PROPOSED ORDINANCE 043
AN ORDINANCE OF THE CITY OF ELKINS, WEST VIRGINIA,
AMENDING AND REENACTING CHAPTER 7, ELECTIONS,
OF ELKINS CITY CODE
EWHEREAS, the Common Council of the City of Elkins, West Virginia has determined that the revision and amendment of the City Code regarding municipal elections is prudent and necessary; now, therefore,
BE IT ORDAINED AND ENACTED that the Common Council of the City of Elkins, West Virginia that the City Code be amended, and all Code provisions not in accordance with the below enumerated revisions be repealed; such Ordinance being more specifically set forth as follows:
§7-1 Applicability of state law; duties of common council and city clerk.
§7-2 Designation of chief election official.
§7-3 Voter eligibility.
§7-4 Registration of voters.
§7-5 Duty of clerk to procure and return county registration books.
§7-6 Voting precincts.
§7-7 Calling of election.
§7-8 Candidate filing period.
§7-9 Filing announcement of candidacy; requirements; filing fees.
§7-10 Prohibition against running for two offices.
§7-11 Prohibition against city employees holding office.
§7-12 Withdrawal of candidates.
§7-13 Write-in candidates.
§7-14 Election of mayor and council members.
§7-15 Ballot commissioners; selection; duties generally.
§7-16 Drawing for ballot position.
§7-17 Election commissioners and clerks; notice; instruction; vacancies.
§7-18 Compensation of election officials; expenses.
§7-19 Electronic voting systems.
§7-20 Tie votes.
§7-21 Contested elections.
§7-22 Absentee voting.
§7-23 Early voting.
§7-24 Vacancies.
§7-25 Publication of ballot.
§7-26 Campaign finance.
§7-27 Construction.
For charter provision that the elective officers of the city be a mayor and two councilmen from each ward, see Char., §4. As to qualifications of mayor and councilmen, see Char., § 6. As to date of election and term of office of mayor, see Char., § 8. As to date of election and terms of office of councilmen, see Char., § 9.
For the West Virginia Election Code, see W. Va. Code, Ch. 3. As to expenses of general elections, see W. Va. Code, § 8-5-14. As to judicial review of orders of common council relating to city elections, see W, Va. Code, § 8-5-16.
As to election of city clerk, see § 2-19 of this Code.
Section 7-1 Applicability of state law; duties of common council and city clerk.
Except as otherwise provided in the Charter, approved by the governor February 18, 1901 and in effect ninety days after passage, municipal elections shall be conducted and the results determined and certified in accordance with the provisions of general law governing the conduct of general elections so far as such law is applicable. If not inconsistent with the Charter provisions, the duties imposed by such general laws upon the county clerk and circuit clerks shall devolve upon the City Clerk; the duties imposed by such laws upon county courts shall devolve upon Council, and the duties imposed by such laws upon the ballot commission shall devolve upon the Board of Ballot Commissioners.
For state law basis of this subsection, see W. Va. Code, § 3-1-2A and § 8-5-6. For charter provisions as to applicability of state election laws to city elections, see Char., § 11.
Section 7-2 Designation of chief election official.
The chief election official of the city shall be the city clerk, who shall perform such other duties as required by ordinance and West Virginia Code, Chapter 3.
Section 7-3 Voter eligibility.
Only persons who are bona fide residents of the city and are registered to vote as provided by law shall be entitled to vote in any municipal election.
For state law as to persons entitled to vote, see W. Va. Code, § 3-1-3.
Section 7-4 Registration of voters.
The registration of voters of City of Elkins shall be integrated with the system of permanent registration of voters established by West Virginia Code. No voter otherwise qualified shall be permitted to vote an unchallenged ballot at any election within the municipality unless he or she is duly registered under the provisions of West Virginia law. The registration record shall remain in the possession of the Clerk of the Randolph County Commission, except for use in municipal elections.
