If a West Virginia primary candidate filed a notarized statement of withdrawal after the legal deadline, must the votes for that candidate still be counted, and what happens if the withdrawn candidate wins?

Official title

Opinion of the Attorney General's Office Regarding the Withdrawal of a Political Candidate from the Election Ballot

Plain-English summary

In Wood County, one of four Republican primary candidates for a seat on the County Commission filed a notarized withdrawal citing illness, after the deadline in W. Va. Code § 3-5-11(a) to remove his name from the ballot had passed. Absentee voting had already begun, so votes for him may already have been cast. The prosecutor asked how to count the votes and whether the candidate could still win.

The AG worked through three issues.

The untimely withdrawal must be disallowed. § 3-5-11(a) lets a candidate withdraw "not later than the third Tuesday following the close of candidate filing"; after that, "[n]o candidate who files a statement of withdrawal . . . may have his or her name removed from the ballot." The deadline is mandatory. The Supreme Court of Appeals in Cravotta v. Hechler said that while a candidate has "a natural or inherent right to resign," that right "must give way to reasonable legislative restrictions." Carenhauer v. Hechler treated the § 3-5-11(a) deadline as a "reasonable legislative restriction." The candidate's name stays on the ballot.

Votes must be counted. § 3-5-15 sets out mandatory counting procedures: "[t]he election officers shall enter the name of each office and the full name of each candidate on the ballot and the number of votes . . . received by each." State ex rel. Thompson v. Fry held those procedures "mandatory in character." So all votes for the candidate, including absentee votes, must be counted. The fact that the candidate has tried to withdraw does not remove his ballot status.

If the withdrawn candidate wins, he is the winner. The AG concluded that the candidate, if he wins enough votes, must be certified. The candidate then has a (nominal) opportunity to reaffirm his withdrawal post-election. If he does, the vacancy in the nomination can be filled under § 3-5-19.

Two refinements. First, the AG considered and rejected the argument that votes for the candidate were "void" or that they automatically created a vacancy under the American rule (Jackson v. County Court of McDowell County). The American rule applies to candidates who are "dead, ineligible, or disqualified." A candidate who tried to withdraw too late is none of those. He is a "legitimate candidate" (Anderson v. Hooper). Second, the AG considered whether the candidate's untimely withdrawal might automatically be deemed effective post-election (some Ohio decisions suggest yes). West Virginia's categorical statutory language pointed the AG toward requiring an explicit post-election reaffirmation rather than automatic effect.

Currency note

This opinion was issued in 2014. 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.

Common questions

Q: What is the actual deadline for withdrawing from a primary ballot?

A: § 3-5-11(a): "the third Tuesday following the close of candidate filing." After that, the name is locked on the ballot. The exact date varies by election cycle.

Q: What if a candidate becomes incapacitated or unable to serve?

A: The statute does have a procedure for candidates who die after the ballots are printed (§ 3-5-11(b)), allowing the county clerk to post a notice at each precinct that the candidate is deceased. There is no parallel procedure for late withdrawal due to illness or incapacity. The candidate's only recourse is to lose the election or, if he wins, take the post-election step to decline the nomination.

Q: Can the candidate's party fill the vacancy after the candidate reaffirms his withdrawal?

A: Yes, under § 3-5-19, which provides procedures for filling a vacancy in nomination. The party's executive committee or other authorized body can fill the seat with a new nominee.

Q: What if everyone knows the candidate has withdrawn and won't serve?

A: Doesn't change the legal analysis. Voters may have already cast absentee ballots before the withdrawal attempt; those votes are valid as long as the candidate's name was lawfully on the ballot at the time. The election machinery cannot retroactively reclassify votes based on candidate intent.

Q: How is this different from a candidate dying mid-campaign?

A: § 3-5-11(b) sets up a specific procedure for deaths after ballots are printed. The clerk posts a notice. Votes for the deceased candidate may still count, but the legislature has prescribed how to handle it. There is no parallel statute for untimely withdrawals.

Q: What if the candidate forgets to reaffirm his withdrawal post-election?

A: The opinion suggests the candidate "must be certified" if he wins, and then has a "(nominal) post-election step of reasserting his intent to withdraw." If he doesn't reaffirm, the AG implicitly suggests the candidate becomes the lawful nominee and would have to actually serve unless he resigns from the office (which itself has separate procedures).

Q: Does this rule apply to general elections too?

A: The opinion concerns § 3-5-11(a), which is a primary-election provision. General elections have their own rules. The general principle (statutory deadlines for ballot changes are mandatory) likely applies similarly, but the specific deadlines and procedures differ. A practitioner facing a general-election withdrawal question should consult the relevant statute directly.

Q: Is there any way the candidate could refuse to serve before the election?

A: § 3-5-11(a) lets a candidate withdraw before the deadline. After the deadline, the only options are: lose, win and reaffirm withdrawal post-election, or win and resign from office.

