SER Harden v. Hechler
Annotate this Case
January 1992 Term
___________
No. 21242
___________
STATE OF WEST VIRGINIA
EX REL. TERRY HARDEN,
Petitioner
v.
KEN HECHLER, SECRETARY OF STATE OF
WEST VIRGINIA; PAUL D. TAYLOR, EVELYN PARSONS
AND ROBERT BURKHART, BALLOT COMMISSIONERS OF
THE COUNTY OF BERKELEY; HUNTINGTON SMITH,
HERBERT LOPP AND BETTY MOSS, BALLOT COMMISSIONERS
OF THE COUNTY OF MORGAN; JAMES E. WATSON,
BIANCA JAMES AND DORIS R. WHITING,
BALLOT COMMISSIONERS OF THE COUNTY
OF JEFFERSON; AND HERBERT A. RUSSELL,
Respondents
___________________________________________________
Petition for Writ of Mandamus
WRIT DENIED
___________________________________________________
Submitted: July 7, 1992
Filed: July 20, 1992
Victor A. Barone
Hurt & Barone
Charleston, West Virginia
Attorney for Petitioner
A. Renee Coe
Deputy Secretary of State
Special Assistant Attorney General
Charleston, West Virginia
Attorney for Respondent, Ken Hechler
James S. Arnold
Thomas Parke Larus
King, Betts & Allen
Charleston, West Virginia
Attorneys for Respondent, Herbert A. Russell
Janet L. Scalia
Assistant Prosecuting Attorney for Berkeley County
Martinsburg, West Virginia
Attorney for Respondents, Paul D. Taylor,
Evelyn Parsons and Robert Burkhart
Charles S. Trump IV
Prosecuting Attorney for Morgan County
Berkeley Springs, West Virginia
Attorney for Respondents, Huntington Smith,
Herbert Lopp and Betty Moss
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
Compelling state interests are served by article IV,
section 4 of the West Virginia Constitution, which provides that a
candidate for senator must be a citizen of the State for five years
next preceding the election, and therefore, that constitutional
provision does not violate a candidate's rights to equal
protection.
When a vacancy in nomination occurs as a result of
the disqualification of the candidate not later than eighty-four
days before the general election, W. Va. Code, 3-5-19 [1991]
provides that a nominee may be appointed by the executive committee
of the political party for the political division in which the
vacancy occurs and certified to the proper filing officer no later
than seventy-eight days before the general election.
McHugh, Chief Justice:
In this original proceeding in mandamus, the petitioner,
Terry Harden, seeks to have this Court compel the Secretary of
State, Ken Hechler, to certify to the counties of Berkeley, Morgan
and Jefferson the name of the petitioner as the Democratic
candidate for Senator for the 16th Senatorial District in the
general election, and to further compel the ballot commissioners of
those counties to replace the name of Herbert A. Russell on the
ballots in their respective counties with the name of the
petitioner.
I
The petitioner was a candidate on the Democratic ticket
for the office of Senator for the 16th Senatorial District in West
Virginia in the state-wide primary election held on May 12, 1992.
The 16th Senatorial District comprises the counties of Berkeley,
Jefferson and Morgan. The petitioner's opponents in the primary
election for this office were Herbert A. Russell and Curtis E.
Brannon.
Upon tabulation of the primary election votes, Mr.
Russell was declared the winner of the senate race for the
Democratic nomination in the 16th Senatorial District with 4,163
votes. The petitioner received 4,020 votes and the third
candidate, Mr. Brannon, received 2,617 votes.
On June 10, 1992, the petitioner filed a petition for a
writ of mandamus with this Court seeking the relief noted above.
The petitioner contends that Mr. Russell was ineligible for the
office of senator because he had not been a citizen of West
Virginia for the five years preceding the election as required by
article IV, section 4 of the West Virginia Constitution. The
petitioner also maintains that he is entitled, as the eligible
candidate receiving the next highest number of votes, to have his
name placed on the general election ballot.
