fight. West Virginia's "sore loser" or

"sour grapes" law appears designed to head off efforts like M r. Blankenship's . It states that a

candidate who runs for the nomination of a major political party and loses "cannot change her or

his voter registration to a minor-party organization/unaffiliated candidate to take advantage of

the later filing deadlines and have their name on the subsequent general election ballot."

Steven Allen Adams, a spokesman for Mac Warner, West Virginia's secretary of state, made clear

that Mr. Warner believes the law bans a candidate like Mr. Blankenship from seeking to step

around the primary process.

Still, scholars said that the state had written the text in a way that leaves it vulnerable to

challenge.

"It looks to me like West Virginia intended for there to be a ban on sore losers, including in

legislation this year. It looks like they were intended to stop s omeone like Blankenship," said

Barry C. Burden, the director of the Elections Research Center at the University of Wisconsin at

Madison. "However, the law is not written perfectly."

The State Legislature p assed a bill in March seeking to clarify the law, but it does not take effect

until June.

Mr. Blankenship, for his part, painted himself as a natural fit for the Constitution Party, which

champions the " Christian character and heritage of our state, and the Bible as the basis of

morality on which the legitimacy of our laws rest." He cited his legal case as presenting himself as

an "especially appropriate" representative of its values.

Get politics and Washington news updates via Facebook, Twitter and the Morning Briefing newsletter.

A version of this article appears in print on May 22, 2018, on Page A12 of the New York edition with the headl ine: Senate Bid by Blankenship Could Spoil G.O. P. Hopes

https://www. nytimes.com/20 1 8/05/2 1 /us/politics/don-bla n kensh ip-third-party-senate .html 3/3

West V i rg i n i a Secreta ry of State Mac Warner

Am I Registered To Vote

DONALD BLANKENSHIP

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D1s.tr1ct Information

Congressional: J(JGJ Houn: 0(11G Senate: OQCO Magisterial:

EXH I B IT

3

7/31/201 8 Recognized Political Parties I n 'vW

Recognized Pol itical Parties In WV In West VIrginia, a group of ci tizens m ay gain party recognition by having a candidate for governor attain 1 % of the total votes oast for governor In the most recent election. Recognized political parties may nominate candidates for the general election In the primary election or by convention. Everyone else may only appear on the general election ballot by col lecting signatures. Recognized pol itical parties also elect people to form executive committees. The parties listed be low are the major, recognized polltloal parties In West VIrginia.

� -

Democratic Pa rty

www.wvdemocra ts.com State Chair: Bel inda Blafore

Executive Director: Curt Zlcl<afoose Headquarters: 7 1 7 Lee Street, Suite 2 1 4, Charleston, WV 25301

Phone: (304) 342-66060

Republican Party

www.wvgop.org State Chair: Melody Potter

Headquarters: P.O. Box 27 1 1 , Charleston , WV 25330 Phone: (304) 768-04930

M o u nta i n Pa rty

vVV\"'I'.mountalnpartywv.com State Chair: Jesse Johnson

Vlce·Chalr: Travis Booth Headqua·ters: 1 2 1 VIllage Green Road, Salem WV 26426

Phone: (304) 989- 1 62�'] � --····· ·· - · · ---� --- · -

Liberta r i a n Party

www.lpwv.org Chairman: Michael 8. Wilson

Executive Director: David Moran (VIce-Chair) Headquarters: P.O. Box 1 35 Jane Lew, WV 26378

Phone: (855) 687·5798[]

https://sos.vN.gov/electlons/Pages!Recognlzed-Politicai·Parties-Jn-WV.aspx

EXH I BIT

4 ....

1/1

20 1 8

RUNNING FOR OFFICE IN WEST VIRGINIA

Office of the West Virginia Secretary of State Elections Division State Capitol Building Charleston, WV 25305

Toll-Free: 1-866-SOS-VOTE Office: 1-304-558-6000 Fax: 1-304-558-8386 Email: [email protected] EXH I B IT

Website : www.sos.wv.gov 5

Run ning for Office (2018)

RUNNING FOR OFFICE IN WEST VIRGINIA - 2018

Primary Election - May 8, 2 0 1 8 (Second Tuesday in May)

General Election - November 6, 20 1 8 (Tuesday fol lowing first Monday in November)

TABLE OF CONTENTS

Section 1: Deciding to Run for Office The Decision to Become a Candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Recognized Political Parties in WV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 M inor/Unaffiliated Political Parties in WV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Elections in 20 1 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Are You El igible to Run for Office? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Running for Office and Your Current Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Section II: Becoming a Candidate Fi ling as a Pre-Candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 When to File as a Pre-Candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Reporting Requirements of a Pre-Candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Creating a Committee Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Committee Bank Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Certificate of Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Where to Fi le . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 0 Changing Political Parties Prior to an Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 0 Payment of Fi l ing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 Allowable Nicknames on the B allot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Ballot Positioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Last Day to Withdraw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 F iling with the Ethics Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Federal Offi ces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 2 State 0ffices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 3 - 1 5 County Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 County Clerk Phone N umbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 Unexpired Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 Party Executive Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 No Party Organization/Minor Party/Unaffil iated Candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9-20 Write-In Candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 Municipal Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 F i ling Pre-Candidacy Registration Form (M unicipal Candidate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Fi l ing the M unicipal Certificate of Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Candidate Requirements (Municipal Candidates Eligibil ity) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Campaign Finance (Generally) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Section III: Managing Campaign Finances New Law in Effect: Mandatory Online Electronic Campaign Finance Report F i l ing . . 24-25 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 The Code of Fair Campaign Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26 Who M ust Keep and Disclose Financial Records? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Which F inancial Records M ust Be Kept? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Financial Responsibil ity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Running for Office (2018)

TABLE OF CONTENTS (cont.) Amending Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Political Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Contribution Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28 Cash Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Unlawful F inancial Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Anonymous Contributions Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Candidate Committee Election Cycles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Fund-Raising Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Expenditure of F unds (i.e. Spending M oney) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0 Allowable Expenditures Under W. Va. Code § 3-8-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Political Action Comm ittee Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 Contributions from Business Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 Record Keeping and Things to Remember . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 Campaign F inance Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 20 1 8 Election Year Campaign Finance Reporting Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Consequences for Early and Late Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 The Campaign F inance Reporting System (CFRS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34 The Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Political Communications: Independent Expenditures, Electioneering, and Soliciting F unds

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · 34-35 Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5-36 Determining Which Form to Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Paper Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6-37 Additional Report Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Reporting Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7-38 Reporting Other Income and In-Kind Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8-39 Reporting Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 After the Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40 How to Close a Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . .40 20 1 8 Primary Election Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-4 1 20 1 8 General Election Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 -42 20 1 9 Important Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Additional Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

References to state and federal laws and regulations are current as of the time of publication. All other information represents the interpretation of the Office of the Secretary of State and should not be regarded as settled law or legal advice. It is a can didate's responsibility to know and comply with the law. Please consult an attorney for legal advice.

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Running for Office (2018)

SECTION I

DECIDING TO RUN

FOR OFFICE

THE DECISION TO BECOME A CANDIDATE FOR PUBLIC OFFICE

Serving the State of West Virginia in an elected office is a major commitment of publ ic serv ice to the citizens of West V i rgin ia, and an honor that should be g iven s ignificant forethought. Deciding to become a candidate for publ ic office should be well-thought and intentional. Publ ic office holders have the wonderful opportunity and respons ib i l ity of representing not only the i r constituents, but also our society ' s best interests. Before deciding to run for office, consider al l your current and future professional and personal responsib i l it ies and choose an office that fits your goals, aspirations and abi l ities best. Running for all publ i c offices have benefits and risks, so make an informed decision to run.

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Running for Office (2018)

RECOGNIZED POLITICAL PARTIES IN WV

Pursuant to the provisions of W. Va. Code § 3 - 1 -8, there are four ( 4) recognized political parties in West V irginia:

Democratic Party Libertarian Party Mountain Party Republican Party

These recognized parties nominate candidates for offices on the General Election bal lot i n the Primary Election by convention or other means of selection as determined by party rules. Party rules also dictate the el igib i l ity of a c itizen to run for office as a candidate for one of these parties.

General ly, for partisan elections, c it izens wishing to run as a candidate affil iated with one of the recognized pol itical parties must be regi stered with that pol itical party. If, however, a candidate wishes to run for office as a candidate for a party other than the party the candidate is affi l iated with, the candidate must update her or his voter registration at least s ixty (60) days prior to fi l ing a Certificate of Announcement. (W. Va. Code § 3 -5 -7.)

Parties may also elect Delegates to the National Convention during the Primary Election. P lease contact the party's Chairperson for more information on their nomination process.

MINOR/UNAFFILIATED POLITICAL PARTIES IN WV

Candidates affi l iated with al l other non-recognized political parties, or who are not affi l iated with any political party, are considered "minor" or "unaffi l iated" party candidates. These candidates must fol low the fi l ing requirements l i sted in W. Va. Code §§ 3 - 1 - 1 3 , 3 -5 -23 and 3-5-24. Such candidates must obtain and submit to the appropriate election official the requis ite number of signatures with a Nomination Certificate and the candidate' s Certificate of Announcement by August I preceding the November General Election. (See Opinion of the Attorney General regarding appl icable fi l ing deadl ine for m inor party and unaffil iated candidates to appear on the General Election bal lot (July 7, 2 0 1 7); l ink to WV Attorney General public resources page: http:/ /ago. wv. gov /pub I icresources/Pages/defau lt.aspx.)

THE "SORE LOSER" or "SOUR GRAPES" LAW (W. Va. Code §§ 3-5-7(d)(6) and 3-5-23) Candidates affi l iated with a recognized pol itical party who run for election in a primary e lection and who lose the nomination cannot change her or his voter registration to a m inor party organization/unaffi l iated candidate to take advantage of the later fi l ing deadl ines and have thei r name on the subsequent general election ballot.

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Running for Office (2018)

ELECTIONS IN 2018

Primary Election: An e lection held for the purpose of nominating candidates by political parties for offices on the General Election bal lot. Nonpartisan elections wi l l be held s imultaneously with the primary nomination process.

General Election: An election to choose from candidates that have official ly been certified as

candidates on the ballot or as a certified write- in candidate.

Candidates for the fol lowimz offices wi l l be nominated and elected in the 20 1 8 election cycle:

• U.S. Senate • U.S . House of Representat ives • State Senator • House of Delegates • County Commission • Board of Education • Conservation District Supervisor • Greater Huntington Park & Recreation District • State Executive Committee • District Executive Committee (Congressional, Senatorial & Delegate) • County Executive Committee • Any vacancy that must be fi l led by e ither the Primary Election or General Election

ARE YOU ELIGIBLE TO RUN FOR OFFICE?

