BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 11, Title 9 of the Delaware Code, by striking § 1147 thereof in its entirety and by substituting in lieu thereof the following:

“§ 1147. Vacancies.

(a) The office of an elected official of the County Council shall become vacant upon the official’s death, resignation, removal from office in any manner authorized by law, or forfeiture of the office. The office shall be deemed to have been forfeited should the incumbent at any time during his or her term of office:

(1) Lack any qualifications for the office prescribed by this subchapter or other law of the State, including residence in the district from which he or she was elected;

(2) Violate any express prohibition of this title;

(3) Be convicted of any offense against public administration as defined in 11 Del. C. Chapter 5, Subchapter VI, or an equivalent offense in any other jurisdiction; or

(4) Be convicted of a crime involving moral turpitude.

(b) Whenever a vacancy in County Council occurs for any reason, within 10 days following the creation of the vacancy the President of County Council, or President Pro Tempore in the event of a vacancy in the office of the President, shall deliver to the Department of Elections for New Castle County a writ of election reporting the existence of the vacancy and requesting that a special election be scheduled to fill the same.

(c) On the next day after receiving a writ of election, unless the same shall be a Saturday, Sunday, or legal holiday and then on the first business day following, the Department of Elections for New Castle County shall post a proclamation reciting the writ, the date on which a special election will be held to fill the vacancy, and the Council member or members to be chosen. The Department’s proclamation shall be posted at the following locations:

(1) On the outside of the door of the New Castle County Courthouse;

(2) On the internet; and

(3) In at least 5 of the most public places in the council district for which it received a writ of election.

(d)(1) President of the County Council. If the Department of Elections for New Castle County receives a writ of election reporting the existence of a vacancy in the Office of President of the County Council then, no more than 45 days after posting said proclamation pursuant to subsection (c) of this section, it shall hold a special election to fill such vacancy; provided, however that:

a. If the special election to fill the vacancy must be scheduled pursuant to this section within the 45 days immediately following another special election, the special election to fill the vacancy shall be held on the 45^th day following the previous special election; and

b. If the special election to fill the vacancy must be scheduled pursuant to this section on a Saturday, Sunday or legal holiday, said special election shall be held on the first business day thereafter.

(2) Notwithstanding paragraph (1) of this subsection:

a. In the year of a general election, if a vacancy occurs in the Office of President of the County Council on or after June 1 but before August 20 of that year, the special election to fill such vacancy shall be held that year on the day of the general election;

b. In the year of a general election in which the Office of President of the County Council is not on the general election ballot, if a vacancy occurs in the Office of President of the County Council on or after August 20 of that year but before the date of the general election, the special election to fill such vacancy shall be held that year on the 45^th day following the general election, or within 1 week thereafter; and

c. In the year of a general election in which the Office of President of the County Council is on the general election ballot, if a vacancy occurs in the Office of President of the County Council on or after August 20 of that year but before the date of the general election, the special election to fill such vacancy shall be held that year on the day of the general election.

(e)(1) Council Members other than President. If the Department of Elections for New Castle County receives a writ of election reporting the existence of a vacancy on New Castle County Council other than in the Office of President of the County Council then, no more than 30 days after posting said proclamation pursuant to subsection (c) of this section, it shall hold a special election to fill such vacancy; provided, however that:

a. If the special election to fill the vacancy must be scheduled pursuant to this section within the 30 days immediately following another special election, the special election to fill the vacancy shall be held on the 30^th day following the previous special election; and

(2) Notwithstanding paragraph (1) of this subsection:

a. In the year of a general election, if the vacancy occurs on or after July 1 but before August 20 of that year, the special election to fill such vacancy shall be held that year on the day of the general election;

b. In the year of a general election in which the vacated office is not on the general election ballot, if the vacancy occurs on or after August 20 of that year but before the date of the general election, the special election to fill such vacancy shall be held that year on the 30^th day following the general election, or within 1 week thereafter; and

c. In the year of a general election in which the vacated office is on the general election ballot, if the vacancy occurs on or after August 20 of that year but before the date of the general election, the special election to fill such vacancy shall be held that year on the day of the general election.

(f) Any political party eligible to place a candidate upon the ballot in the most recent general election preceding the creation of the vacancy may nominate a candidate to be placed on the ballot for a special election. Nominations made pursuant to this subsection, together with the name of the party and its device, shall be certified to the Department of Elections for New Castle County by the presiding officer and secretary of the county committee of each political party eligible to place a candidate on the ballot. Candidate names must be received by the Department of Elections for New Castle County no more than 7 days following the date on which the Department posts its proclamation reciting the writ of election and appointing a day for holding a special election. For special elections conducted pursuant to subsections (d)(2)c. or (e)(2)c. of this section, once candidate names for the general election have been certified to the Department, no candidate name may be changed except by substitution pursuant to § 3306 of Title 15.