Background and statutory framework

The withdrawal deadline. W. Va. Code § 3-5-11(a): "Any party candidate ... who wishes to withdraw and decline to stand as a candidate for the office shall file a signed and notarized statement of withdrawal . . . . If the statement of withdrawal is received not later than the third Tuesday following the close of candidate filing, the name of a candidate who files that statement of withdrawal may not be printed on the ballot. No candidate who files a statement of withdrawal after that time may have his or her name removed from the ballot."

The death procedure. § 3-5-11(b) provides that when a candidate dies after the ballots are printed, the clerk of the county commission posts a notice at each precinct explaining the death. There is no parallel procedure for late withdrawal.

Mandatory counting procedures. § 3-5-15 sets out detailed steps for counting and certifying primary election results. Thompson v. Fry held these procedures "mandatory in character."

Filling vacancy in nomination. § 3-5-19 sets procedures for filling a vacancy in a nomination, e.g., when a winning candidate cannot or does not take office.

Reasonable legislative restrictions. Cravotta v. Hechler recognized that the candidate has "a natural or inherent right" to withdraw but must yield to "reasonable legislative restrictions." Carenhauer v. Hechler implicitly treated the § 3-5-11(a) deadline as such a restriction.

The American rule. Jackson v. County Court of McDowell County adopted the rule that votes for "dead, ineligible, or disqualified" candidates are not "void" but count as creating a vacancy. The AG distinguished an untimely withdrawal: such a candidate is not ineligible or disqualified (Anderson v. Hooper called him "a legitimate candidate"), so the American rule doesn't apply.

Out-of-state authority. State ex rel. White v. Franklin Cty. Bd. of Elections (Ohio), Anderson v. Hooper (D.N.M.), Bruno v. Rettaliata (N.Y.), and Manser v. Secretary of Com. (Mass.) all treat untimely withdrawals as ineffective. White goes further to suggest a candidate can be "automatically" deemed withdrawn post-election; Anderson and Bruno suggest he remains "a legitimate candidate" until he takes affirmative steps. The AG took the latter view as the safer reading of West Virginia's categorical text.

Application. The Wood County candidate's untimely withdrawal was rejected. Votes counted. If he won, he had to be certified, then could (or might need to) reaffirm withdrawal so the party could fill the vacancy under § 3-5-19.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code § 3-5-11(a), (b); § 3-5-15; § 3-5-19
• State ex rel. Cravotta v. Hechler, 187 W. Va. 790, 421 S.E.2d 698 (1992)
• State ex rel. Carenhauer v. Hechler, 208 W. Va. 584, 542 S.E.2d 405 (2000)
• Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984)
• State ex rel. Thompson v. Fry, 137 W. Va. 321, 71 S.E.2d 449 (1952)
• Jackson v. County Court of McDowell County, 152 W. Va. 795, 166 S.E.2d 554 (1969)
• State ex rel. White v. Franklin Cty. Bd. of Elections, 65 Ohio St. 3d 5, 598 N.E.2d 1152 (1992)
• Anderson v. Hooper, 498 F. Supp. 898 (D.N.M. 1980)
• Bruno v. Rettaliata, 122 A.D.2d 976, 506 N.Y.S.2d 124 (3d Dept. 1986)
• Manser v. Secretary of Com., 301 Mass. 264, 16 N.E.2d 868 (1938)
• Evans v. State Election Bd. of Oklahoma, 804 P.2d 1125 (Okla. 1990)
• 29 C.J.S., Elections § 184

Source

• Landing page: https://ago.wv.gov/media/18006/download?inline
• Original PDF: https://ago.wv.gov/media/18006/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0410

April 23, 2014

Jason A. Wharton
Prosecuting Attorney
Wood County Prosecuting Attorney's Office
217 Mark Street
Parkersburg, WV 26101

Dear Prosecutor Wharton,

You have asked for an Opinion of the Attorney General pertaining to the appropriate treatment of votes for a candidate in a primary election, where the candidate filed a statement of withdrawal after the deadline for removing himself from the ballot has lapsed. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your letter to the Attorney General's Office.

You explain that questions have arisen concerning the withdrawal of a candidate for a county election. According to your letter, one of the four candidates for the Republican nomination for a seat on the County Commission has filed a notarized statement of withdrawal, citing a recent illness. The candidate made this filing, however, after the deadline for removing his name from the ballot under West Virginia Code § 3-5-11(a) had lapsed. You also explain that absentee voting has already begun, so votes for the candidate who has sought to withdraw may have already been cast.

Your letter raises the following legal question:

How to handle votes cast for a candidate in a multi-candidate primary election and determine the winner where one candidate withdraws from the race after the deadline to remove his name from the ballot.

The West Virginia Code provides that a candidate who has previously filed a valid certificate of announcement for a primary can withdraw his name from the ballot, so long as the candidate does so sufficiently in advance of the primary election. Specifically, Section 3-5-11(a) provides that a candidate who "wishes to withdraw and decline to stand as a candidate for the office shall file a signed and notarized statement of withdrawal with the same officer with whom the certificate of announcement was filed." Id. "If the statement of withdrawal is received not later than the third Tuesday following the close of candidate filing, the name of a candidate who files that statement of withdrawal may not be printed on the ballot." Id. But, "[n]o candidate who files a statement of withdrawal after that time may have his or her name removed from the ballot." Id. (emphases added).

