No. 16-0779 –        Erik Patrick Wells v. State of West Virginia ex rel. Charles T. Miller

                                                                         FILED
                                                                   September 22, 2016
                                                                          released at 3:00 p.m.
                                                                        RORY L. PERRY, II CLERK

                                                                      SUPREME COURT OF APPEALS

Davis, Justice, dissenting:                                                OF WEST VIRGINIA




              The case sub judice is not a difficult case to decide. This State’s statutes, as

well as this Court’s prior cases interpreting those statutes, clearly address the issues raised

in these proceedings and lead to the inevitable conclusion that Mr. Wells has satisfied the

requirements to run as an independent candidate for the office of Clerk of Kanawha County

in the November 2016 General Election. Be that as it may, my colleagues nevertheless have

convoluted the issues in this case by doggedly deciding that Mr. Wells is not a proper

candidate for office despite his satisfaction of all of the statutory requirements that entitle

him to have his name placed on the 2016 General Election ballot. In reaching this

conclusion, the majority has determined to ignore the express statutory language and our

established precedent, instead inserting into these authorities invisible requirements that

neither were intended nor adopted by the Legislature in promulgating this State’s election

laws. Because the majority’s opinion is wholly unsupported by the applicable law and

completely fails to follow the express statutory language governing these proceedings, I

emphatically dissent.




                                              1

                          Mr. Wells is an Independent Candidate

              The crux of this case involves Mr. Wells’ decision to run for office as an

independent, or unaffiliated, candidate. Such nomenclature should not be confused with the

Independent Party, which is a viable third party in many states. In West Virginia, however,

it is not, because the Independent Party has not satisfied the statutory requirements requisite

to its recognition as a “political party.” See W. Va. Code § 3-1-8 (1965) (Repl. Vol. 2013).

Thus, the majority’s supposition that allowing Mr. Wells, who has conceded that he is a

registered member of the Democrat Party, to run as an independent would confuse the voters

is unfounded and without merit. All that Mr. Wells has professed to do is to run as an

independent candidate who is not affiliated with any party. He is not seeking to run as a

candidate representing the Democrat Party, or any other party, under the cloak of

independence. Rather, Mr. Wells seeks to run for public office as an individual, who may

or may not have a party affiliation, without representing any political party as its candidate.



              Unquestionably, Mr. Wells is entitled to run as an independent candidate

because of his constitutional right to freedom of association. While the majority attempts to

sweep this inherent freedom under the rug, simply minimizing its existence does not obviate

the importance of this fundamental constitutional right. The United States Supreme Court

has explained the protections afforded by the freedom of association as follows:

              “It is beyond debate that freedom to engage in association for
              the advancement of beliefs and ideas is an inseparable aspect of

                                              2

             the ‘liberty’ assured by the Due Process Clause of the
             Fourteenth Amendment, which embraces freedom of speech.”
             NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78
S. Ct. 1163, 1171, 2 L. Ed. 2d 1488 (1958); see NAACP v.
             Button, 371 U.S. 415, 430, 83 S. Ct. 328, 336, 9 L. Ed. 2d 405
             (1963); Bates v. Little Rock, 361 U.S. 516, 522-523, 80 S. Ct.
412, 416-417, 4 L. Ed. 2d 480 (1960). The freedom of
             association protected by the First and Fourteenth Amendments
             includes partisan political organization. Elrod v. Burns, 427
U.S. 347, 357, 96 S. Ct. 2673, 2681, 49 L. Ed. 2d 547 (1976)
             (plurality opinion)[.] “The right to associate with the political
             party of one’s choice is an integral part of this basic
             constitutional freedom.” Kusper v. Pontikes, 414 U.S. 51, 57,
             94 S. Ct. 303, 307, 38 L. Ed. 2d 260 (1973).

Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S. Ct. 544, 548, 93
L. Ed. 2d 514 (1986) (additional citation omitted). Likewise, the Court has observed that

                     [b]arring political parties from endorsing and opposing
             candidates not only burdens their freedom of speech but also
             infringes upon their freedom of association. It is well settled
             that partisan political organizations enjoy freedom of association
             protected by the First and Fourteenth Amendments. Tashjian,
             supra, 479 U.S. at 214, 107 S. Ct. at 548; see also Elrod v.
             Burns, 427 U.S. 347, 357, 96 S. Ct. 2673, 2681, 49 L. Ed. 2d
547 (1976) (plurality opinion). Freedom of association means
             not only that an individual voter has the right to associate with
             the political party of her choice, Tashjian, supra, 479 U.S., at
             214, 107 S. Ct., at 548 (quoting Kusper[ v. Pontikes], supra, 414
             U.S. [51], at 57, 94 S. Ct. [303], at 307[, 38 L. Ed. 2d 260
             (1973)]), but also that a political party has a right to “‘identify
             the people who constitute the association,’” Tashjian, supra, 479
             U.S., at 214, 107 S. Ct., at 548 (quoting Democratic Party of
             United States v. Wisconsin ex rel. La Follette, 450 U.S. 107,
             122, 101 S. Ct. 1010, 1019, 67 L. Ed. 2d 82 (1981)); cf. NAACP
             v. Alabama ex rel. Patterson, 357 U.S. 449, 460-462, 78 S. Ct.
1163, 1172, 2 L. Ed. 2d 1488 (1958), and to select a “standard
             bearer who best represents the party’s ideologies and
             preferences.” Ripon Society, Inc. v. National Republican Party,

                                             3

              173 U.S. App. D.C. 350, 384, 525 F.2d 567, 601 (1975) (Tamm,
              J., concurring in result), cert. denied, 424 U.S. 933, 96 S. Ct.
1147, 47 L. Ed. 2d 341 (1976).

                     Depriving a political party of the power to endorse
              suffocates this right.

Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 224, 109 S. Ct. 1013,

1020-21, 103 L. Ed. 2d 271 (1989).



              In addressing the freedom of association, it is apparent that the United States

Supreme Court has recognized that the right to associate cuts both ways–individuals have the

right to associate with political organizations of their choosing and political organizations

have the right to identify candidates who best reflect their beliefs. Thus, Mr. Wells has a

right to associate with the group of citizens who nominated him to run for the office of

Kanawha County Clerk and the group of citizens who signed the nominating petitions

endorsing his candidacy have a right to select the candidate who they want to represent them.

In rendering its ruling in this case, though, the majority unabashedly has decided that a

candidate for political office may associate with but one group–the political party of which

he is a registered member–and that the citizens who support him as a candidate representing

their ideology have no right to associate with him because he is already “spoken for.” I can

find no support for such an interpretation of the constitutional right to freedom of association,




                                               4

and I am simply incredulous that my brethren have adopted such a myopic view.1



            Independent Candidates are Governed by W. Va. Code § 3-5-23

              The majority perpetuates its error by failing to give credence to the statute that

governs independent or unaffiliated candidates, W. Va. Code § 3-5-23 (2009) (Repl. Vol.

2013), and this Court’s interpretation thereof. By dictating that a candidate who is a

registered member of a recognized political party cannot run as an independent or

unaffiliated candidate, the majority casts aside all of the provisions of W. Va. Code § 3-5-23

in which the Legislature has painstakingly delineated the nomination process for such

candidates. In doing so, the Legislature has not imposed a requirement that the candidate not

be registered as a member of another political party and, in fact, even permits voters who are

registered members of a political party to sign nominating certificates: “Notwithstanding any

other provision of this code to the contrary, a duly registered voter may sign the certificate



              1
               I would be remiss if I did not note that the majority’s decision herein, which
effectively precludes any person who is registered as a member of any political party from
associating with citizens who share political ideologies, has far-reaching effects beyond the
parameters of the instant proceeding. As recently reported, at least eight other independent
candidates for public office in West Virginia, who have all satisfied the statutory
requirements to run as an independent candidate, are in jeopardy of being removed from the
2016 General Election ballot all because they are members of a designated political party
which they do not seek to represent as a candidate. See Phil Kabler, In light of high court’s
ruling, counties mull candidates’ fates, Charleston Gazette-Mail, Sept. 13, 2016, at A1.
Undoubtedly, the majority’s decision will have the nefarious effect of chilling a political
candidate’s freedom of association, as well as the right of individual voters to nominate a
candidate to represent their interests.

