CHARLESTON - A bill introduced in the state Senate on Tuesday would clarify that the West Virginia secretary of state has the authority to determine whether candidates seeking elected office meet the legal and constitutional requirements to serve.
State Sen. Clark Barnes, R-Randolph, said the secretary of state should not allow candidates on the ballot if they don't meet the requirements to serve in office. He said the cost to challenge such a candidate in court should not be borne by taxpayers.
The bill is spurred by former state senator Frank Deem's efforts to run for his old Wood County seat in the May Republican primary. The 3rd senatorial district is already served by a Wood County senator, David Nohe. Incumbent Republican Donna Boley lives in Pleasants County.
The West Virginia Constitution provides that where a senatorial district is composed of more than one county, both senators from such district shall not be chosen from the same county.
The secretary of state's office recently certified Deem as a candidate for the state Senate.
Jake Glance, spokesman for Secretary of State Natalie Tennant's office, said certification of the candidacy is not a determination of Deem's ability to take office. The secretary of state does not rule on legal or constitutional challenges, but certifies who has filed in time, filed completely and paid the filing fee, he said.
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State Sen. Clark Barnes, R-Randoph, introduced Senate Bill 533 in the West Virginia Legislature on Tuesday.
The bill would give the West Virginia Secretary of State's office authority to prohibit a candidate from filing for office when doing so would violate the state Constitution's residency requirements.
In Wood County, former state senator Frank Deem has filed to run against state Sen. Donna Boley, R-Pleasants, in the May Republican primary, despite state code prohibiting two senators from the same county serving in the same senatorial district.
State Sen. David Nohe serves as Wood County's representative in the 3rd Senatorial District, having defeated Deem in 2010.
Barnes's bill would add new language to the current legislation stating: "The secretary of state may prohibit a person from filing a certificate of candidacy for election to the Senate if filing would violate this subsection," referring to the residency dispersal provisions in the state Constitution.
"Also, the secretary of state may refuse to certify a person for the ballot or subsequently remove that person from the ballot if that person's certificate of candidacy for election to the Senate violates this subsection."
Following its introduction Tuesday, the bill, Senate Bill 533, was referred to the Committee of the Judiciary.
Glance said Tuesday the Office of the Secretary of State, in current and previous administrations, has been cautious not to grasp authority not specifically provided for by the Legislature or by the Constitution.
"The Legislature knows how to grant the secretary of state specific authority to remove a candidate from a ballot or refuse to certify a candidate. In all of Chapter 3 our entire state election code the Legislature has chosen to give the secretary of state specific authority to refuse to certify a candidate in only one circumstance," Glance said.
Glance said since the Legislature knows how to specify in what circumstances the secretary of state may refuse to certify a candidate, the fact that the Legislature has failed to identify any other circumstances means that it did not intend for the secretary of state to have the authority in any other circumstances.
"If the Legislature now wishes to identify other circumstances when the secretary of state may refuse to certify a candidate, the secretary of state will use that authority," he said.
On Tuesday, Boley said a situation similar to the one in Wood County happened in 2010 in Randolph County and the secretary of state's office took no action, setting a precedent which has led to the current issue. She feels the secretary of state already has the power to look at the state code and take action involving violations of that code.
Boley said the Barnes bill, if approved, will not go into effect before the May primary but it might help other state senators facing the same issue in the future and give the secretary of state's office more authority and responsibility to address it.
Deem has said he is prepared to challenge the code and has retained an attorney to fight any disqualification of his candidacy. He maintains the provision of the code dates back to 1861 and would not hold up in federal court since the 1984 U.S. Supreme Court ruling on one man, one vote.