For corresponding provisions of state law, see W. Va. Code, §3-2-1 et seq. and §8-5-13.
Section 7-5 Duty of clerk to procure and return county registration books.
a. At least one day prior to every municipal election it shall be the duty of the city clerk to procure from the municipal precinct file in the office of the clerk of the county commission the registration records necessary for the conduct of such election.
b. Such records shall, within ten days after the date of the municipal election, be returned to the office of the clerk of the county commission by the city clerk.
c. In case of a contested municipal election, the registration record of any challenged voter shall be made available by the clerk of the county commission to the municipal common council to determine the contest. Such record shall be returned to the office of the clerk of the county commission within a reasonable time after the contest shall have been finally decided.
For corresponding provisions of state law, see W. Va. Code, §3-1-27.
Section 7-6 Voting precincts.
a. There shall be the following five voting precincts established in the city for the purpose of city elections:
i. First ward voting precinct: For all voters in the first ward.
ii. Second ward voting precinct: For all voters in the second ward.
iii. Third ward voting precinct: For all voters in the third ward.
iv. Fourth ward voting precinct: For all voters in the fourth ward.
v. Fifth ward voting precinct: For all voters in the fifth ward.
b. Polling places. The common council, before each election, shall secure, for each voting precinct in the city, a suitable room or building in which to hold the election and shall cause the same to be suitably provided with heat, drinking water, light and a sufficient number of booths or compartments, each containing a table, counter or shelf, and furnished with proper supplies for preparing ballots, or at/in which voters may conveniently prepare their ballots, so that in the preparation thereof they may be secure from the observation of others. The number of such booths or compartments shall not be less than two or more than five. Such room or building shall be located in such precinct; provided, however, that upon a determination of the common council that a suitable room or building in which to hold the election is not reasonably available in such precinct then the common council may secure a suitable room or building in which to hold the election for such precinct in an adjacent precinct in the city. (12-4-80.)
For state law as to duty of common council to provide by ordinances for making precincts coincide, as nearly as possible, to the boundaries of precincts established by the county, see W. Va. Code, § 3-1-6. As to designation and arrangement of polling places, see W. Va. Code, § 3-1-23.
Section 7-7 Calling of election.
a. The common council shall issue the call for each election not later than one hundred twenty-four days preceding each election.
b. The call shall set forth the date of the election, the time and the procedure for filing certificates of candidacy, the filing fees and such other information as council may deem appropriate. The common council shall cause the call of election to be published one time in a newspaper of general circulation in the city within five days after the call is issued and shall cause the same to be posted on the bulletin board in the front lobby of city hall.
Section 7-8 Candidate filing period.
The candidate filing period shall commence on the third Monday following the issuance of the call of the election. The candidate filing period shall continue until midnight of the third Friday following the day of its commencement.
Before distributing certificate of announcement filing forms to candidates, the clerk shall enter the date of drawing for ballot position on the reverse side of the certificate of announcement, in order to meet the requirement that candidates be given notice of the drawing at the time of filing.
Section 7-9 Filing announcement of candidacy; requirements; filing fees.
a. Any person who is eligible and seeks to hold the office of mayor or member of council shall file a certificate of announcement with the city clerk declaring as a candidate for election to office. The certificate of announcement shall be in a form prescribed by the secretary of state on which the candidate shall make a sworn statement before a notary public or some other officer qualified to administer oaths. An incomplete certificate of announcement which lacks essential information may be rejected.
b. The filing of the announcement with the city clerk shall be made by the last day of the candidate filing period, and must be received by the clerk before Midnight, Eastern Standard Time, of that day or, if mailed, shall be postmarked before that hour; provided, however, that if the last day for filing is a Saturday or Sunday, such certificate shall be filed and must be received by the clerk before Midnight, Eastern Standard Time, of the following Monday or, if mailed, shall be postmarked before that hour.
c. Every person who becomes a candidate for election to office in any election shall, at the time of filing the certificate of announcement as required in this section, pay a filing fee as follows:
i. A candidate for the office of mayor shall pay a fee of fifty dollars.
ii. A candidate for the office of councilman shall pay a fee of twenty-five dollars. (12-4-80.)
d. Any candidate unable to pay the filing fee may have it waived by filing an oath that he/she is unable to pay the filing fee and a petition containing signatures of four registered voters of the municipality for each one dollar of the filing fee. The completed petition must be filed no later than the close of candidate filing.
