Can West Virginia still force minor-party and independent candidates to file by the January 'certificate of announcement' deadline now that a federal court has enjoined the state from doing exactly that?

Plain-English summary

West Virginia's election code has two filing tracks. Major-party candidates file a "certificate of announcement" by the last Saturday in January before the primary, under W. Va. Code § 3-5-7. Minor-party and unaffiliated candidates have a separate path under §§ 3-5-23 and 3-5-24: file a "certificate of nomination" by August 1 before the November general election. That structure made sense to most observers: independents and minor-party candidates do not run in primaries, so they get a later, summer deadline.

In 2016, two courts disagreed about whether the January deadline also applied to non-major-party candidates.

The 2016 Wells decision. In Wells v. State ex rel. Miller, 237 W. Va. 731, the West Virginia Supreme Court of Appeals read § 3-5-7 as applying to "[a]ny person" who wants to run, including unaffiliated candidates. So as a matter of state-law interpretation, Wells said the January deadline applies across the board. Wells rejected one constitutional challenge (a generic "no compelling state interest" argument), but explicitly noted that the petitioner "fail[ed] to advance the argument that the January deadline . . . creates a burden that falls unequally to a [minor party or unaffiliated candidate] seeking ballot access." So Wells left an unequal-burden constitutional challenge unanswered.

The 2016 Daly decision. A month later, in Daly v. Tennant, 216 F. Supp. 3d 699, the U.S. District Court for the Southern District of West Virginia entertained the federal-constitutional challenge Wells did not address. The court held that the January certificate-of-announcement deadline "unmistakably places a substantial burden on and discriminates against those candidates and voters whose political preferences lie outside the existing political parties." That violates the First and Fourteenth Amendments as applied. On January 24, 2017, by consent of the parties, the court issued a permanent injunction expressly barring the Secretary of State from "enforcing the filing deadline set out in West Virginia Code § 3-5-7(c) against independent and minor party candidates whose nomination is governed by West Virginia Code § 3-5-23(a) (2015)."

Did Daly overrule Wells? No, the AG explains, because they answered different questions. Wells was statutory interpretation: does the text of § 3-5-7 reach minor-party and unaffiliated candidates? Yes. Daly was federal constitutional law: even if the text reaches them, can the State constitutionally apply it to them? No, because doing so violates the First and Fourteenth Amendments.

The state-court reading of state law is binding (West v. AT&T). The federal court accepted the state-court interpretation and then proceeded to apply federal constitutional law on top, which the Supremacy Clause permits (PLIVA v. Mensing).

Practical effect. Daly's permanent injunction is the binding command on the Secretary. The Secretary cannot enforce the January deadline against minor-party or independent candidates, period. The August 1 deadline still applies to them.

The harder question: would a state court enforce the federal injunction? The AG answers yes, even if the West Virginia Supreme Court of Appeals disagreed with the federal court's constitutional analysis. A state court of last resort is not bound by a federal district court's constitutional reasoning (Lawrence v. Woods, 7th Cir. 1970). But a state court must give "full force and effect" to a federal judgment to which the state party (here, the Secretary) is bound (Stoll v. Gottlieb; Embry v. Palmer; Dupasseur; Metcalf; In re Stevenson, Pa. 2012). The Pennsylvania Supreme Court in Stevenson applied this rule in a closely analogous setting: a federal injunction had struck down a Pennsylvania election-residency rule on First and Fourteenth Amendment grounds, and the Pennsylvania Supreme Court refused to revisit the federal decision because "the permanent injunction . . . cannot be evaded."

The practical concern: if a state court ordered the Secretary to remove minor-party candidates who missed the January deadline, the Secretary would be subject to two conflicting commands, federal and state. The Secretary cannot simply ignore the federal mandate (Belk v. Charlotte-Mecklenburg Bd. of Educ., 4th Cir. 2001), and a state court cannot lift a federal injunction (Gottlieb). The Supreme Court has long assumed that state courts must give federal judgments the same force federal courts give them (Cook, 7th Cir. 1995). So the AG concludes a state court would enforce Daly.

Bottom line for the Secretary. Apply the January deadline to major-party candidates only. Apply the August 1 deadline to minor-party and unaffiliated candidates. The injunction protects you against future challenges in either federal or state court.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The injunction in Daly is keyed to specific code sections. Subsequent amendments to § 3-5-7 or §§ 3-5-23, 3-5-24 may affect coverage. The Legislature may have amended the deadline structure. Anyone administering an actual election should consult current statutes and the Secretary of State's then-current guidance.

