SB 166 — Updating contested elections procedures

WEST VIRGINIA LEGISLATURE REGULAR SESSION IntroducedEnrolled Senate Bill 166 BYBy SENATORSSenators CHAPMANChapman, ,Deeds, EEDS,Hunt, HUNT,Oliverio, LIVERI,Roberts, ROBERTS,Rucker, RUCKER,Swope, WOPETarr, ,Woodrum, ARR, WOODRUM ,AND STUART [Introduced on January 10, 2024] Intr SB 166 A BILL to amend and reenactStuart §3-7-3,[Passed §3-7-6,March and7, §3-7-72024; of the Code of West Virginia, 1931, as amended, all relating to contested elections procedure update;

to take effect January 1, 2025] Enr SB 166 AN ACT to amend and reenact §3-7-3, §3-7-6, and §3-7-7 of the Code of West Virginia, 1931, as amended, all relating to contested elections procedure update;

(a) Where the election of Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, or of a judge a justice of the Supreme Court of Appeals, a judge of the Intermediate Court of Appeals, or a judge of a circuit court, or a judge of a family court is contested, the case shall be heard and decided by a special court constituted as follows:

They shall be entitled to $10 a day each, and the same mileage as members of the Legislature, to be paid out of the treasury of the state, and such the special court is hereby given authority to may employ a stenographer at a reasonable compensation, to be also paid out of the treasury of the state.

(2) In all hearings or proceedings before such the special court, the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing Intr SB 166 by such the special court, or any member thereof;.thereof.

(3)1 andEnr inSB case166 of(3) If there is disobedience to a subpoena or other process of such the special court, or any member thereof, such the special court, or any member thereof, or either of the parties to such the contest, may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books, and documents.

And such the circuit court, in case of a refusal to obey the subpoena issued to any person, shall issue an order requiring such that person to appear before such the special court and produce all books and papers, if so ordered, and give evidence touching the matter in question.

Any failure to obey such the order of the circuit court may be punished by such the court as a contempt thereof.

A written record shall be kept of all testimony and other proceedings before such the special court.

(4) Either party to such the contest feeling aggrieved by the final decision of such the special court may present his or her petition in writing to the Supreme Court of Appeals, or a judge justice thereof in vacation, within 30 days after such the final decision is certified to the Governor, as hereinbefore provided, praying for the suspension, setting aside, or vacation of such the final decision.

The applicant shall deliver, or cause to be delivered, a copy of such the petition to the other party to such the contest, or, in case of his or her absence from the state or from his or her usual place of abode, he the applicant shall mail, or cause to be mailed a copy of such the petition addressed to his or her last known post-officepost- office address, before presenting the same petition to the court, or the judge justice.

The court, or the judge justice, shall fix a time for the hearing on the application, but such the hearing shall may not be held sooner than five days, unless by agreement of the parties, after the presentation of such the petition, and notice of the time and place of such the hearing shall be forthwith delivered to the other party to such the contest, or, in case of absence from the state or from his or her usual place of abode, such the notice may be given by mailing, or causing to be mailed, the same notice, or a copy thereof, addressed to him or her at his or her last known post-office address.

If the court, or the judge justice, after such the hearing, be is of the opinion that a suspending order should issue, the courtcourt, in its, or the judge Intr SB 166 justice in his or her, discretion, may suspend such the final decision and may require bond upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner, as are just and reasonable;

and the court, or the judge justice, 2 Enr SB 166 shall fix a time for the final hearing on the application.

For such the final hearing, and before the day fixed therefor, the special court shall file with the clerk of the Supreme Court of Appeals all papers, documents, testimony, evidence, and records, or certified copies thereof, which were before it at the hearing resulting in the final decision from which the petitioner appeals, together with a copy in writing of its final decision;

and, after argument by counsel, the court shall decide the matter in controversy, both as to the law and the evidence, as may seem to it determines to be just and right.

(b) The Supreme Court of Appeals is hereby given jurisdiction to shall enforce the provisions of this section by writ of prohibition, mandamus, andcertiorari certiorari, as may be appropriate or other appropriate mechanism.

(a) In all cases of contested elections, the county commission circuit court with jurisdiction over the county or district where the election took place shall be the judge of the election, qualifications, and returns of their own members and of all county, and district, and municipal officers.

Provided, That a member of the county commission whose election is being contested may not participate in judging the election, qualifications and returns (b) A person intending to An election contest challenging the election of any person another to any county, or district, or municipal office, including the office of judge of any magistrate, courtmust or including any office that shall hereafter be createdbrought to be filled by the voters of the county or of any magisterial or other district therein, shall, within ten10 days after the result of the election result is certified,certified. give the contestee notice in writing of such intention and a list of the votes he will dispute, with the objections to each, and of the votes rejected for which he will contend.

