Bill Text: DE HB302 | 2013-2014 | 147th General Assembly | Draft
Bill Title: An Act To Amend Title 15 Of The Delaware Code Relating To Elections.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Enrolled - Dead) 2014-06-24 - HS 1 for HB 302 - Passed by Senate. Votes: Passed 11 YES 10 NO 0 NOT VOTING 0 ABSENT 0 VACANT [HB302 Detail]
Download: Delaware-2013-HB302-Draft.html
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SPONSOR: |
Rep. Jaques & Sen. Henry |
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Reps. Baumbach, Longhurst, Schwartzkopf, M. Smith, Viola; Sens. Blevins, McBride, Townsend |
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HOUSE OF REPRESENTATIVES 147th GENERAL ASSEMBLY |
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HOUSE BILL NO. 302 |
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AN ACT TO AMEND TITLE 15 OF THE DELAWARE CODE RELATING TO ELECTIONS. |
Section 1. Amend Chapter 2, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
CHAPTER 2. DEPARTMENT OF ELECTIONS AND STATE BOARD OF ELECTIONS
§201 Department of Elections.
There shall be a Department of Elections for New Castle County, Kent County and Sussex County, each of which shall be subject to the policies and directives of the State Board of Elections.
§202 State
Board of Elections for New Castle County; composition; appointment;
term.
(a) The
State Board of Elections for New Castle County shall consist of 10
11 members, including 2 members from Sussex County; 2 members from
Kent County; 2 members from New Castle County; 2 members from the City of Wilmington;
2 at-large members; and the State Election Commissioner, who shall serve as an ex officio member. and each Each
of the 2 principal political parties shall be represented at all times by not
fewer than 5 members and at all times both principal political parties shall
have equal representation in each county, in the City of Wilmington, and
among the at-large members.
(b) In carrying out this section, the Governor shall appoint 10 members. The Governor shall appoint 5 members, with at least 2 from each of the 2 principal political parties, for a term of 2 years each, and 5 members, with at least 2 from each of the 2 principal political parties, for a term of 4 years each.
(c) Upon the expiration of the term of any member of the Board, such member's successor shall be appointed by the Governor for a period of 4 years; provided, however, that such member shall hold office until that member's successor shall be duly qualified and provided, further, that the term of such successor shall commence on the date the successor is duly qualified. In the event a vacancy occurs in the Board from any cause, other than expiration of the term of a member, the Governor shall fill the vacancy for the residue of the term.
(d) The
10 members required to be appointed by the Governor from the 2 principal
political parties under subsections (b) and (c) of this section shall be
appointed from a list of not fewer than 3 nominees for each member to be
appointed, which list shall be submitted by the state chair of the political party
from which the appointment must be made. Seven of the members to be
appointed must reside in a different senatorial district in rural New Castle
County and 3 of the members to be appointed must reside in a separate
senatorial district of the City of Wilmington. Such lists shall be
submitted to the Governor within 30 days of the expiration or vacancy of any
term herein when such expiration or vacancy leaves fewer than 5 members of the
principal political party. The Governor shall submit the Governor's own
appointments from the names on the lists within 30 days of the date the
Governor receives the lists. If a state chair does not submit a list to the
Governor as provided in this subsection, then the Governor shall submit the
Governor's own appointments for any vacancy.
(e) All members shall be appointed by and with the consent of the majority of the members elected to the Senate.
(f) In the event that a vacancy exists on the State Board of Elections, the State Board of Elections can still meet to canvass any election it shall be prescribed to canvass provided that a quorum of its members are present and § 209 of this title shall be met.
Section 2. Amend §203, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§203
Boards of Elections for Kent and Sussex Counties; composition; appointment;
term.
(a) The
Board of Elections for Kent County and the Board of Elections for Sussex County
shall each consist of 6 members appointed as provided in this section. Each of
the 2 principal political parties shall at all times be represented by not
fewer than 3 members of each board.
(b) In
carrying out this section, the Governor shall initially appoint for the Board
of Elections of Kent County 2 members for a term of 2 years each and 2 members
for a term of 4 years each, and for the Board of Elections of Sussex County, 3
members for a term of 2 years each and 3 members for a term of 4 years each.
(c) Upon
the expiration of the term of any member from either board such member's
successor shall be appointed by the Governor for a term of 4 years; provided,
however, that such member shall hold office until that member's successor shall
be duly qualified and provided, further, that the term of such successor shall
commence on the date the successor is duly qualified. In the event that a
vacancy occurs in either board from any cause, other than expiration of the
term of a member, the Governor shall fill the vacancy for the residue of the
term.