                                              5

provided in this section and may vote for candidates of his or her choosing in the

corresponding primary election.” W. Va. Code § 3-5-23(d) (emphasis added).



              Moreover, this Court expressly has held that

                      [a]n unsuccessful candidate for a nomination in a primary
              election may afterwards be nominated by certificate, under the
              provisions of the statute above referred to, as a candidate of a
              political party other than that with which he declared himself, on
              oath, to be affiliated in the preceding primary election.

Syl. pt. 2, George v. Board of Ballot Comm’rs, 79 W. Va. 213, 90 S.E. 550 (1916). This

interpretation of W. Va. Code § 3-5-23 also presupposes that a person who is a registered

member of a recognized political party may run as an independent candidate given that only

members of recognized political parties may participate in this State’s primary elections.

Although the Legislature has revised the subject statutory language to prevent unsuccessful

primary election candidates from subsequently running as independent candidates, the

legislative amendments have stopped short of incorporating an unaffiliated proviso into the

eligibility requirements of independent candidates. Cf. Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997) (approving Minnesota’s anti-

fusion law); Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974)

(upholding California’s one-year disaffiliation provision).




                                              6

              When interpreting a statute, this Court is charged with following the intent of

the Legislature–not inserting or substituting our judgment for that of the legislators enacting

the statutory language at issue. In this regard, this Court previously has held that “[t]he

Legislature must be presumed to know the language employed in former acts, and, if in a

subsequent statute on the same subject it uses different language in the same connection, the

court must presume that a change in the law was intended.” Syl. pt. 2, Hall v. Baylous, 109
W. Va. 1, 153 S.E. 293 (1930). Similarly, “[i]t is not for [courts] arbitrarily to read into [a

statute] that which it does not say. Just as courts are not to eliminate through judicial

interpretation words that were purposely included, we are obliged not to add to statutes

something the Legislature purposefully omitted.” Banker v. Banker, 196 W. Va. 535, 546-47,

474 S.E.2d 465, 476-77 (1996) (emphasis added; citations omitted). Accord Syl. pt. 3, in

part, West Virginia Health Care Cost Review Auth. v. Boone Mem’l Hosp., 196 W. Va. 326,

472 S.E.2d 411 (1996) (“If the language of an enactment is clear and within the

constitutional authority of the law-making body which passed it, courts must read the

relevant law according to its unvarnished meaning, without any judicial embroidery.”). Thus,

it is apparent that the Legislature expressly intended to change the meaning of W. Va. Code

§ 3-5-23 to prohibit former primary candidates from running as independent candidates by

employing specific wording to this effect. See Syl. pt. 2, Hall, 109 W. Va. 1, 153 S.E. 293.

However, it is equally apparent that, by not incorporating a disaffiliation provision, the

Legislature did not intend to permit only individuals who are not registered members of any


                                              7

political party from seeking office as an independent candidate. See Banker, 196 W. Va. at

546-47, 474 S.E.2d at 476-77.



              Despite its express acknowledgment that W. Va. Code § 3-5-23 governs

independent candidates,2 the majority’s insertion of an additional requirement that the

candidate be unaffiliated ascribes a meaning to the statute that the Legislature did not intend.

Although the Legislature, in its many amendments of this section, certainly could have added

an unaffiliated requirement to its terms as have other states,3 its failure to do so for one

hundred years after this Court expressly found that a candidate who is affiliated with a major

political party nevertheless can run for office as an independent candidate dictates that the

Legislature never intended the restrictive interpretation the majority has ascribed to W. Va.