II
The constitutional provision at issue in the present case
is article IV, section 4 of the West Virginia Constitution, which
provides:
No person, except citizens entitled to
vote, shall be elected or appointed to any
state, county or municipal office; but the
governor and judges must have attained the age
of thirty, and the attorney general and
senators the age of twenty-five years, at the
beginning of their respective terms of
service; and must have been citizens of the
State for five years next preceding their
election or appointment, or be citizens at the
time this Constitution goes into operation.
The clear language of article IV, section 4 of our
Constitution requires that candidates for the office of senator be
citizens of the State "for five years next preceding their
election." The secretary of state and Mr. Russell, however,
challenge the constitutionality of the five-year citizenship
requirement on the grounds that it violates the equal protection
clauses of both the United States Constitution and the West
Virginia Constitution.See footnote 1
In White v. Manchin, 173 W. Va. 526, 318 S.E.2d 470 (1984), this Court discussed the constitutionality of the one-year durational residency requirement stated in article VI, section 12 of our Constitution. In White, this Court recognized three primary reasons why courts have upheld state constitutional and statutory durational residency requirements for state offices: (1) the requirements promote candidate familiarity with the needs and problems of the people to be represented; (2) the requirements promote voter familiarity with the character, intelligence, and reputation of the candidates; and (3) durational residency requirements further the goal of precluding frivolous or fraudulent candidacies by those who are more interested in public office than
private service.See footnote 2 173 W. Va. at 545, 318 S.E.2d at 489. This
Court asserted that strict scrutiny was required to be applied to
determine whether a durational residency requirement for the office
of state senate was constitutional.See footnote 3 We held in White that the
one-year durational residency requirement for state senators found
in article VI, section 12 of the Constitution serves a compelling
state interest and does not violate the fundamental constitutional
rights of either candidates or voters.
The same compelling state interests justifying the one-year residency requirement under article VI, section 12 of the West
Virginia Constitution apply to the five-year citizenship
requirement challenged in the case now before us. The five-year
citizenship requirement under article IV, section 4 of our
Constitution serves the principal state interests of ensuring that
the candidate is familiar with his constituency and aware of the
needs and problems of both the State and its people. The
durational citizenship requirement also makes certain that the
voters are familiar with the candidate's character, reputation,
integrity and intelligence. Finally, the five-year citizenship
requirement prevents frivolous candidacies by people who are only
interested in holding public officeSee footnote 4 and not genuinely concerned
with the difficult issues facing this State and its people.
Therefore, we hold that compelling state interests are
served by article IV, section 4 of the West Virginia Constitution,
which provides that a candidate for senator must be a citizen of
the State for five years next preceding the election, and
therefore, that constitutional provision does not violate a
candidate's rights to equal protection.
III
Even though we have held that the five-year citizenship
requirement is constitutional, we must consider whether Mr. Russell
has satisfied that requirement.
The evidence presented to this Court, some of which was
presented at oral argument and was not disputed by Mr. Russell, is
that Mr. Russell did not pay income tax in this State during the
years of 1987 and 1988. He did not register to vote in West
Virginia until October 17, 1989. Mr. Russell did not have a West
Virginia driver's license until November of 1989, and his 1987
Dodge automobile was titled and registered in the District of
Columbia until November of 1989. Finally, he did not purchase a
home in this State until August of 1989.
Mr. Russell is not precluded from ever running for the
office of senator. He is, however, required to be a citizen of
this State for a five-year period before he will be eligible for
that office. From the undisputed evidence presented to us, we
conclude that Mr. Russell has not satisfied the five-year
citizenship requirement and therefore, he is ineligible for the
office of senator for the 16th Senatorial District.
IV
The petitioner has concluded that, by virtue of Mr.
Russell's ineligibility, he is entitled to be declared the winner
of the primary election because he is eligible and he received the
next highest number of votes. In support of his argument, the
petitioner relies upon the language of W. Va. Code, 3-5-18 [1963],
which provides, in relevant part:
The secretary of state shall certify,
under the seal of the state, to the clerk of
the circuit court of each county in which a
candidate is to be voted for, the name of the
candidate of each political party receiving
the highest number of votes in the political
division in which he is a candidate, and who
is entitled to have his name placed on the
official ballot in the general election as the
nominee of the party for such office.