(d) The
members to be appointed by the Governor under subsections (c) and (d) of this
section shall be appointed from a list of not fewer than 3 nominees for each
member to be appointed, which list shall be submitted by the state chair of the
political party from which the appointment must be made. Each senatorial
district in Kent and Sussex Counties must be represented by 1 member and no
senatorial district may be represented by more than 2 members. Such lists shall
be submitted to the Governor within 30 days of June 25, 1969, and within 30
days of the expiration or vacancy of any term herein when such expiration or
vacancy leaves fewer than 3 members of the principal political party. The
Governor shall submit the Governor's own appointments from the names on the lists
within 30 days of the date the Governor receives the lists.
(e) All
members shall be appointed by and with the consent of the majority of the
members elected to the Senate.
(f) In
the event that a vacancy exists on the Board of Elections, the Board of Elections
can still meet to canvass any election it shall be prescribed to canvass
provided that a quorum of its members are present and §209 of this title shall
be met.
§203 State Board of Elections; powers and duties.
The State Board of Elections shall assume all of the powers and duties previously vested in the Board of Elections for New Castle County, the Board of Elections for Kent County, and the Board of Elections for Sussex County, as well as the following additional powers and duties:
(a) To hear and decide appeals pursuant to Sections 8043(i) and 8044 of this Title;
(b) To determine whether reasonable grounds exist to recommend that possible violations of this Title, or other state and federal laws, be referred by the State Election Commissioner to the Attorney General or the United States Attorney for investigation and prosecution;
(c) To follow the procedural rules specified in §203A of this chapter and to establish such other procedural rules as shall not be inconsistent with the rules prescribed therein; and
(d) To perform such other responsibilities as may be assigned to it by law.
Section 3. Amend Chapter 2, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§203A State Board of Elections — Hearings; procedures; dispositions.
In any proceeding before the State Board of Elections pursuant to §§203(a) and 203(b) of this Title:
(a) A participant shall be given an opportunity to be heard after notice, to be advised and assisted by legal counsel, to produce witnesses and offer evidence, and to cross-examine witnesses. A transcript of any such proceeding shall be made and retained, subject to the confidentiality requirements of subsection (h) of this section.
(b) A member of the Board may disqualify himself or herself from participating in any investigation of the conduct of any person upon submission in writing and under oath of an affidavit of disqualification stating that the member cannot render an impartial and unbiased decision in the case in which the member seeks to disqualify himself or herself.
(c) The Board shall have the authority to subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of books, papers, records or other evidence needed for the performance of the Board's duties or exercise of its powers.
(d) Any party to a proceeding hereunder may apply to the Board for the issuance of subpoenas for the appearance of witnesses and for the production of documents on the person's behalf. The application shall be granted upon a concise showing by such person that the proposed testimony or evidence is relevant (or is reasonably calculated to lead to the discovery of relevant evidence) and is not otherwise available. The application shall be denied if not made at a reasonable time or if the testimony or evidence would be merely cumulative.
(e) Any party to a proceeding hereunder shall be permitted to inspect, copy or photograph books, papers, documents, photographs or other tangible objects which will be used as evidence against that person in a proceeding by the Board hereunder and which are material to the preparation of a defense.
(f) If the Elections Counsel or the Board at any time receives any exculpatory information respecting an alleged violation against any person, it shall forthwith make such information available to such person.
(g) Except as otherwise specified in §301A(a)(3) of this Title, any decision of the Board hereunder shall require the affirmative vote of at least 6 members of the Board.
(h)(1) All proceedings of the Board pursuant to §203(b) of this Title shall be maintained confidential by the Board unless public disclosure is requested in writing by the person who is the subject of such hearing.
(2) Notwithstanding the confidentiality requirements of paragraph (1) of this subsection, the Board shall make available for public inspection the record of all proceedings relating to any decision of the Board which is appealed to Superior Court and the Board shall report to appropriate federal or state authorities any substantial evidence of a violation of any criminal law which comes to its attention in connection with any proceeding under this chapter.
(3) The Board may establish such procedures as in its judgment may be necessary to prevent the disclosure of any record of any proceedings or other information received by the Board or its staff except as permitted by this chapter.
§203B Judicial review.
