Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
               ENGROSSED
         Committee Substitute for House Bill 5373
  By Delegates Campbell, Howell, W. Clark, Lucas,
  Dean, Westfall, Ward, Kirby, Maynor, Foggin, and Heckert [Originating in the Committee on the Judiciary;
          Reported on February 23, 2024]
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  A BILL to amend and reenact §3-10-3; §3-10-4; §3-10-5; and §3-10-8 of the Code of West Virginia,
          1931, as amended, all relating to prohibiting the appointment of an individual to fill a vacant
          office if that person has not been a member of that party for one year and requiring
          appointments be made from the political party with which the individual vacating the office
          was affiliated with at the time of his or her election.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE                         10.                      FILLING                         VACANCIES.
     §3-10-3. Vacancies in offices of state officials, justices, judges, and magistrates.
          (a) Any vacancy occurring in the offices of Secretary of State, Auditor, Treasurer, Attorney
  General, Commissioner of Agriculture, or in any office created or made elective to be filled by the
  voters of the entire state, is filled by the Governor of the state by appointment and subsequent
  election to fill the remainder of the term, if required by §3-10-1 of this code. The Governor shall
  make the appointment from a list of three legally qualified persons submitted by the party
  executive committee of the same political party with which the person holding the office
  immediately preceding the vacancy was affiliated at the time the vacancy occurred of the previous
  election for that office. The list of qualified persons to fill the vacancy shall be submitted to the
  Governor within 15 days after the vacancy occurs, and the Governor shall duly make his or her
 appointment to fill the vacancy from the list of legally qualified persons within five days after the list
 is received. If the list is not submitted to the Governor within the 15-day period, the Governor shall
 appoint, within five days thereafter, a legally qualified person of the same political party with which
 the person holding the office immediately preceding the vacancy was affiliated at the time the
 vacancy occurred: Provided, That any such person appointed by the Governor must have been
 affiliated with that political party for at least one year: Provided however, That the provisions of this
 subsection do not apply to §3-10-3(b), §3-10-3(c), §3-10-3(d), and §3-10-3(e) of this code.
         (b) Any vacancy occurring in the offices of Justice of the Supreme Court of Appeals, judge
 of the Intermediate Court of Appeals, judge of a circuit court, or judge of a family court is filled by
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 the Governor of the state by appointment and, if the unexpired term be for a period of more than
 three years, by a subsequent election to fill the remainder of the term, as required by §3-10-3(d) of
 this code. If an election is required under §3-10-3(d) of this code, the Governor, circuit court, or the
 chief judge thereof in vacation, is responsible for the proper proclamation by order and notice
 required by §3-10-1 of this code. The amendments to this subsection enacted during the regular
 session of the Legislature in the year 2022 shall be applicable to any vacancy existing at the date
 of passage of such amendments.
        (c) Any vacancy in the office of magistrate is appointed according to the provisions of §50-
 1-6 of this code, and, if the unexpired term be for a period of more than two years, by a subsequent
 election to fill the remainder of the term, as required by §3-10-3(d) of this code.
        (d) (1) When the vacancy in the office of Justice of the Supreme Court of Appeals, judge of
 the Intermediate Court of Appeals, judge of the circuit court, judge of a family court, or magistrate
 occurs after the 84th day before a general election, and the affected term of office ends on
 December 31 following the succeeding general election two years later, the person appointed to fill
 the vacancy shall continue in office until the completion of the term.
        (2) When the vacancy occurs before the close of the candidate filing period for the primary
 election, and if the unexpired term be for a period of greater than three years, the vacancy shall be
 filled by election in the nonpartisan judicial election held concurrently with the primary election and
 the appointment shall continue until a successor is elected and certified.
        (3) When the vacancy occurs after the close of candidate filing for the primary election and
 not later than 84 days before the general election, and if the unexpired term be for a period of
 greater than three years, the vacancy shall be filled by election in a nonpartisan judicial election
 held concurrently with the general election, and the appointment shall continue until a successor is
 elected and certified.
        (e) When an election to fill a vacancy is required to be held at the general election,
 according to the provisions of §3-10-3(d) of this code, a special candidate filing period shall be
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 established. Candidates seeking election to any unexpired term for Justice of the Supreme Court
 of Appeals, judge of the Intermediate Court of Appeals, judge of a circuit court, judge of the family
 court, or magistrate shall file a certificate of announcement and pay the filing fee no earlier than the
 first Monday in August and no later than 77 days before the general election.
