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W.Va. could add hurdles to primary ballot

Lawrence Messina

West Virginia officials have several options if they wish to avoid repeating an outcome of this month's primary election, when imprisoned felon Keith Judd attracted nearly 41 percent of the vote against President Barack Obama.

Judd qualified for the Democratic primary ballot after he mailed in a candidacy form and a $2,500 filing fee from Texas. He's serving a 17-year federal sentence there for making threats. Declared results from the May 8 primary show Judd with 73,138 votes to Obama's 106,770.

A number of states also require presidential candidates to gather voter signatures. Such a hurdle kept several high-profile Republican candidates off the ballot in neighboring Virginia earlier this year: Texas Gov. Rick Perry, House Speaker Newt Gingrich, former Pennsylvania Sen. Rick Santorum and former Utah Gov. Jon Huntsman. That state requires candidates to submit signatures of at least 10,000 voters, including at least 400 from each of its 11 congressional districts. Virginia also only allows state residents to circulate candidate petitions.

Only a handful of states don't require petition signatures for at least certain categories of candidates, said Richard Winger, editor of Ballot Access News. For 27 years, Winger has tracked legislation, court rulings and other developments in this area. West Virginia mandates signatures for third-party and independent candidates running for president, Congress and statewide office, a standard that does not affect the primaries of the state's recognized political parties.

West Virginia's threshold is 1 percent of the votes cast for the particular office during the last election. Judd would have needed 7,135 signatures if he had sought to run for president in West Virginia by this route.

Winger estimated that about half the states leave it to their chief elections official, usually the secretary of state, to decide which presidential candidates get on the ballot. Tennessee, for instance, allows its secretary of state "sole discretion to include only those candidates that he has determined are generally advocated or recognized as candidates in national news media throughout the United States," according to that state's access rules.

A few states give their political parties the power to approve presidential primary candidates, said Winger, who advocates for improving ballot access for all candidates.

Rather than creating or beefing up hurdles for would-be primary candidates, the West Virginia Legislature has moved in the opposite direction, according to a review of measures proposed over the last 15 years.

A bill passed in 2009, for instance, lowered the minimum amount of signatures for minor-party and independent candidates from 2 percent of the previous election's vote. That legislation included other provisions meant to ease the petition process, and passed overwhelmingly in the House of Delegates and unanimously in the state Senate. A 2004 law capped the filing fee for presidential candidates at $2,500. It had reflected a percentage of that office's annual salary, and so would have been $4,000 this year.

Other bills on the topic include an unsuccessful proposal from this year's session that sought to reduce the signature requirement for would-be candidates who seek a waiver of the filing fee.

"The trend has been to increase the capability of candidates" to get on the ballot, said Bob Bastress, a professor at West Virginia University's law school who is considered an authority on the state constitution.

Bastress also noted that the West Virginia Constitution does not, and cannot, set qualifications for candidates for president or other federal offices. The U.S. Constitution says that any "natural born Citizen" age 35 or older who has lived within the country for 14 years can become president. While the West Virginia Constitution denies the right to vote to anyone "under conviction of treason, felony or bribery in an election," and allows only citizens eligible to vote to seek election, that requirement applies to "any state, county or municipal office."

Brian Savilla, the GOP nominee for Secretary of State, has said he would have thrown Judd off the ballot because he's a felon. Those who agree include House Minority Leader Tim Armstead. The Kanawha County Republican said the state constitution's requirement regarding felons running should apply to federal offices.

"I do think there may be a question as to the existing constitutional provision, what it extends to," said Armstead, a lawyer. "There should have been the decision made not to place any felon on the ballot. The burden would then be on felon to challenge that."

But Winger cited a series of around 20 federal court rulings, including a 1995 U.S. Supreme Court decision and separate opinions by four U.S. circuit courts of appeal, that have rejected attempts by states to impose requirements on federal candidates.

"They're wrong," Winger said. He added, "It's settled (law)... This is pretty basic stuff."

The Texas Democratic Party, for instance, tried to keep fringe politician and perennial candidate Lyndon LaRouche off its primary ballot in 1992, while he served a 15-year sentence for mail fraud and tax conspiracy, because he was a convicted felon. The Texas Supreme Court ruled in LaRouche's favor, finding that "the United States Constitution establishes the exclusive requirements for the office of the President, and that those requirements make no reference to criminal convictions."

LaRouche is one of at least four felons who ran for president from behind bars before Judd. From prison, LaRouche received 3,141 votes in West Virginia's 1992 primary.

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Lawrence Messina covers the statehouse for The Associated Press. Follow him at http://twitter.com/lmessina

The Associated Press