(emphasis added)
The secretary of state, under W. Va. Code, 3-5-18 [1963],
has a ministerial duty to certify the name of the candidate with
the highest number of votes who is entitled to have his or her name
placed on the official ballot. The secretary of state did not
certify anyone as the nominee in this case because he was waiting
for a decision from this Court as to Mr. Russell's eligibility.See footnote 5
The petitioner contends that the secretary of state's failure to
certify does not create a vacancy, and that he is entitled to be
certified as the candidate. We disagree.
First, we point out that any question regarding a
candidate's qualifications should be raised before the primary
election. The information regarding Mr. Russell's ineligibility
was clearly discoverable prior to the primary election. Had a
simple investigation into Mr. Russell's qualifications been
performed prior to the primary election, the voters could have
nominated an eligible candidate and perhaps the vacancy in the
nomination could have been avoided.
Next, we recognize that the secretary of state has a
ministerial duty to certify the name of the candidate receiving the
highest number of votes. Had the secretary of state fulfilled his
obligation and certified Mr. Russell's name, a vacancy would have
occurred because of Mr. Russell's disqualification. Although the
secretary of state had a ministerial duty to certify the name of
the candidate receiving the highest number of votes,See footnote 6 there is no
statutory or constitutional provision stating that his failure to
certify does not create a vacancy. There is a statutory provision,
however, which directs the procedure to be followed in the event a
vacancy occurs after a nominated candidate is disqualified. W. Va.
Code, 3-5-19(a) [1991] provides, in pertinent part:
(a) If any vacancy shall occur in the
party nomination of candidates for office
nominated at the primary election or by
appointment under the provisions of section
eleven [3-5-11] of this article, the vacancies
may be filled, subject to the following
requirements and limitations:
(1) Each appointment made under this
section shall be made by the executive
committee of the political party for the
political division in which the vacancy
occurs: Provided, That if the executive
committee fails to make an appointment in a
duly called meeting or fails to certify the
appointment of the candidate to the proper
filing officer within the time required, the
chairperson of the executive committee may
make the appointment not later than two days
following the deadline for the executive
committee.
. . . .
(4) If a vacancy in nomination is caused by the disqualification or incapacity of the candidate, and if the vacancy occurs not later than eighty-four days before the general election, a nominee may be appointed by the executive committee and certified to the
proper filing officer no later than seventy-eight days before the general election.
Thus, when a vacancy in nomination occurs as a result of
the disqualification of the candidate not later than eighty-four
days before the general election, W. Va. Code, 3-5-19 [1991]
provides that a nominee may be appointed by the executive committee
of the political party for the political division in which the
vacancy occurs and certified to the proper filing officer no later
than seventy-eight days before the general election.
Finally, we point out, in further response to the
petitioner's claim that he is entitled to be certified as the
nominated candidate, that although Mr. Russell is not eligible for
the office of senate, his ineligibility does not automatically
entitle the candidate receiving the next highest number of votes to
be declared elected. In syllabus point 9 of Dryden v. Swinburne,
20 W. Va. 89 (1882) this Court recognized:
If an alienSee footnote 7 and a citizen eligible to office
are candidates for the same, and the alien
receives the majority of the votes cast at the
election, though such alien be declared
ineligible to the office upon a contest
between them, the citizen, who receives a
minority of the votes cast, cannot be declared
entitled to the office; but it must be held to
be vacant.
This Court held that, because Swinburne was ineligible as an alien to hold office as the Clerk of the Circuit Court of Kanawha, no one was legally elected at the election, or was entitled by reason
thereof to hold the office, and that the vacancy in the office must
be filled in a manner prescribed by law. 20 W. Va. at 138.
In a later case, State ex rel. Depue v. Matthews, 44
W. Va. 372, 29 S.E. 994 (1898), we again recognized that the
disqualification of the candidate with the highest number of votes
does not inure to the benefit of the other candidate. We held in
syllabus point 2 of Depue:
Where two parties are opposing candidates
for the office of sheriff, and the one
receiving the highest number of votes for the
office disqualifies himself from holding the
same by contracting to farm or sell the office
or a portion thereof, such fact does not
confer any interest in the office on the party
receiving the minority of the votes cast at
the election.