              2
                  In its opinion, the majority noted that

              this Court has historically recognized West Virginia Code § 3-5­
              23 as “providing the method for ballot access for third-party and
              independent party candidates.” Write-In Pritt Campaign v.
              Hechler, 191 W. Va. 677, 681, 447 S.E.2d 612, 616 (1994)
              (emphasis added). Moreover, in [West Virginia Libertarian
              Party v.] Manchin, 165 W. Va. [206,] at 222, 270 S.E.2d [634,]
              at 644 [(1980)], this Court stated that the statute “constitute[s]
              a method for third-party or independent candidates to gain
              access to the general election ballot . . . . [and] that the petition
              process serves as the functional equivalent of a primary
              election.” (emphasis added).
              3
                See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct.
1364, 137 L. Ed. 2d 589 (1997) (involving Minnesota’s anti-fusion law); Storer v. Brown,
415 U.S. 724, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1973) (challenging California’s one-year
disaffiliation provision).

                                                 8

Code § 3-5-23.      As such, this Court’s longstanding, century old interpretation of a

candidate’s eligibility to seek office as an independent candidate, as well as the Legislature’s

implicit approval thereof, invariably remains intact in light of the majority’s failure to

expressly overrule the same. The resulting discordance–between our centennial opinion in

George and the majority’s confounding refusal to either follow or invalidate this precedent–

undoubtedly will create an atmosphere of confusion and uncertainty for individuals seeking

to run as independent candidates and officials charged with enforcing this State’s election

laws alike.



    Independent Candidates are Not Required to File Certificate of Announcement

              The majority further erred by requiring independent candidates, such as Mr.

Wells, to comply with the certificate of announcement requirements of W. Va. Code § 3-5-7

(2015) (Supp. 2016). Such a ruling completely ignores the statutory language at issue in this

case as well as this Court’s prior opinion interpreting the same and is a wrong interpretation

of the applicable law.



              W. Va. Code § 3-5-7 begins with the requirement that

                      [a]ny 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 held under the provisions of this chapter shall
              file a certificate of announcement declaring his or her candidacy
              for the nomination or election to the office.


                                               9

W. Va. Code § 3-5-7(a). Interpreting the earlier version of this statute, which did not include

the general election reference, this Court specifically found that candidates who were

independent or representing a third party through the nominating certificate process of

W. Va. Code § 3-5-23 were not required to file a certificate of announcement under W. Va.

Code § 3-5-7:

                     Pursuant to W. Va. Code § 3–5–23(a) (1986), the
              deadline for filing with the secretary of state the certificate and
              fee for a person seeking ballot access as a candidate for the
              office of president or vice-president as the nominee of a third-
              party otherwise qualifying for inclusion on the general election
              ballot by method other than primary election is the first day of
              August preceding the general election, and such persons are not
              required to file a declaration of candidacy pursuant to W. Va.
              Code § 3–5–7 (1991).

Syl. pt. 2, State ex rel. Browne v. Hechler, 197 W. Va. 612, 476 S.E.2d 559 (1996) (emphasis

added).



              While the statutory language of W. Va. Code § 3-5-7 has changed slightly since

this Court’s decision in Browne, the overarching fairness concerns have not, nor have they

been addressed by the legislative amendments to this statute. In Browne, the Court

recognized that the Legislature had imposed an August 1 filing deadline for presidential and

vice-presidential candidates and, because they were not selected through the primary election

process, the January filing deadlines for the certificate of announcement requirement of

W. Va. Code § 3-5-7, which then pertained solely to primary election candidates, could not


                                              10

be applied to them. Browne, 197 W. Va. at 614, 476 S.E.2d at 561. W. Va. Code § 3-5-7

now governs both primary and general election candidates, but two salient distinctions

between the major political party candidates governed by W. Va. Code § 3-5-7 and the

independent and third party candidates governed by W. Va. Code § 3-5-23 remain: (1)

independent and third party candidates, by definition, do not participate in the primary

election process and (2) W. Va. Code § 3-5-24 (2014) (Supp. 2016) imposes a separate filing

deadline for independent and third party candidates which cannot be reconciled with the

filing deadline imposed by W. Va. Code § 3-5-23.



