H. B. 2853

         (By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)

         [By Request of the Executive]

         [Introduced January 26, 2011; referred to the

         Committee on the Judiciary then Finance.]

A BILL 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 that new elections to fill a vacancy in the office of Governor shall consist of special primary and special general elections; providing that the new election to fill a vacancy shall occur at a time to allow a newly elected individual to assume office within one year of the date the vacancy occurred; providing that provisions relating to special general election do not affect political party creation; prescribing time frames for when new election must take place, including special primary election to nominate candidates to be voted for at a special general election; providing the time frame for the person acting as Governor to issue proclamations to set the new election; removing provision requiring vacancies to be filled at general elections deemed unconstitutional; requiring person acting as Governor to issue proclamation to fix date for new election, including date for special primary election; removing provisions related to utilizing conventions to nominate candidates; requiring the state to pay costs incurred in connection with a special election to fill a vacancy in the office of Governor; providing mechanism to fill vacancy in the office of Governor that occurred on November 15, 2010 by utilizing special primary election and special general election; requiring the person acting as Governor to issue a proclamation setting a special primary election to be held on June 20, 2011 in addition to the new election proclaimed by the person acting as Governor issued January 21, 2011; providing provisions to apply to special primary and special general election to be held in 2011; requiring the proclamations issued by the person acting as Governor to be published in each county prior to the special primary and special general elections; providing that the provisions of the law relating to elections shall apply to the special general election and special primary election unless inconsistent with section; 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 emergency situations; providing that constitutionally required redistricting to have no effect until after new election in 2011 is complete; modifying procedures for persons without party affiliations to nominate candidates for the special 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 election; providing for the expiration of the provisions applying to the new election pursuant to the vacancy created on November 15, 2010; and requiring Secretary of State to report to Joint Committee on Government and Finance and establishing guidelines for the report.

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 or 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. 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, Within thirty days from the date the vacancy occurs, the person acting as Governor 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. 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. The proclamation issued by the person acting as Governor 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 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.

    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.

    (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) In addition to the new election set forth in the proclamation dated January 21, 2011, a special primary election shall also be held. For purposes of this subsection, the new election provided in the proclamation dated January 21, 2011 means the special general election as set forth in this subsection.

    (2) The person acting as Governor shall issue a proclamation calling for a special primary election to nominate candidates for the special general election. The special primary election shall be held on June 20, 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 tenth 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 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;

    (E) A registered voter who has not reached eighteen years of age may vote in the June 20, 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 emergency 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 nomination certificates shall be filed not later that seven calendar days following the special primary election provided in this subsection.

    (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.

    NOTE: The purpose of this bill is to provide for a special primary and general election to fill a vacancy in the office of Governor.

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