Common questions

Q: I am an independent candidate. When do I have to file?
A: Per the analysis at the time of this opinion, you file your certificate of nomination by August 1 under W. Va. Code §§ 3-5-23 and 3-5-24. The January deadline does not apply to you.

Q: I am a Republican or Democratic candidate. Has the deadline changed for me?
A: No. The January certificate-of-announcement deadline in § 3-5-7 still applied to major-party candidates. The injunction in Daly covers only "independent and minor party candidates whose nomination is governed by West Virginia Code § 3-5-23(a)."

Q: What is a "minor party" for these purposes?
A: § 3-1-8 defines a "political party" by ballot-access threshold: a party whose gubernatorial candidate received at least 1% of votes in the last election. Wells footnoted that at the time, the recognized parties were the Republican, Democratic, Mountain, and Libertarian parties. Anyone outside those parties was either a minor-party candidate covered by §§ 3-5-23/24 or an independent.

Q: Could the Legislature override Daly?
A: Not by reinstating the January deadline. The federal court held that deadline unconstitutional as applied. The Legislature would have to write a new structure that does not impose an unequal burden on minor-party/independent candidates, and the new structure would itself be subject to constitutional review.

Q: What about presidential elections, the Electoral College, etc.?
A: This opinion deals only with state-office and local-office filing under §§ 3-5-7, 3-5-23, 3-5-24. Presidential ballot access has its own statutory and constitutional framework.

Q: If a major-party candidate sues to keep a minor-party candidate off the ballot for missing the January deadline, what happens?
A: The lawsuit would fail. The Secretary cannot remove the candidate, because the federal injunction forbids it. A state court would, per the AG's analysis, decline to lift the injunction even if it disagreed with Daly's constitutional reasoning, on full-faith-and-credit grounds.

Background and statutory framework

The two-track filing structure.
- § 3-5-7(c): January certificate-of-announcement deadline (last Saturday in January before primary). Now applies only to major-party candidates after Daly.
- §§ 3-5-23, 3-5-24: August 1 certificate-of-nomination deadline. Applies to "groups of citizens having no party organization."

§ 3-1-8 (party recognition). A party qualifies for ballot status if its last gubernatorial candidate received at least 1% of total votes. At the time of Wells, the recognized parties were Republican, Democratic, Mountain, and Libertarian.

The two 2016 cases.
- Wells v. State ex rel. Miller, 237 W. Va. 731 (2016): plain-text reading of § 3-5-7 reaches all candidates; rejected a generic ballot-access constitutional challenge but expressly reserved the unequal-burden argument.
- Daly v. Tennant, 216 F. Supp. 3d 699 (S.D. W. Va. 2016): held the January deadline unconstitutional as applied to minor-party and independent candidates under the First and Fourteenth Amendments. Permanent injunction issued January 24, 2017.

State-law authority. West v. AT&T, 311 U.S. 223 (1940): a state court of last resort is the authoritative interpreter of state statute.

Federal-law authority over state statutes. PLIVA v. Mensing, 564 U.S. 604 (2011): the Supremacy Clause permits federal courts to invalidate state statutes for conflict with the Constitution.

Full-faith-and-credit framework for federal judgments in state courts.
- Stoll v. Gottlieb, 305 U.S. 165 (1938)
- Embry v. Palmer, 107 U.S. 3 (1883)
- Dupasseur v. Rochereau, 88 U.S. (21 Wall.) 130 (1874)
- Metcalf v. Watertown, 153 U.S. 671 (1894)
- In re Stevenson, 615 Pa. 50 (2012) (closely analogous: federal injunction against Pennsylvania election-residency rule binds state court)
- Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. 2001) (must comply with judicial decree even if arguably unlawful)
- Matter of Cook, 49 F.3d 263 (7th Cir. 1995) (state tribunals must give federal judgments same force federal courts give them)

Lower-federal-court non-binding-on-state-courts rule. U.S. ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970). State courts not bound by federal district court analysis as a matter of legal precedent, only by the judgment as to parties.