It i s every West Virginian ' s fundamental Constitutional r ight to run for office, but that right has some l imitation depending on the office you seek and other factors. P lease rev iew the requirements for the office you seek to ensure you meet the prerequisites for min imum age, residency and others that may exist. Some offices, such as House of Delegates and State Senate, require candidates to be a resident for a length of time before the election, by the time of fi l i ng for office or by the time of taking office.

Generally, only West V i rginia residents (who also meet the age and other requirements) are el igible to run for office. "Residence" has been defined by the WV Supreme Court as the place where you actually l ive and i ntend to l ive indefin itely. (See White v. Manchin, 3 1 8 S .E.2d 4 70, 1 73 W.Va. 526 (W. Va. 1 984).) A business location i s not a residence. S imply owning property i n th is State does not establ ish res idency. A Post Office Box does not establ ish residency.

Also, some WV residents are otherwise prohib ited from holding office due to convictions under certain c ivi l or criminal laws under the U.S . Constitution, WV Constitution, or W. Va. Code. El igibi l ity determinations are made by a court of competent jurisd iction; not the Secretary of State, county clerks or municipal recorders.

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Running for Office (2018)

RUNNING FOR OFFICE AND YOUR CURRENT EMPLOYEMNT

State Employment:

Many factors can affect your abil ity to run for office. Below are the most common examples of employment positions affected by running for and/or holding publ ic office:

• Board of Education members • Judicial officers • Members of other state or county boards or commissions

Persons employed in the above positions usual ly must resign upon fi l ing for any other partisan office. Additional ly, employees in those positions may be restricted from participating in pol itical activ ity.

Federal Employment/State Employment Paid with Federal Funds:

The Hatch Act covers federal civ i l service employees and some state employees working for programs funded or administered under federal loans or grants. The Hatch Act was amended in 20 1 2 . The most current specifics of the Hatch Act can be reviewed on this website: https :/lose. 2:ov /Pa2:es/HatchAct.aspx.

General Questions Re2:ardin2: Employment:

As a good rule of thumb, you should avoid the appearance of potential impropriety between running for office and your obl igations to your current employment. If you think a conflict might exist for you, consult your employer ' s human resources division, personnel director, or otherwise consult an attorney to advise you of your rights and obl igations under the law.

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Running for Office (2018)

SECTION II

BECOMING

A CANDIDATE

FILING AS A PRE-CANDIDATE

Fi l ing for pre-candidacy is not declaring your candidacy for that office. Rather, it is a procedural tool that provides prospective candidates the abi l ity to raise money in support of their candidacy prior to fi l ing their Certificate of Announcement. (W. Va. Code § 3-8-Se.)

You must fi le a Pre-Candidacy Registration Form before raising money for possible candidacy. Candidates may expend personal finances without fil ing a Pre-candidacy Registration Form. However, a l l campaign-related financial activities are subject to disclosure requirements. The candidate must designate a Treasurer who is responsible for their committee's financial transactions. It is the Treasurer 's responsibi l ity to receive, keep and disburse al l sums of money, and fi le the required campaign finance reports on time and according to the law. Candidates may act as their own Treasurer of their committee, with the exception of judicial candidates, who are prohibited from being her or his own Treasurer.

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WHEN TO FILE AS A PRE-CANDIDATE

A candidate may file for pre-candidacy no more than four (4) years before the term of a position that i s up for election. If the term ofthe position you are seeking begins in less than four (4) years, then a candidate may only file for pre-candidacy during the election cycle prior to the next e lection, but no later than the candidate fi l ing period scheduled for that election cycle.

For the 20 1 8 election cycle, the fi l ing period for candidates affi l iated with a recognized pol itical party (see supra p.3) runs from January 8, 20 1 8 , until m idnight on January 27, 20 1 8 . For minor/unaffil iated party candidates, the fi l ing period begins January 8, 20 1 8 , and continues unti l August 1 , 20 1 8 . However, if a minor/unaffi l iated party cand idate wishes to raise money prior to fi l ing a Certificate of Announcement, Nomination Certificate and requisite petition signatures (see supra p.3), such candidate must file for pre-candidacy before rais ing money.

REPORTING REQUIREMENTS OF A PRE-CANDIDATE

Every sum of money, service, or thing of value received, as wel l as all expenditures made, and liabil ities i ncurred, must be reported during the appropriate campaign finance reporting period. Pre-candidates are required to fi le an Annual Report in accordance with the reporting schedule for campaign finances. The Annual Report must identify al l contr ibutions and expenditures received and made subsequent to the previous report fi led, if appl icable.

Because it is a Treasurer ' s responsib i lity to manage all candidate committee funds, it i s h ighly recommended that candidates designate a Treasurer early in the campaign.

Remember that fai l ing to file required campaign finance reports may result in criminal charges being fi led against the responsible person .

CREATING A COMMITTEE NAME*

The name of a candidate ' s committee can be anything relevant to the candidacy. Some common committee names include :

• Committee to Elect (candidate ' s name) • (Candidate ' s name) for Delegate 2 0 1 8 • Friends of (candidate name)

*Remember that a committee name may be needed for campaign materials and advertisements, indicating who funded the expenditure(s). So choose a name that fits your campaign best.

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COMMITTEE BANK ACCOUNT

It is strongly recommended that your committee' s bank account be separate and distinct from your personal bank account. It i s against the law to use campaign money for personal benefit. M ixing personal and campaign funds may lead to crimi nal charges.

Some banks require certain official documentation of a candidate ' s committee before issuing a bank account for the campaign. Please have your Treasurer consult with a banking professional to help guide you through the requirements of setting up a bank account for your campaign.

THE CERTIFICATE OF ANNOUNCEMENT

Candidates must submit the Certificate of Announcement Form to declare candidacy for publ ic office. Al l required information on the form must be provided, and the form must be signed and notarized. Forms missing any information or s ignatures wi l l be rejected. Importantly, candidates cannot re-fi le a corrected Certificate of Announcement after the fi l ing deadl ine . Also, you should know that the information provided in the Certificate of Announcement must be accurate and correct. Providing false information may result in a criminal prosecution.

For the 20 1 8 election cycle, candidates must file a Certificate of Announcement during the fol lowing period:

Monday, January 8, 2018, through midnight on Saturday, January 27, 2018 .

At the time of fi l ing your Certificate of Announcement, you must also pay the fi l ing fee or submit equivalent documentation to meet the fee requirements. Many of the fi l ing fees are based on the salary of the position you are seeking. If the salary of the position you seek changes, the fi l ing fee wi l l change accordingly.

The Certificate of Announcement cannot be accepted prior to January 8 , 20 1 8 . If the form is received or postmarked before January 8 , 20 1 8 , i t wi l l be rejected and returned. F i l i ngs that are mai led must be postmarked by the U .S . Postal Service before m idnight on January 27, 20 1 8 .

If you use an express shipping service (UPS, FedEx, DHL, etc .) your fi l ing must be received by midnight on January 27, 20 1 8, at the correct fi l ing office. The dates provided by these services are not equivalent to postmarks. Check with the appropriate fi l ing office for hours of operation on the last day of fi l ing.

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Running for Office (2018)

WHERE TO FILE

The fi ling office for a candidate' s Certificate of Announcement depends on which publ ic office the candidate seeks . F i l ing your Certificate of Announcement on time i s critical, and fai lure to file a completed appl ication with the correct office by the fi l ing deadl ine will result i n rejection and your inab i l ity to run for office during that election cycle . Late filings will not be accepted.

Please review the fol lowing options to identify your appropriate fi l ing office:

Secretary of State ' s Office: Candidates for Federal office, Statewide office, State Senate, House of Delegates, judic ial offices (excluding magistrates) and those running for an office in more than one county.

County Clerk's Office : Candidates for an office that i s entirely with in one county, which are not l i sted above as fi l ing with the Secretary of State ' s Office, which includes magistrates.

Municipal Recorder/Town Clerk: Candidates for a local municipal office. (Please note that some cities/towns/v i l lages designate a Town Clerk, rather than a Recorder, by Charter or Ordinance as the local e lection official . Contact your local municipal officials for more information.)

CHANGING POLITICAL PARTIES PRIOR TO AN ELECTION

Candidates registered as a voter in a party other than the one named in the Certificate of Announcement during the sixty (60) days immediately preceding the fi l ing of the Certificate may be refused certification of candidacy by the Secretary of State or board of bal lot commiss ioners, as the case may be.

EXCEPTION : Candidates who are not registered with a political party (e.g. unaffi l iated or no party) may change their registration to become affil iated with a pol itical party at any time prior to fi l ing the Certificate of Announcement.

PAYMENT OF FILING FEES

I f you are fi l ing with the Secretary of State, you may pay by check, credit card, cash or money order. If payment is by check and i t i s returned for i nsufficient funds, you wi l l not be certified as a candidate unti l the fi l ing is resubmitted with sufficient payment. Checks should be made payable to the West Virginia Secretary of State ' s Office.

Please contact your county clerk or municipal recorder/town c lerk for specific fees for county or municipal offices and the type of payment they can accept.

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ALLOW ABLE NICKNAMES ON THE BALLOT

A n ickname may be used on the bal lot by us ing quotation marks, parenthesis, or in l ieu of the candidate's first name. (WV Code of State Rules § 1 53- 1 4- 1 et seq.) A candidate may not use a title or position, such as "Dr.," "Rev.," "Sen." or "Sheriff," or a common meani ng of status, such as "Sarge," "Coach" or "Doc." A n ickname shal l also be l imited to one word, and the length ofthe name on the bal lot cannot be more than 25 characters.

BALLOT POSITIONING (W. Va. Code §§ 3-5-13a and 3-6-2)

Bal lot positions shall be selected for any office or d iv ision for which more than one candidate is to be nominated. A candidate' s name position on a ballot wi l l be determined by a drawing by lot conducted in the county c lerk 's office (or municipal recorder ' s office for munic ipal elections) in each county. The drawing for Primary Election bal lot position wi l l be held at 9 :00 a.m. on February 20. 20 1 8 (fourth Tuesday fol lowing the c lose of candidate fi l ing) and for the General E lection at 9 :00 a.m . on August 28. 20 1 8 (seventieth day preceding the election).

LAST DAY TO WITHDRAW (W. Va. Code § 3-5-11 )

A candidate' s last day to withdraw her o r h i s name from the bal lot and decl ine to run a s a candidate for public office is February 1 3 . 20 1 8 (third Tuesday fol lowing close of candidate fi l ing), and i n the General Election i s August 1 4. 20 1 8 (eighty (84) days before the e lection). Such candidates must file a Certificate of Withdrawal in the same fi l ing office as required for the Certificate of Announcement. This fi l ing must be received in the correct fi l ing office by the deadl ine; postmark date does not apply. Withdrawals after those dates may occur only with approval of the SEC.