Section 7-10 Prohibition against running for two offices.
A candidates’ name shall not appear on the ballot for any office if the candidate files a certificate of announcement for more than one office and does not formally withdraw from all but one office before the close of the candidate filing period.
For corresponding provisions of state law, see W. Va. Code, § 3-5-7(f).
Section 7-11 Prohibition against city employees holding office.
A city employee shall not serve on council or as mayor while employed by the city.
Section 7-12 Withdrawal of candidates.
A candidate who files a signed and notarized written statement of withdrawal received by the clerk by the third Tuesday following the close of filing shall be removed from the ballot.
For corresponding provisions of state law, see W. Va. Code, § 3-5-11.
Section 7-13 Write-in candidates.
Write-in candidates are required to file a certificate of announcement at least twenty-one days before the election. In order to have their votes counted. Also, once they announce the intention to run a write-in campaign, they are required to file campaign financial statements, just as with other candidates. Write-in candidates shall not be required to pay a filing fee.
For corresponding provisions of state law, see W. Va. Code, § 3-6-4a and §3-6-5.
Section 7-14 Election of mayor and council members.
a. On the first Tuesday in March, 1981, and every two years thereafter on the first Tuesday in March, there shall be elected by the qualified voters of the city a mayor and such other officers as may be prescribed by ordinance as provided for in the Charter, Section 7. The mayor shall hold office for the term of two years, commencing on April 1 after the election and continuing until a successor shall have been elected and qualified.
b. On the same day mentioned in subsection (a) of this section, one member of the common council shall be elected in each ward of the city, who shall hold his office for the term of four years, commencing on April 1 after the election and continuing until a successor shall have been elected and qualified.
c. At the city election to be held in the year 1987, and at each such election held thereafter, the person receiving the highest number of votes cast for the office of mayor and the person receiving the highest number of votes cast for the office of councilman in each ward shall be elected. (12-4-80; 12-18-86.)
Section 7-15 Ballot commissioners; selection; duties generally.
a. The city clerk shall, in consultation with city council, appoint two other ballot commissioners. Those appointments shall be made not later than seventy-five days before the election, and they shall be for terms of two years, or until their respective successors are duly appointed and qualified.
b. Of the two appointments to be made by the clerk, one shall be from each of the two parties whose candidates for governor received the largest and second largest number of votes at the last preceding general election of the State. The clerk and two appointees shall constitute the Board of Ballot Commissioners, and the clerk shall be chairman. Together they shall perform the duties of such commissioners at all regular and special elections held in the city during their term of office.
c. The provisions of Chapter 3 of the Code of West Virginia with respect to the duties and responsibilities of ballot commissioners, so far as they are applicable, shall apply to city elections.
For corresponding provisions of state law, see W. Va. Code, §3-1-2a, §3-1-19, § 3-1-20, § 3-1-21, §3-l-24, §3-5-10 and §3-6-3.
Section 7-16 Drawing for ballot position.
a. Position of candidate names on the ballot shall be determined by a random drawing whenever more than one candidate has filed for the same office. The drawing for ballot position shall commence at nine o’clock a.m. on the fourth Tuesday after the close of the candidate filing period. Should the aforementioned drawing date be a legal holiday then the drawing shall commence at the appointed hour on the first business day immediately thereafter.
b. Once the drawing has been held, the ballot commissioners shall meet to certify the ballot before it is conveyed to the printer.
