Senate Bill No. 195
(By Senators Jenkins and McCabe)
____________
[Introduced January 13, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §3-1-16 of the Code of West Virginia,
1931, as amended; to amend and reenact §3-4A-11a of said code;
to amend said code by adding thereto a new section, designated
§3-5-6a; to amend and reenact §3-5-7, §3-5-13 and §3-5-13a of
said code; and to amend said code by adding thereto a new
section, designated §3-6-2a, all relating to the nonpartisan
election of justices of the Supreme Court of Appeals; timing
and frequency of election; ballot design and printing;
separation from partisan ballot; nonpartisan election of
justices; filing announcement of candidacies; withdrawal of
announcement of candidacies; refund of paid filing fees; and
ballot content and form.
Be it enacted by the Legislature of West Virginia:
That §3-1-16 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §3-4A-11a of said code be amended and reenacted; that said code be amended by adding thereto a new
section, designated §3-5-6a; that §3-5-7, §3-5-13 and §3-5-13a of
said code be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §3-6-2a, all to read as
follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-16. Election of state officers.
(a) At the general election to be held in the year 1968, and
in every fourth year thereafter, there shall be elected a Governor,
Secretary of State, Treasurer, Auditor, Attorney General, and
Commissioner of Agriculture. At the general election in the year
1968, and in every second year thereafter, there shall be elected
a member of the State Senate for each senatorial district, and a
member or members of the House of Delegates of the state from each
county or each delegate district. At the general election to be
held in the year 1968, and
in every twelve
year years thereafter,
there shall be elected one
judge justice of the Supreme Court of
Appeals, and at the general election to be held in the year 1972,
and
in every twelve
year years thereafter, two
judges justices of
the Supreme Court of Appeals, and at the general election to be
held in the year 1976, and
in every twelve
year years thereafter,
two
judges justices of the Supreme Court of Appeals.
(b) Effective with the general election held in the year 2012,
the election of justices of the Supreme Court of Appeals shall be held on a nonpartisan basis.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-11a. Ballots tabulated electronically; arrangement, quantity
to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using
ballots upon which votes may be recorded by means of marking with
electronically sensible ink or pencil and which marks are tabulated
electronically shall cause the ballots to be printed or displayed
upon the screens of the electronic voting system for use in
elections.
(b)(1) For the primary election, the heading of the ballot,
the type faces, the names and arrangement of offices and the
printing of names and arrangement of candidates within each office
are to conform as nearly as possible to the provisions of sections
thirteen and thirteen-a, article five of this chapter.
(2) For the general election, the heading of the ballot, the
straight ticket positions, the instructions to straight ticket
voters, the type faces, the names and arrangement of offices and
the printing of names and the arrangement of candidates within each
office are to conform as nearly as possible to the provisions of
section two, article six of this chapter, except as otherwise
provided in this article.
(3) Nonpartisan elections for board of education,
justices for
the Supreme Court of Appeals and any question to be voted upon are to be separated from the partisan ballot and separately headed in
display type with a title clearly identifying the purpose of the
election and constituting a separate ballot wherever a separate
ballot is required under the provisions of this chapter.
(4) Both the face and the reverse side of the ballot may
contain the names of candidates only if means to ensure the secrecy
of the ballot are provided and lines for the signatures of the poll
clerks on the ballot are printed on a portion of the ballot which
is deposited in the ballot box and upon which marks do not
interfere with the proper tabulation of the votes.
(5) The arrangement of candidates within each office is to be
determined in the same manner as for other electronic voting
systems, as prescribed in this chapter. On the general election
ballot for all offices, and on the primary election ballot only for
those offices to be filled by election, except delegate to national
convention, lines for entering write-in votes are to be provided
below the names of candidates for each office, and the number of
lines provided for any office shall equal the number of persons to
be elected, or three, whichever is fewer. The words "WRITE-IN, IF
ANY" are to be printed, where applicable, directly under each line
for write-ins. The lines are to be opposite a position to mark the
vote.