Any party to a proceeding of the Board hereunder may appeal an adverse decision to the Superior Court by filing a notice of appeal therewith within 30 days of the decision by the Board. The appeal shall be on the record without a trial de novo. If the Court determines that the record is insufficient for its review, it shall remand the case to the Board for further proceedings on the record. The Court's review, in the absence of actual fraud, shall be limited to a determination of whether the Board's decision was supported by substantial evidence on the record. The burden of proof in any such appeal shall be on the appellant.
Section 4. Amend Chapter 2, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§204
Qualifications of members of all boards.
No person
shall be appointed as a member of any board of elections the State
Board of Elections who is not a citizen of the United States and a resident
of the county for which that person is appointed (or a resident of this
State for at-large members) and who has not resided therein for 1 year next
preceding that person's appointment. No member of any board shall hold
or be a candidate for any:
(1) Federal, state, county, city or incorporated municipality elective office;
(2) Elective office or appointed position of a political party, nor shall a member be an appointed official to any federal, state, county, city or incorporated municipality commission or administrative body.
§205 Confirmation or rejection of appointments.
The Senate
shall either confirm or reject any appointment under §202 or 203 of
this title within 10 legislative days of its receipt or said appointment is
deemed confirmed.
§206 Oath.
Each member
of each board the State Board of Elections, before entering upon
that member's duties and within 10 days from the time of that member's
appointment, shall take and subscribe to the oath or affirmation prescribed by
the Constitution and shall record the same in the office of the recorder of the
county of the member's residence.
§207 Compensation of members.
The compensation of board members shall be as provided in the Budget Act; provided, however, that no board member shall receive compensation for any board meeting for which such member was not in attendance.In addition, the State Election Commissioner shall not be entitled to any additional compensation by virtue of his or her service as an ex officio member of the State Board of Elections.
§208 Organization meeting; officers.
(a) The
board of elections for each county State Board of Elections shall
establish a schedule of meetings for the following calendar year at a regularly
scheduled meeting of the board held between October 1 and December 31. Once
established, the aforesaid schedule shall be subject to change by the respective
board State Board of Elections.
(b) The
schedule shall include an organizational meeting that shall be held between
February 1 and June 30 of each year at which time the members of the board
of elections for a county State Board of Elections shall meet and
organize by electing 1 member to be president and 1 member to be secretary,
whose function other than that of a member shall be to record the minutes of
the meetings of the board. The terms of office for each officer shall be until
the organizational meeting held in the following year or until a successor is
elected.
§209 Necessary
votes for transaction of business.Quorum.
(a) The
affirmative vote A
quorum of 6 members shall be required for the transaction of any business
for the State Board of Elections for New Castle County.
(b) The
affirmative vote of 4 members shall be required for the transaction of any
business for the Board of Elections for Kent and Sussex Counties respectively.
§210 Rules.
Each board The State Board of Elections
may make rules for its government not inconsistent with the Constitution or any
law of this State and subject to the approval of the State Election
Commissioner.
§211 Director; deputy director; powers, duties, qualifications, compensation.
(a) The
board of elections of each county For each department of elections, the
State Board of Elections shall appoint:
(1) An
A director who shall be a member of the same political party as the
State Election Commissioner and who shall serve at the pleasure of the board;
(2) A
deputy director who shall be nominated and elected by the members of the board
of elections State Board of Elections of the opposite political
party of the State Election Commissioner and who shall serve at the pleasure of
same the board. In the nomination and election of a deputy
director, §209 of this title shall not be applicable.
(b) The
director shall assist the department of elections of the director's county in
carrying out its duties and responsibilities and, subject to the policies and
directives of the board State Board of Elections, shall have
general supervision over the employees of the department and shall see to it
that the work of the department is performed in a proper and nonpartisan
manner.
(c) The deputy director for each department of elections shall assist the director of such department.
(d) The director and the deputy director of each department of elections shall be citizens of the United States and qualified electors of the county employing them.
(e) The
salary salaries of the directors and deputy directors
in each department shall be as provided in the Budget Act.
(f) The director and deputy director of a department, if in agreement, may authorize a person to vote whose application to register to vote at the Division of Motor Vehicles was never completed as required elsewhere in this title. The person shall follow the procedures set forth by the State Election Commissioner prior to being permitted to vote.
§212 Office; equipment and supplies.
