West Virginia Libertarian Party v. Manchin

• Decision Date: 16 September 1980
• Docket Number: No. 14863,14863
• Citation: 270 S.E.2d 634,165 W.Va. 206
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA LIBERTARIAN PARTY, 1980 West Virginia Socialist Workers Campaign Committee, Tom Moriarty, and John B. Anderson as Intervenor, Petitioners, v. A. James MANCHIN, Secretary of State, Respondent.

Page 634

270 S.E.2d 634

165 W.Va. 206

WEST VIRGINIA LIBERTARIAN PARTY, 1980 West Virginia Socialist Workers Campaign Committee, Tom Moriarty, and John B. Anderson as Intervenor, Petitioners, v. A. James MANCHIN, Secretary of State, Respondent.

No. 14863.

Supreme Court of Appeals of West Virginia.

Sept. 16, 1980.

Syllabus by the Court

1. The failure to provide a reasonable alternative to filing fees for impecunious candidates to obtain access to the ballot renders the filing fee requirement of W.Va.Code, 3-5-8, unconstitutional as to such candidates.

2. W.Va.Code, 3-5-23 violates the Equal Protection Clause of both the United States and the West Virginia Constitutions to the extent that it fails to extend to the independent candidate the same right to ballot access as that of the political party candidate.

3. The magisterial district restriction found in W.Va.Code, 3-5-23(b) and (c), cannot be justified by a compelling state interest under the Equal Protection Clauses of the State and Federal Constitutions.

4. The credentials requirement set out in W.Va.Code, 3-5-23, places no unconstitutional burden on independent or third-party candidates.

5. In light of the length of time that a third-party or independent candidate has to procure the signature petitions, the filing date set in W.Va.Code, 3-5-24, does not constitute an unreasonable burden, and therefore it does not violate the Equal Protection Clause of our State or Federal Constitutions.

6. W.Va.Code, 3-5-23(c), which prohibits voters who sign third-party or independent candidate petitions from voting in their regular-party primary, does not set an unconstitutional burden under the Equal Protection Clauses of the West Virginia and United States Constitutions.

Robert M. Bastress and Charles R. DiSalvo, Morgantown, for petitioners.

Ricklin Brown, Bowles, McDavid, Graff & Love, Charleston, William R. Robertson, Elizabeth J. Keefer and Mitchell Rogovin, Washington, D. C., for intervenor Anderson.

Robert S. Baker, Fayetteville, for amicus curiae.

Chauncey H. Browning, Atty. Gen., Larry R. Frail, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

The petitioners in this original mandamus proceeding-the West Virginia Libertarian Party; the 1980 West Virginia Socialist Workers Campaign Committee; Tom Moriarty, the Socialist Workers' gubernatorial candidate; and John B. Anderson-challenge the constitutionality of various provisions of the West Virginia Code which govern their access to the ballot for the 1980 general election.

The petitions were filed with this Court on April 30, 1980. On May 6, we granted a rule to show cause, making the return date for full argument May 20. Shortly before the date of full argument, petitioner John B. Anderson was permitted to intervene. ¹

Because the primary election of June 3, 1980, was imminent and third-party signature petitions had to be filed by June 2, we issued an order on May 22 in part granting and in part denying the requested relief, with an opinion to follow. This was in accordance with our prior practice where time considerations preclude the preparation of a full opinion. See State ex rel. Bromelow v. Daniel, W.Va., 258 S.E.2d 119 n. 1 (1979); State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966); State ex rel. Cline v. Hatfield, 145 W.Va. 611, 116 S.E.2d 703 (1960); State ex rel. Duke v. O'Brien, 145 W.Va. 600, 117 S.E.2d 353 (1960).

The challenges to our State election statutes are constitutional in nature. First, W.Va.Code, 3-5-8(a), relating to filing fees, is claimed to be a violation of the Equal Protection Clauses of our State and Federal Constitutions because it denies ballot access to candidates unable to pay the filing fee. Second, W.Va.Code, 3-5-23, is attacked because it purportedly denies the fundamental right of access to the ballot by an independent candidate not aligned with a political party. A third challenge is made to the same statute on the basis of its requirement that persons circulating nominating petitions must reside in the same magisterial district as persons who sign the petitions.

The fourth challenge is also directed against W.Va.Code, 3-5-23, and centers on its requirement that persons soliciting signatures on a nominating petition must first obtain a credentials certificate. Another complaint is lodged against the provision of this statute which disqualifies those persons signing a nominating petition from voting in the primary election. This complaint is coupled with the final claim relating to W.Va.Code, 3-5-24, which sets the filing deadline for nominating petitions as the day before the primary election. Petitioners contend that these provisions, either separately or in their combined effect, constitute an undue burden on ballot access.