(c) Except for electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means of touch, the primary election ballots are to be printed in the
color of ink specified by the Secretary of State for the various
political parties, and the general election ballot is to be printed
in black ink. For electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary ballots and the general election ballot are
to be printed in black ink. All ballots are to be printed, where
applicable, on white paper suitable for automatic tabulation and
are to contain a perforated stub at the top or bottom of the
ballot, which is to be numbered sequentially in the same manner as
provided in section thirteen, article five of this chapter, or are
to be displayed on the screens of the electronic voting system upon
which votes are recorded by means of a stylus or touch. The number
of ballots printed and the packaging of ballots for the precincts
are to conform to the requirements for paper ballots provided in
this chapter.
(d) In addition to the official ballots, the ballot
commissioners shall provide all other materials and equipment
necessary to the proper conduct of the election.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-6a. Election of justices of the Supreme Court of Appeals.
(a) An election for the purpose of electing a justice or
justices of the Supreme Court of Appeals shall be held on the same
date as the general election, as provided by law, but upon a nonpartisan ballot printed for this purpose.
(b) In each nonpartisan election for a justice or justices of
the Supreme Court of Appeals, the board of canvassers shall declare
and certify the election of the required number of eligible
candidates receiving the highest numbers of votes to fill any full
terms.
(c) It is the intent of this section that any person declared
to be elected under this section shall take office as a duly
elected justice, even though the person received a plurality of all
votes cast at such election.
(d) In case of a tie vote under this section, the provisions
of section twelve, article six of this chapter shall control in
breaking the tie.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
(a) Any person who is eligible and seeks to hold an office or
political party position to be filled by election in any primary or
general election held under the provisions of this chapter shall
file a certificate of announcement declaring his or her candidacy
for the nomination or election to the office.
(b) The certificate of announcement shall be filed as follows:
(1) Candidates for the House of Delegates or the State Senate
and any other office or political position to be filled by the
voters of more than one county shall file a certificate of announcement with the Secretary of State.
(2) Candidates for an office or political position to be
filled by the voters of a single county or a subdivision of a
county, except for candidates for the House of Delegates or State
Senate, shall file a certificate of announcement with the clerk of
the county commission.
(3) Candidates for an office to be filled by the voters of a
municipality shall file a certificate of announcement with the
recorder or city clerk.
(c)
Except for the offices of justice of the Supreme Court of
Appeals, which are to be filled on a nonpartisan basis beginning at
the general election held in the year 2012, the certificate of
announcement shall be filed with the proper officer not earlier
than the second Monday in January next preceding the primary
election day, and not later than the last Saturday in January next
preceding the primary election day, and must be received before
midnight, eastern standard time, of that day or, if mailed, shall
be postmarked by the United States Postal Service before that hour.
The office of justice of the Supreme Court of Appeals, beginning in
the year 2012, shall be filled on a nonpartisan basis at the
general election. The certificate of announcement shall be filed
with the authorized election official not later than the second
Tuesday in May, and must be received before midnight, eastern
standard time, of that day or, if mailed, shall be postmarked by the United States Postal Service before midnight, eastern standard
time, of that day. All certificates of announcement for the office
of justice of the Supreme Court of Appeals, which were filed not
earlier than the second Monday in January next preceding the
primary election day, and not later than the last Saturday in
January next preceding the primary election day, and were received
before midnight, eastern standard time, of that day or, if mailed,
were postmarked by the United States Postal Service before that
hour, may be withdrawn on or before midnight, eastern standard
time, of the second Tuesday in May, in accordance with the
provisions of article five, section eleven of this chapter, with a
full refund of any filing fees paid or, if not withdrawn, shall be
effective for purposes of the nonpartisan election for such offices
to be held on general election day.