Each
department Subject
to the prior written approval of the Director of the Office of Management and
Budget, the State Board of Elections shall occupy a suitable and
convenient office in the courthouse or public building of the county, or
elsewhere in the county seat City of Dover, preferably in a building
owned by the State and occupied by the State Election Commissioner, and
shall obtain whatever furniture, equipment and supplies that may be necessary
to properly carry out its duties.
§213 Employees; duties and compensation.
(a) Each
Subject to the approval of the State Board of Elections and the Director of
the Office of Management and Budget, each department may hire such
employees as it may deem necessary for the performance by the department of its
duties.
(b) The duties of such employees shall be prescribed and the compensation fixed by the Director of the Office of Management and Budget.
(c) The employees of each department shall be placed under the state merit system but subject to all provisions of this title.
Section 5. Amend §219, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§219 Political activity limited; penalty.
(a) No
person, member, director or deputy director or employee of the any department
or the State Board of Elections shall directly or indirectly use or seek
to use his or her authority or official influence to control or modify the
political action of another person or at any time actively participate in any
political activities or campaigns.
(b) Any person who shall violate this section shall be fined not more than $500 and shall forfeit that person's position or employment.
Section 6. Amend Chapter 3, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§301A Elections Counsel; powers and duties.
(a) There shall be an Elections Counsel who shall be the legal representative of the State Election Commissioner and shall have the following powers and duties:
(1) To assist the Commissioner in preparing and publishing manuals and guides explaining the duties of individuals covered by this Title (including, without limitation, Chapter 80 hereof) and in other activities;
(2) To provide legal counsel to the Commissioner concerning any matter arising in connection with the exercise of his or her official powers or duties;
(3) To investigate information coming to the attention of the Commissioner that, if true, would constitute a violation of any provision of this Title and/or to recommend that possible violations of these, or other state and federal laws, be referred by the Commissioner to the Attorney General or the United States Attorney for investigation and prosecution. Matters may be so referred to the Attorney General or the United States Attorney only upon a determination by at least 5 members of the State Board of Election that there are reasonable grounds to believe that a violation may have occurred;
(4) To represent the Commissioner in connection with appeals before the State Board of Elections pursuant to 15 Del.C. §§ 8043(i) and 8044;
(5) To assist the Commissioner in drafting advisory opinions;
(6) To maintain permanent records of all advisory, waiver, investigatory and prosecutorial matters; and
(7) To perform any other tasks requested by the Commissioner concerning any matter arising in connection with the exercise of his or her official powers or duties.
(b) The Elections Counsel may recuse from a matter when, in the view of the Elections Counsel or of the Commissioner, such recusal is deemed necessary or appropriate. In situations where the Elections Counsel recuses, the duties of the Elections Counsel may be exercised by the Attorney General or by outside counsel chosen by the Commissioner.
§301B Elections Counsel appointment contingent upon appropriations.
The Elections Counsel established by §301A of this title shall not be appointed by the Commissioner until adequate funds have been appropriated for such purpose. In the absence of such appointment, the Attorney General shall provide legal assistance to the Commissioner and shall exercise any duties assigned to the Elections Counsel by this chapter. Such duties may also be exercised by outside counsel chosen by the Commissioner, if adequate funds are appropriated for such purpose.
Section 7. Amend §302, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§302 General powers and duties of Commissioner.
The Commissioner shall have the following powers and duties:
(9) To be an ex officio member of each county department of elections the
State Board of Elections;
(10) To
attend each county department of elections State Board of Elections
meeting at which time the Commissioner may do the following:
a. Participate in any and all discussions; and
b. Cast
a vote only in the event of a tie; provided, however, that the Commissioner
shall recuse himself or herself in any hearing pursuant to §§203(a) and 203(b)
of this Title; and
(11) To
collect unofficial results for each primary, special and general election for
each election district used in the said election and to tabulate, report and
disseminate the results of the election as soon as possible to the public.;
(12) To assist each county department of elections in carrying out its respective duties and responsibilities and, subject to the policies and directives of the State Board of Elections, to have general supervision over the employees of each department and shall see to it that the work of each department is performed in a proper and nonpartisan manner;
(13) To establish procedures to allow citizens to report possible violations of this Title, which shall include procedures for anonymous reporting of possible violations;
(14) To appoint a lawyer admitted to practice in the State to serve as Elections Counsel;
(15) To refer to Elections Counsel to investigate any possible violation of this Title that may come to his or her attention; and
(16) To subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of books, papers, records or other evidence needed for the performance of the Commissioner's duties or exercise of its powers; and
(17) To prepare and publish manuals and guides explaining the duties of individuals covered by this Title, including without limitation chapter 80 hereof, and to promulgate instructions and public information materials to facilitate compliance with, and enforcement of this Title.