If the contestant objects to the legality of the election or the qualification of the person returned as Intr SB 166 elected, the notice shall set forth the facts on which such objection is founded.

The person whose election is so contested shall, within ten days after receiving such notice, deliver to the contestant a like list of the votes he will dispute, with the objections to each, and of the rejected votes for which he will contend;

and, if he has any objection to the qualification of the contestant, he shall specify in writing the facts on which the objection is founded.

Each party shall append to his notice an affidavit that he verily believes the matters and things set forth to be true.

If new facts be discovered by either party after he has given notice as aforesaid, he may, within ten days after such discovery, give an additional notice to his adversary, with the specifications and affidavit prescribed in this section.

The provisions of this section apply to all elections, including municipal elections, except that the governing body of the municipality is the judge of any contest of a municipal election must be brought within 10 days after the election result is certified.

County Circuit court to hear county, and district, and municipal contests;

(a) The county court circuit court with jurisdiction over the county or district where the election took place 3 Enr SB 166 shall hear and decide election contests initiated pursuant to the provisions of the preceding section §3-7-6 of this code.

Subpoenas(b) forAt witnessesthe fortrial eitherof partythe shallcontest, bethe issuedcircuit Intrcourt SBshall 166hear byall thelegal clerkand ofproper theevidence countythat court,may andbe servedbrought asbefore init otherby cases,either party, and themay, witnessesif shallconsidered benecessary, entitledrequire to the sameproduction allowancesof andthe privileges,poll books, certificates, and beballots subjectdeposited towith the samecounty penalties,clerk asor witnessesmunicipal attendingrecorder aor circuitclerk, courtand inexamine athe civilsame. suit.

The notice of contest shall be presented to the county court at its first term after the same is delivered to the person whose election is contested, and the same shall be docketed for trial in such court (b) At the trial of such the contest, the circuit court shall hear all such legal and proper evidence that may be brought before it by either party, and may, if deemed considered necessary, require the production of the poll books, certificates, and ballots deposited with its the county clerk or municipal recorder or clerk, and examine the same.

The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from the day of election.

(d) At the final conclusion of the trial of such the contest, the circuit court shall declaredirect thethat truea resultcertified copy of suchthe election,order anddeclaring causethe result of the samecontest toshall be entereddelivered onby the recordsclerk of the court.circuit court wherein the contest was held to the parties.

When(e) theAn resultappeal of the electiondecision is declared, as aforesaid, direct that a certified copy of the order declaring such the result of the contest shall, if required, be delivered by the clerk of the circuit court whereinshall thebe contest was held to the personSupreme declaredCourt elected, if such be the result of theAppeals. trial, and such copy shall be received in all courts and places as legal evidence of the result of the election therein declared parties.

Either(f) theThe contestantSupreme orCourt contestee shall have the right of appealAppeals, toexercising the circuitrule-making courtpower ofgranted theby county§51-1-4 from the final order or decision of thethis countycode, courtmay inpromulgate suchrules proceeding,and uponregulations theconsistent filing of a bond with goodthis personalarticle security,governing by the partypleadings, desiringpractice, theand appeal,procedure to be approvedemployed byduring thecounty, countydistrict, court, in a sum deemed sufficient by such court, with condition to the effect that the person proposing to appeal will perform and satisfymunicipal anyelection judgmentcontests whichin may be rendered against him by the circuitcourts courtof onthis suchstate. appeal.

But such appeal shall not be granted unless the party desiring the appeal shall make application for such appeal, and file such bond, within thirty days from the entering of the final order in such proceeding;

and the circuit court may at any time Intr SB 166 require a new bond or increase the penalty thereof when the court deems it necessary.

When such appeal is taken to the circuit court, as hereinbefore provided, it shall be heard and determined upon the original papers, evidence, depositions and records filed before and considered by the county court, and the circuit court shall decide the contest upon the merits.

From the decision of the circuit court, an (e) An appeal of the decision of the circuit court shall lie be to the Supreme Court of Appeals.

as in other cases, but such appeal shall be heard upon the original papers and copies of all orders made, without requiring the same to be printed (f) The Supreme Court of Appeals, exercising the rule-making power granted by §51-1-4 of this code, may promulgate rules and regulations consistent with this article governing the pleadings, practice, and procedure to be employed during county, district, and municipal election contests in the courts of this state.