concurring in part and dissenting in part:
I concur in Sections I and II of the majority opinion which uphold the constitutionality of the basic framework of West Virginia’s nomination petition process. I must dissent, however, from the majority’s conclusion that the “desire to vote” language of W.Va.Code § 3-5-23(d) violates the First and Fourteenth Amendments as well as a voter’s statutory right to cast a secret ballot.
At the outset, I note my general agreement with the majority that if the “desire to vote” language actually forced a voter to reveal his voting preference in the general election, it would be constitutionally suspect. However, I do not join in the conclusion that the statute is unconstitutional because I do not read the statute to require such a revelation. Rather, I believe that a fair reading of this language in context with the balance of § 3-5-23 leads to the contrary conclusion that this language is nothing more than a declaration that voters who sign a nominating petition “desire to vote” for the candidate or candidates on that petition in the primary election. For support, I rely on the statute itself.
In regard to the content and form of a nominating certificate, § 3-5-23(c), (d) provide in part:
No signature on such certificate shall be counted unless it be that of a duly registered voter of the county, district or other political division represented by the office sought wherein such certificate was presented. It shall be the duty of those soliciting signatures to read to each voter whose signature is solicited the statement written on the certificate which gives notice that no person signing such certificate shall vote at any primary election to be held to nominate candidates for office to be voted for at the election to be held next after the date of signing such certificate.
(d) Such certificates shall state the name and residence of each of such candidates; that he is legally qualified to hold such office; that the subscribers are legally qualified and duly registered as voters and desire to vote for such candidates; and may designate, by not more than five words, a brief name of the party which such candidates represent and may adopt a device or emblem to be printed on the official ballot. All candidates nominated by the signing of such certificates shall have their names placed on the official ballot as candidates, as if otherwise nominated under the provisions of this chapter.
The secretary of state shall prescribe the form and content of the nomination certificates to.be used for soliciting signatures. The content shall include the language to be used in giving written and oral notice to each voter that signing of the nominating certificate forfeits that voter’s right to vote in the corresponding primary election.
(Emphasis added.) It seems clear to me that the “desire to vote” language refers to a voter's act of signing the petition and its legal effect on the voter’s eligibility to vote in the primary election. Contrary to the majority's assertion, the desire to vote language is not “entirely separate and apart” from the statute’s requirement that voters be warned that joining the petition will forfeit their right to vote in the primary. Rather, this language is more reasonably interpreted as part of the West Virginia legislature’s warning to voters about the consequences of signing the petition. Under this interpretation, the provision cannot run afoul of the right to cast a secret ballot because it forces the voter to state publicly nothing more than he has already stated publicly by signing the petition, that he desire to vote for the candidate or candidates on the petition in the primary election. Likewise, the provision does not vio*1312late the right of equal protection of law because the provision does not disadvantage signatories of the petition relative to any other voters.1
Further, the majority’s reliance on Anderson v. Mills, 664 F.2d 600 (6th Cir.1987), is misplaced. While Mills appears to be on all fours with this case, it is not. The “desire to vote” clause in Mills, KRS § 118.315 (repealed 1988 Ky. Acts Ch. 17 § 11), could not have possibly served the same cautionary function as it serves in § 3-5-23(d) because the signatory of a Kentucky petition does not forfeit his primary vote.2 Consequently, the only election the Kentucky statute could have been referring to was the general election.
In sum, I find the majority’s interpretation of § 3-5-23(d) strained and unsupported. I also find it disappointing in view of the Supreme Court’s repeated admonitions that courts should strive to interpret statutes as a whole, rather than focusing on a particular phrase or sentence, and that statutes should be interpreted to avoid constitutional difficulties. E.g., Webster v. Reproductive Health Services, - U.S.-, 109 S.Ct. 3040, 3054, 106 L.Ed.2d 410 (1989). The majority's myopic focus on the “desire to vote” language, in disregard of these axioms of statutory construction, has led it to an erroneous result. Accordingly, I must dissent from Sections III and IV of the majority opinion and would affirm the district court in all respects.
. In fact, the "desire to vote” declaration of minor party petition signatories is analogous to West Virginia’s requirement that major party members must publicly declare their party affiliation and vote in the primary only for candidates of their party. W.Va.Code § 3-2-18. This analogy is even closer than one might think because in West Virginia, primary elections are often uncontested. Consequently, a declaration of affiliation with a major party is, for all intents and purposes, a declaration of for whom the voter desires to vote.
. However, a voter can sign only one petition per office (except for the office of soil and water conservation district supervisors). KRS § 118.315(2).