Section 8. Amend Title 15, §8042 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§8042 Civil remedies.
ForExcept as otherwise set forth herein,
for purposes of any
civil remedy on behalf of any injured person, the Court of Chancery shall have
jurisdiction.
Section 9. Amend §8043, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§8043 Violations; penalties; jurisdiction in Superior Court.
(f) The
Except as otherwise set forth herein, the Superior Court shall have
jurisdiction over all offenses under this chapter.
Section 10. Amend §8043, Title 15 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
(i) A reporting party who violates §8021 of this title shall be assessed a fine by the Commissioner of $500 or 25% of the cost of the campaign advertisement subject thereto, whichever is greater. Upon receipt of such fine, the reporting party shall have 30 days to appeal such fine in writing to the State Board of Elections.
Section 11. Amend Title 15, §8044 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
(b) In
the event a report is incomplete or otherwise tardy, the Commissioner shall
immediately notify the reporting party thereof in writing. Such notice shall
state that a fine is being assessed for each late day, and to the extent
applicable, shall also specify why such report is incomplete. Upon receipt of
such notice, the reporting party shall have 30 days to appeal such fine in
writing to the Commissioner State Board of Elections. In the
event of an appeal, the reporting party shall have the opportunity to show the Commissioner
Board that such tardiness is due to reasonable cause and not wilful
neglect. If the Commissioner State Board of Elections determines
that such tardiness is not due to reasonable cause, or the reporting party
fails to timely file an appeal, such fine shall constitute a debt due and owing
the State, assessable by the Commissioner and recoverable against the reporting
party.
(c) If a tardy report is not filed or corrected within 30 days following:
(1) A
determination by the Commissioner State Board of Elections that
such tardiness is not due to reasonable cause; or
(2) The expiration of the appeal period set forth in subsection (b) of this section,
then the Commissioner shall notify the Office of the Attorney General that the reporting party has failed to file such report.
Section 12.If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application; and, to that end, the provisions of this Act are declared to be severable.
Section 13. This Act shall become effective on January 1, 2015.
SYNOPSIS
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This bill establishes a more efficient structure for the administration of Delaware's campaign finance laws, establishes a mechanism for citizens to report possible violations, and gives the State Election Commissioner the resources necessary to investigate potential violations. First, as recommended by the Title 15 Task Force established by Senate Concurrent Resolution No. 20, this bill would improve efficiency by consolidating the 3 existing county Boards of Election into a single State Board of Elections. The State Board would be comprised of 11 members, with 2 members from each county, 2 members from the City of Wilmington, and 2 at-large members. As is the case with the existing county Boards, members (other than the State Election Commissioner) would be appointed by the Governor and confirmed by the Senate, and political balance would be required. The existing county Departments of Elections would remain, but would be subject to the policies and directives of the State Board of Elections. In addition to assuming all of the powers and duties previously vested in the county Boards of Elections, the State Board of Elections would be authorized: (1) to hear and decide appeals where persons were fined for failing to timely file campaign finance reports or for failing to include "paid for by" statements on campaign ads; and (2) to determine whether reasonable grounds exist to recommend that possible violations of election laws be referred to the Attorney General or the United States Attorney for investigation and prosecution. Second, the bill gives the State Elections Commissioner the authority to receive citizen reports of possible violations of Delaware's election laws, including campaign finance laws. The bill requires the Commissioner to establish procedures to accept anonymous reports of potential violations. Such potential violations could be referred to the Attorney General or United States Attorney for investigation and prosecution, but only if the State Board of Election determines there are reasonable grounds to believe a violation may have occurred. Third, the bill expressly authorizes the Commissioner to prepare and publish manuals explaining the duties and responsibilities of individuals, political committees, and others covered by Delaware's campaign finance and other election laws. Finally, the bill establishes the position of Elections Counsel, who will serve as the legal representative of the State Election Commissioner. The duties of the Elections Counsel include, among other things, (1) investigating possible violations of campaign finance and other election laws; (2) representing the Commissioner in limited proceedings before the State Board of Elections; and (3) assisting the Commissioner in preparing manuals and guides. |
