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WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Introduced
House Bill 2579
By Delegates Longancre, Crouse, Dean, Nestor, Forsht, Heckert, and Brooks
[Introduced January 16, 2023; Referred to the Committee on Education then the Judiciary]
A BILL to amend and reenact §3-1-17 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-4A-11a of said code; to amend and reenact §3-5-4, §3-5-13, and §3-5-13a of said code; to amend said code by adding thereto a new section, designated §3-5-5; to amend and reenact §6-5-1 of said code; and to amend and reenact §18-4-1 of said code, all relating generally to the nonpartisan election of county superintendents of schools; providing general provisions for such election; specifying the arrangement of the ballot to include such officers; providing for the placement of such persons on a primary election ballot; prescribing the manner of election of such persons; providing for the form and content of ballots; providing for the order of offices and candidates on ballots; specifying the term of office for county superintendents of schools; clarifying and enumerating relevant points concerning the election of county superintendents of schools; providing for the filling of vacancies in such office by temporary appointment; and providing for elections to fill such vacancies.
Be it enacted by the Legislature of West Virginia:
(a) There shall be elected, at the time of the primary election to be held in 2016, and every eighth year thereafter, one judge of the circuit court of every judicial circuit entitled to one judge, and one judge for each numbered division of the judicial circuit in those judicial circuits entitled to two or more circuit judges; and at the time of the primary election to be held in 2016, and in every fourth year thereafter, the number of magistrates prescribed by law for the county. Beginning with the election held in the year 2016, an election for the purpose of electing judges of the circuit court, or an election for the purpose of electing magistrates, shall be upon a nonpartisan ballot printed for the purpose.
(b) There shall be elected, at the general election to be held in 1992 2024, and every fourth year thereafter, a sheriff, prosecuting attorney, county superintendent of schools, surveyor of lands, and the number of assessors prescribed by law for the county; and at the general election to be held in 1990 2024, and every second year thereafter, a commissioner of the county commission for each county; and at the general election to be held in 1992 2028, and every sixth year thereafter, a clerk of the county commission and a clerk of the circuit court for each county.
(c) Effective with the primary election of 2016, all elections for judge of the circuit courts in the respective circuits and magistrates in each county will be elected on a nonpartisan basis and by division as set forth more fully in article five of this chapter.
(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 §3-5-13 and §3-5-13a of this code.
(2) For the general election, the heading of the ballot, 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 §3-6-2 of this code.
(3) Effective with the primary election held in 2016 2024 and thereafter, the following nonpartisan elections 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 this chapter:
(A) Nonpartisan elections for judicial offices, by division, of:
(i) Justice of the Supreme Court of Appeals;
(ii) Judge of the Intermediate Court of Appeals;
(iii) Judge of the circuit court;
(iv) Family court judge; and
(v) Magistrate;
(B) Nonpartisan elections for Board of Education; and educational offices;
(i) County superintendent of schools; and
(ii) Board of Education; and
(C) Any question to be voted upon.
(4) Beginning in the primary election to be held in the year 2020 and in each election thereafter, the nonpartisan judicial elections described in subparagraphs (i) through (iv), paragraph (A), subdivision (3), of this subsection shall appear immediately after the state ticket and shall immediately precede the county ticket, in the same manner prescribed in §3-5-13a of this code.
(5) 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.
(6) 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 §3-5-13 of this code, 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.
(a) At each primary election, the candidate or candidates of each political party for all offices to be filled at the ensuing general election by the voters of the entire state, of each congressional district, of each state senatorial district, of each delegate district, and of each county in the state shall be nominated by the voters of the different political parties, except that no presidential elector shall be nominated at a primary election.
