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Introduced Version House Bill 2552 History

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House Bill No. 2552

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(By Delegates Lane, Anderson, Armstead, Cowles, Duke, Evans, Kump, Overington, Romine, Sigler and Storch)

[Introduced January 19, 2011; referred to the Committee on the Judiciary then Finance]

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A BILL to amend and reenact §3-10-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §3-10-2a, all relating to vacancy in the office of the Governor; providing for an election to fill the unexpired term; providing for a new primary election to nominate party candidates for the new general election; providing that the provisions of the law relating to elections shall apply to the new primary election unless inconsistent with section; modifying certain statutory time periods; directing new primary election to be held on May 14, 2011, and a new general election on August 6, 2011; modifying certain statutory time lines relating to declaration of candidacy and early voting for new elections; modifying procedures relating to payment of filing fees, drawing of ballot positions, selecting and training individuals working as election official; clarifying the eligibility of certain minors to vote in new primary election; modifying statutory provisions relating to minimum number of ballots to be printed; modifying publications requirements of sample ballots, lists of candidates, and public testing of voting machines; providing applications deadlines for absentee ballots and procedures for changing polling places; modifying procedures for persons without party affiliations to nominate candidates for the new general election; authorizing the Secretary of State to issue administrative orders and to establish procedures and deadlines necessary to preserve voting rights, avoid fraudulent voting and other election irregularities and assure orderly and efficient administration of the new primary election; requiring the state to pay costs incurred in connection with a new election to fill a vacancy in the office of Governor; requiring Secretary of State to report to Joint Committee on Government and Finance and establishing guidelines for the report; and providing for the expiration of the section.

Be it enacted by the Legislature of West Virginia:

    That §3-10-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §3-10-2a, all to read as follows:

ARTICLE 10.   FILLING VACANCIES  

§3-10-2. Vacancy in office of Governor.

    In case of the death, conviction or impeachment, failure to qualify, resignation or other disability of the Governor, the President of the Senate shall act as Governor until the vacancy is filled or the disability removed; and if the President of the Senate, for any of the above-named causes, shall be or become incapable of performing the duties of Governor, the same shall devolve upon the Speaker of the House of Delegates; and in all other cases where there is no one to act as Governor, one shall be chosen by the joint vote of the Legislature. Whenever a vacancy shall occur in the office of Governor before the first three years of the term shall have expired, a new election for Governor shall take place to fill the vacancy. The Senate President acting as Governor shall, within ten days of the occurrence of the vacancy, give notice thereof by proclamation, to be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county of the state. In such proclamation the President of the Senate acting as Governor shall appoint some day, not less than sixty nor more than seventy-five days from the date thereof, for holding the new primary election to nominate candidates to fill such vacancy. In such proclamation the President of the Senate acting as Governor shall appoint some day, not less than sixty nor more than ninety days from the new primary election for holding the new election to fill the vacancy in the office of Governor. Any election, which is held under the provisions of this section and occurs concurrently with any primary or general election, shall be a separate and distinct election from that primary or general election. If the vacancy shall occur more than thirty days next preceding a general election, the vacancy shall be filled at such election and the acting Governor for the time being shall issue a proclamation accordingly, which shall be published prior to such election as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county of the state. But if it shall occur less than thirty days next preceding such general election, and more than one year before the expiration of the term, such acting Governor shall issue a proclamation, fixing a time for a special election to fill such vacancy, which shall be published as hereinbefore provided.

    If the vacancy is to be filled at a general election and shall occur before the primary election to nominate candidates to be voted for at such general election, candidates to fill the vacancy shall be nominated at such primary election in accordance with the time requirements and the provisions and procedures prescribed in article five of this chapter. When nominations to fill such vacancy cannot be so accomplished at such primary election, and in all cases wherein the vacancy is to be filled at a special election, candidates to be voted for at such general or special elections shall be nominated by a state convention to be called, convened and held under the resolutions, rules and regulations of the political party executive committees of the state. The laws prescribing the manner of calling, constituting and holding conventions to nominate candidates for presidential electors shall, insofar as applicable, govern conventions to nominate candidates to fill any vacancy in any office to be filled by the voters of the state as a whole, except that, in lieu of the magisterial district conventions in the several counties, the county executive committee shall call and convene a county convention at the county seat with delegates thereto apportioned to and representative of the several magisterial districts of the county as provided in section twenty-one of article five of this chapter. The county convention shall proceed to select the county's prescribed number of state convention delegates from the several magisterial districts thereof and the chairman and secretary of the convention shall promptly certify the names and addresses of the persons so selected as delegates to the state convention to the chairman of the state executive committee of the political party.

§3-10-2a. New election to fill the vacancy in office of governor existing on December 1, 2010.