(d) The certificate of announcement shall be on a form
prescribed by the Secretary of State on which the candidate shall
make a sworn statement before a notary public or other officer
authorized to administer oaths, containing the following
information:
(1) The date of the election in which the candidate seeks to
appear on the ballot;
(2) The name of the office sought; the district, if any; and
the division, if any;
(3) The legal name of the candidate and the exact name the candidate desires to appear on the ballot, subject to limitations
prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate
is a legally qualified voter of that county; and the magisterial
district of residence for candidates elected from magisterial
districts or under magisterial district limitations;
(5) The specific address designating the location at which the
candidate resides at the time of filing, including number and
street or rural route and box number and city, state and zip code;
(6) For partisan elections, the name of the candidate's
political party and a statement that the candidate: (A) Is a
member of and affiliated with that political party as evidenced by
the candidate's current registration as a voter affiliated with
that party; and (B) has not been registered as a voter affiliated
with any other political party for a period of sixty days before
the date of filing the announcement;
(7) For candidates for delegate to national convention, the
name of the presidential candidate to be listed on the ballot as
the preference of the candidate on the first convention ballot; or
a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______
day of _____________, 20____" and a space for the signature of the officer giving the oath.
(e) The Secretary of State or the board of ballot
commissioners, as the case may be, may refuse to certify the
candidacy or may remove the certification of the candidacy upon
receipt of a certified copy of the voter's registration record of
the candidate showing that the candidate was registered as a voter
in a party other than the one named in the certificate of
announcement during the sixty days immediately preceding the filing
of the certificate:
Provided, That unless a signed formal
complaint of violation of this section and the certified copy of
the voter's registration record of the candidate are filed with the
officer receiving that candidate's certificate of announcement no
later than ten days following the close of the filing period, the
candidate may not be refused certification for this reason.
(f) The certificate of announcement shall be subscribed and
sworn to by the candidate before some officer qualified to
administer oaths, who shall certify the same. Any person who
knowingly provides false information on the certificate is guilty
of false swearing and shall be punished in accordance with section
three, article nine of this chapter.
(g) Any candidate for delegate to a national convention may
change his or her statement of presidential preference by notifying
the Secretary of State by letter received by the Secretary of State
no later than the third Tuesday following the close of candidate filing. When the rules of the political party allow each
presidential candidate to approve or reject candidates for delegate
to convention who may appear on the ballot as committed to that
presidential candidate, the presidential candidate or the
candidate's committee on his or her behalf may file a list of
approved or rejected candidates for delegate and the Secretary of
State shall list as "uncommitted" any candidate for delegate who is
disapproved by the presidential candidate.
(h) A person may not be a candidate for more than one office
or office division at any election:
Provided, That a candidate for
an office may also be a candidate for President of the United
States, for membership on political party executive committees or
for delegate to a political party national convention.
(i) A candidate who files a certificate of announcement for
more than one office or division and does not withdraw, as provided
by section eleven, article five of this chapter, from all but one
office prior to the close of the filing period may not be certified
by the Secretary of State or placed on the ballot for any office by
the board of ballot commissioners.
(j) The provisions of this section enacted during the regular
session of the Legislature in the year 1991 shall apply to the
primary election held in the year 1992 and every primary election
held thereafter. The provisions of this section enacted during the
regular session of the Legislature in the year 2009 shall apply to the primary election held in the year 2010 and every primary
election held thereafter.
§3-5-13. Form and contents of ballots.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(1) The heading of every ballot is to be printed in display
type. The heading is to contain a ballot title, the name of the
county, the state, the words "Primary Election" and the month, day
and year of the election. The ballot title of the political party
ballots is to contain the words "Official Ballot of the (Name)
Party" and the official symbol of the political party may be
included in the heading. The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for
the board of education is to contain the words "Nonpartisan Ballot
of Election of Members of the ______________ County Board of
Education". The districts for which less than two candidates may
be elected and the number of available seats are to be specified
and the names of the candidates are to be printed without reference
to political party affiliation and without designation as to a
particular term of office.
The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for
the Supreme Court of Appeals shall contain the words "Nonpartisan
Ballot of Election of Justice(s) of the Supreme Court of Appeals of
West Virginia." The names of the candidates for the Supreme Court of Appeals shall be printed without references to political party
affiliation or registration. Any other ballot or portion of a
ballot on a question is to have a heading which clearly states the
purpose of the election according to the statutory requirements for
that question.