FILING WITH THE ETHICS COMMISSION (W. Va. Code §§ 6B-2-6, 7)

I n addition to campaign finance fil ings, with in ten (1 0) days of fi l ing the Certificate of Announcement candidates must also fi le a Candidate F inancial Disclosure Statement with the WV Ethics Commission. If thi s Statement is not returned to the Ethics Commission, the candidate' s name may not b e placed o n the bal lot or the cand idate may not be a l lowed to take the oath of office. The Ethics forms are avai lable where you fi le your Certificate of Announcement, or you may print the form off the Ethics Commission ' s website at www.eth ics.wv .gov. Please note that political party executive committee candidates are not required to file this form.

All questions regarding the Candidate F inancial D isclosure Statement must be answered on the form prior to submission to the Ethics Commission. These financial statements are a matter of publ ic record and can be inspected at the Ethics Commission Office. If there are any questions regarding th i s form, please contact the Ethics Commission at (304) 558-0664 or (tol l free) 1 -866-558-0664. These forms are to be returned to the fol lowing address:

WV Ethics Commission 2 10 Brooks St., Su ite 300

Charleston, WV 25301-1804

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FEDERAL OFFICES

Candidates for federal office must file a Certificate of Announcement with the Secretary of State ' s Office to be on the bal lot i n West V i rginia. Additional ly, federal cand idates must also fol low the fil i ng and reporting regulations of the Federal Election Commission (FEC). Information on federal candidate fi l ing and reporting requirements can be found at www.fec.gov or call the FEC at 1 -800-424-9530 or 1 -202-694 - 1 000.

U.S. SENATE

Term: Salary: Filing Fee:

6 years $ 1 74,000* $ 1 ,740*

Minimum Age: Residence:

30 years 9-year citizen of the U .S . WV i nhabitant when elected

One ( 1 ) person wi l l be elected to the U .S . Senate i n 20 1 8 . The term begins in January 20 1 9 .

U.S. HOUSE OF REPRESENTATIVES

Term: Salary: Filing Fee:

2 years $ 1 74,000* $ 1 ,740*

Minimum Age: Residence:

25 years 7-year c itizen of the U .S . WV inhab itant when elected

One (1) person wi l l be elected from each of the three (3) Congressional D i stricts . The term begins in January 20 1 9 .

CONGRESSIONAL DISTRICTS

First District Barbour Brooke Doddridge Gi lmer Grant Hancock Harrison Marion Marshall Mineral Monongalia Ohio Pleasants Preston Ritchie Taylor Tucker Tyler Wetzel Wood

Second District Berkeley Braxton Calhoun Clay Hampshire Hardy Jackson Jefferson Kanawha Lewis M organ Pendleton Putnam Randolph Roane Upshur Wirt

Third District B oone Cabell Fayette Greenbrier Lincoln Logan M ason M cDowell Mercer M ingo M onroe Nicholas Pocahontas Raleigh Summers Wayne Webster Wyoming

*Salaries and .filing fees are based on .figures available at publication.

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STATE OFFICES

Candidates for state office must file a Certificate of Announcement with the Secretary of State ' s Office to be on the ballot i n West V irginia .

STATE SENATE

Term: Salary: Filing Fee:

4 years $20,000* $200

Minimum Age: Residence:

25 years WV 5 years prior to e lection. D i strict & county one year prior to e lection.

Seventeen ( 1 7) of the Thirty-Four (34) seats in the State Senate will be up for election to ful l terms in 20 1 8 . No candidate may fi le from a county already represented by a seated senator with in the same district.

SENATORIAL DISTRICTS* *Bold indicates counties that are entirely within the district.

District 1 2

3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7

Counties i n District Brooke, Hancock, Marshall , Ohio Calhoun, Doddridge, Gilmer, Marion, Marshall, Monongal ia, Ritchie, Tyler, Wetzel Pleasants, Roane, Wirt, Wood Jackson, Mason, Putnam, Roane Cabell, Wayne McDowel l, Mercer, M ingo, Wayne Boone, Lincoln, Logan, Mingo, Wayne Kanawha, Putnam McDowell , Raleigh, Wyoming Fayette, Greenbrier, Monroe, Summers Grant, Nicholas, Pendleton, Pocahontas, Randolph, Upshur, Webster Braxton, Clay, Gilmer, Harrison, Lewis Marion, Monongalia Barbour, Grant, Hardy, M ineral, Monongal ia, Preston, Taylor, Tucker Berkeley, Hampsh ire, Mineral, Morgan, Berkeley, Jefferson Kanawha

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HOUSE OF DELEGATES

Term: Salary: Filing Fee:

2 years $20,000* $ 1 00

Minimum Age: Residence:

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1 8 years Resident of d istrict (and county, if l imited) for 1 year prior to E lection.

Al l one-hundred ( 1 00) seats in the House of Delegates wil l be on the ballot i n 20 1 8 . The candidate must know the correct district number before fi ling. The Secretary of State ' s Office or your County Clerk can help you identify your district.

HOUSE OF DELEGATES DISTRICTS** *Bold indicates a county entirely within one (1) district. **District 28 - the two (2) members cannot be from the same county.

DISTRICT # 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 26 27 28 * * 29 30 3 1 32

# ELECTED 2 I 2 2

I 1 1 3 I 1 2

1 3 2 1 2 1 1 2 I 2 1 1 3 2

1 3

COUNTIES IN DISTRICT Brooke, Hancock Brooke, Ohio

1 4

Ohio Marshall, Ohio Monongal ia, Wetzel Doddridge, P leasants, Tyler Pleasants, Ritchie Wood Wirt, Wood Wood Jackson, Roane Jackson Jackson, Mason, Putnam Mason, Putnam Putnam Cabel l , Linco ln Cabel l , Wayne Cabell Wayne Logan, M ingo McDowel l , M ingo, Wyoming Boone, Lincoln, Logan, Putnam Boone Boone, Logan, Wyoming McDowell , Mercer, Wyoming McDowel l , Mercer Mercer, Raleigh Monroe, Raleigh, Summers Raleigh Raleigh Rale igh, Wyoming Clay, Fayette, Kanawha, Nicholas, Raleigh

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DISTRICT # # ELECTED COUNTIES IN DISTRICT 33 1 Calhoun , Clay, Gi lmer

34 1 Braxton , Gilmer 35 4 Kanawha

36 3 Kanawha 37 1 Kanawha 38 1 Kanawha, Putnam 39 Kanawha 40 1 Kanawha 4 1 1 Greenbrier, Nicholas 42 2 Greenbrier, Monroe, Summers 43 2 Pocahontas, Randolph 44 1 N icholas, Randolph, Upshur, Webster 45 1 Upshur 46 1 Lewis, Upshur 47 1 Barbour, Tucker 48 4 Harrison , Taylor 49 1 Marion, Monongal ia, Taylor 50 3 Marion 5 1 5 Monongalia 52 1 Preston 53 1 Preston, Tucker 54 1 Grant, Mineral, Pendleton 55 Hardy, Pendleton 56 Mineral 57 Hampshire, M ineral 58 Hampshi re, Morgan 59 Berkeley, Morgan 60 Berkeley 6 1 Berkeley 62 1 Berkeley 63 1 Berkeley 64 1 Berkeley 65 Jefferson 66 Jefferson 67 Jefferson

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COUNTY OFFICES

All candidates for county office must fi le with the i r respective county c lerk. The fi l ing fee for county offices i s one percent of the annual salary, except for the Board of Education (fil i ng fee i s fixed at $25). Because county c lassification i s used to determine salary, p lease contact your county clerk for the fi l ing fee.

Al l candidates for county office must be qual ified voters and some offices have additional qual ifications. For more information, you may contact the West V irgin ia Association of Counties at (304) 346-059 1 .

COUNTY COMMISSION Term: 6 years Filing Fee: Contact County C lerk

BOARD OF EDUCTION Term: Filing Fee:

4 years $25

Minimum Age: Residence:

Minimum Age: Residence: Other:

1 8 years Open magisterial district

1 8 years Open magisterial d istrict High School diploma or GED; training required prior to taking office.

Each of the fifty-five (55) county school systems i s governed by a five (5) member nonpartisan board of education. No more than two (2) members may be elected or serve from the same magisterial district. The residence of incumbent board members continuing in office after July I , 20 1 8 wil l govern which magisterial d istricts have openings. New terms begin July 1 , 2 0 1 8 .

CONSERVATION DISTRICT SUPERVISOR Term: 4 years Minimum Age: n/a Filing Fee: $ 1 0 Salary: n/a Requirements: Landowner i n d istrict; education or experience i n conservation.

At least one superv isor wi II be e lected in each county with in the fourteen ( 1 4) conservation d istricts in West Virginia. Because of population, Berkeley and Kanawha Counties wi l l e lect two (2). Candidates for superv isor may only run for the office in the county in which they reside.

For any questions regarding th i s position, contact the West Virginia Conservation Agency at (304) 558-2204 or www.wvca.us.

GREATER HUNTINGTON PARK & RECREATION DISTRICT SUPERVISORS Term: Salary: Filing Fee:

6 years N/A $ 1 0

Minimum Age: Residence:

1 8 years Must reside in d istrict in which they are e lected

One ( I ) commissioner wi l l be e lected to ful l terms from Districts 1 , 2, and 4. (Note: GHPR candidates file with the Secretary of State ' s Office.)