For corresponding provisions of state law, see W. Va. Code, §3-5-13a and §3-6-2(d)(2).
Section 7-17 Election commissioners and clerks; notice; instruction; vacancies.
a. No later than the second regular council meeting of January of each election year, the common council shall appoint a uniform election board, consisting of two election commissioners and two poll clerks, to conduct each election in each precinct of the city in which an electronic voting system has been adopted and is to be used. At the council meeting immediately preceding the meeting at which the appointments are to be made, the city clerk, in consultation with the council members from each ward, shall submit a list of persons proposed for appointment by the common council to serve as election officials in each ward.
For corresponding provisions of state law, see W. Va. Code, § 3-4A-14.
b. The clerk shall mail notices to every person appointed as an election official within seven days following appointment. The appointed official must respond within fourteen days following appointment and state whether or not they will serve. If the person fails to respond in time, the clerk appoints a replacement from the alternate list or, after all alternates have been used, any eligible voter.
For corresponding provisions of state law, see W. Va. Code, §3-1-30
c. The common council shall call the necessary meeting(s) for the instruction of all election officials in the use of the electronic voting system. Such meeting(s) shall be held and the proper instruction given not less than seven days prior to any election in which the electronic voting system is to be used. No election officer, upon being so notified to appear for instruction, shall fail without just cause to do so. If any officer does so fail to appear, the common council may appoint some other qualified person and such person, after instruction, shall act in the place of the defaulting officer.
For corresponding provisions of state law, see W. Va. Code, §3-1-46.
d. Qualifications. As to qualifications of election officials, the City hereby adopts and will adhere to West Virginia Code, §3-1-28, Election officials; eligibility, suspension of eligibility.
e. Oaths. As to oaths to be administered to election officials, the City hereby adopts and will adhere to West Virginia Code §3-1-30a, Oaths of election commissioners and poll clerks, substitution of persons.
Section 7-18 Compensation of election officials; expenses.
a. Each ballot commissioner shall be allowed and paid a sum, to be fixed by the common council, not exceeding one hundred twenty-five dollars for each day he shall serve as such, but in no case shall a ballot commissioner receive allowance for more than ten days services for any one election. The sum to be allowed and paid ballot commissioner is herewith set at seventy-five dollars.
b. Each commissioner of election and poll clerk shall be allowed and paid a sum, to be fixed by the common council, not exceeding one hundred twenty-five dollars for one day’s service for attending the school of instruction for election officials. The sum to be allowed and paid commissioners of election and poll clerks for attending the school of instruction is herewith set at one hundred twenty-five dollars.
c. Each commissioner of election and poll clerk shall be allowed and paid a sum, to be fixed by the common council, not exceeding one hundred seventy-five dollars for services at any one election. The sum to be allowed and paid to commissioners of election and poll clerks is herewith set at one hundred seventy-five dollars.
The compensation of election officers, the cost of printing ballots, and all other expenses incurred in holding and making the return of elections shall be audited by the common council and paid out of the city treasury. (12-4-80.)
For corresponding provisions of state law, see W. Va. Code, § 3-1-44.
Section 7-19 Electronic voting systems.
The common council adopts for use in all city elections the electronic voting system which has been adopted for use by the county commission upon such terms and conditions as may be agreed upon between the county commission and the city.
The provisions of section 3-4A-1 et seq. of the Code of West Virginia, relating to electronic voting systems, shall, insofar as applicable, apply to city elections. (12-4-80.)
Section 7-20 Tie votes.
Whenever two or more persons receive an equal number of votes for mayor or councilman, such tie shall be decided by ballot of the common council in existence at the time the election is held. (12-4-80.)
For charter provisions as to determination of tie votes, see Char., § 12.
For state law as to tie votes, see W. Va. Code, § 8-5-15.
Section 7-21 Contested elections.