(2) (A) For paper ballots, the heading of the ballot is to be
separated from the rest of the ballot by heavy lines and the
offices shall be arranged in columns with the following headings,
from left to right across the ballot: "National Ticket", "State
Ticket", "County Ticket" and, in a presidential election year,
"National Convention" or, in a nonpresidential election year,
"District Ticket". The columns are to be separated by heavy lines.
Within the columns, the offices are to be arranged in the order
prescribed in section thirteen-a of this article.
(B) For voting machines, electronic voting devices and any
ballot tabulated by electronic means, the offices are to appear in
the same sequence as prescribed in section thirteen-a of this
article and under the same headings as prescribed in subsection (a)
of this section. The number of pages, columns or rows, where
applicable, may be modified to meet the limitations of ballot size
and composition requirements subject to approval by the Secretary
of State.
(C) The title of each office is to be separated from preceding
offices or candidates by a line and is to be printed in bold type no smaller than eight point. Below the office is to be printed the
number of the district, if any, the number of the division, if any,
and the words "Vote for ________" with the number to be nominated
or elected or "Vote For Not More Than ________" in multicandidate
elections. For offices in which there are limitations relating to
the number of candidates which may be nominated, elected or
appointed to or hold office at one time from a political
subdivision within the district or county in which they are
elected, there is to be a clear explanation of the limitation, as
prescribed by the Secretary of State, printed in bold type
immediately preceding the names of the candidates for those offices
on the ballot in every voting system. For counties in which the
number of county commissioners exceeds three and the total number
of members of the county commission is equal to the number of
magisterial districts within the county, the office of county
commission is to be listed separately for each district to be
filled with the name of the magisterial district and the words
"Vote for One" printed below the name of the office:
Provided,
That the office title and applicable instructions may span the
width of the ballot so as it is centered among the respective
columns.
(D) The location for indicating the voter's choices on the
ballot is to be clearly shown. For paper ballots, other than those
tabulated electronically, the official primary ballot is to contain a square formed in dark lines at the left of each name on the
ballot, arranged in a perpendicular column of squares before each
column of names.
(3)(A) The name of every candidate certified by the Secretary
of State or the board of ballot commissioners is to be printed in
capital letters in no smaller than eight point type on the ballot
for the appropriate precincts. Subject to the rules promulgated by
the Secretary of State, the name of each candidate is to appear in
the form set out by the candidate on the certificate of
announcement, but in no case may the name misrepresent the identity
of the candidate nor may the name include any title, position,
rank, degree or nickname implying or inferring any status as a
member of a class or group or affiliation with any system of
belief.
(B) The city of residence of every candidate, the state of
residence of every candidate residing outside the state, the county
of residence of every candidate for an office on the ballot in more
than one county and the magisterial district of residence of every
candidate for an office subject to magisterial district limitations
are to be printed in lower case letters beneath the names of the
candidates.
(C) The arrangement of names within each office must be
determined as prescribed in section thirteen-a of this article.
(D) If the number of candidates for an office exceeds the space available on a column or ballot page and requires that
candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate
columns or pages are to be nearly equal and clear instructions
given the voter that the candidates for the office are continued on
the following column or page.
(4) When an insufficient number of candidates has filed for a
party to make the number of nominations allowed for the office or
for the voters to elect sufficient members to the board of
education or to executive committees, the vacant positions on the
ballot shall be filled with the words "No Candidate Filed"
:
Provided, That in paper ballot systems which allow for write-ins to
be made directly on the ballot, a blank line shall be placed in any
vacant position in the office of board of education or for election
to any party executive committee. A line shall separate each
candidate from every other candidate for the same office.
Notwithstanding any other provision of this code, if there are
multiple vacant positions on a ballot for one office, the multiple
vacant positions which would otherwise be filled with the words "No
Candidate Filed" may be replaced with a brief detailed description,
approved by the Secretary of State, indicating that there are no
candidates listed for the vacant positions.
(5) In presidential election years, the words "For election in
accordance with the plan adopted by the party and filed with the Secretary of State" is to be printed following the names of all
candidates for delegate to national convention.
(6) All paper ballots are to be printed in black ink on paper
sufficiently thick so that the printing or marking cannot be
discernible from the back. Ballot cards and paper for printing
ballots using electronically sensible ink are to meet minimum
requirements of the tabulating systems and are to conform in size
and weight to ensure ease in tabulation.