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COUNTY CLERK PHONE NUMBERS

BARBOUR 304-457-2232 KANAWHA 304-357-0 1 30 POCAHONTAS 304-799-4549

BERKELEY 304-264- 1 989 LEWIS 304-269-82 1 5 PRESTON 304-329-0070

BOONE 304-369-7330 LINCOLN 304-824-3336 PUTNAM 304-586-0202

BRAXTON 304-765-2833 LOGAN 304-792-8620 RALEIGH 304-252-868 1

BROOKE 304-737-3668 MARION 304-367-5447 RANDOLPH 304-636-0543

CABELL 304-526-8633 MARSHALL 304-845- 1 220 RITCHIE 304-643-2 1 64

CALHOUN 304-354-6725 MASON 304-675 - 1 997 ROANE 304-92 7-2860

CLAY 304-587-4259 MCDOWELL 304-436-8544 SUMMERS 304-466-7 1 04

DODDRIDGE 304-873-263 1 MERCER 304-487-8338 TAYLOR 304-265- 1 40 1

FAYETTE 304-574-4225 M INERAL 304-788-3924 TUCKER 304-4 78-24 1 4

GILMER 304-462-764 1 M INGO 304-235-0339 TYLER 304-75 8-2 1 02

GRANT 304-257-4550 MONONGALIA 304-29 1 -7230 UPSHUR 304-4 72- 1 068

GREENBRIER 304-647-6604 MONROE 304-772-3096 WAYNE 304-272-6370

HAMPSHIRE 304-822-5 1 1 2 MORGAN 304-25 8-854 7 WEBSTER 304-847-2508

HANCOCK 304-564-3 3 1 1 NICHOLAS 304-872-7820 WETZEL 304-455-8224

HARDY 304-530-0250 OHIO 304-234-3750 W IRT 304-275-427 1

HARRISON 304-624-8675 PENDLETON 304-35 8-2505 WOOD 304-424- 1 860

JACKSON 304-373-2232 PLEASANTS 304-684-3542 WYOMING 304-732-8000

JEFFERSON 304-728-3246

UNEXPIRED TERMS

If a vacancy occurs due to retirement, resignation, death, disqual ification or removal, an election may be required to complete the term. The candidate wishing to run for an unexpired term must fi le a Certificate of Announcement and specify it is for the unexpired term with the correct fi l ing office. The Certificate of Announcement must be filed during the fi l ing period for ful l terms and the candidate must pay the required fee for that office, unless a special fi l ing period has been proclaimed. P lease check with the appropriate fi l ing office for poss ible unexpired terms that may be on the bal lot in 20 1 8.

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PARTY EXECUTIVE COMMITTEES

Executive committee members are e lected in the Primary Election to four (4) year terms. Candidates for State executive committees wi l l file with the Secretary of State, except for candidates i n Senate District 17. Candidates for District and county executive committee positions wi l l file with the County Clerk.

When electing executive committee members, the two (2) candidates with the h ighest votes shal l be elected first, and the other candidates shal l be qual i fied based on vote tal l i es, gender and county of res idence.

A current l i sting of all executive committee members shal l be fi led with the Secretary of State by the end of July each year. Any appointments to fi l l vacancies on an executive committee do not take effect if the updated l i st of committee members has not been submitted to the Secretary of State within ten (1 0) days of the appointment.

STATE EXECUTIVE COMMITTEE* Districts :

District Members :

F i l ing Fee :

Members wi l l be elected from Senate D istricts

Two (2) men and two (2) women are selected from each Senate D istrict.

$20.00

*No more than two (2) committee members can be electedfrom the same county.

DISTRICT EXECUTIVE COMMITTEES** (Congressional, Senate and Delegate) Districts : Members wi l l be e lected from each county in a multi-county

District

District Members One ( 1 ) man and one ( 1 ) woman from each county in the d istrict

F i l ing Fee: $5 .00

**Does not apply to single-county senate or delegate districts.

COUNTY EXECUTIVE COMMITTEE Districts:

District Members:

F i l ing Fee:

Members wi l l be e lected from Magisterial or Executive Committee Districts .

If there are three (3) districts in the county then two (2) men and (2) women wi l l be e lected from each district. If there are more than three (3) d istricts, then one ( 1 ) man and (1) woman wi l l be e lected from each district.

$ 1 0.00

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NO PARTY ORGANIZATION/MINOR PARTY !UNAFFILIATED CANDIDATES (W. Va. Code §§ 3-5-23 and 3-5-24)

An individual may run for public office without belonging to a recognized pol itical party in West Virgin ia (Democratic, Libertarian, Mountain, and Republican; see page 3) .

Candidates who are not affil iated with any political party or who are affil iated with a non­recognized pol itical party are commonly referred to as e ither "minor," " independent," "no party" or "unaffiliated" party candidates. These candidates must follow the fi ling requirements l isted in W. Va. Code §§ 3 - 1 - 1 3 , 3-5-23 and 3-5-24. A candidate running with no party organization will not appear on the Primary Election bal lot.

MINOR PARTY/UNAFFILIATED CANDIDATE CREDENTIALS,

NOMINATION CERTIFICATE AND CERTIFICATE OF ANNOUNCEMENT

The process for individuals seeking to run as minor party/unaffil iated candidates in the General Election is sl ightly different than the process for candidates affi l iated with a recognized political party in WV. (See pages 3-4.) There are a few basic requirements to be such a candidate, which include obtaining an Official Credentials form, gathering the requisite number of signatures, and submitting a Nomination Certificate with a Certificate of Announcement. These forms are avai lable at your local County Clerk' s office, the Secretary of State ' s Office and website at www.sos.wv. !WV. These forms and associated procedures are discussed in more deta i l below.

Official Credentials Form* : The first step to becoming a no party organization/minor party candidate is to be official ly authorized by your County Clerk to col lect signatures in support of your candidacy. Candidates apply for authorization to each County C lerk in every county the cand idate wishes to run (e.g. i n multi-county districts, a candidate must apply to each County C lerk in that multi-county district.) Upon approval, the County C lerk(s) wi l l i ssue an Official Credentials form to the candidate. This Credentials form is proof that the candidate has the authority to gather s ignatures in that county.

*Important Note: this form must be displayed to each voter canvassed or solicited.

Nomination Certificate/Petition** : After a minor party/unaffil iated candidate receives her or h i s Official Credentials form, the candidate must then uti l ize the Nomination Certificate (also referred to as the "Minor Party or Independent Candidate Nomination Petition") for gathering s ignatures. This Certificate may be acquired at the time an indiv idual obtains her or his Official Credential s .

* *Important Note: Individuals seeking an office on the ballot in more than one (1) county must use a separate Nomination Certificate/Petition form for each county.

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MINOR PARTY/UNAFFILIATED CANDIDATE CREDENTIALS, NOMINATION CERTIFICATE AND CERTIFICATE OF ANNOUNCEMENT (cont.)

S ignatures: After a m inor party/unaffi l iated candidate receives her or his Official Credentials form and obtains the Nomination Certificate from the County Clerk, such candidates are requ ired to obtain not less than one (1) percent of the entire vote cast at the last preceding general election for the office being sought, but which shall never be less than twenty-five (25) total signatures.

• Any s ignature gathered must be s igned by the voter in h i s or her own handwriting or by h is or her marks duly witnessed

• In order for a voter' s s ignature to count, he or she must be a duly registered resident with i n the county, d istrict, o r other po litical d iv is ion represented by the office sought

Certificate of Announcement: A recent West Virginia Attorney General (WVAG) Opin ion clarified the law regarding minor party/unaffil iated candidate deadl ines to fi le a Certificate of Announcement. Specifical ly, the Opinion d irected the fi l ing requirements for major recognized political party cand idate would not withstand a Constitutional chal lenge in a court of competent j urisd iction. (See Opinion of the Attorney General regarding appl icable fi l ing deadl ine for minor party and unaffi l iated candidates to appear on the General Election bal lot (July 7, 2 0 1 7); l i nk to WV Attorney General publ ic resources page: http://ago. wv.gov/publ icresources/Pages/default.aspx.)

Therefore, the deadl ine for a m inor party/unaffi l iated candidate to fi le her or h is Certificate of Announcement, Nomination Certificates and fi l ing fee with the appropriate office i s no later than August 1 . 20 1 8 . Such candidates may file at any time prior to the fi l ing deadl ine, but no late submissions will be accepted .

Pre-Candidacy Requi rements for Raising Money Even though m inor party/unaffi l iated candidates do not have to fi le a Certificate of Announcement unt i l August 1 preceding the General Election, such candidates must fi le a Pre-Candidacy Form prior to rais ing money for a pol itical campaign. However, candidates may spend personal funds for a campaign that has yet to be announced without fil ing a Pre-Candidacy Form ; such candidates are only prohibited from raising funds without fi l ing a Pre-Candidacy Form.

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Running for Office (2018)

WRITE-IN CANDIDATES* (W. Va. Code § 3-6-4a)

Official write-in candidates are not l i sted on any ballot. Rather, a l i st of official write-in candidates wil l be posted at each pol l ing place during early voting and on Election Day. Only votes for official write-in candidates are counted. Write- in candidates are not required to pay a fi l ing fee or col lect s ignatures.

An individual meeting the requis ite el igibi l ity requirements for a specific office may fi le as an official write-in candidate for offices to be elected in the primary, general, or special e lection by fi l ing the Write-In Candidate' s Certificate of Announcement with the appropriate fi l ing office.

Those offices elected in the Primary Election are :

• Judges (Justice of the Supreme Court, Circuit Court Judge, Fami ly Court Judge, and Magistrate; in 20 1 8 , only unexpi red terms to fi l l judicial vacancies are on the bal lot);

• Board of Education; and • Conservation D istrict Supervisors • Executive Committees

*Important Note: a write-in candidate may not run for Delegate to National Convention. Additionally, an exception to the filing deadline exists when a vacancy occurs in the nomination of candidates for an office on the ballot resulting from the death, disqualification or removal of a nominee from the ballot by a court of competent jurisdiction. Such vacancy must occur not earlier than the forty-eight (48) days nor later than the jive (5) days before the General Election. In such case, a Write-In Candidate 's Certificate of Announcement shall be received no later than the close of business five (5) days before the election or the close of business on the day following the occurrence of the vacancy, whichever is later.

Deadl ines to F i le : The deadl ine to fi le a Write-In Candidate' s Certificate of Announcement by any el igible person who seeks to be elected by write- in votes for any office at any e lection shal l be received no later than the forty-ninth ( 491h) day before the e lection at which the office is to be fi l led. (W. Va. Code § 3-6-4a(c) .)

Primary Election : a Write-In Candidate' s Certificate of Announcement shal l be received no later than the close of business March 20. 20 1 8 .

General Election : a Write-In Candidate' s Certificate of Announcement shall be received no later than the close of business September 1 8 . 20 1 8 .

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MUNICIPAL ELECTIONS (W. Va. Code § 8-1-1 et seq.)

Any part of a county or counties may be incorporated as a c ity, depending upon the population, either as a Class I , Class I I or Class I I I city, or a Class IV town or v i l lage. Municipal ities generally elect a mayor, municipal recorder or clerk, and a counci l . Together they form the governing body of the municipal ity.

Many West Virginia municipalities have framed and adopted a Charter, which include specific provisions setting forth the method and time for fi l ing of Certificates of Announcement, nominating candidates, conducting primary and regular municipal elections, and determining and certifying the resu lts of elections. If a Charter does not provide procedures for the administration of elections, municipalities must fol low West Virginia State Code provisions as they apply to counties.

Furthermore, because each municipal ity may have different fi l ing dates and procedures for candidacy and campaign finance reporting other than those for county and statewide offices, a municipal candidate should contact their municipal recorder or clerk for information regarding specific requirements for the municipal ity.

