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10 A BILL to amend and reenact §3-1-44 of the Code of West Virginia,

11 1931, as amended; to amend and reenact §3-10-1 and §3-10-3 of

12 said code; and to amend said code by adding thereto two new

13 sections, designated as §3-10-1a and §3-10-4a, all relating to

14 special elections to fill vacancies in elected office;

15 clarifying what law applies to such elections; requiring the

16 state to pay the cost of certain special elections; clarifying

17 and setting forth requirements for proclamations of such

18 elections; clarifying that the Secretary of State may modify

19 dates, deadlines or procedures to comply with a proclamation

20 of the Governor; clarifying the procedure for filling a

21 vacancy in the United States Senate; clarifying when a special

22 election is required to fill a vacancy in the United States

23 Senate; and providing an effective date.

24 Be it enacted by the Legislature of West Virginia:

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 1 That §3-1-44 of the Code of West Virginia, 1931, as amended,

2 be amended and reenacted; that §3-10-1 and §3-10-3 of said code be

3 amended and reenacted; and that said code be amended by adding

4 thereto two new sections, designated as §3-10-1a and §3-10-4a, all

5 to read as follows:

6 ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

7 §3-1-44. Compensation of election officials; expenses.

8 (a) Each ballot commissioner is to be paid a sum, to be fixed

9 by the county commission, not exceeding $125 for each day he or she

10 serves as ballot commissioner, but in no case may a ballot

11 commissioner receive allowance for more than ten days’ services for

12 any one primary, general or special election.

13 (b) Each commissioner of election and poll clerk is to be paid

14 a sum, to be fixed by the county commission, not exceeding $125 for

15 one day’s services for attending the school of instruction for

16 election officials if the commissioner or poll clerk provides at

17 least one day’s service during an election and a sum not exceeding

18 $175 for his or her services at any one election: Provided, That

19 each commissioner of election and poll clerk is to be paid a sum

20 not exceeding $175 for his or her services at any of the three

21 special elections described in subsection (f) of this section.

22 (c) Each alternate commissioner of election and poll clerk may

23 be paid a sum, to be fixed by the county commission, not exceeding

24 $50 for one day’s services for attending the school of instruction

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 1 for election officials: Provided, That no alternate may be

2 eligible for compensation for election training unless the

3 alternate is subsequently appointed as an election official or is

4 instructed to attend and actually attends training as an alternate

5 and is available to serve on election day.

6 (d) The commissioners of election or poll clerks obtaining and

7 delivering the election supplies, as provided in section twenty-

8 four of this article, and returning them, as provided in articles

9 five and six of this chapter, are to be paid an additional sum,

10 fixed by the county commission, not exceeding $125 for his or her

11 services pursuant to this subsection at any one election. In

12 addition, he or she is to be paid mileage up to the rate of

13 reimbursement authorized by the travel management rule of the

14 department of administration for each mile necessarily traveled in

15 the performance of his or her services.

16 (e) The compensation of election officers, cost of printing

17 ballots and all other expenses incurred in holding and making the

18 return of elections, other than the three special elections

19 described in subsection (f) of this section, are to be audited by

20 the county commission and paid out of the county treasury.

21 (f) The compensation of election officers, cost of printing

22 ballots and all other reasonable and necessary expenses in holding

23 and making the return of a special election to fill a vacancy in

24 the United States House of Representatives, of a special election

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 1 to fill a vacancy in an office to be elected by voters statewide,

2 of a special election for the purpose of taking the sense of the

3 voters on the question of calling a constitutional convention, of

4 a special election to elect members of a constitutional convention

5 and of a special election to ratify or reject the proposals, acts

6 and ordinances of a constitutional convention are obligations of

7 the state incurred by the ballot commissioners, clerks of the

8 circuit courts, clerks of the county commissions and county

9 commissions of the various counties as agents of the state. All

10 expenses of these special elections are to be audited by the

11 secretary of state. The secretary of state shall prepare and

12 transmit to the county commissions forms on which the county

13 commissions shall certify all expenses of these special elections

14 to the secretary of state. If satisfied that the expenses as

15 certified by the county commissions are reasonable and were

16 necessarily incurred, the secretary of state shall requisition the

17 necessary warrants from the auditor of the state to be drawn on the

18 state treasurer and shall mail the warrants directly to the vendors

19 of the special election services, supplies and facilities.

20 ARTICLE 10. FILLING VACANCIES.

21 §3-10-1. Special elections to fill vacancies.

22 (a) Except as provided in sections three and four of this

23 article, special elections to fill vacancies shall be conducted to

24 fill any unexpired term when more than one year of the term of

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 1 office remains at the time of such election. When less than one

2 year of the term of office remains at the time of the election, the

3 person appointed to fill the vacancy shall continue in office until

4 the completion of the term.

5 (b) Special elections to fill vacancies shall be held at the

6 same places, and superintended, conducted and returned, and the

7 result ascertained, certified and declared, in the same manner, and

8 by the same officers, as in general elections conducted and

9 administered in accordance with the provisions of this chapter

10 unless otherwise provided in this article.