(7) Ballots are to contain perforated tabs at the top of the
ballots and are to be printed with unique sequential numbers from
one to the highest number representing the total number of ballots
printed. On paper ballots, the ballot is to be bordered by a solid
line at least one sixteenth of an inch wide and the ballot is to be
trimmed to within one-half inch of that border.
(8) On the back of every official ballot or ballot card the
words "Official Ballot" with the name of the county and the date of
the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words "Poll
Clerks".
(9) The face of sample paper ballots and sample ballot labels
are to be like other official ballots or ballot labels except that
the word "sample" is to be prominently printed across the front of
the ballot in a manner that ensures the names of candidates are not
obscured and the word "sample" may be printed in red ink. No printing may be placed on the back of the sample.
§3-5-13a. Order of offices and candidates on the ballot; uniform
drawing date.
(a) The order of offices for state and county elections on all
ballots within the state shall be as prescribed herein. When the
office does not appear on the ballot in an election, then it shall
be omitted from the sequence. When an unexpired term for an office
appears on the ballot along with a full term, the unexpired term
shall appear immediately below the full term.
NATIONAL TICKET: President (and Vice President in the general
election), United States Senator, member of the United States House
of Representatives
STATE TICKET: Governor, Secretary of State, Auditor,
Treasurer, Commissioner of Agriculture, Attorney General, J
ustice
of the Supreme Court of Appeals, State Senator, member of the House
of Delegates, circuit judge in multicounty districts, family court
judge in multicounty districts, any other multicounty office, state
executive committee
COUNTY TICKET: Circuit judge in single-county districts,
family court judge in single-county districts, clerk of the circuit
court, county commissioner, clerk of the county commission,
prosecuting attorney, sheriff, assessor, magistrate, surveyor,
congressional district executive committee, senatorial district
executive committee in multicounty districts, delegate district executive committee in multicounty districts
NATIONAL CONVENTION: Delegate to the national convention --
at-large, delegate to the national convention -- congressional
district
DISTRICT TICKET: County executive committee.
(b) Except for office divisions in which no more than one
person has filed a certificate of announcement, the arrangement of
names for all offices shall be determined by lot according to the
following provisions:
(1) On the fourth Tuesday following the close of the candidate
filing, beginning at nine o'clock a. m., a drawing by lot shall be
conducted in the office of the clerk of the county commission in
each county. Notice of the drawing shall be given on the form for
the certificate of announcement and no further notice shall be
required. The clerk of the county commission shall superintend and
conduct the drawing and the method of conducting the drawing shall
be prescribed by the Secretary of State.
(2) Except as provided herein, the position of each candidate
within each office division shall be determined by the position
drawn for that candidate individually:
Provided, That if fewer
candidates file for an office division than the total number to be
nominated or elected, the vacant positions shall appear following
the names of all candidates for the office.
(3) Candidates for delegate to national convention who have filed a commitment to a candidate for president shall be listed
alphabetically within the group of candidates committed to the same
candidate for president and uncommitted candidates shall be listed
alphabetically in an uncommitted category. The position of each
group of committed candidates and uncommitted candidates shall be
determined by lot by drawing the names of the presidential
candidates and for an uncommitted category.
(4) A candidate or the candidate's representative may attend
the drawings.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-2a. General election ballots for election of justices of the
Supreme Court of Appeals.
The general election ballot shall contain a separate section
listing the names of candidates for justice of the Supreme Court,
clearly separate and apart from the listing of the names on the
ballot for political party candidates for partisan offices, and
shall include a heading of: "Nonpartisan Ballot of Election of
Justice(s) of the Supreme Court of Appeals of West Virginia"
with
the names of all candidates for that nonpartisan election listed
thereunder with no other offices listed in that section or that
ballot as appropriate.
NOTE:
The purpose of this bill is to allow Supreme Court
justices to be elected on a nonpartisan ballot.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§3-5-6a and §3-6-2a are new; therefore, strike-throughs and
underscoring have been omitted.
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