Warner, 070717 WVAGO, AGO 070717

Docket Nº:AGO 070717
Case Date:July 07, 2017
Court:West Virginia
The Honorable Mac Warner
AGO 070717
No. 070717
West Virginia Attorney General Opinions
State of West Virginia Office of the Attorney General
July 7, 2017
         The Honorable Mac Warner          Patrick Morrisey Attorney General          Secretary of State          West Virginia Capitol Complex          Bldg. 1, Suite 157K          Charleston, WV 25305          Dear Secretary Warner:          You have asked for the Opinion of the Attorney General regarding the filing deadline for unaffiliated or minor party candidates who wish to appear on the general election ballot. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General shall “give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . the secretary of state . . . .” To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.          In your letter, you ask about your obligations in enforcing the filing requirements in West Virginia Code § 3-5-7 against unaffiliated or minor party candidates. That statutory provision requires candidates for elected office to file a certificate with the Secretary of State announcing their candidacy (“certificate of announcement”) no later than the last Saturday in January before the date of a primary election. The plain language does not set forth whether this requirement applies to all candidates or only major party candidates. But you further note that two subsequent code provisions provide that “groups of citizens having no party organization may nominate candidates who are not already candidates in the primary election” by filing a certificate of nomination “no[] later than August 1 preceding the November general election.” W.Va. Code §§ 3-5-23, 24.          Two recent court decisions—one from the Supreme Court of Appeals and another from the United States District Court for the Southern District of West Virginia (the “Southern District”)—have weighed in on your obligations under Section 3-5-7. In Wells v. State ex rel. Miller, 237 W.Va. 731, 791 S.E.2d 361 (2016), the Supreme Court of Appeals held that the certificate of announcement requirement (and its January deadline) applies to all candidates, including minor party and unaffiliated candidates. But approximately one month after Wells was decided, the Southern District determined that the January deadline was unconstitutional as applied to minor party and unaffiliated candidates under the First and Fourteenth Amendments to the United States Constitution, and it permanently enjoined your predecessor, in her official capacity as the Secretary of State, from enforcing the certificate of announcement requirement in those contexts. Daly v. Tennant, 216 F.Supp. 3d 699, 707 (S.D. W.Va. 2016).          Your letter raises the following legal question:
Whether Daly v. Tennant overrules Wells v. State ex rel. Miller with respect to filing deadlines for unaffiliated or minor party candidates.
         For the reasons set forth below, we answer your specific question in the negative: the Southern District in Daly did not “overrule” the Supreme Court of Appeals in Wells, but rather answered a federal constitutional question not answered in Wells. As we further explain, however, the practical import of Daly is a narrowing of the broad holding in Wells that all candidates must file a certificate of announcement by the January deadline. We believe the permanent injunction issued by the federal court in Daly would be enforced against the Secretary in both federal and state court, and it therefore precludes him or her from enforcing the January certificate of announcement requirement and deadline against any minor-party or...

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