FILING PRE-CANDIDACY REGISTRATION FORM

Any candidate who wishes to raise money for a campaign before the official candidate fi l ing period must file a Pre-Candidacy Registration Form with the municipal recorder/clerk before raising any funds for the candidate' s campaign. This Form can be obtained from the municipal recorder/clerk or online at www.sos.wv .!wv. However, nothing precludes a candidate from spending personal funds during a campaign without fi l ing a Pre-Candidacy Registration Form, so long as such candidate is not raising money.

FILING THE MUNICIPAL CERTIFICATE OF ANNOUNCEMENT

The Municipal Candidate' s Certificate of Alillouncement and Municipal Write-In Candidate ' s Certificate o f Announcement must be fi led with the municipal recorder/clerk during the appropriate fi l ing periods set forth by the municipality 's Charter. If no Charter has been passed by the municipal ity, then the fi l ing periods shall be the same as those set forth for county and statewide candidates. (See page 8; see also Section I I I - Managing Campaign F inances, beginning on page 24.)

CANDIDATE REQUIREMENTS

Unless otherwise provided by Charter provision or Ordinance, the mayor, recorder and council members must be residents of the municipal ity and must be qualified voters entitled to vote for members of its governing body. (W. Va. Code § 8-5-7; see also page 4, "Are You El igible to Run?")

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CAMPAIGN FINANCE* ,

Any person who files a Candidate's Certificate of Announcement is required to file Campaign F inance Reports except for political party executive committees and those that file with the Federal Election Commission (FEC). Al l funds received must be reported by name of contributor and the amount received, no matter how small the amount. There are typically four (4) reports due at different times during each municipal election cycle. Contact your municipal recorder/clerk for specific reporting dates.

Remember that fai l i ng to file required campaign finance reports may result in criminal charges being fi led against the responsible person.

*For more detailed campaign finance guidance, please see Section IlL below.

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SECTION III

MANAGING

CAMPAIGN

FINANCES

NEW LAW IN EFFECT: MANDATORY ONLINE ELECTRONIC CAMPAIGN FINANCE REPORT FILING

Beginning January 1, 2018, all financial statements that are required to be filed with the Secretary of State, by or on behalf of a candidate for any elective office, shall be filed electronically through the website that has been established by the Secretary of State. (W. Va. Code § 3-8-Sb.)

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MANDATORY ONLINE ELECTRONIC CAMPAIGN FINANCE REPORT

FILING

If a candidate is unable to electronically fi le the campaign financia l statement through or by no fault of the candidate, the candidate shall file the statement in person, v ia facsimi le or other electronic means of transmission, or by certified mail at the first reasonable opportunity.

EXEMPTIONS : Committees required to report electronically may apply to the State Election Commission for an exemption from mandatory electronic fi l ing in the case of hardship. An exemption may be granted at the d iscretion of the State Election Commission.

In the case of mai l ing, the fi l ing date of a financial statement shal l be the date of the postmark of the United States Postal Service. In the case of hand del ivery or del ivery by facsimi le or other electronic means of transmission, the date del ivered to the office of the Secretary of State or to the office of the c lerk ofthe county commission.

All fi l ings (electronic and exempt by mai l/hand/other delivery) must be del ivered to the Secretary of State' s Office or, when appropriate, to the office of the clerk of the county commission "during regular bus iness hours of that office." (W. Va. Code § 3 -8-Sb(e).) If any fi l ing is submitted after business hours, it wi l l be accepted the next business day.

THE CODE OF FAIR CAMPAIGN PRACTICES (W. Va. Code § 3-lB-5)

At the time of fi l ing for office, candidates wi l l have an opportunity to voluntari ly subscribe to the Code of Fair Campaign Practices. The Code is a voluntary pledge to adhere to guidelines and i s intended to promote ethical , constructive and equ itable campaigning. Pledging to adhere to the Code of Fair Campaign Practices requires subscriber to do the fol lowing:

• Adhere to the campaign spending l imitations (see table below); • Conduct your campaign openly and publ icly; • Condemn false advertising or communications which are not fact-based; • Refrain from coercing or unduly i nfluencing indiv iduals under your authority to give

contributions or election help; and • Defend and uphold the right of every qualified voter to ful l and equal participation in the

electoral process.

VOLUNTARY SPENDING LIMITATIONS

OFFICE PRIMARY G ENERAL

Governor $ 1 ,000,000 $ 1 ,000,000 Constitutional Officers $ 1 50,000 $ 1 50,000 Supreme Court $ 1 50,000 $ 1 50,000 Circuit Judge $50,000 $50,000 State Senate $50,000 $50,000 House of Delegates $25 ,000 $25,000

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THE CODE OF FAIR CAMPAIGN PRACTICES (cont.)

If a candidate who has endorsed and subscribed to the Code of Fair Campaign Practices exceeds the campaign spending l imitations, such candidate ' s opponent(s) who have also subscribed to the Code (and who have not exceeded the spending l imitations) are automatically released from the aforementioned voluntary campaign spending l imitations. Expenditures that do not exceed the l imits designated for the Primary Election are not added to the l im its for the general election.

WHO MUST KEEP AND DISCLOSE FINANCIAL RECORDS?

Every candidate, treasurer, person and association of persons, and organization of any kind including every corporation, who or which d irectly or by independent expenditure supports a pol itical committee or engages in permitted campaign activities where in such person or entity expressly advocates the election or defeat of a clearly identified candidate for any office (municipal, county, district or state) "shall keep detailed accounts of every sum of money or other thing of value received by him or her, including all loans of money or things of value and of all expenditures and disbursements made, liabilities incurred, by the candidate, financial agent, person, association or organization or committee, for political purposes, or by any of the officers or members of the committee, or any person acting under its authority or on its behalf " (W. Va. Code § 3-8-5 (emphasis added) .)

Remember that fai l ing to fi le required campaign finance reports may result in criminal charges being fi led against the responsible person.

WHICH FINANCIAL RECORDS MUST BE KEPT?

Candidates "and all persons supporting, aiding or opposing the nomination, election or defeat of any candidate shall keep for a period of six months records of receipts and expenditures which are made for political pwposes." (W. Va. Code § 3-8-2 (emphasis added).)

The committee should keep the receipts of all financial transactions for accounting purposes. However, the Secretary of State or County C lerk may conduct an audit, and the receipts must be presented for review. (W. Va. Code § 3-8-7.) If any v iolations are found, the committee may be held accountable for transactions for up to five (5) years. (W. Va. Code § 3-8-5d.) Therefore, it is h ighly recommended that receipts be kept for the entire five (5) year period.

FINANCIAL RESPONSIBILITY

The Treasurer of the committee is responsible for all of the committee's fi nances, and he or she must handle or be involved with all financial transactions and reporting requirements. Agents of the committee may make transactions and accept contributions on behalf of the committee, and be reimbursed for lawful expenses incurred by the agent. However, the contributions must be approved by the treasurer to ensure the contributions meet the legal ly permitted criteria.

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AMENDING REPORTS

A report submitted by the committee may be altered to reflect the accurate financial activity if a mistake i s d iscovered. An amended report may be submitted at any time and with no penalty. If an amended report i s submitted, i t must include the same information as the previously submitted report with the errors corrected. All financial transactions for the reporting period must be included in the amended report, not j ust the portion that has been changed by the amendment.

POLITICAL CONTRIBUTIONS

"Contribution" means a gift, subscription, loan, assessment, payment for services, dues, advance, donation, pledge, contract, agreement, forbearance or promise of money or other tangible thing of value, whether conditional or legal ly enforceable, or a transfer of money or other tangible thing of value to a person, made for the purpose of influencing the nomination, election or defeat of a candidate. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided without compensation: Provided, That a nonmonetary contribution is to be considered at fai r market value for reporting requirements and contribut ion l im itations. (W. Va. Code § 3 -8- 1 a(7).)

Best Practice Tip: Get all of the information requ ired for your campaign finance report from your contributors at the time they make their donation. This best practice wi l l save substantial-and precious-time in the future tracking down thi s information later.

CONTRIBUTION LIMITATIONS (W. Va. Code § 3-8-12)

An individual may give to any polit ical committee a total of $ 1 ,000 per primary e lection, and

$ 1 ,000 per general e lection . An indiv idual may also give a committee up to $ 1 ,000 during a general

election period to pay for debts incurred during the preceding primary election period so long as

that indiv idual did not contribute the maximum $ 1 ,000 contribution during the primary election

period and the total amount contributed during the primary e lection period added to the amount

contributed towards the primary election period debt does not exceed $ 1 ,000 in the aggregate.

Example : Smith for House Committee receives $500 from Jane Doe during primary election period. Later, during the general election period, Jane Doe contributes $ 1 ,000 to Smith for House Committee, and contributes an additional $500 towards debts incurred by the Committee during the primary e lection period. Al l such contributions are permitted.

(Continued on next page)

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CONTRIBUTION LIMITATIONS (cont.)

Active polit ical committees are restricted to the types of contributions they may give and receive. The capacity to give or receive a contribution depends on the type of committee establ ished. Below i s a l i st of possible contribution types indicat ing whether the contributions to the specific committee are acceptable :

As a State Candidate you may give u p to $1 ,000 to: • Executive Committee

• Legislative Caucus Committee

As a State Candidate you may NOT give a contribution to the following: • Another State Candidate

• PAC

• Federal Committee

As a State Candidate you may receive up to $1 ,000 from:

• I ndividuals

• State Pol itical Action Committee (PAC)

• Executive Committee

• Federal Committee

• Corporate PAC

As a State Candidate you may NOT receive money from an Independent Expenditure

PAC.

CASH CONTRIBUTIONS

A cash contribution can be accepted up to $50. The name of the contributor must be recorded and reported or it must be donated to the General Revenue Fund of the State. A l l contribution amounts above $50 must be by means other than cash. (See W. Va. Code § 3-8-5d(a), which provides, "Any person who makes or receives a contribution of currency of the United States or currency of any foreign country of more than fifty dollars in value is guilty of a misdemeanor, and, upon conviction, shall be fined a sum equal to three times the amount of the contribution. ")

UNLAWFUL FINANCIAL ACTIVITIES

It is unlawful for the committee to spend any contributed funds that exceed the contribution l im it. When a contribution exceeds the l imit, the excess must be returned to the contributor. All items of value (cash and in-kind contributions) g iven to a committee count towards thi s $ 1 ,000 l imit. Candidates may contribute as much as they desire to the ir own campaign; however, a campaign borrowing financial resources from anyone cannot be reimbursed unless it is treated as a loan instead of reporting as contribution to the campaign.