Citations and references

Statutes:
- W. Va. Code § 5-3-1 (AG advisory authority)
- W. Va. Code § 3-1-8 (party recognition)
- W. Va. Code § 3-5-7 (certificate of announcement)
- W. Va. Code §§ 3-5-23, 3-5-24 (certificate of nomination)

Cases:
- Wells v. State ex rel. Miller, 237 W. Va. 731 (2016)
- Daly v. Tennant, 216 F. Supp. 3d 699 (S.D. W. Va. 2016)
- West v. AT&T, 311 U.S. 223 (1940)
- PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011)
- U.S. ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970)
- Stoll v. Gottlieb, 305 U.S. 165 (1938)
- Embry v. Palmer, 107 U.S. 3 (1883)
- Dupasseur v. Rochereau, 88 U.S. 130 (1874)
- Metcalf v. Watertown, 153 U.S. 671 (1894)
- In re Stevenson, 615 Pa. 50 (2012)
- Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. 2001)
- Matter of Cook, 49 F.3d 263 (7th Cir. 1995)

Source

• Landing page: https://ago.wv.gov/media/17841/download?inline
• Original PDF: https://ago.wv.gov/media/17841/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
State Capitol
Building 1, Room 26-E
Charleston, WV 25305-0220
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140
July 7, 2017

The Honorable Mac Warner
Secretary of State
West Virginia Capitol Complex
Bldg. 1, Suite 157K
Charleston, WV 25305

Dear Secretary Warner:

You have asked for the Opinion of the Attorney General regarding the filing deadline for unaffiliated or minor party candidates who wish to appear on the general election ballot. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General shall "give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . the secretary of state . . . ." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

In your letter, you ask about your obligations in enforcing the filing requirements in West Virginia Code § 3-5-7 against unaffiliated or minor party candidates. That statutory provision requires candidates for elected office to file a certificate with the Secretary of State announcing their candidacy ("certificate of announcement") no later than the last Saturday in January before the date of a primary election. The plain language does not set forth whether this requirement applies to all candidates or only major party candidates. But you further note that two subsequent code provisions provide that "groups of citizens having no party organization may nominate candidates who are not already candidates in the primary election" by filing a certificate of nomination "no[] later than August 1 preceding the November general election." W. Va. Code §§ 3-5-23, 24.

Two recent court decisions, one from the Supreme Court of Appeals and another from the United States District Court for the Southern District of West Virginia (the "Southern District"), have weighed in on your obligations under Section 3-5-7. In Wells v. State ex rel. Miller, 237 W. Va. 731, 791 S.E.2d 361 (2016), the Supreme Court of Appeals held that the certificate of announcement requirement (and its January deadline) applies to all candidates, including minor party and unaffiliated candidates. But approximately one month after Wells was decided, the Southern District determined that the January deadline was unconstitutional as applied to minor party and unaffiliated candidates under the First and Fourteenth Amendments to the United States Constitution, and it permanently enjoined your predecessor, in her official capacity as the Secretary of State, from enforcing the certificate of announcement requirement in those contexts. Daly v. Tennant, 216 F. Supp. 3d 699, 707 (S.D. W. Va. 2016).

Your letter raises the following legal question:

Whether Daly v. Tennant overrules Wells v. State ex rel. Miller with respect to filing deadlines for unaffiliated or minor party candidates.

For the reasons set forth below, we answer your specific question in the negative: the Southern District in Daly did not "overrule" the Supreme Court of Appeals in Wells, but rather answered a federal constitutional question not answered in Wells. As we further explain, however, the practical import of Daly is a narrowing of the broad holding in Wells that all candidates must file a certificate of announcement by the January deadline. We believe the permanent injunction issued by the federal court in Daly would be enforced against the Secretary in both federal and state court, and it therefore precludes him or her from enforcing the January certificate of announcement requirement and deadline against any minor-party or unaffiliated candidate. The Secretary may continue to enforce the January deadline for major-party candidates and may continue to enforce the August 1 certificate of nomination requirement as to all other candidates for elected office.

[Footnote: Major parties or "recognized political part[ies]" refer to parties that have official ballot access, which currently are the Republican, Democrat, Mountain, and Libertarian parties. See Wells, 237 W. Va. 731, 741, n. 13, 791 S.E.2d at 371 n.13; see also W. Va. Code § 3-1-8 ("Any affiliation of voters representing any principle or organization which, at the last preceding general election, polled for its candidate for governor at least one percent of the total number of votes cast for all candidates for that office in the state, shall be a political party, within the meaning and for the purpose of this chapter . . . .").]

Discussion

I.

The answer to your specific legal question is "no." The decision of the Southern District in Daly did not "overrule" that of the Supreme Court of Appeals in Wells because they answered different questions. As discussed in more detail below, the Supreme Court of Appeals interpreted the text of Section 3-5-7 and rejected one constitutional challenge to the certificate of announcement requirement. The Southern District then accepted the holdings of the Wells court, but deemed a separate constitutional challenge not addressed in Wells to be meritorious. It was on this separate ground, never addressed by the Supreme Court of Appeals, that the Southern District held the certificate of announcement requirement unconstitutional as applied to minor-party and unaffiliated candidates.