     §3-10-4.      Vacancies in     representation in     United States Congress.
          (a) (1) If there is a vacancy in the representation from this state in the House of
  Representatives in the Congress of the United States, the Governor shall, within five days after the
  fact comes to his or her knowledge, issue a proclamation setting dates for a special general
  election that is not less than 84 nor more than 120 days from the date of the vacancy and requiring
  nomination of candidates as provided in §3-10-4(a)(2) of this code: Provided, That no such
  proclamation may be made nor may a special election be held if the vacancy occurs after the 84th
  day prior to the regularly scheduled general election for a new full term of the office. The election
  shall follow the requirements of §3-10-1 of this code that are not in conflict with this section.
          (2) The party executive committees for the congressional district for which there is a
 vacancy shall each, within 30 days of the Governor’s proclamation, nominate a candidate to stand
 at the general election required by §3-10-4(a)(1) of this code.
         (b) If there is a vacancy in the representation from this state in the Senate of the United
 States Congress, the vacancy shall be filled by the Governor of the state by appointment. The
 Governor shall make the appointment from a list of three legally qualified persons submitted by the
 party executive committee of the same political party with which the person holding the office
 immediately preceding the vacancy was affiliated at the time the vacancy occurred of the previous
 election for that office. The list of qualified persons to fill the vacancy shall be submitted to the
 Governor within 15 days after the vacancy occurs, and the Governor shall duly make his or her
 appointment to fill the vacancy from the list of legally qualified persons within five days after the list
 is received. If the list is not submitted to the Governor within the 15-day period, the Governor shall
 appoint, within five days thereafter, a legally qualified person of the same political party with which
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 the person holding the office immediately preceding the vacancy was affiliated at the time the
 vacancy occurred: Provided, That any such person appointed by the Governor must have been
 affiliated with that political party for at least one year.
         Furthermore,
         (1) If the vacancy occurs on or before the primary cutoff date, then an election shall be held
 pursuant to §3-10-1 of this code; or
         (2) If the vacancy occurs after the primary cutoff date, but on or before the general cutoff
 date, then the Governor shall issue a proclamation providing for: (A) A special filing period; (B) a
 special primary election to be held in conjunction with the upcoming general election; and (C) a
 special general election to be held not less than 84 nor more than 120 days following the date of
 the special primary election. Each election shall follow the requirements of §3-10-1 of this code
 that are not in conflict with this section.
     §3-10-5.                 Vacancies in               state Legislature.
          (a) Any vacancy in the office of state senator or member of the House of Delegates shall be
  filled by appointment by the Governor, from a list of three legally qualified persons submitted by the
  party executive committee of the same political party with which the person holding the office
  immediately preceding the vacancy was affiliated at the time the vacancy occurred of the previous
  election for that office. The list of qualified persons to fill the vacancy shall be submitted to the
  Governor within 15 days after the vacancy occurs and the Governor shall duly make his or her
  appointment to fill the vacancy from the list of legally qualified persons within five days after the list
  is received. If the list is not submitted to the Governor within the 15-day period, the Governor shall
  appoint within five days thereafter a legally qualified person of the same political party with which
 the person holding the office immediately preceding the vacancy was affiliated at the time the
 vacancy occurred: Provided, That any such person appointed by the Governor must have been
 affiliated with that political party for at least one year.
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         (b) In the case of a member of the House of Delegates, if the member was elected to a
 multi-county delegate district the list shall be submitted by the party executive committee of the
 delegate district in which the vacating member resided at the time of his or her election or
 appointment. If the member was elected to a delegate district situated entirely within a single
 county, the list shall be submitted by the county executive committee in which the vacating
 member resided at the time of his or her election or appointment. The appointment to fill a vacancy
 in the House of Delegates is for the unexpired term.
         (c) In the case of a state senator, if the member was elected to a multi-county senatorial
 district the list shall be submitted by the party executive committee of the state senatorial district in
 which the vacating senator resided at the time of his or her election or appointment. If the member
 was elected to a senatorial district situated entirely within a single county, the list shall be
 submitted by the county executive committee in which the vacating member resided at the time of
 his or her election or appointment. The appointment to fill a vacancy in the state Senate is for the
 unexpired term, unless §3-10-1 of this code requires a subsequent election to fill the remainder of
 the term, which shall follow the procedure set forth in said section.
     §3-10-6.         Vacancy in        office of        circuit court clerk.