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ANONYMOUS CONTRIBUTIONS PROHIBITED

All contributions must be identified with the ful l name ofthe person or group of persons that gave the contribution. Anonymous direct and indirect contributions, i ncluding contributions made i n a fictitious name used to conceal the identity of the source of the contribution, are i l legal to accept. Activities such as "passing the hat" are not permitted. If, however, an anonymous contribution i s accepted or the identification of the donor of a contribution cannot be determined, the contribution must be ( I ) recorded as such on the candidate's financial statement, and (2) donated i n-ful l to the General Revenue Fund of the State. Thereafter, at the time of fi l ing, the financial statement shal l i nc lude a statement of distribution of anonymous contributions, which total amount shall equal the total of al l anonymous contributions received during the period. (W. Va. Code § 3 -8-Sa(h), Q).)

EXCEPTION : POLITICAL PARTY COMMITTEES : Notwithstanding the above, a pol itical party committee may report gross receipts for fund rais in!! events for the sale of food, beverages, services, novelty items, raffle tickets or memorab i l ia, except that any receipt of more than fifty (50) dol lars from an individual or organization shal l be reported as a contribution. Such alternative reporting procedure may be fol lowed by a pol itical party committee i n fi l ing financial reports if the total profit does not exceed five thousand dollars per year.

A pol itical party committee us ing th is alternative method of reporting shall report al l of the following:

• The name of the committee; • The type of fund-rais ing activity undertaken; • The location where the activ ity occurred; • The date of the fundraiser; • The name of any i ndiv idual who contributed more than fifty dol lars worth of items to be

sold; • The name and amount received from any person or organization purchasing more than fifty

dollars' worth of food, beverages, services, novelty items, raffle t ickets or memorab i l ia ; • The gross receipts of the fundraiser; and • The date, amount, purpose and name and address of each person or organization from

whom items with a fair market value of more than fifty dol lars were purchased for resale.

CANDIDATE COMMITTEE ELECTION CYCLES

There are two possible contribution periods for a candidate committee with in the e lection year. A contribution to a candidate committee i s considered i n connection with the primary election if it i s received on or before the Primary Elect ion Day. A contribution is cons idered in connection with the general e lection if it is received after the day of the primary e lection and if the committee has paid all of its financial obl igations after the general election.

A contribution given after the primary e lection period can be considered in connection with the primary election if, with the consent of the contributor, it is clearly marked on the financial statement as a contribution for the previous contribution period, provided that the funds are used to repay unpaid b i l ls, loans or debts i ncurred during that contribution period.

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FUND-RAISING EVENTS

"Fund-raising event" means an event such as a dinner, reception, testimonial, cocktail party, auction or similar affair through which contributions are solicited or received by such means as the purchase of a ticket, payment of an attendance fee or by the purchase of goods or services. (W. Va. Code § 3-8- l a( I S) (emphasis added).)

A committee may pay for food, drink and entertainment costs that are incurred in holding a fund­rais ing event. The committee must be careful determin ing the methodology of the fund-raising event and be certain that personal gifts are not given to attendees from committee funds. Fund­rais ing transactions are reported separately from other transactions. The total amount raised, after expenses, i s reported as the net receipt of funds for each event. (W. Va. Code § 3 -8-Sa)

EXPENDITURE OF FUNDS (i. e. SPENDING MONEY)

The committee has now raised money (via contributions, money transfers from previous campai gn accounts, loans, out of pocket expenses, etc.) and i s ready to spend the funds for electioneering purposes. No money may be spent from committee funds unless it is expressly permitted by W. Va. Code § 3-8-9 or WV Code of State Rules § 1 46-3-6. Such prohib itions are intended i s to ensure that the funds are spent on electioneering purposes only, without exception.

ALLOWABLE EXPENTURES UNDER W. Va. Code § 3-8-9

A candidate or pol itical committee may make expenditures only for the fol lowing purposes: • Office expenses, overhead costs for headquarters, and for costs related to postage • Candidates who do not have headquarters may purchase or rent fi l ing cabinets, other office

equipment and furnishings, computers, computer hardware and software, scanners, typewriters, calculators, audio v isual equipment

• Paid legitimate advert isements for the promotion of the candidate on the bal lot • Costs from publ ic meetings and pol itical conventions (e.g. food, drink, entertainment, etc.) • Necessary travel and hotel expenses • Costs incurred with pet itions for nomination of candidates • Lists of registered voters, i nvestigat ing an i nd iv idual ' s r ight to vote and conducting

proceedings to prevent unlawful registration or voting • Taking voters to the polls • Publishing information relevant to an e lection in newspapers, radio, and TV broadcasting • Conducting a publ ic opin ion pol l or polls • Legitimate advertising agency services • The purchase of memorials, flowers or c itations by pol itical party executive committees or

pol itical action committees representing a pol itical party • The purchase of nominal, noncash expressions of appreciation fol lowing the close of the

polls of an election or within thi rty days thereafter • Paying dues of any political party's national, state, local, or legislative caucus committee • To employ persons to perform functions enumerated in WV Code §3 -8-9, e ither on a ful l ­

time, part-time, or temporary basis

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POLITICAL ACTION COMMITTEE CONTRIBUTIONS

A pol itical action committee may not contribute to another pol itical action committee or receive contributions from another pol itical action committee: Provided, a pol itical action committee may receive contributions from its national affil iate, if any. (W. Va. Code § 3-8-9(b) .)

CONTRIBUTIONS FROM BUSINESS ENTITIES

A candidate or pol itical committee may not accept contributions from a corporation. However, a corporate Pol itical Action Committee (PAC) may make contributions to the candidate or political committee with in lawful financial l imits.

Sole proprietors, partners in a partnership, or members in a l imited l iab i l ity company, may make contributions from thei r business funds within lawful financial l im its if they are not incorporated. Contributions given from business funds are to be attributed on a pro rata basis to the ownership of the business and must be with the permission from al l contributors.

RECORD KEEPING AND THINGS TO REMEMBER

Records of all transactions are to be kept for six (6) months after date of the transaction. The information to be kept for reporting purposes are :

• The name of the person or business to which the expenditure was given; • The date of the transaction ; • The purpose of the transaction; and • Amount of the expenditure.

Things to Remember About Spending Money:

• Al l expenditures must be reported, including detailed accounts of a l l expenditures and d isbursements made, and l iabi l ities incurred.

• Money spent out-of-pocket on the e lection must be reported as an expenditure . If money is spent on behalf of a candidate, and is not reimbursed by the committee, it must be reported as an in-kind contribution, and is subject to contribution l imitations.

• Al l loans must be l isted i n the loan section on the campaign finance report. • An active candidate's committee (before the election date of the candidate) cannot give

donations to other candidate's committees, political action committees, or charitable organizations.

• An active committee (candidate, PAC or executive committee) cannot give a donation to a charitable organ ization, however can purchase tickets to events if it has a pol itical purpose.

• Al l expenditures must be made at a rate and an amount which is "proper and reasonable" to the services purchased citation.

• Expenditures are reported on the date the check i s written or the date the transfer of funds takes place.

• Contributions are reported on the date that the check, cash or other thing of value is received by the treasurer or agent of the pol itical committee.

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CAMPAIGN FINANCE REPORTING (W. Va. Code § 3-8-5)

Every candidate, pre-cand idate and e lected official i s required to file campaign finance reports until the committee is closed. Candidates running for or e lected to executive committee positions are not required to file campaign finance statements.

As provided on pages 23 and 24, beginning January 1, 201 8, all financial statements that are required to be filed with the Secretary of State, by or on behalf of a candidate for any elective office, shall be filed electronically by means of the internet program that has been established by the Secretary of State. (W. Va. Code § 3-8-Sb.)

There are two important t ime periods for campaign finance reports:

• The transaction period is the specific time period committees must track a l l contributions and expenditures for their campaign finance reports.

• Financial activity tracked during each transaction period must be recorded on the campai gn financial statement and submitted during the appropriate time period in which the report is due.

2018 Election Year Campaign Finance Reporting Schedule

REPORT TRANSACTION PERIOD REPORT DUE

Primary- March 25 , 20 1 7 - March 30, 20 1 8 March 3 1 , 20 1 8 - April 6, 20 1 8 First/ 20 1 8 Annual

Pre-Primary March 3 1 , 20 1 8 - April 22, 20 1 8 April 23, 20 1 8 - Apri l 27, 20 1 8

Post-Primary April 23 , 2 0 1 8 - May 20, 20 1 8 May 2 1 , 20 1 8 - June 1 8, 20 1 8

General-First May 2 1 , 20 1 8 - September 23 , 20 1 8 September 24, 20 1 8 - September 28, 20 1 8

Pre-General September 24, 20 1 8 - October 2 1 , October 22, 20 1 8 - October 26, 20 1 8 20 1 8

Post-General October 22, 2 0 1 8 - November 1 8, November 1 9, 2 0 1 8 - December 1 7, 20 1 8 2 0 1 8

20 1 9 November 1 9, 20 1 8 - March 29, March 30, 20 1 9 - Apri l 5 , 20 1 9 Annual* 20 1 9

*20 1 9 Annual for candidates i n past elections with open campaign accounts and pre-candidates for future elections:

TRANSACTION PERIOD REP ORT DUE

March 3 1 , 2 0 1 8 - March 29, 20 1 9 March 30, 20 1 9 - April 5 , 20 1 9

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CONSEQUENCES FOR EARLY AND LATE REPORTS

Any report that is fi led prior to the fi l ing period wi l l be returned to the committee and wi l l not be considered as received. The committee must then resubmit the report and it must be received by the deadl ine or it wi l l be considered late and could i ncur a fine.

In the case of mai l ing, the fi l ing date of a financial statement shal l be the date of the U .S . Postal Serv ice postmark. In the case of hand del ivery or del ivery by facs imi le or other electronic means of transmission, the date del ivered to the office of the Secretary of State or to the office of the clerk of the county commission.

If the postmarked date is prior to the opening of the fi l ing period, the report wil l be returned. I f a report arrives in the office after the close of the fi l ing period, but i s postmarked with in the fil ing period, it wi l l be considered t imely fi led.

For hand del ivery, the fi l ing date is the date of del ivery to the proper fi l ing officer during their regular business hours.

If your committee submits a late report, you may be subject to a fine i ssued by the Secretary of State of $25 per day. Furthermore, if a candidate nominated by primary election or appointed by the executive committee or executive committee chair fai l s to file thei r campaign finance report by the e ighty-fourth (84th) day before the general e lection, he or she wi l l be d isqual ified and wi l l not appear on the general election ballot . (W. Va. Code §3-8-7.)

If a committee fi les late or grossly inaccurate campaign finance reports, the committee will be contacted by a member of the Elections D iv ision with i nstructions for proper resolution . (W. Va. Code §3-8-7.)

Remember that fai l ing to fi le required campaign finance reports may result in cr iminal charges being fi led against the responsible person .