All contested elections shall be heard and determined by the common council in existence at the time the election is held, and the contest shall be made and conducted as provided for by state statutes for county and district offices. The council, by their proceedings in such cases, shall, as nearly as is practicable, conform to similar proceedings of the county commission in such cases. (12-4-80.)
For charter provisions as to determination of contested elections, see Char., § 13.
For state law as to contested elections, see W. Va. Code, § 8-5-17.
Section 7-22 Absentee voting.
The provisions of West Virginia Code, Chapter 3, Article 3, Voting by Absentees, so far as applicable and except where clearly not adaptable, shall apply to all city elections. (12-4-80.)
For state law basis of this section, see W. Va. Code, § 3-3-13.
Section 7-23 Early voting.
a. Early Voting In-Person shall begin 20 days before the election and end 3 days before the election. Any voter shall be permitted to vote during this time, and they do not have to provide a reason for doing so. A voter does not have to complete an application for early voting in-person.
b. The clerk’s office shall be open on the last two Saturdays before the election from 9 a.m. to 5 p.m.
For state law basis of this section. see W. Va. Code, § 3-3-1.
Section 7-24 Vacancies.
a. When a vacancy occurs in a municipal elective office, the governing body shall fill the vacancy by appointment until the next election.
b. If the vacancy creates an unexpired term which is to appear on the ballot, it is to be treated as a separate office.
For charter provisions as to the governing body’s ability to fill vacancies, see Char., § 9.
For state law as to filling of vacancies, see W. Va. Code, § 8-5-10.
c. A vacancy occurs when a resignation is accepted by the governing body, except that a member’s resignation will not be effective if it deprives the governing body of a quorum.
d. After a resignation is accepted, the governing body shall give notice of its intention to fill the vacancy by appointment at a regular or special meeting.
e. When a vacancy occurs in the office of mayor, or the mayor is unable to perform the duties due to absence or illness, the city clerk performs the chief executive duties of mayor until the mayor can resume the duties or a new mayor is appointed by the governing body and qualified.
For charter provisions as to authority for the city clerk to temporarily exercise the chief executive
powers of the mayor, see Char., § 21.
Section 7-25 Publication of ballot.
A sample ballot shall be published as a Class I-O legal advertisement in a qualified newspaper between 20-26 days before the election. A second publication, again as a Class I-O legal advertisement, shall be published on the last day the qualified newspaper is published before the election.
For state law as to publication of ballots, see W. Va. Code, § 8-5-10 and 3-6-3.
Section 7-26 Campaign finance.
The provisions of West Virginia Code, Chapter 3, as they relate to campaign finance, so far as applicable and except where clearly not adaptable, shall apply to all city elections.
Section 7-27 Construction.
a. Nullification of former ordinances. These revisions to Elkins City Code are prospective and supersede and eviscerate all prior election ordinances that are inconsistent with the foregoing revisions.
b. Severability. It shall be considered that it is the legislative intent, in the enactment of any ordinance, that if any part of the ordinance is held unconstitutional, the remaining parts shall remain in force. Should any provision of Chapter 7 of Elkins City Code be determined to be invalid by a court or other tribunal of competent jurisdiction, such Code Section shall be deemed to be severable, and all other Code provisions shall be in full force and effect.
c. Inconsistency. If any provision of Chapter 7 of Elkins City Code is found to be inconsistent with the West Virginia Code governing elections, or the Code of State regulations governing elections, as promulgated by the West Virginia Secretary of State, then the State Code, or Code of State Regulations promulgated by the West Virginia Secretary of State shall control, and any such inconsistent provisions shall be deemed invalid.
PASSED AND APPROVED ON FIRST READING SEPTEMBER _____, 2006.
PASSED AND APPROVED ON SECOND READING THIS _____ DAY OF ____________________ 2006.
CITY OF ELKINS, WEST VIRGINIA
__________________________________
Judith A. Guye, Mayor
Attest:
__________________________________
Philip J. Graziani, Jr., City Clerk