(b) In primary elections a plurality of the votes cast shall be sufficient for the nomination of candidates for office. Where only one candidate of a political party for any office in a political division, including party committeemen and delegates to national conventions, is to be chosen the candidate receiving the highest number of votes therefor in the primary election shall be declared the party nominee for such office. Where two or more such candidates are to be chosen in the primary election, the candidates constituting the proper number to be so chosen who shall receive the highest number of votes cast in the political division in which they are candidates shall be declared the party nominees and choices for such offices, except that:
(1) Candidates for the office of commissioner of the county commission shall be nominated and elected in accordance with the provisions of section ten, article nine of the Constitution of the State of West Virginia and the requirements of section one-b, article one, chapter seven of this code;
(2) Members of county boards of education shall be elected at primary elections in accordance with the provisions of sections five and section six of this article;
(3) Candidates for the House of Delegates shall be nominated and elected in accordance with the residence restrictions provided in section two, article two, chapter one of this code.
(c) In case of tie votes between candidates for party nominations or elections in primary elections, the choice of the political party shall be determined by the executive committee of the party for the political division in which such persons are candidates.
(a) An election for the purpose of electing a county school superintendent shall be held on the same date as the primary elections, as provided by law, but upon a nonpartisan ballot printed for the purpose.
(b) A person seeking election to the office of county school superintendent must be a resident of the county in which they file, or, reside in a contiguous county to the county in which they file. The eligibility of candidates to be declared elected shall be determined at the time of certification of the election.
(c) In each nonpartisan election for Board of Education the board of canvassers shall declare and certify the election of the eligible candidate receiving the highest numbers of votes.
(d) It is the intent of this statute that any person declared to be elected under the provisions of this section shall take office as a duly elected superintendent, even though the person may not have received a majority or plurality of all votes cast at such election.
(e) In case of a tie vote for county superintendent of schools in any primary election, the provisions of section twelve, article six of this chapter shall control in breaking the tie.
The following provisions apply to the form and contents of election ballots:
(1) The face of every primary election ballot shall conform as nearly as practicable to that used at the general election.
(2) 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.
(A) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all judicial officers shall commence with the words "Nonpartisan Ballot of Election of Judicial Officers" and each such office shall be listed in the following order:
(i) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all justices of 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 by division without references to political party affiliation or registration.
(ii) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all judges of the Intermediate Court of Appeals shall contain the words "Nonpartisan Ballot of Election of Judge(s) of the Intermediate Court of Appeals". The names of the candidates for the Intermediate Court of Appeals shall be printed by division without references to political party affiliation or registration.
(iii) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all circuit court judges in the respective circuits shall contain the words "Nonpartisan Ballot of Election of Circuit Court Judge(s)". The names of the candidates for the respective circuit court judge office shall be printed by division without references to political party affiliation or registration.
(iv) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all family court judges in the respective circuits shall contain the words "Nonpartisan Ballot of Election of Family Court Judge(s)". The names of the candidates for the respective family court judge office shall be printed by division without references to political party affiliation or registration.
(v) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all magistrates in the respective circuits shall contain the words "Nonpartisan Ballot of Election of Magistrate(s)". The names of the candidates for the respective magistrate office shall be printed by division without references to political party affiliation or registration.
(B) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for the office of county school superintendent is to contain the words "Nonpartisan Ballot of Election of Superintendent of ______________ County Schools". The names of the candidates are to be printed without reference to political party affiliation.
(B) (C) 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 fewer 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.
(C) (D) 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.
(3) (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", "Nonpartisan Judicial Ballot", "County Ticket", "Nonpartisan Ballot" in a nonpresidential election year, "District Ticket" or, in a presidential election year, "National Convention". The columns are to be separated by heavy lines. Within the columns, the offices are to be arranged in the order prescribed in §3-5-13a of this code.
(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 §3-5-13a of this code and under the same headings as prescribed in paragraph (A) of this subdivision. 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.
(4) (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 §3-5-13a of this code.
(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.
(5) 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.
(6) 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.
(7) 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: Provided, That no paper ballot voted pursuant to the provisions of 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, or federal write-in absentee ballot may be rejected due to paper type, envelope type, or notarization requirement. 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.
(8) 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-16th of an inch wide and the ballot is to be trimmed to within one-half inch of that border.
(9) 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".
(10) 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.
(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, State Senator, member of the House of Delegates, any other multicounty office, state executive committee.
NONPARTISAN JUDICIAL BALLOT: Justice of the Supreme Court of Appeals, judge of the circuit court, family judge, magistrate.