THE CAMPAIGN FINANCE REPORTING SYSTEM

The Campaign F inance Reporting System (CFRS) i s designed to al low candidates and committees to fi le their financial reports in an efficient and accessible online method.

Beginning January 1 , 2018, all financial statements that are required to be filed with the Secretary of State, by or on behalf of a candidate for any elective office, shall be filed electron ically in the CFRS.

Candidates and committees must request access to use the system by completing the CFRS Onl ine Authorization form and submit it to the Secretary of State' s Office. Once the Authorization form is received and processed, the candidate/committee wi l l rece ive electronic confirmation that access to the CFRS has been granted, along with in itial login credentials needed to access the CFRS. The CFRS wi l l prompt uses to enter certain information, and required information must be input before the CFRS wi l l al low users to continue onto the next screen.

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THE CAMPAIGN FINANCE REPORTING SYSTEM (cont.)

The CFRS system allows committees to keep a record of contributions and expenditures in one convenient location which can be reviewed and corrected before submitting the report. This system performs the calculations and informs the user of errors which need to be corrected. Reports cannot be submitted unless the reporting period is open, therefore, the CFRS is an efficient way to track your activities throughout the election cycle .

If a candidate or committee has difficulty accessing or us ing the CFRS, please contact the Elections Division at the Secretary of State ' s Office at 1 -304-55 8-6000 or 1 -866-SOS-VOTE and ask to speak with a campaign finance special i st.

THE WAIVER

A "waiver" may be fi led in place of the Annual, F irst Primary and/or the F irst General Report if the committee meets certain criteria. Any activity that is not reported by submitting a waiver must be shown in the next reporting period. (W. Va. Code § 3-8-5 .)

The Annual or First Primary Report may be waived if the total amount of al l financial activity equals less than $500 since the last report fi led.

The First General Report may be waived if the total amount of all financial activity equals less than $500 since the last report fi led and if there are no outstanding loans to report.

POLITICAL COMMUNICATIONS: INDEPENDENT EXPENDITURES, ELECTIONEERING, AND SOLICITING FUNDS

ELECTIONEERING COMMUNICATIONS "Electioneering communication" means any paid communication made by broadcast, cable or satel l ite signal, mass mail ing, telephone bank, bi l lboard advertisement or publ ished in any newspaper, magazine or other periodical that:

1 . Refers to a clearly identified candidate for Governor, Secretary of State, Attorney General, Treasurer, Auditor, Commissioner of Agriculture, Supreme Court of Appeals or the Legislature;

2. Is publ icly d isseminated within either ( 1 ) thirty (30) days before a primary e lection at which the nomination for office sought by the candidate i s to be determined; or (2) s ixty (60) days before a general or special election at wh ich the office sought by the candidate i s to be fi l led; and

3 . Is targeted to the relevant electorate.

Any electioneering communication must have a d isclaimer clearly stating the name of the person or organization authorizing the communication. If the communication is made for broadcast, cable or satel l ite transmission, it must be both spoken clearly and appear in a written format at the end of the communication.

(Continued on next page)

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POLITICAL COMMUNICATIONS: INDEPENDENT EXPENDITURES,

ELECTIONEERING, AND SOLICITING FUNDS (cont.)

SOLICITATION OF FUNDS OR SUPPORT FROM STATE. COUNTY OR MUNICIPAL EMPLOYEES Sol iciting funds from a state employee or an employee of a polit ical subdiv is ion of the state is not al lowable. However, if a mass solicitation is done, it should include a disclaimer such as "Please d isregard if you are a public employee" to prevent you from violating thi s provis ion. (WV Code of State Rules § 1 46-3 - 1 0 .7 .)

Written commun ications, asking for money or other support or votes, del ivered to the workplace of state, county or municipal employees are i llegal . The "please disregard" disclaimer does not legally excuse knowingly del i vering communications to a workplace or government email account. (W. Va. Code §3-8- 1 2(c).)

INDEPENDENT EXPENDITURES Any expenditure that is done by a person or organization without the consultation or coordination of a candidate or a candidate's committee is consi dered an independent expenditure. A disclaimer must be present on any communication paid for by an i ndependent expenditure, which clearly states that the communication is not authorized by the candidate or representative of the candidate and clearly ident ifies the person making the expenditure. If the communication i s made for broadcast, cable or sate l l ite transmission, it must be both spoken clearly and appear i n a written format at the end of the communication.

REPORTING REQUIREMENTS

In addition to reporting contributions received and expenditures made, all l iab i l it ies incurred by a committee must be reported. The fol lowing descriptions detai l those requirements.

LOANS A candidate, spouse of a candidate or a lending i nstitution may give a loan to the committee. When a loan is taken, the treasurer must i nclude a copy of the loan agreement for each loan with the next campaign finance report. The loan agreement must state the date, amount, i nterest amount (if any), a description of collateral and ful l names and addresses of all persons involved in the loan.

If a loan is to be forgiven, the loan should then be considered as a contribution from the candidate or spouse to the candidate's committee. To report the forgiving of a loan, report the remaining amount of the loan as a contribution to the committee from the candidate or spouse. I n the loans section of the finance report, show such loan as paid; th i s wi l l show the comm ittee no longer carries the l iab i l ity.

UNPAID BILLS All l iabi l ities incurred by a committee must be reported. This i ncludes all b i l ls or promises of payment that have been left unpaid at the end of the reporting period. L isting unpaid bi l ls wi l l prevent the committee from having a negative ending cash balance and show al l transactions that

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have taken place. The transaction date of an unpaid b i l l wi l l be the date that the vendor provides a b i l l for payment.

OTHER INCOME Receipts of income that are not considered contributions must also be reported. These i nclude refunds on b i l l s paid, i nterest on i nvestments, checking accounts or sav ing accounts, sale of equipment, or any income not reported as a contribution or an in-kind contribution.

ADVERTIS ING AGENCIES When lump sum payments are made to an advertis ing firm or campaign management firm that wi l l disburse the money on behalf of a committee, the advertising agency must also file a campaign finance report under the same expenditure guidel ines as your own committee. All d isbursements of funds must be disclosed and tracked to its final recipient and are subject to West Virginia campaign finance laws.

DETERMINING WHICH FORM TO USE

Beginning January 1 , 20 1 8 , the fi l ings for all statewide offices responsible for fi l ing with the Secretary ofState ' s Office must file via the Campaign F inance Reporting System (CFRS) provided by the Secretary of State. (See pages 23 and 24.) Each e lection cycle reporting period covers a certai n time span during the election cycle for which candidates and committees must report financial transactions. These reports are to be filed in succession of one another.

The onl ine CFRS wil l remind users which reports are due, whether reports include i nsufficient information, and when deadlines are coming up.

PAPER FORMS

If a committee appl ies for and is granted an exemption by the State Election Commiss ion from mandatory electronic fil ing in the case of hardship, such committee must fi l l out and submit either the Long Form or Short Form during each reporting period (unless a waiver appl ies). These forms require both the candidate or committee name and the Treasurer' s contact information. The candidate, agent, or Treasurer must also s ign the oath or affirmation at the end of the form.

The Long Form Campaign Financial Statement Includes all activities that are required by WV Code §3 -8-Sa. If a candidate' s committee answers YES to any of the fol lowing questions, he or she must file the Long Form:

• Has your committee rece ived any loans? • Has your committee held any fundraisers? • Has your committee received any m iscel laneous receipts, such as refunds or checking

account interest? • Does your committee have any unpaid b i l ls or loans? • Have you or anyone else given an in-kind contribution to your campaign? • Has your committee given or rece ived a transfer of excess campaign funds?

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36

Running for Office (2018)

PAPER FORMS (cont.)

Short Form Campaign F inancial Statement Designed to accommodate committees that do not have transactions beyond s imple contributions and expenditures. It does not cover any other reporting requirements, such as loans and in-kind contributions, which are required by W . Va. Code § 3-8-5a.

ADDITIONAL REPORT TYPES

Annual Report Due annually during off-election years. Candidates and committees open during a non-election cycle must report during the correct calendar year as indicated on the form.

Amended Report An amended report may be fi led to replace a previously submitted report to correct information. The CFRS wi l l automatically recalculate amount totals in a l l affected reports when an amendment is fi led, and the amended report will have on it the word, "AMENDMENT" or "AMENDED REPORT."

Final Report To close your account, you must file a final report. If the final report is submitted during a required reporting period, the reporting period must be indicated on the form. The committee's ending balance must be zero dollars ($0.00) if fi l ing a final report.

REPORTING CONTRIBUTIONS

REPORTING CONTRIBUTIONS $250 OR LESS For each contribution of $250 or less, the committee must include ( 1 ) the ful l name of the individual, association, or committee donating; (2) the amount of the contribution; and (3) the date the contribution was made.

REPORTING CONTRIBUTIONS OVER $250 Once contributions from an indiv idual, association or committee reach an accumulated total of more than two-hundred fifty dol lars ($250) during an election cycle, the committee must col lect and record additional information on the campaign finance report.

Additional ly, the fol lowing information is required from contributors of more than $250: • Full name; • Amount of contribution; • Date the contribution was made; and • Res idential and mail ing addresses

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3 7

Running for Office (2018)

REPORTING CONTRIBUTIONS (cont.)

For individual contributors, only the fol lowing information is requi red: • Occupation (e.g. teacher, nurse, attorney, doctor, homemaker, retired, unemployed); and • Employer (this is the contributor's primary employer; if self-employed it should be noted;

if a homemaker or retired, write "not appl icabl e") .

For pol itical committees only the fol lowing information i s required: • Pol itical affil iat ion of the committee (or if the donation comes from a business-affil iated

PAC, the business that the PAC is sponsored by) .

REPORTING A FUND-RAISING EVENT

If a committee hosts a fund-rais ing event, such as a d inner or reception for the purpose of raising money for the campaign, the Long Form Campaign F inancial Statement must be used to report committee finances.

Fund-Raising Event: All contributions received at a fund-raising event must only be reported on the fund-raising events page of the campaign financial statement. Committees must report contributor information under the same requirements for reporting contributions as outl ined above.

Total Monetary Contributions : Total of money received (cash or check) in connection with thi s particular fund-raising event.

Total Expenditures : All committee funds spent in relation to the fund-rais ing event. These expenditures are to be l i sted on the itemized expenditures page of the campaign financial statement.

Net Receipts: The total amount of funds accumulated in relation to the fund-rais ing event m inus al l committee expenses.

In-Kind Contribution: A donation of goods or services used toward the fund-rais ing event that can be assigned a monetary value. In-kind contributions must be itemized in the in-kind contributions section of the campaign financial statement.