Given the specifically enumerated timeframe for withdrawing a candidate's name from the ballot under Section 3-5-11(a), we conclude that any untimely attempt to withdraw must be disallowed. Although this is a question of first impression under West Virginia law, case law from our Supreme Court of Appeals supports this reading of the statute. The Court has recognized that while "a candidate has a natural or inherent right to resign at any time and to have his name deleted from the ballot[, t]his right . . . must give way to reasonable legislative restrictions." State ex rel. Cravotta v. Hechler, 187 W. Va. 790, 793, 421 S.E.2d 698, 701 (1992). Moreover, the Court's decision in State ex rel. Carenhauer v. Hechler, 208 W. Va. 584, 542 S.E.2d 405 (2000), strongly suggests that it would find the time limitation in Section 3-5-11(a) to be such a "reasonable legislative restriction."

West Virginia Code § 3-5-11(b), the very next subsection in the West Virginia Code, further supports this conclusion. That subsection specifically sets forth procedures for addressing the circumstance in which "a candidate dies after the ballots are printed but before the election." The statute includes no such contingent procedure for candidates who untimely attempt to withdraw. This absence reinforces the conclusion that an untimely withdrawal must simply be disallowed. Cf. Syl. Pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984).

Finally, authorities from other States with similar laws are consistent with this conclusion. An election law treatise explains that absent extraordinary circumstances, "to be valid and effective it is essential that [a candidate's] withdrawal be . . . filed within the time prescribed by statute." 29 C.J.S., Elections, § 184. Thus, in State ex rel. White v. Franklin Cty. Bd. of Elections, 65 Ohio St. 3d 5, 598 N.E.2d 1152 (1992) (per curiam), the Ohio Supreme Court held that the board of elections was duty-bound to count all ballots cast for a primary candidate who had filed an untimely statement of withdrawal and to certify the results. In Anderson v. Hooper, 498 F. Supp. 898 (D.N.M. 1980), the United States District Court rejected as "spurious" the argument that the plaintiff had "withdr[awn] his consent to be a candidate in the Republican primary before the primary was actually held." Courts in other jurisdictions have reached similar conclusions under similar laws. See Bruno v. Rettaliata, 122 A.D.2d 976, 506 N.Y.S.2d 124 (3d Dept. 1986); Manser v. Secretary of Com., 301 Mass. 264, 16 N.E.2d 868 (1938).

Having concluded that a candidate's untimely notification of withdrawal must be rejected, we further conclude that West Virginia law requires that votes for such a candidate be treated as if no attempt to withdraw had been made. West Virginia Code § 3-5-15 provides procedures that election officers must follow in counting and certifying primary election results. These procedures, the West Virginia Supreme Court of Appeals has explained, are "mandatory in character." State ex rel. Thompson v. Fry, 137 W. Va. 321, 335, 71 S.E.2d 449, 457 (1952). Accordingly, it is mandatory that all votes must be counted for a candidate who attempts, but fails, to withdraw. And if the candidate receives the requisite number of votes to be declared the winner, that candidate must be certified as the winner.

If the candidate wins the nomination and reaffirms his desire to withdraw, the West Virginia Code sets forth specific procedures for filling that vacancy. See W. Va. Code § 3-5-19. At least one court in another State has found that a candidate who untimely sought to withdraw need not reaffirm that withdrawal if he wins the election, but rather should automatically be deemed withdrawn after the election results are certified. State ex rel. White v. Franklin Cty. Bd. of Elections, 65 Ohio St. 3d 45, 51, 600 N.E.2d 656, 661 (1992). At the same time, the reasoning in other cases suggests that a candidate may need to take some post-election steps to reconfirm his desire to withdraw. See Anderson, 498 F. Supp. at 902; Bruno, 122 A.D.2d at 976. In light of this uncertainty and the categorical language in our statute, we believe that a candidate who wins an election after untimely seeking to withdraw should not be automatically replaced, but rather should be required to take the (nominal) post-election step of reasserting his intent to withdraw.

In your letter, you asked about the possibility that votes for the candidate seeking untimely withdrawal be treated as "void" or, in the alternative, be treated as votes to create a vacancy for the nomination. Specifically, you cited to Jackson v. County Court of McDowell County, 152 W. Va. 795, 166 S.E.2d 554 (1969), where the West Virginia Supreme Court of Appeals adopted the "American rule" for the counting of votes for candidates declared "dead, ineligible, or disqualified" before an election. Under the American rule, votes for that candidate are not treated as "void" but, rather, are counted as votes creating a vacancy.

We do not believe that Jackson is applicable here, though we note that the practical outcome may be the same. The "American rule" adopted in Jackson is inapplicable to the present case because, given the analysis above that an untimely withdrawal must be rejected, the candidate seeking an untimely withdrawal is not "ineligible" or "disqualified." Nevertheless, where the candidate wins the election and simply reasserts his desire to withdraw, the outcome would not be significantly different than the creation of the vacancy envisioned by Jackson.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Misha Tseytlin
Deputy Attorney General