              In Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547

(1983) (plurality opinion), the United States Supreme Court found that an Ohio statute

requiring independent and third party candidates to satisfy pre-primary filing deadlines was

unconstitutional because such candidates are not selected through the primary election

process and the legislation failed to appreciate the associational rights of such candidates and

the voters who support them. The Supreme Court explained the unconstitutional impact of

such deadlines upon independent candidates, and their citizen supporters, as follows:

                     Not only does the challenged Ohio statute totally exclude
              any candidate who makes the decision to run for [office] as an
              independent after the March deadline. It also burdens the
              signature-gathering efforts of independents who decide to run in
              time to meet the deadline. When the primary campaigns are far
              in the future and the election itself is even more remote, the
              obstacles facing an independent candidate’s organizing efforts
              are compounded. Volunteers are more difficult to recruit and

                                              11

retain, media publicity and campaign contributions are more
difficult to secure, and voters are less interested in the campaign.

        It is clear, then, that the March filing deadline places a
particular burden on an identifiable segment of Ohio’s
independent-minded voters. As our cases have held, it is
especially difficult for the State to justify a restriction that limits
political participation by an identifiable political group whose
members share a particular viewpoint, associational preference,
or economic status. “Our ballot access cases . . . focus on the
degree to which the challenged restrictions operate as a
mechanism to exclude certain classes of candidates from the
electoral process. The inquiry is whether the challenged
restriction unfairly or unnecessarily burdens ‘the availability of
political opportunity.’” Clements v. Fashing, 457 U.S. 957, 964,
102 S. Ct. 2836, 2844, 73 L. Ed. 2d 508 (1982) (plurality
opinion), quoting Lubin v. Panish, supra, 415 U.S. [709], at 716,
94 S. Ct. [1315], at 1320[, 39 L. Ed. 2d 702 (1974)].

        A burden that falls unequally on new or small political
parties or on independent candidates impinges, by its very
nature, on associational choices protected by the First
Amendment. It discriminates against those candidates and–of
particular importance–against those voters whose political
preferences lie outside the existing political parties. Clements
v. Fashing, supra, 457 U.S., at 964, 102 S. Ct., at 2844 (plurality
opinion). By limiting the opportunities of independent-minded
voters to associate in the electoral arena to enhance their
political effectiveness as a group, such restrictions threaten to
reduce diversity and competition in the marketplace of ideas.
Historically political figures outside the two major parties have
been fertile sources of new ideas and new programs; many of
their challenges to the status quo have in time made their way
into the political mainstream. Illinois Elections Bd. v. Socialist
Workers Party, supra, 440 U.S. [173], at 186, 99 S. Ct. [983], at
991[, 59 L. Ed. 2d 230 (1979)]; Sweezy v. New Hampshire, 345
U.S. 234, 250-251, 77 S. Ct. 1203, 1211-1212, 1 L. Ed. 2d 1311
(1957) (opinion of Warren, C.J.). In short, the primary values
protected by the First Amendment–“a profound national
commitment to the principle that debate on public issues should

                                  12

              be uninhibited, robust, and wide-open,” New York Times Co. v.
              Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 720, 11 L. Ed. 2d
686 (1964)–are served when election campaigns are not
              monopolized by the existing political parties.

Anderson v. Celebrezze, 460 U.S. at 792-94, 103 S. Ct. at 1572-73, 75 L. Ed. 2d 547

(footnotes and citation omitted). From this ruling in Anderson, then, it is apparent that the

application of early filing deadlines to independent and third party candidates raises

significant constitutional concerns regarding the freedom of such candidates and their

supporters to associate.