Fund-Raising Events by Legislative Candidates During Session : A candidate for legislative office, including those currently in office, as wel l as those seeking office, who hold a fund-raising event during any Session of the Legislature, must report to the Secretary of State on specific forms, the existence of the event and certain financial d isclosures with in five (5) days of the event. This is in addition to al l other appl icable reporting requirements.

REPORTING OTHER INCOME AND IN-KIND CONTRIBUTIONS

If the committee receives "other income" or an i n-kind contribution, the Long Form Campaign Financial Statement must be used to report the committee finances.

(Continued on next page)

38

Running for Office (2018)

REPORTING OTHER INCOME AND IN-KIND CONTRIBUTIONS (cont.)

Other Income: Income that does not fit the definition of a contribution, such as interest on a bank account, refunds, or the sale of equipment. Information required for the other income category includes the date of the receipt, source of the i ncome, the type of receipt (brief description), and the amount of the transaction.

In-Kind Contributions: a donation of goods or services used toward the campaign. The amount of an in-kind contribution should be reported at the fai r market value of the goods received or services rendered. The committee should include the ful l name of the contributor, date of the transaction, description of the contribution, and the value. If the value of the contribution is over $250, additional contributor information i s required: address; occupation and employer if it is an individual; and affi l iation if i t is a PAC.

REPORTING LOANS

If a loan is taken for a candidate's committee, the information required on the loans page of the Long Form Campaign F inancial Statement must be completed, and a copy of the loan agreement must be included with the same financial statement.

The fol lowing i nformation must be reported on outstanding loans : • The name and address of the bank, candidate, or candidate' s spouse making the loan • The balance of the loan carried from the previous report • The amount of all new loans received during this period • Repayments made during the reporting period • The outstanding balance at the end of the reporting period for each loan l i sted

AFTER THE ELECTION (WV Code of State Rules § 146-3-7)

Amounts of funds received by a candidate as contributions that are in excess of the amount of expenditures for the election are considered "Excess Campaign Funds". No person may receive or uti l ize excess campaign funds for personal economic gain.

ALLOWABLE USES OF EXCESS CAMPAIGN FUNDS The only al lowable expenditures of excess campaign funds are outl ined below (if it's not on the l ist, then it's not allowed) :

• Transfer of funds from a candidate ' s committee to the same candidate's committee for a subsequent election year.

o The candidate must form a new committee by fi l ing a Pre-Candidacy Statement for the subsequent election year prior to making the transfer of funds. There i s no l imitation of the amount of funds that may be transferred .

• Contribution to another candidate ' s committee, political action committee, or a local executive committee.

o The l imit on these contributions is $ 1 ,000 per cyc le.

(Continued on next page)

39

Running for Office (2018)

AFTER THE ELECTION (cont.)

• Contribution to any state political party executive committee or a legis lat ive caucus committee.

o The l imit on thi s contribution i s $ 1 5 ,000 in a calendar year. • Return of contributions on a pro-rata bas is to each donor. • Transfer to any national committee of any political party.

o The l imit on these contributions is in accordance with federal requi rements. • Offsett ing any usual and customary expense incurred in connection with the duties as a

holder of publ ic office. • Any items purchased wi l l become the property of the State, or the d istrict, county, or

municipal ity of the office that is held. • Making a charitable contribution.

o There i s no monetary l imitation for charitable contributions.

HOW TO CLOSE A COMMITTEE

When a committee no longer has outstanding debts or l i ab i l ities and has a zero balance in thei r campaign account, the committee may close. To close a committee, one must file a Final Report itemiz ing all transactions made since the last report was fi led. The report must reflect the zero ($0.00) balance. F i l ing a proper F inal Report ends all reporting requi rements for that particular committee.

Jan. 8 - 27

Jan. 1 8 - Feb. 6

Feb. 13

Feb. 13

Feb. 20

Feb. 27

2018 PRIMARY ELECTION DATES

Candidate fil ing period. Certificates of Announcement & fi l ing fees must be received in appropriate office or postmarked by U . S . Postal Service before m idnight, January 27

Candidates fi le personal financial d isclosure with Ethics Commission with in 1 0 days after fi l ing certificate of announcement

Deadl ine for candidates to withdraw. F i l ing officer must receive written notice signed by candidate and notarized by close of business or name may not be removed from bal lot

Secretary of State certifies and posts l i st of candidates fi led with the Secretary of State's Office and begins to prepare a certification for each county

Uniform drawing date for bal lot position begins at 9 a.m. in all counties for all offices

Secretary of State ' s certification of candidates must be received at county clerk ' s Office by thi s date

40

Mar. 20

Mar. 31 - Apr. 6

Apr. 1 0

Apr. 1 7

Apr. 23 - Apr. 2 7

Apr. 25 - May 5

May S

May 14

May 2 1 - June 18

Running for Office (2018)

Write-in candidate fil ing deadl ine for the election of Board of Education, Soil Conservation District Supervisor and Executive Committees

First Primary campaign finance report due

Last day for candidate or political committee to file statement of organization and designation of treasurer or financial agent for Primary Election.

Voter Registration deadl ine for Primary Election

Pre-Primary campaign finance report due

Early Voting in person

PRIMARY ELECTION DAY (§3-5-1)

Primary election canvass begins. If no candidate requests recount, canvass board certifies election results 48 hours after the last county publicly declares results

• Election contest must be filed within 1 0 days after certification of election

Post-Primary campaign finance report due

2018 GENERAL ELECTION DATES

July 1

July 7

Aug. 1

Aug. 22 - 27

Aug. 28

Sept. 18

Sept. 24 - 28

Board of Education and Conservation D istrict Supervisors terms begin

Secretary of State and Clerk of County Commission give notice to Prosecuting Attorney for the candidates, agents or treasurers who fai led to file required financial reports

Deadline to file Nomination Certificates/Petitions, Certificates of Announcement and Pay Fee for no political party organizations

Secretary of State certifies names of candidates for the ballot

Drawing for order of candidate names on the ballot

Write-in candidate fi l ing deadline for General Election

First General campaign finance report due

(Continued on next page)

4 1

Oct. 9

Oct. 16

Oct. 22 - 26

Oct. 24 - Nov. 3

Nov. 6

Nov. 12

Nov. 1 9 - Dec. 17

Jan. 7

Mar. 30 - April 5

Running for Office (2018)

Last day for candidate or pol itical committee to file statement of organization and designation of treasurer or financial agent

Voter registration dead l ine for General Election

Pre-General campaign finance report due

Early Voting in person

GENERAL ELECTION DAY (WV Const. §4-7)

General election canvass begins • If no candidate requests recount, canvass board certifies election

results 48 hours after the last county publ icly declares results • Election contest must be fi led with in 1 0 days after cert ification of

election

Post-General campaign finance report due

20 1 9 IMPORTANT DATES

Secretary of State and Clerk of County Commission give notice to Prosecuting Attorney for the candidates, agents or treasurers who fai led to file required financial reports

20 1 9 Annual campaign finance report due

42

Running for Office (2018)

ADDITIONAL RESOURCES

Federal Election Commission 999 E Street, NW Washington, DC 20463 (800) 424-9530 www.fec.gov or [email protected]

U.S. Election Assistance Commission 1 335 East West Highway, Suite 4300 Silver Spring MD 209 1 0 (866) 747- 1 4 7 1 www.eac.gov

Election Division WV Secretary of State, Bui lding I , Suite 1 57-K 1 900 Kanawha Blvd. , East Charleston, WV 25305 (304) 558-6000 www.wvsos.com or [email protected]

State Election Commission c/o WV Secretary of State Building I , Suite 1 57-K 1 900 Kanawha B lvd., East Charleston, WV 25305 www.wvsos.com or [email protected]

WV Ethics Commission 2 1 0 Books Street, Suite 300 Charleston, WV 2530 I (304) 5 58-0664 www.ethics.wv.gov

State Democratic Executive Committee 7 1 7 Lee Street, Suite 2 1 4 Charleston, WV 253 0 1 (304) 342-8 1 2 1 www. wvdemocrats.com

State Republican Executive Committee PO Box 27 1 1 Charleston, WV 25330 (304) 768-0493 www.wvgop.org

State Mountain Party Executive Committee RR I , Box 1 08 Ripley, WV 2527 1 (304) 989- 1 629 www.mtparty.org

State Libertarian Party Executive Committee PO Box 1 3 5 Jane Lew, W V 26378 (855) 687-5798 www.lpv.'V.org

43

Information on federal campaign laws, financial reporting requirements, and forms for federal candidates.

Serves as a national clearinghouse for information and reviews procedures for federal elections.

Information on state election laws and regulations, candidate fi l ing, campaign finance reporting requirements, forms, official election returns for statewide offices, legislative offices and voter registration information.

Voter information and voting system approval, fi l l ing vacancy on general election ballot when candidate with draws for extenuating circumstances, campaign finance i ssues.

Forms and information on fi l ing personal financial disclosures, questions regarding conflicts of interest between outside employment and public office.

Information on Democratic Party polit ical activities, functions of executive committees, delegates and party rules.

Information on Republican Party political activities, functions of executive committees, delegates and party rules.

Information on Mountain Party political activities, functions of executive committees and party rules.

Information on Libertarian Party pol itical activities, functions of executive committees and party rules.

IN THE S UPREME COURT OF A PPEALS OF WEST VIRGINIA

No. 1 8-0712

STATE OF WEST VIRGINIA, ex rel. DONALD L. BLANKENSHIP,

CANDIDATE FOR U.S. SENATE IN WEST VIRGINIA, and

CONSTITUTION PARTY OF WEST VIRGINIA,

Petitioners, v.

MAC WARNER, IN HIS OFFICIAL CAP A CITY AS

WEST VIRGINIA SECRETARY OF STATE

Respondent.

CERTIFICATE OF S ERVIC E

I, Richard R. Heath, Jr., do hereby certify that on the 22nd day of August 201 8, I have

caused a copy of the forgoing Response to Petition for Writ of Mandamus on Behalf of Movant-

Intervenor The West Virginia Republican Party, Inc. , to be served upon the following individuals

via hand delivery or U.S. Mail:

The Honorable Mac Warner Secretary of State

State Capitol, Building 1, Suite 157-K 1 900 Kanawha Boulevard East

Charleston, West Virginia 25305

Marc E. Williams Nelson Mullins Riley & Scarborough LLP

949 Third Avenue, Suite 200 Huntington, West Virginia 25701

1 0379330.1

1

Patrick Morrisey Attorney General

State Capitol, Room 26-E 1900 Kanawha Boulevard East

Charleston, West Virginia 25305

Robert M. Bastress, Jr. Post Office Box 1 295

Morgantown,r West Virginia 26507

. (WVSB #9067)