Turning first to Wells, the question answered by the Supreme Court of Appeals was primarily one of statutory interpretation, namely, does the plain text of Section 3-5-7 apply the certificate of announcement requirement only to major-party candidates or also to unaffiliated and minor-party candidates? Interpreting the plain language, which applied to "[a]ny person," the court held that all candidates, including unaffiliated and minor-party candidates, must file a certificate of announcement by the January deadline. See Wells, 237 W. Va. at 737-38, 791 S.E.2d at 367-68.

The Supreme Court of Appeals rejected a constitutional challenge based solely on "ballot access." The petitioner in Wells, an unaffiliated candidate, argued that if the statute was read to require him to file a certificate of announcement, that requirement was unconstitutional. The Supreme Court of Appeals rejected petitioner's general assertion that the State had no compelling interest in imposing limitations on ballot access like a certificate of announcement requirement. See id. at 746-47, 791 S.E.2d at 375-76. The court stressed, however, that the petitioner did not raise "constitutional challenges to any specific provision of our State's election code," and "fail[ed] to advance the argument that the January deadline set forth in [the Code] creates a burden that falls unequally to a [minor party or unaffiliated candidate] seeking ballot access." Id. at 746, 791 S.E.2d at 376. The petitioner also "did not assert that the substantive requirements imposed by [the Code] impose any particular burden on those candidates." Id.

A month after Wells, in Daly, the Southern District entertained a follow-on challenge raising a federal constitutional challenge that was neither raised nor addressed in Wells. The Daly court accepted as given the statutory holding in Wells that the text of the West Virginia Code requires third-party and unaffiliated candidates to file a certificate of announcement. See Daly, 216 F. Supp. 3d at 703. This was undoubtedly appropriate, as a state court of last resort is, with rare exceptions, the final and authoritative expositor of the meaning of a state statute. See, e.g., West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940). The Southern District then proceeded to entertain the federal constitutional challenge that the Supreme Court of Appeals had expressly reserved in Wells. This too was appropriate, as the Supremacy Clause of the United States Constitution allows a federal court to declare state statutes that directly conflict with the tenets of that document unconstitutional. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011).

Taking up the question that the petitioner failed to advance in Wells, the Southern District enjoined the Secretary from enforcing certain applications of Section 3-5-7. The court held that the January certificate of announcement deadline "unmistakably places a substantial burden on and discriminates against those candidates and voters 'whose political preferences lie outside the existing political parties.'" Daly, 216 F. Supp. 3d at 706 (internal citation omitted). In other words, the requirement was an unconstitutional burden on the rights of independent and third party candidates to place their names on the ballot. See id. at 707-08. On January 24, 2017, with consent of the parties, the Southern District issued a permanent injunction which expressly precluded the Secretary from "enforcing the filing deadline set out in West Virginia Code § 3-5-7(c) against independent and minor party candidates whose nomination is governed by West Virginia Code § 3-5-23(a) (2015)."

Based on this review, we believe that the Secretary can comfortably follow the letter and spirit of both decisions by complying with the express terms of the federal injunction. Though it is true as a practical matter that the federal district court in Daly has enjoined the Secretary from enforcing deadlines that the Supreme Court of Appeals held in Wells to apply as a matter of statutory interpretation, the Southern District did not technically "overrule" Wells. The Southern District accepted as controlling the statutory interpretation adopted by the Supreme Court of Appeals, but found that interpretation to be unconstitutional in certain applications based on a federal constitutional question expressly reserved in Wells.

II.

Perhaps the more significant question is whether the Supreme Court of Appeals would enforce the federal injunction against the Secretary. Consider, for example, a candidate from a major party suing the Secretary in state court to prevent a minor-party candidate who did not file a certificate of announcement from appearing on the ballot. Could the Supreme Court of Appeals conclude as a matter of first impression that Daly was wrong and that the certificate of announcement deadlines do not discriminate against or place a substantial burden on minor-party and unaffiliated candidates under the First and Fourteenth Amendments? And if so, would the Supreme Court of Appeals nevertheless enforce the federal injunction?

We believe that under settled United States Supreme Court precedent, the Supreme Court of Appeals would enforce the Daly injunction, even if the West Virginia high court disagreed with the Southern District's legal reasoning. A state court of last resort is not bound to adopt the analysis of a federal district court as to whether the United States Constitution invalidated a state law. See, e.g., U.S. ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) ("[B]ecause lower federal courts exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts"). But in the hypothetical lawsuit described above, the petitioner would not merely be asking the Supreme Court of Appeals to adopt a different rule of law than a federal district court. Instead, the petitioner would be asking the state high court to ignore a federal judgment and permanent injunction that expressly prohibits the opposing party (the Secretary) from awarding the petitioner the relief that he or she seeks. In that circumstance, the United States Supreme Court has instructed state courts to give full force and effect to applicable federal judgments, which here would require enforcing the federal injunction against the Secretary according to its terms.