11 (c) If at any time a special primary election is to be held in

12 accordance with a proclamation issued under this article and there

13 is only one certificate of announcement in a political party for

14 the nomination, the person filing the certificate shall be declared

15 the nominee for the party and his or her name shall not be printed

16 on a ballot for the special primary election.

17 (d) The persons elected, having first duly qualified, shall

18 enter upon the duties of their respective offices.

19 §3-10-1a. Proclamation of special election to fill a vacancy.

20 (a) A proclamation issued by the Governor to fill a vacancy by

21 special election shall include the following:

22 (1) The purpose of the special election;

23 (2) The procedure by which candidates shall be nominated or

24 permitted to appear on the ballot for the special election; and

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 1 (3) The date of the special election. Notwithstanding any

2 other provision of this code:

3 (A) The date of any special election to fill a vacancy may not

4 be within sixty days of the occurrence of the vacancy.

5 (B) If the proclamation requires a special primary election,

6 the proclamation shall include the date of the special primary

7 election: Provided, That the date of a special general election

8 may not be within sixty days of a special primary election.

9 (b) The Governor’s proclamation shall be filed with the

10 Secretary of State who shall immediately transmit the document to

11 the clerk of the county commission of each county in which the

12 special election is to be held. The clerk of the county commission

13 of each county in which the special election is to be held shall

14 cause the document to be published within the county in accordance

15 with applicable law.

16 (c) Where the Governor’s proclamation would require the

17 modification of any dates, deadlines or procedures set forth in

18 this chapter, the Secretary of State shall issue an order or orders

19 to modify such dates, deadlines or procedures to comply with the

20 Governor’s proclamation.

21 §3-10-3. Vacancies in offices of state officials, United States

22 senators and judges.

23 Any vacancy occurring in the office of secretary of state,

24 auditor, treasurer, attorney general, commissioner of agriculture,

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 1 United States senator, judge of the supreme court of appeals or in

2 any office created or made elective to be filled by the voters of

3 the entire state, judge of a circuit court or judge of a family

4 court is filled by the governor of the state by appointment. If

5 the unexpired term of a judge of the supreme court of appeals, a

6 judge of the circuit court or judge of a family court is for less

7 than two years or if the unexpired term of any other office named

8 in this section is for a period of less than two years and six

9 months, the appointment to fill the vacancy is for the unexpired

10 term. If the unexpired term of any office is for a longer period

11 than above specified, the appointment is until a successor to the

12 office has timely filed a certificate of candidacy, has been

13 nominated at the primary election next following such timely filing

14 and has thereafter been elected and qualified to fill the unexpired

15 term. Proclamation of any special election to fill an unexpired

16 term is made by the governor of the state and, in the case of an

17 office to be filled by the voters of the entire state, must be

18 published prior to the election as a Class II-0 legal advertisement

19 in compliance with the provisions of article three, chapter fifty-

20 nine of this code and the publication area for the publication is

21 each county of the state. If the special election is to fill a

22 vacancy in the office of judge of a circuit court or judge of a

23 family court, the proclamation must be published prior to the

24 election as a Class II-0 legal advertisement in compliance with the

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 1 provisions of article three, chapter fifty-nine of this code and

2 the publication area for such publication is each county in the

3 judicial or family court circuit.

4 §3-10-4a. Vacancies in the office of United States Senator.

5 (a) Any vacancy occurring in the office of United States

6 Senator shall be filled by the Governor by appointment.

7 (b) If the unexpired term is for a period of less than two

8 years and six months, the appointment to fill the vacancy is for

9 the unexpired term.

10 (c) If the unexpired term is for a period of two years and six

11 months or longer, the appointment is until a successor to the

12 unexpired term has been elected and qualified. If the vacancy

13 occurs one hundred twenty days or more before the next regularly

14 scheduled general election, a special election to fill the vacancy

15 shall be conducted concurrently with the next regularly scheduled

16 general election. If the vacancy occurs less than one hundred

17 twenty days before the next regularly scheduled general election,

18 a special election to fill the vacancy shall be conducted

19 concurrently with the next regularly scheduled general election or

20 on any date proclaimed by the Governor: Provided, That a special

21 election to fill the vacancy shall occur within one year from the

22 date of the vacancy. Any special election to fill a vacancy in the

23 United States Senate shall include a special primary election.

24 (d) The Governor shall proclaim any special election to fill

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1 an unexpired term in accordance with this section. The

2 proclamation shall be published prior to the election as a Class

3 II-0 legal advertisement in accordance with article three, chapter

4 fifty-nine of this code and the publication area for the

5 publication is each county of the state.

6 (e) The provisions of this section shall apply to any vacancy

7 in the office of United States Senator occurring on or after June

8 1, 2010.

NOTE: The purpose of this Bill is to clarify when an election

is required to fill a vacancy in the U.S. Senate, in light of the
Seventeenth Amendment to the U.S. Constitution that requires
special elections to fill such vacancies and authorizes the
Governor to proclaim such elections. The Bill also clarifies what
law applies to elections to fill vacancies and what is required to
be included in a gubernatorial proclamation of such elections.

Strike-throughs indicate language that would be stricken from

the present law, and underscoring indicates new language that would
be added.