    (a) Notwithstanding the provisions of section two of this article establishing processes for the election to fill a vacancy in the office of Governor, for the purposes of filling the vacant seat in the office of Governor existing December 1, 2010, a new general election shall be held to fill the unexpired term on August 6, 2011. A new primary election shall be held on May 14, 2011, to nominate party candidates for the new general election.

    (b) Within two days of the effective date of this section the President of the Senate acting as Governor shall issue a proclamation calling for a new primary election and new general election to fill the vacancy in the office of Governor, consistent with the provisions of this section. The following provisions apply to these new elections:

    (1) The proclamation for the new elections shall be published prior to the new elections as a Class II-0 legal advertisement in accordance with article three, chapter fifty-nine of this code, and the publication area for the publication is each county of the state. The notice shall be filed with the Secretary of State who shall immediately transmit the document to the clerk of the county commission of each county. The clerk of the county commission of each county shall cause the document to be published within the county in accordance with this section.

    (2) The provisions of this chapter shall apply to these new elections to the extent that those provisions are consistent with the provisions of this section. Statutory time deadlines relating to availability of absentee ballots, certification, canvassing and related election procedures that cannot be met in a timely fashion, for the purpose of these new elections, are modified as follows:

    (A) The new primary election is to be held May 14, 2011, and the new general election is to be held August 6, 2011;

    (B) A notarized declaration of candidacy and filing fee shall be filed and received in hand by the Secretary of State by 5:00 p.m. on the tenth calendar day following the proclamation of the new primary election. The declaration of candidacy may be filed in person, by United States mail, electronic means or any other means authorized by the Secretary of State;

    (C) Early-in-person voting for the new primary election shall be conducted during regular business hours beginning on May 2, 2011, and continuing through close of business on May 12, 2011. In addition, early-in-person voting for the new primary election shall be conducted from 9:00 a.m. to 5:00 p.m. on Saturday, May 7, 2011. No satellite polling locations will be utilized for the May 14, 2011, new primary election. Early-in-person voting for the new general election shall be conducted during regular business hours beginning on July 25, 2011, and continuing through close of business on August 4, 2011. In addition, early-in-person voting for the new general election shall be conducted from 9:00 a.m. to 5:00 p.m. on Saturday, July 30, 2011. No satellite polling locations will be utilized for the August 6, 2011, new general election.

    (D) The Secretary of State may issue emergency administrative orders to undertake other ministerial actions that are otherwise authorized pursuant to this code when necessary to assure the preservation of the voting rights of the citizens of this state and avoid fraudulent voting and election activities and otherwise assure the orderly and efficient conduct of the election: Provided, That such emergency administrative orders may not contravene the provisions of this section;

    (E) The compensation of election officers, cost of printing ballots and all other reasonable and necessary expenses in holding and making the return of the new elections to fill a vacancy in the office of Governor are obligations of the state incurred by the ballot commissioners, clerks of the circuit courts, clerks of the county commissions and county commissions of the various counties as agents of the state. All expenses of the new elections are to be audited by the Secretary of State. The Secretary of State shall prepare and transmit to the county commissions forms on which the county commissions shall certify all expenses of these new elections to the Secretary of State. If satisfied that the expenses as certified by the county commissions are reasonable and were necessarily incurred, the Secretary of State shall requisition the necessary warrants from the Auditor of the state to be drawn on the State Treasurer and shall mail the warrants directly to the vendors of the new election services, supplies and facilities;

    (F) For petition in lieu of payment of filing fees, a candidate seeking nomination for the vacant seat for Governor may utilize the process set forth in section eight-a, article five of this chapter: Provided, That the minimum number of signatures required is one thousand seven hundred and forty;

    (G) Drawing for ballot position will take place at the Secretary of State’s office 24 hours after the end of the filing period. For each major political party on the ballot, a single drawing by lot shall determine the candidate ballot position for ballots statewide in the May 14, 2011, new primary election. This drawing shall be witnessed by four clerks of the county commission chosen by the West Virginia Association of County Clerks, with no more than two clerks representing a single political party. Ballot position for the new general election on August 6, 2011, shall be in accordance with the provisions of section two(c)(3) of article six, chapter three of this code;

    (H) The clerks of the county commission shall submit the list of persons who worked in the November 2, 2010, general election to the county commission for appointment as election officials;

    (I) Election officials for both the new primary and new general elections created by this section shall be appointed by March 8, 2011;

    (J) The clerks of the county commission shall provide notice to all election officials of the fact of their appointment by March 15, 2011. Included with the notice shall be a response notice form for the appointed person to return indicating if he or she agrees to serve in the specified capacity in the May 14, 2011, new primary election and the August 6, 2011, new election for Governor;

    (K) The position of any election official notified of appointment who fails to return the response notice or otherwise confirm to the clerk of the county commission his or her agreement to serve by March 29, 2011, is considered vacant and the clerk of the county commission shall proceed to fill the vacancies;