COUNTY TICKET: Clerk of the circuit court, county commissioner, clerk of the county commission, prosecuting attorney, sheriff, assessor, surveyor, congressional district executive committee, senatorial district executive committee in multicounty districts, delegate district executive committee in multicounty districts.
NONPARTISAN BALLOT: Nonpartisan elections for County superintendent of schools, board of education, conservation district supervisor, any question to be voted upon.
DISTRICT TICKET: County executive committee.
NATIONAL CONVENTION: Delegate to the national convention -- congressional district, delegate to the national convention -- at-large.
(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 9:00 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.
The terms of officers, except when elected or appointed to fill vacancies, shall begin respectively as follows: That of Governor, Secretary of State, State Superintendent of Free Schools, Treasurer, Auditor, Attorney General and Commissioner of Agriculture, on the first Monday after the second Wednesday of January next after their election; that of a member of the Legislature, on December 1, next after his or her election; and that of the justices of the Supreme Court of Appeals, the judges of the Intermediate Court of Appeals, the judges of the several circuit courts, the judges of the family and other inferior courts, the county commissioners, prosecuting attorneys, surveyors of land, assessors, sheriffs, clerks of the circuit, or other inferior courts, clerks of the county commissions, superintendents of schools, magistrates, on January 1, next after their election.
Whenever a person is elected or appointed to fill a vacancy, his or her term shall be as prescribed by chapter three of this code.
(a) The county superintendent shall be appointed by the board upon a majority vote of the members thereof elected by the qualified voters of that county to serve for a term of not less than one, nor more than four years. At the expiration of the term or terms for which he or she shall have been elected or appointed, each county superintendent shall be eligible for reappointment for additional terms of not less than one, nor more than four years reelection.
(1) At the expiration of his or her term or terms of service the county superintendent may transfer to any teaching position in the county for which he or she is qualified and has seniority, unless dismissed for statutory reasons.
(2) The appointment of the county superintendent shall be made between January 1 and June 1 for a term beginning on July 1 following the appointment
(b) In the event of a vacancy in the superintendent’s position that results in an incomplete term, the board may appoint an interim county superintendent:
(1) To serve until the following July January 1 following the next general election. if the vacancy occurs before March 1
(2) To serve until July 1 of the next following year if the vacancy occurs on or after March 1, unless a superintendent is appointed sooner A special election to fill that vacancy shall take place concurrent with the next regularly scheduled primary election, and in accordance with the provisions of §3-5-1 et. seq. of this code.
(c) If the superintendent becomes incapacitated due to accident or illness to an extent that may lead to prolonged absence, the county board, by unanimous vote, may enter an order declaring that an incapacity exists in which case the county board shall appoint an acting superintendent to serve until a majority of the members of the board determine that the incapacity no longer exists. An acting superintendent may not serve in that capacity for more than one year, nor later than the expiration date of the superintendent’s term, whichever occurs sooner, unless he or she is reappointed by the county board.
(d) Immediately following the appointment election of a county superintendent or appointment of an interim county superintendent, the president of the county board shall certify the appointment to the state superintendent. Immediately following the appointment of an acting county superintendent or a vote by a majority of the members of the county board that an incapacity no longer exists, the president of the county board shall certify the appointment, reappointment, or appointment termination of the acting superintendent to the state superintendent.
(e) During his or her term of appointment, the county superintendent shall be a state resident and shall reside in the county which he or she serves or in a contiguous county. The county superintendent in office on the effective date of this section shall continue in office until the expiration of his or her term.
NOTE: The purpose of this bill is to modify the law relating to the nonpartisan election of county superintendents of schools. The bill provides general provisions for such an election. The bill specifies the arrangement of the ballot to include such officers. The bill provides for the placement of such persons on a primary election ballot. The bill prescribes the manner of election of such persons. The bill provides for the form and content of ballots. The bill provides for the order of offices and candidates on ballots. The bill specifies the term of office for county superintendents of schools. The bill clarifies and enumerates relevant points concerning the election of county superintendents of schools. The bill provides for the filling of vacancies in such office by temporary appointment. Finally, the bill provides for elections to fill such vacancies.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.
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