This Court has not had recent occasion to consider the West Virginia statutes relating to third-party candidates. In Cunningham v. Cokely, 79 W.Va. 60, 90 S.E. 546 (1916), we dealt with a forerunner to W.Va.Code, 3-5-23, and found its requirement not to be an undue restriction on ballot access for a minor political party. There, the Prohibition Party had sought ballot access by way of a State nominating convention. Our then-existing statute did not permit this procedure for a minor political party which had not obtained 5% of the total vote for Congressman at the last general election. The Prohibition Party had not obtained this vote in the preceding general election. The statute, however, enabled third-party candidates to obtain ballot access through signature During the past ten years, the United States Supreme Court has entered the field of ballot access in a rather dramatic fashion, and it is its decisions, predicated on constitutional provisions made binding on the states, that we must apply. ²

petitions representing 5% of the voters participating in the last election for the office sought, and we found this to be sufficient.

I FILING FEES

The petitioner West Virginia Libertarian Party (WVLP) is attempting to sponsor Edward Clark for President, David Koch for Vice President, and Jack Kelly for Governor in the 1980 general election. The West Virginia Socialist Workers Campaign Committee (WVSWCC) is attempting to sponsor Andrew Pulley, Matilda Zimmerman and Tom Moriarty as its candidates for President, Vice President and Governor, respectively. All of these candidates assert they are unable to pay the filing fee for their respective office.

W.Va.Code, 3-5-8(a), mandates a filing fee for the offices of President, Vice President and Governor "equivalent to one percent of the annual salary of the office." ³ W.Va.Code, 3-5-23(a), regulating the petition procedure for the nomination of candidates by third parties, requires the candidate in advance of obtaining the petition signatures to file a declaration of his candidacy and "pay the filing fee required by law." ⁴ Thus, ballot access for all candidates is predicated on the payment of the filing fees under W.Va.Code, 3-5-8.

The United States Supreme Court in Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) and Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), recognized that the requirement of a filing fee for placement on the ballot fulfills a legitimate state interest-that of deterring frivolous candidacies. Underlying this interest is the desire to limit the size of the ballot in order to avoid voter confusion and to further avoid the increased possibility of runoff elections.

Lubin and Bullock also acknowledged a countervailing interest that open access to the ballot plays a vital role in giving an opportunity to candidates and voters to espouse various political and social viewpoints-an essential part of the right of free expression guaranteed by the First Amendment. See Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

In an attempt to reconcile these competing interests, Bullock and Lubin determined that a state could not condition ballot access solely upon the payment of a filing fee. In Bullock, the Court invalidated filing fees as high as $9,000, which were later termed in Lubin as "patently exclusionary." (415 U.S. at 715 n. 4, 94 S.Ct. at 1319, 39 L.Ed.2d at 708). Bullock involved a Texas statute that provided no reasonable alternative means of testing the strength of public support for a candidate. In Lubin, the Court struck down a California statute which required the payment of a much more modest sum-approximately $700-but nevertheless an amount the candidate could not pay. Significantly, the California statute also provided no alternative procedure for satisfying the legitimate state interest of gauging the depth of the candidate's public support. Lubin made clear that a petition requirement was such an alternative:

"States may, for example, impose on minor political parties the precondition of demonstrating the existence of some reasonable quantum of voter support by requiring such parties to file petitions for a place on the ballot signed by a percentage of those who voted in a prior election. See American Party of Texas v.White, 415 U.S., p. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744. Similarly, a candidate who establishes that he cannot pay the filing fee required for a place on the primary ballot may be required to demonstrate the 'seriousness' of his candidacy by persuading a substantial number of voters to sign a petition in his behalf. The point, of course, is that ballot access must be genuinely open to all, subject to reasonable requirements. Jenness v. Fortson, 403 U.S. 431, 439, 91 S.Ct. 1970, 1974-75, 29 L.Ed.2d 554 (1971)." (415 U.S. at 718-19, 94 S.Ct. at 1321, 39 L.Ed.2d at 710).

We addressed a related issue in State ex rel. Piccirillo v. City of Follansbee, W.Va., 233 S.E.2d 419 (1977), and determined that the right to file for public office is a fundamental right under our Equal Protection Clause, Article III, Section 17 of the West Virginia Constitution,...