Clearly, by virtue of the provisions of W. Va. Code, 3-5-19 [1991] and in light of this Court's holdings in Dryden and
Depue,See footnote 8 the petitioner is not entitled to be certified by the
secretary of state as the Democratic nominee for the office of
senator for the 16th Senatorial District.
V
We have consistently recognized that mandamus lies to
test the eligibility to office of a candidate in either a primary
or general election. Syl. pt. 2, State ex rel. Cohen v. Manchin,
175 W. Va. 525, 336 S.E.2d 171 (1984); Syl. pt. 1, White, supra;
syl. pt. 1, State ex rel. Dostert v. Riggleman, 155 W. Va. 808, 187 S.E.2d 591 (1972). Although we have found that the five-year
citizenship requirement of W. Va. Const. art. IV, § 4 is
constitutional, the petitioner in the present case is not entitled
to the ultimate relief sought and thus, we deny the petitioner's
request for a writ of mandamus. Therefore, as a result of Mr.
Russell's ineligibility, the executive committee for the political
division in which the vacancy has occurred shall appoint a nominee
and certify the name of such nominee to the secretary of state.
The secretary of state will then have the duty to certify the name
of that nominee to the clerk of the circuit court of each county in
which the candidate is to be voted for.
Writ denied.
Footnote: 1 The fourteenth amendment to the United States
Constitution provides, in part:
All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State where they reside. No State
shall make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor deny
to any person within its jurisdiction the
equal protection of the laws.
The equal protection provisions in the West Virginia
Constitution are found in article III, section 10 and article III,
section 17. Article III, section 10 provides: "No person shall be
deprived of life, liberty, or property, without due process of law,
and the judgment of his peers." Article III, section 17 of the
West Virginia Constitution states: "The courts of this State shall
be open, and every person, for an injury done to him, in his
person, property or reputation, shall have remedy by due course of
law; and justice shall be administered without sale, denial or
delay."
Footnote: 2 In White, this Court cited an exhaustive list of cases
where courts have invalidated local durational residency
requirements, and also cited several cases where courts upheld
state constitutional durational residency requirements. 173 W. Va.
at 544-45, 318 S.E.2d at 488-89.
Footnote: 3 We also stated, in State ex rel. Piccirillo v. City of
Follansbee, 160 W. Va. 329, 335, 233 S.E.2d 419, 423 (1977), that
"[o]nce determined that the right to run for office is a
fundamental right, the test is whether the challenge[d] restriction
serves a compelling state interest."
Footnote: 4 In Sununu v. Stark, 383 F. Supp. 1287, 1290 (D.N.H.
1974), aff'd, 420 U.S. 958, 95 S. Ct. 1346, 43 L. Ed. 2d 435
(1975), the court stated that a seven-year durational residency
requirement prevents "political carpetbagging."
Footnote: 5 The secretary of state did not certify the name of Mr.
Russell despite the fact that he believes Mr. Russell is eligible
for the office of senator.
Footnote: 6 We recognized in State ex rel. Maloney v. McCartney, 159
W. Va. 513, 527, 223 S.E.2d 607, 616, appeal dismissed, Moore v.
McCartney, 425 U.S. 946, 96 S. Ct. 1689, 48 L. Ed. 2d 190 (1976),
that under W. Va. Code, 3-5-9, the certification statute for
primary elections, the secretary of state
is charged with certifying only those persons who are 'entitled to have their names printed
on any political party ballot.' The Code
provision does not set forth how the Secretary
of State shall determine entitlement, but it
may be reasonably inferred that the Secretary
should refuse to place on the ballot any
person whose certificate of candidacy shows
ineligibility on its face.
Footnote: 7 By using the term "alien," the Court is referring to a
person of foreign birth who has not been naturalized or admitted to
citizenship.
Footnote: 8 The petitioner contends that the cases of Dryden and
Depue are distinguishable from the present case because the
ineligible candidates in those cases had already taken office after
the general election. However, we believe the same reasoning that
the disqualification of the candidate receiving the highest number
of votes does not inure to the benefit of the candidate receiving
the next highest number of votes applies in either a primary or
general election.
