On Thursday, September 15, the West Virginia Supreme Court issued an opinion in Wells v State, 16-0779. It construed the West Virginia election law to require all candidates who petition for the November ballot to have filed a declaration of candidacy on the last Saturday in January. On September 16, the Secretary of State phoned various candidates who had petitioned to be on the November ballot and told them that they will be removed from the ballot (even though they had already been certified to be on the ballot) as a result of the decision.

The only presidential candidate who petitioned in West Virginia this year is Darrell Castle, Constitution Party nominee. There is no effect on the presidential nominees of the Democratic, Green, Libertarian or Republican Parties, because they are qualified and did not need a petition this year.

Since 1991, the West Virginia election law has said in section 3-5-7, “Any person who is eligible and seeks to hold an office or political party position to be filled by election in any primary or general election shall file a certificate of announcement declaring his or her candidacy for the nomination of election to the office…The certificate of announcement shall be filed with the proper officer not later than the last Saturday in January.” The West Virginia primary is in May.

In 1996, the West Virginia Supreme Court ruled this section only applies to candidates running in a primary. That case was State ex rel Browne v Hechler, 476 S.E.2d 559. It allowed Harry Browne, the Libertarian presidential nominee that year, to get on the ballot even though he had not filed any declaration of candidacy until August 1, the day his petition was due. The current opinion says that the Browne case doesn’t control the outcome because another statute was amended in 2015. Page ten of the opinion says, “West Virginia Code 3-5-7 has undergone a critical amendment since that time.” Page eleven says, “However, the 2015 amendments to the statute eliminated this provision entirely.” The preceding sentence is, “This provision of West Virginia Code 3-5-7, as it existed at the time of Browne, seemingly confining applicability to candidates participating in a primary election survived each of the Legislature’s various amendments enacted in 1998, 2005, 2007, and 2009.”

A January filing deadline for independent or minor party presidential candidates is clearly unconstitutional. West Virginia is in the Fourth Circuit. In 1980 it struck down Maryland’s March 3 deadline for independent presidential candidates, in Anderson v Morris, 636 F 2d 55. It said, “We cannot conclude that Maryland’s early filing date furthers the asserted state interest in any respect…Failing to achieve a legitimating purpose, Maryland’s early filing date for presidential candidates for nomination by petition is invalid.” Also, of course, the U.S. Supreme Court said the same thing for the entire nation in Anderson v Celebrezze, 460 U.S. 780 (1983), striking down a March 20 deadline from Ohio.

The West Virginia recent opinion has no discussion whatsoever of the constitutional precedents striking down early deadlines for independent candidates. The court seems oblivious that 55 court opinions around the nation have struck down such early deadlines.