              Moreover, the majority’s opinion effectively imposes two conflicting sets of

filing deadlines upon independent candidates. By definition, an independent or third party

candidate is someone who has not participated in the primary election, which criterion

presupposes that the primary election must have been held before the persons eligible to run

as independent or third party candidates can be determined. W. Va. Code § 3-5-23(a).

W. Va. Code § 3-5-7 requires all candidates, for both the primary and general elections, to

file a certificate of announcement by the end of January preceding the primary election.

W. Va. Code § 3-5-7(c). If independent candidates must first wait for the primary election

to run its course to determine who may run as an independent candidate, however, it is

impossible for independent candidates to satisfy this temporal requirement. Moreover,

W. Va. Code § 3-5-24, which pertains only to independent and third party candidates, and

not to all candidates generally, imposes a completely different filing deadline. Pursuant to

                                             13

W. Va. Code § 3-5-24(a), independent and third party candidates are required to file their

candidacy papers by August 1 before the general election. This Court has long recognized

that when both a general and a specific statute apply to a given set of facts, our well-

established rules of statutory construction instruct that the specific statute governs. “The

rules of statutory construction require that a specific statute will control over a general

statute[.]” Daily Gazette Co., Inc. v. Caryl, 181 W. Va. 42, 45, 380 S.E.2d 209, 212 (1989)

(citations omitted). Here, it is apparent that the specific August 1 filing deadline that applies

solely to independent and third party candidates is the operative date by which Mr. Wells’

candidacy papers should have been filed as opposed to the more general requirements of

W. Va. Code § 3-5-7, which apply to all candidates without regard for the specific source of

their candidacy.



              Finally, the majority has condoned the circuit court’s rejection of Mr. Wells’

candidacy based solely upon his failure to complete the party affiliation portion of his

certificate of announcement. While I disagree that Mr. Wells, as an independent candidate,

was required to complete a certificate of announcement, I most certainly do not believe that

his failure to list his party affiliation, standing alone, is sufficient to deprive him of the

opportunity to run for public office. W. Va. Code § 3-5-7(d)(6) requires all candidates for

partisan elections to list their party affiliation; W. Va. Code § 3-5-23(d) permits, but does not

require, independent candidates to disclose their party affiliation. In the case sub judice, Mr.


                                               14

Wells invariably found himself in a proverbial catch-22 situation when he was required to

file a certificate of announcement under W. Va. Code § 3-5-7: he could either disclose his

party affiliation as Democrat and risk being mistaken as a candidate representing that party,

rather than as a candidate running independently of any particular party, or he could have

listed independent as his party affiliation to signify that he is running as an independent

candidate and risk prosecution for knowingly providing false information under W. Va. Code

§ 3-5-7(f). Rather than choosing between the lesser of these two evils, Mr. Wells simply left

the party affiliation section of his certificate of announcement blank, as he was allowed to

do on his independent candidacy papers, and now he must endure the wrath of that choice.



              As noted previously, specific statutes are preferred over general statutes. Here,

the requirement to disclose a candidate’s party affiliation under W. Va. Code § 3-5-7(d)(6)

simply cannot be reconciled with the discretionary disclosure language of W. Va. Code § 3­

5-23(d). In such circumstances of irresolvable statutory conflict, “[t]he general rule of

statutory construction requires that a specific statute be given precedence over a general

statute relating to the same subject matter where the two cannot be reconciled.” Syl. pt. 1,

UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984). Thus, as an

independent candidate, Mr. Wells’ candidacy filings were governed by those statutes that

pertain specifically to independent candidates–W. Va. Code §§ 3-5-23 and 3-5-24–and not




                                             15

by the provision applicable to all candidates generally.4



  Independent Candidate Nominated by Certificate is Entitled to Inclusion on Ballot

              Lastly, I take issue with the majority’s suggestion indicating that, “[i]t does not

follow, though, that a third party or unaffiliated group of citizens who nominates a candidate

pursuant to the provisions set forth in West Virginia Code § 3-5-23 is absolutely entitled to

have its nominee appear on the ballot.” (Citation omitted). Such a misguided statement

completely ignores the express statutory language governing the candidacies of independent

and third party candidates.