(g) In conducting a special election pursuant to this section, the Department of Elections for New Castle County shall:

(1) To the greatest extent feasible, use the same polling places as used in a general election; provided, however, that the department may require voters from multiple election districts to use a single polling place and, in the event a normal polling place is not available to be used on the day of the special election, may use as polling places buildings which are not normally used as polling places;

(2) Appoint election officers as necessary to conduct the special election;

(3) Whenever a special election is not conducted on the day of a general election, and whenever coincidental publication pursuant to paragraph (4) of this subsection is not feasible, publish in addition to other publications made pursuant to this section, but in lieu of any other notices required by Title 15, a “Notice of Election” in the principal newspaper in the county at least five days prior the day of the special election and on the day of the special election that includes the candidates, polling places, and the date and time of the special election; and

(4) Whenever a special election is conducted on the day of a general election, publish to the greatest extent feasible, a “Notice of Election” and information relating to candidates to be elected in the special election, poling places for the special election, and the date and time of the special election in conjunction with or as part of similar notices for a general election pursuant to Title 15. No notice shall be required pursuant to this paragraph, or paragraph (3) of this subsection, when a vacancy is created during the 5 days immediately preceding the day of the special election conducted pursuant to subsections (d)(2)c. or (e)(2)c. of this section.

(h) Except as provided in this section, special elections conducted to fill a vacancy in County Council shall be provided for, opened, held, conducted and closed and the result thereof ascertained and certified in the same manner and subject to the same laws, as far as the same may be applicable, as are prescribed for the general election; provided, however, that the provisions of 15 Del. C. § 4980(b) shall not apply to any special election held pursuant to this section, nor shall that section interfere with the conduct of a special election held pursuant to this section. Ballots for any special election conducted on the date of a general election pursuant to this section shall be merged with the general election ballots for that date and the two elections shall be conducted as a single, general election.

(i) The Superior Court for New Castle County, as constituted under Article V, § 6 of the Delaware Constitution, shall at 10 a.m. on the second day after a special election conducted in accordance with this section convene and perform its duties prescribed by the Constitution with reference to the special election, at the same place, with the same powers and in the same manner as for a general election. If the second day after a special election is a Saturday, Sunday or legal holiday, the canvass of the special election shall commence at 10 a.m. on the first business day thereafter.

(j) Unless otherwise provided by the laws of this State, all necessary costs and expenses, including the compensation of election officers, incurred in carrying into effect a special election pursuant to this section, except those that have merged with the general election pursuant to subsection (d) of this section, shall be paid by New Castle County on a schedule established by the Department of Elections for New Castle County.

(k) A Council member elected pursuant to this section shall immediately upon certification of election take office and shall serve until the expiration of the term.”

SYNOPSIS

This Act replaces the present system of selecting a successor to fill a vacancy in New Castle County Council and serve the remainder of the vacated term. Presently, a vacancy is filled though an appointment by the County Executive. This Act provides that all future vacancies will be filled through special elections. The special election process created in this bill places clearly defined limitations on the length of time a seat will remain vacant as well as on how and when a vacated seat is filled.

Pursuant to this Act, in a year other than the year of a general election, a special election to fill a vacancy in the office of New Castle County Council President must be held on or before the 45^th day following the day on which the Department of Elections for New Castle County posts the official proclamation that the vacancy exists and that a special election will be held to fill that vacancy. For Council seats other than office of Council President, the special election must be held no more than 30 days following the posting of the proclamation.

In general, under the provisions of this Act special elections for Council President will be held at least 45 days after any preceding special election and for all other seats will be at least 30 days after any preceding special election. Further, if the law would require a special election to be held on a Saturday, Sunday or legal holiday, the election will be held on the first business day thereafter.

This Act also more clearly defines those circumstances when a special election will be held in the year of a general election. Pursuant to this Act:

(1) Vacancies in the Office of Council President that occur on or after June 1, but before August 20, shall be filled on the day of the general election;

(2) Vacancies in any other Council seat that occur on or after July 1, but before August 20, shall be filled on the day of the general election;

(3) Vacancies that occur in ANY Council seat that is already listed on the general election ballot that occur on or after August 20, but before the day of the general election, shall be filled on the day of the general election;

(4) Vacancies that occur in ANY Council seat that is NOT already listed on the general election ballot that occur on or after August 20, but before the day of the general election, shall be filled after the general election (45 days for the President, 30 days for all other seats).

This Act requires that candidate names be submitted to the Department of Elections for New Castle County no later than 7 days following the posting of the Department’s proclamation, but expressly allows substitution of candidates as it is presently permitted.

This Act also clarifies how special elections will fit into existing election laws, adopting notice requirements that coincide with general election notice requirements to the greatest extent feasible and resolving timing conflicts that could result in a vacancy being created at the last minute.

Further, this Act provides that the results of special elections, like other elections, must be canvassed by the Superior Court and sets forth canvassing procedures that mirror ordinary canvassing procedures. Currently 15 Del. C. § 4980(b) requires that ALL voting machines be sequestered following a general election until February 1 of the following year. This provision is a holdover from when the Department used manual, rather than electronic, machines. Left alone, this provision would require the Department of Elections for New Castle County to buy or rent voting machines to hold any special election between the date of a general election and the February 1 following. This Act specifically exempts special elections from this sequestration period and expressly permits the Department to access those machines for the purposes of holding a special election pursuant to its provisions.