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...