              Pursuant to W. Va. Code § 3-5-23(d), “[a]ll candidates nominated by the

signing of the certificates shall have their names placed on the official ballot as candidates,

as if otherwise nominated under the provisions of this chapter.” (Emphasis added). This

Court previously has held that “[g]enerally the words of a statute are to be given their

ordinary and familiar significance and meaning, and regard is to be had for their general and

proper use.” Syl. pt. 4, State v. General Daniel Morgan Post No. 548, Veterans of Foreign


              4
                It should be noted that the majority’s unfounded decision to require
independent and third party candidates to comply with the certificate of announcement
requirements and corresponding filing deadlines of W. Va. Code § 3-5-7 (2015) (Supp. 2016)
has endangered the candidacies of at least two more candidates for public office in the 2016
General Election because they complied with the filing deadlines applicable solely to
independent and third party candidates. See Kate White, Erik Wells Decision: Candidates
say they still belong on ballot in Nov., Charleston Gazette-Mail, Sept. 21, 2016, at C1.

                                              16

Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). Moreover, “[i]t is well established that the

word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part

of the Legislature, should be afforded a mandatory connotation.” Syl. pt. 1, Nelson v. West

Virginia Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982). In light of these

established precedents, then, it is apparent that if an independent candidate has satisfied the

nominating requirements and obtained the requisite signatures, his name is required to be

placed on the ballot. As such, because he satisfied the requirements to run as an independent

candidate, Mr. Wells’ name should be listed on the 2016 General Election ballot as a

candidate for the office of Kanawha County Clerk. The majority’s supposition to the

contrary is simply not supported by the express statutory language.



           Majority’s Decision Disenfranchises Mr. Wells and His Supporters

              The Legislature clearly delineates the path an independent candidate for public

office must follow to have his name placed upon the general election ballot. For reasons that

escape me, the majority has littered this path with procedural landmines that not only make

it virtually impossible for an independent candidate to achieve ballot access but which also

disenfranchise those voters who wish to associate with such candidate. The United States

Supreme Court appreciated the challenges faced by unaffiliated voters and third parties,

cautioning that imposing early filing deadlines upon the candidates representing these groups

would have deleterious consequences–not just for these candidates and the voters they


                                              17

represent but for the major political parties also.

                              The characteristic American third party . . .
                      consists of a group of people who have tried to
                      exert influence within one of the major parties,
                      have failed, and later decide to work on the
                      outside. States in which there is an early
                      qualifying date tend to force such groups to create
                      minor parties without first attempting to influence
                      the course taken by a major one. For a dissident
                      group is put to the choice of foregoing major-
                      party primary and other prenomination activity by
                      organizing separately early on in an election year,
                      or losing all opportunity for action as a third party
                      later.

              The same analysis, of course, is applicable to a “dissident
              group” that coalesces around an independent candidate rather
              than attempting to form a new political party.

Anderson v. Celebrezze, 460 U.S. at 805, 103 S. Ct. at 1578-79, 75 L. Ed. 2d 547 (internal

quotations and citation omitted).



              The effect of the majority’s decision herein is not limited solely to the fate of

Mr. Wells’ candidacy for the office of Kanawha County Clerk. Rather, many more

independent and third party candidates likely will be adversely impacted by these rulings in

both this election cycle and in future years to come. Individuals, be they candidates for

political office or voters for such candidates, are constitutionally guaranteed the right to

associate with others who share their beliefs. Because the majority’s decision in this case

eviscerates this fundamental right, I resolutely dissent.


                                               18