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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2853
(By Delegates By Mr. Speaker, (Mr. Thompson) and Delegate
Armstead)
[Passed February 2, 2011; in effect from passage.]
AN ACT to
amend and reenact §3-10-2 of the Code of West Virginia,
1931, as amended, relating to filling a vacancy in the office
of Governor; revising contingencies creating a vacancy in the
office of Governor to comport with the West Virginia
Constitution; providing for election of Governor if vacancy
occurs within first threes years of term; providing one time
new special elections to fill an existing vacancy in the
office of Governor; providing requirements for special
elections; providing that provisions relating to special
general election do not affect political party creation;
prescribing time frames for when new election must take place;
providing for the person acting as Governor to issue
proclamations relating to new elections; requiring the state
to pay costs incurred in connection with any special
elections; requiring the person acting as Governor to issue a proclamation setting a special primary election; requiring the
proclamations issued by the person acting as Governor to be
published; providing that the provisions of the law relating
to elections shall apply to the special general election and
special primary election unless inconsistent; modifying
certain statutory time periods relating to declaration of
candidacy; modifying procedures relating to payment of filing
fees and drawing of ballot positions; clarifying the
eligibility of certain minors to vote in special primary
election; modifying statutory provisions relating to minimum
number of ballots to be printed; providing that polling places
shall not be changed except for certain situations; providing
that constitutionally required redistricting to have no effect
until after new special election in 2011 is complete;
modifying procedures for persons without party affiliations to
nominate candidates; authorizing the Secretary of State to
issue administrative orders and to establish procedures and
deadlines; providing the provisions applying to the new
special elections expire; authorizing Saturday early voting in
the special primary election; and requiring Secretary of State
to report to Joint Committee on Government and Finance.
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 to read as follows:
ARTICLE 10. FILLING VACANCIES.
§3-10-2. Vacancy in office of Governor.
(a) In case of the death, conviction on 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 new election shall consist of
a special primary election and a special general election, and
shall occur at such time as will permit the person elected as
Governor in the new election to assume office within one year of
the date the vacancy occurred: Provided, That the special general
election provided in this section may not apply to section eight,
article one of this chapter. Within thirty days from the date the
vacancy occurs, the person acting as Governor pursuant to the state
constitution shall issue a proclamation fixing the time for a new
statewide election to fill the vacancy in the office of Governor,
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. The
proclamation issued by the person acting as Governor pursuant to
the state constitution shall provide for a special primary election
to nominate candidates for the special general election. The
special primary election shall take place no less than ninety days
after the proclamation and no later than one hundred forty days
from the date that the vacancy in the office occurs. The
proclamation issued by the person acting as Governor pursuant to
the state constitution shall also provide for a special general
election to take place no sooner than ninety days after the special
primary election and no later than two hundred eighty days from the
date that the vacancy in the office occurs.
(b) 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 election provided in this section
to fill a vacancy in the office of Governor are obligations of the
state incurred by the ballot commissioners, clerks of the county
commissions and county commissions of the various counties as
agents of the state. All expenses of the new election 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 the new election provided in this section 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.
(c) Notwithstanding the provisions of subsection (a) of this
section to the contrary, for purposes of filling the vacancy that
occurred in the office of Governor on November 15, 2010, a new
election shall occur as follows:
(1) Upon the effective date of this subsection, the person
acting as Governor pursuant to the state constitution shall
immediately issue a proclamation calling for a special primary and
general election as provided for in this subsection. For purposes
of this subsection, the new elections so provided in the
proclamation mean the special primary and general elections as set
forth in this subsection.
(2) The special primary election shall be held on May 14, 2011
and the special general election shall be held on October 4, 2011.
(3) The proclamation for the special primary election and
special general election shall be published prior to the special
primary election and special general elections, respectively, 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 cause the document to be
published within each county in accordance with this section.
(4) The provisions of this chapter apply to the special
primary election and special general election to the extent that
those provisions are consistent with the provisions of this
section. Statutory time deadlines for the purpose of the new
election provided in this subsection are modified as follows:
(A) 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 fifth calendar day following the proclamation of the
special 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;
(B) 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 new election
provided in this subsection: Provided, That emergency
administrative orders may not contravene the provisions of this
section;
(C) For petition in lieu of payment of filing fees, a
candidate seeking nomination for the vacancy in the office of
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 five hundred;
(D) Drawing for special primary election ballot position will
take place at the Secretary of State's office twenty-four 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. 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 special general election shall be determined pursuant to
subdivision (3), subsection (c), section two, article six of this
chapter;
(E) A registered voter who has not reached eighteen years of
age may vote in the May 14, 2011 special primary election:
Provided, That the voter will attain eighteen years of age at the
time of the special general election provided in this subsection;
(F) 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;
(G) 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;
(H) Regularly scheduled locations of polling places may not be
changed, except for situations as provided in sections seven-e and
seven-f, article one of this chapter: Provided, That if multiple
precincts voted in one polling location for the November 2, 2010,
regularly scheduled general election, these 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. However, constitutionally
mandated redistricting may not take effect until the special
primary election and special general election provided in this
subsection are complete; and
(I) Citizens having no party organization or affiliation may
nominate candidates as provided by sections twenty-three and
twenty-four of 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 governor. Notwithstanding the
provisions of sections twenty three and twenty four of article five
of this chapter, the signatures, notarized declaration of candidacy, and filing fee must be submitted no later than
seven
calendar days following the special primary election provided in
this subsection.
(J)
For the special primary election to be held pursuant to
this subsection, early voting will also be conducted from 9 a.m. to
5 p.m. on the Saturday immediately prior to the end of early
voting.
(5) The provisions of this subsection shall expire upon the
election and qualification of the Governor following the October 4,
2011 special general election.
(d) The Secretary of State shall by January 10, 2012 report to
the Joint Committee on Government and Finance findings regarding of
the operation of the new election undertaken pursuant to subsection
(c) of this section. This report shall provide analysis of the
direct and indirect costs to the state associated with the conduct
of the new election.