CHAPTER 360

FORMERLY

SENATE BILL NO. 527

AN ACT TO AMEND CHAPTER 161, VOLUME 43, LAWS OF DELAWARE, ENTITLED "AN ACT TO RE-INCORPORATE THE TOWN OF DAGSBORO", AS AMENDED, TO REVISE THE QUALIFICATIONS FOR VOTERS IN MUNICIPAL ELECTIONS AND TO

PERMIT ABSENTEE VOTING IN SUCH ELECTIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Subsection (D), Section 5, Chapter 161, Volume 43, Laws of Delaware, as amended, is amended by striking said subsection in its entirety and substituting in lieu thereof the following:

"(D) At such annual municipal elections, every person, male or female, who shall have attained the age of eighteen (18) years and who shall be an owner of real property within the Town of Dagsboro for a period of thirty (30) days immediately preceding the date of such annual municipal election, whether an individual, partnership, association, or corporation, and whether or not a resident of the State of Delaware or of the Town of Dagsboro shall have one (1) vote, provided such person is registered to vote in the Town of Dagsboro. In addition, every person, male or female, who shall have obtained the age of eighteen (18) years on the date of the annual municipal election who shall be a bona fide resident of the State of Delaware and the Town of Dagsboro on the date of the annual municipal election shall be entitled to one (1) vote, provided such person is registered to vote in the Town of Dagsboro. Provided, however, that any person who is both an owner of real property and a resident and otherwise qualified to vote, shall only be entitled to one (1) vote. No vote shall be east by a partnership except by a partner, and no vote shall be cast by an association or corporation except by a person holding a certified copy of a resolution of said association or corporation authorizing the person named therein to cast the vote of said association or corporation, which certified copy of the resolution shall be filed with the Election Board at the time said ballot is cast. The Town Council of the Town of Dagsboro shall provide two (2) registers to be known as the "Books of Registered Voters" which are to be kept at the Town office. The Books of Registered Voters shall contain the following information for each person who registers: The names of the voters arranged in alphabetical order, the permanent address of the voter, the local address of the voter, the birth date of the voter, the date the voter became a resident of the State of Delaware, the date the voter became a resident of the Town of Dagsboro, the date the voter became a freeholder of the Town of Dagsboro and other pertinent information. No person shall be registered upon the Books of Registered Voters unless such person will have acquired the qualifications to vote in the annual municipal election for the year in which such person registers. A person shall only be required to register one time. The Books of Registered Voters shall be maintained at the Town office and shall show conclusive evidence of the right of any person to vote at the annual municipal election. A person may register at the Town office during regular business hours on any day until the close of business on the second Friday in January in any year."

Section 2. Chapter 161, Volume 43, Laws of Delaware, as atifended, is amended by adding the following Section 5.1:

"ABSENTEE VOTING

Section 5.1 (A) Any qualified voter of this Town may east his vote by absentee ballot in any municipal elections held under the provisions of Section 5, of this Charter such votes to be counted in the total for the municipal election if he is unable to appear at the polling place because of being:

(1) In the public service of the United States or of this State; or

(2) In the armed forces of the United States or the merchant marine of the United States, or attached to and serving with the armed forces of the United States in the American Red Cross, Society of Friends or United Service Organizations; or

(3) Unavoidably absent from the Town on the day of the municipal election; or

(4) Sick or physically disabled; or

(5) Because of his absence from the municipality while on vacation.

(B) Affidavits required of persons applying for absentee ballots.

(I) Any qualified voter desiring to receive an absentee ballot because he qualifies under any of the reasons set forth in subsection (A) of this section shall file an affidavit with the Town Council, subscribed and sworn to by him before an officer authorized by law to administer oaths. The affidavit shall be dated not more than 90 days prior to the day of the election. It shall state the reason why he cannot appear at the regular polling place for the municipal election on the day of the election, his birthdate, social security number, his expected location, including his address and a telephone number (if available) to be used for the purpose of challenge on election day and, if sick or disabled, the name and address of a physician or Christian Science practitioner who can attest to the voter's inability to go to his polling place on the day of election. The Town Council shall mail or deliver the official ballot, envelopes and instructions to the voter as soon as possible after receiving the affidavit.

(2) Nothing contained in this section shall prevent the issuance of an absentee ballot to any qualified voter serving in the armed forces of the United States, or the merchant marine of the United States, or attached to and serving with the armed forces of the United States in the American Red Cross, Society of Friends or United Service Organizations when such a voter is lawfully entitled to an absentee ballot and has made a request to the Town Council if, in the judgment of the Council, the voter has been reasonably unable to comply fully with the requirements for an affidavit set forth in subsection (I) above.

(C) Request for ballot.

Any voter who is qualified under subsection (A) of this section to vote by absentee ballot and who desires to do so shall, not later than 12:00 noon of the day prior to any such municipal election, request the Town Council for an official ballot to be voted at such election.

(D) Distribution of ballots, envelopes and instructions.

Upon receipt of a request from a voter, together with an affidavit if required by subsection (B) of this section, the Council, not more than 60 nor less than 3 days prior to a municipal election and within 3 days after the ballots, envelopes and instructions for absentee voters become available, as provided by the general election law, shall mail to the voter, postage prepaid, an official ballot for the municipal election enclosed in an official envelope along with a voucher envelope marked "voucher envelope," an envelope marked "mailing envelope." Nothing contained in this section shall prevent the issuance of an absentee ballot to those lawfully entitled thereto prior to 12:00 noon of the day prior to any municipal election when the request is made less than 3 days prior to the municipal election.

(E) Affidavit of eligibility on voucher envelope; form.