          (a) When a vacancy occurs in the office of clerk of the circuit court, the circuit court by a
  majority vote of the judges shall fill the same within thirty days of the vacancy by appointment of a
  person of the same political party as the officeholder vacating the office for the period required by
  section one of this article: Provided, That any person appointed must be affiliated with the political
  party with which the person vacating the office was affiliated at the time of the previous election for
  that office and must have been so affiliated for at least one year.
          (b) Notwithstanding any code provision to the contrary, the chief judge may appoint a
  temporary successor to the office of clerk of the circuit court until the requirements of this section
  have been met. The temporary successor may serve no more than thirty days from the date of the
 vacancy.
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        (c) If an election is necessary, the circuit court, or the chief judge thereof in vacation, is
 responsible for the proper proclamation, by order and notice required by section one of this article.
        (d) Section one of this article shall be followed with respect to any election needed to fill a
 vacancy, except that if the vacancy occurs after the primary cutoff date but not later than the
 general cutoff date, candidates to fill the vacancy shall be nominated by the county executive
 committee in the manner provided in section nineteen, article five of this chapter, as in the case of
 filling vacancies in nominations, and the names of the persons, so nominated and certified to the
 clerk of the county commission of the county, shall be placed upon the ballot to be voted at the next
 general election.
     §3-10-7. Vacancies in offices of county commissioner and clerk of county commission.
         (a) Any vacancy in the office of county commissioner or clerk of county commission shall
  be filled by appointment by the county commission. The appointee must be a person of the same
  political party with which the person holding the office immediately preceding the vacancy was
  affiliated at the time the vacancy occurred of the previous election for that office: Provided, That at
  the time of appointment, the appointee must have been a member of that political party for at least
  60 days one year prior to the occurrence of the vacancy.
         (b) If a quorum of the county commission fails to make an appointment within 30 days, the
  county executive committee of the same political party with which the person holding the office
  preceding the vacancy was affiliated at the time the vacancy occurred, shall submit a list of three
 legally qualified persons to fill the vacancy. Within 15 days from the date on which the list is
 received, the county commission shall appoint a candidate from the list to fill the vacancy. If the
 county commission fails to make the appointment within the specified time, then the county
 commissioner with the longest tenure shall eliminate one name from the submitted list, followed by
 the county commissioner with the second-longest tenure then eliminating one name from the
 submitted list. The name remaining after those two names have been eliminated shall be deemed
 to be appointed by the county commission to fill the vacancy.
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        (c) If the number of vacancies in a county commission deprives that body of a quorum, the
 Governor shall make an appointment to fill any vacancy in the county commission necessary to
 create a quorum, from a list of three legally qualified persons submitted by the party executive
 committee of the same political party with which the person holding the office immediately
 preceding the vacancy was affiliated at the time the vacancy occurred. The Governor shall make
 any appointments necessary, beginning with the vacancy first created, to create a quorum in
 accordance with the same procedures applicable to county commissions under §3-10-7(a) of this
 code. Once a quorum of the county commission is reestablished by gubernatorial appointment,
 the authority to fill the remaining vacancies shall be filled in the manner prescribed in §3-10-7(a) of
 this code.
        (d) An appointment made pursuant to this section is for the period of time provided in
 §3-10-1 of this code.
        (e) Notwithstanding any code provision to the contrary, a county commission may appoint
 a temporary successor to the office of clerk of the county commission until the requirements of this
 section have been met. The temporary successor may serve no more than 30 days from the date
 of the vacancy.
        (f) If an election is necessary under §3-10-1 of this code, the county commission, or the
 president thereof in vacation, shall be responsible for the proper proclamation, by order, and notice
 required by §3-10-1 of this code.
        (g) §3-10-1 of this code shall be followed with respect to any election needed to fill a
 vacancy, except that if the vacancy occurs after the primary cutoff date but not later than the
 general cutoff date, candidates to fill the vacancy shall be nominated by the county executive
 committee in the manner provided in §3-5-19 of this code, as in the case of filling vacancies in
 nominations, and the names of the persons, so nominated and certified to the clerk of the county
 commission of the county, shall be placed upon the ballot to be voted at the next general election.
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         (h) If the election for an unexpired term is held at the same time as the election for a full
 term for county commissioner, the full term shall be counted first and the unexpired term shall be
 counted second. If the candidate with the highest number of votes for the unexpired term resides
 in the same magisterial district as the candidate with the highest number of votes for the full term,
 the candidate for the full term shall be seated. The candidate with the next highest number of votes
 for the unexpired term residing in a different magisterial district shall be se