The United States Supreme Court has derived from a variety of provisions of the Constitution an implied power for the Court to determine the effect that federal judgments merit in state tribunals. The Court has reasoned, for example, that "[p]rovisions declaring the supremacy of the Constitution and the extent of the judicial power and authorizing necessary and proper legislation to make the grants effective confer jurisdiction upon this Court to determine the effect to be given decrees of a court of the United States in state courts." Stoll v. Gottlieb, 305 U.S. 165, 167 (1938); see also Embry v. Palmer, 107 U.S. 3, 9 (1883) (similar). Whatever the precise source of its authority, the Supreme Court has consistently applied a rule in which "the judgments of the courts of the United States . . . [are] recognized as upon the same footing, so far as concerns the obligation created by them, with domestic judgments of the states, wherever rendered and wherever sought to be enforced." Id.; see also Dupasseur v. Rochereau, 88 U.S. (21 Wall.) 130 (1874); Metcalf v. Watertown, 153 U.S. 671 (1894); Gottlieb, 305 U.S. at 167.

Following this line of cases, state courts have recognized that "[t]he judgments of the federal courts are owed their due force and full effect in state courts." In re Stevenson, 615 Pa. 50, 67 (2012) (citing Embry, 107 U.S. at 10). In a relatively recent and closely analogous case, a federal district court permanently enjoined a residency requirement in a Pennsylvania election-law statute on the basis that it violated citizens' rights to political expression and association under the First and Fourteenth Amendments. See id. at 65. In subsequent litigation in state court, the Supreme Court of Pennsylvania noted that it was not bound by the reasoning of the federal district court on the application of the United States Constitution to state law. See id. at 66. Nonetheless, the state court did not consider itself free to revisit the federal decision in that case because "the permanent injunction imposed by the unappealed [federal] decision cannot be evaded." Id. at 72. Citing Embry, the court reasoned that "core concerns of federalism, comity, and practicality," as well as "awareness and consideration of the preclusive effect of a final federal judgment, to which [Pennsylvania] was a party," demanded that the court accord full faith and credit to the federal injunction. Id. at 66.

As the Supreme Court of Pennsylvania recognized, the requirement that state courts honor federal judgments reflects practical concerns, as well. In the hypothetical case discussed above, if the Supreme Court of Appeals ordered the Secretary to remove minor-party candidates from the ballot who did not file a certificate of announcement, the Secretary would be subject to conflicting commands from state and federal courts. The Secretary could not simply ignore the federal mandate, as "[a] person or entity subject to a judicial decree or injunction . . . must comply with that decree or injunction, notwithstanding its possible unlawfulness." Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 399 (4th Cir. 2001). Nor could the state court simply lift the federal injunction, because "where the judgment or decree of the Federal court determines a [federal] right . . . that decision is final until reversed in an appellate court, or modified or set aside in the court of its rendition." Gottlieb, 305 U.S. at 170 (internal quotation marks omitted). In part to avoid these practical difficulties that would arise from subjecting the same party to the potential for inconsistent judgments, "the Supreme Court of the United States has long assumed that state tribunals must give federal judgments the same force that federal courts give them." Matter of Cook, 49 F.3d 263, 266 (7th Cir. 1995) (collecting authorities).

Conclusion

In short, we believe the Secretary may not enforce the certificate of announcement deadline or requirement under West Virginia Code § 3-5-7 against any minor-party or unaffiliated candidate. Though the federal district court in Daly did not overrule the decision of the Supreme Court of Appeals in Wells, the permanent injunction issued in Daly has the practical effect of limiting the broad holding of Wells. The Secretary is enjoined from requiring that minor-party and unaffiliated candidates comply with the certificate of announcement deadlines and requirements interpreted in Wells, and we believe that injunction would be enforced against the Secretary in any future litigation in either federal or state court. The Secretary may, however, continue to enforce the January deadline for major-party candidates and may continue to enforce the August 1 certificate of nomination requirement in West Virginia Code §§ 3-5-23, 24 with respect to all other candidates for elected office.

Sincerely,

Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Thomas M. Johnson, Jr.
Deputy Solicitor General
Zachary A. Viglianco
Assistant Attorney General