    (L) Election officials shall be trained by April 15, 2011;     (M) A registered voter who has not reached eighteen years of age may vote in the May 14, 2011, new primary election: Provided, That the voter will attain eighteen years of age at the time of the August 6, 2011, new general election;

    (N) When paper or optical scan ballots are the primary voting method used at any county, the total number of regular official ballots printed shall equal at a minimum fifty percent of the number of registered voters eligible to vote that ballot;

    (O) When paper ballots are used in conjunction with a direct recording electronic voting system, the total number of regular official ballots printed shall equal at a minimum thirty percent of the registered voters eligible to vote that ballot;

    (P) For counties in which two or more qualified newspapers publish a daily newspaper, the clerk of the county commission shall publish at least once each sample official May 14, 2011, new primary election ballot, on the last day on which a newspaper is published immediately preceding the May 14, 2011, new primary election, as a Class I-0 legal advertisement in the two qualified daily newspapers of different political parties within the county having the largest circulation in compliance with the provisions of article three, chapter fifty-nine of West Virginia Code. The clerk of the county commission shall publish at least once each sample official August 6, 2011, new general election ballot, on the last day on which a newspaper is published immediately preceding the August 6, 2011, new general election, as a Class I-0 legal advertisement in the two qualified daily newspapers of different political parties within the county having the largest circulation in compliance with the provisions of article three, chapter fifty-nine of West Virginia Code;

    (Q) For counties having no more than one daily newspaper or having one or more qualified newspapers which publish weekly, the clerk of the county commission shall publish each sample official May 14, 2011, new primary election ballot, on the last day in which a newspaper is published immediately preceding the May 14, 2011, new primary election, as a Class I-0 legal advertisement in the qualified daily newspaper within the county having the largest circulation in compliance with the provisions of article three, chapter fifty-nine of West Virginia Code. The clerk of the county commission shall publish each sample official August 6, 2011, new general election ballot, on the last day in which a newspaper is published immediately preceding the August 6, 2011, new general election, as a Class I-0 legal advertisement in the qualified daily newspaper within the county having the largest circulation in compliance with the provisions of article three, chapter fifty-nine of West Virginia Code;

    (R) Counties shall not be required to separately publish a certified list of candidates;

    (S) If only one notice of a sample ballot is published, it shall include a statement notifying voters that this is the sole publication of the sample ballot;

    (T) Before voting machines are used, the clerks of the county commission shall have the ballots, vote recording devices, and electronic poll books inspected, and automatic tabulating equipment tested to ascertain that it will accurately count the votes cast. A single notice of the place and time of the inspection and testing shall be published, no less than three days in advance, as a Class I-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of West Virginia Code. The publication area is the county involved;

    (U) Applications for absentee ballots shall be accepted from the date of proclamation, other than from voters eligible to vote under the provisions of the Uniformed and Overseas Citizens Absentee Voting Act who may apply for an absentee ballot for all elections within a calendar year as early as the first day of January 2011;

    (V) Regularly scheduled locations of polling places shall not be changed, except for emergency situations as provided for in §3-1-7(e) and (f): Provided, That if multiple precincts voted in one polling location for the May 11, 2010, regularly scheduled primary election, such precincts may be consolidated into a single precinct. Locations for consolidated precincts shall provide internet access, insofar as possible, for the sole purpose of utilizing the Statewide Voter Registration System (SVRS) as an electronic poll book; and

    (W) Persons having no party affiliation may nominate candidates to fill the vacancy for the office of Governor under the procedures set forth in sections twenty-three and twenty-four, article five of this chapter: Provided, That the number of signatures required to be submitted shall be equal to not less than one-quarter of one percent of the entire vote cast at the last preceding general election for any statewide gubernatorial candidate. Notwithstanding the provisions of sections twenty-three and twenty- four of article three of this section, the signatures, notarized declaration of candidacy, and filing fee must be submitted no later than April 28, 2011.

    (c) The Secretary of State, shall by November 1, 2011, report to the Joint Committee on Government and Finance findings regarding the operation of the new elections undertaken pursuant to subsection (b) of this section. This report shall provide analysis of: direct and indirect costs to the state associated with the conduct of the election; benefits and disadvantages of conducting an election on a Saturday; the impact of compressed time periods on efficient election administration; and whether this election process impacted early voting and participation by military and overseas voters.

    (d) Upon the election and qualification of the Governor by the West Virginia Secretary of State following the August 6, 2011, new election, the provisions of this section will expire.

    

    NOTE: The purpose of this bill is to clarify when a new election is required to fill a vacancy in the office of Governor. It authorizes the acting Governor to issue a writ of election to fill any such vacancy as required by law.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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