There shall be printed on the face of each voucher envelope an affidavit in substantially the following form:

"I do solemnly swear (affirm) that I will be absent from the Town of Dagsboro on the day of election because of being ( ) In the public service of the United States or this State, ( ) In the armed forces of the United States or the merchant marine of the United States, or attached to and serving with the armed forces of the United States in the American Red Cross, Society of Friends or the United Service Organization, ( ) Unavoidably absent from the municipality, ( ) Sick or physically disabled. For the reason indicated, I cannot appear at the polling place in the municipality in which I am a qualified voter. I further swear (affirm) that I marked my ballot in secret.

"I, do solemnly swear (or affirm) that I have not received or accepted, or offered, to receive or accept, paid or transferred or delivered, or offered or promised to pay, transfer or deliver or contributed or offered or promised to contribute to another to be paid or used any money or other valuable thing as compensation, inducement or reward for the registering or abstaining from registering of anyone qualified to register or for the giving or withholding a vote at this election.

(Signed)

Print name.

"Subscribed and sworn (affirmed) before me this day of _, A.D. 19 ; and I

hereby certify that the affiant did in such manner that I could not see his ballot mark such ballot and that the affiant was not solicited or advised by me to vote for or against any candidate.

(Signed)

Notary Public or other qualified person; state

title."

(F) Envelope specifications; approval by President of Town Council.

(1) The voucher envelope shall be of the type known as a security mailing envelope and shall be such as to securely protect the contents thereof from tampering, removal or substitution without detection. Such envelopes shall be successively numbered beginning with Number 1 printed in red ink in the upper right hand corner thereof.

(2) The mailing envelope shall be large enough to carry the voucher envelope.

(3) All envelopes used under the provisions of this section, including all envelopes in which the Council shall forward to an absentee voter an official ballot accompanied by the official envelope, the voucher envelope, a mailing envelope and instruction to absentee voters, and the carrier envelope used by the Council for forwarding the returned marked ballot to the polls of the Town shall be uniform. The President of the Town Council shall personally approve each kind or type of envelope and no department shall purchase, use, have printed upon mail or deliver any envelope for use under the provisions of this section unless such type or kind of such envelope has first been approved personally by the President of the Town Council.

(G) Instructions to absentee voter.

The President of the Town Council shall prepare a list of instructions to assist an absentee voter in properly marking and returning his ballot under the provisions of this section which shall be known as "instructions to absentee voter." Before each municipal election the President of the Town Council shall deliver a copy thereof to the Council in sufficient time for the Council to have such instructions printed and forwarded to absentee voters requesting an official ballot for the ensuing municipal election.

(II) Voting procedure, execution of affidavit; return of ballot.

The absentee voter shall make and subscribe to the affidavit printed on the voucher envelope, before an officer authorized by law to administer oaths, and such voter shall thereupon in the presence of such officer, and of no other person, mark such ballot but in such manner that the officer cannot know how the ballot is marked, and the ballot shall then in the presence of the officer be deposited by the voter in the official envelope. The officio/ envelope containing the ballot shall then be deposited in the voucher envelope, and the voucher envelope shall be securely sealed by the voter. Thereupon the voucher envelope containing the marked ballot shall be enclosed in the mailing envelope received by the voter from the Town Council and after the voter has enclosed the voucher envelope containing the marked ballot in the mailing envelope, he shall securely seal the mailing envelope and mail it, postage prepaid, to the Town Council of the Town of Dagsboro, or if more convenient, it may be delivered to the Town Council in person, to be received in either case, by the Town Council before 12:00 noon of the day before the election and not thereafter.

(I) Time limit for return of ballot; late ballots.

The absentee voter shall return his marked ballot enclosed in the voucher envelope to the Town Council of the Town of Dagsboro before 12:00 noon of the day before election; and any absentee ballot received by the Council after 12:00 noon of the day before election shall not be forwarded to the polls, but the Council shall endorse on the voucher envelope containing such ballot the time such was received and shall retain all such envelopes unopened and so endorsed until the last day of February next after the election, and !anger if directed to do so by proper authority.

(I) Procedure on receipt of absentee ballot by Town Council.

(1) Upon receipt of the mailing envelope from the absentee voter, the Council or person authorized by it to do so shall open only the mailing envelope and take therefrom the voucher envelope containing the ballot of the absentee voter.

(2) No person shall open or attempt to open the enclosed voucher envelope containing the ballot of the absentee voter, or change or alter, or attempt to do so, the envelope or any writing, printing or anything whatsoever thereon.

(3) Any person authorized by the Council to do so shall immediately place the unopened voucher envelope in a special carrier envelope and securely seal the carrier envelope, which shall be kept safely in the Town office until delivered as provided in this section.

(K) Special carrier envelope used to convey absentee ballots to polling place; form.

Before the absentee ballots are conveyed to the polling place, the Council shall securely seal all absentee ballots in 1 or more carrier envelopes which shall have printed thereon the following:

ABSENTEE BALLOTS

for the Municipal Election of the Town of Dagsboro

This carrier envelope contains absentee voter ballots and shall be opened only at the polls of said municipal election on election day while said polls are open. This carrier envelope and the enclosed voucher envelope(s) shall be preserved by the Election Board and at the close of the count, shall be placed in the ballot box, into which the ballots have been put when read, and returned therewith.

(L) Delivery of absentee ballots to polling places.

When an absentee voter's ballot is received by the Council, the voucher envelope containing the marked ballot shall be safely and securely kept in the Town office until the day of the election when it shall be delivered to the polling place.

A duly authorized representative of the Council shall deliver all such voucher envelopes, sealed in 1 or more carrier envelopes as set forth in subsection (K) of this section, to the Election Board at the polling place after the opening of the polls and at least 2 hours before the closing of the polls. The representative, who shall carry suitable identification provided by the Council, shall obtain a receipt from the Election Board for delivery of the absentee ballots.

(M) Requirements for absentee ballots received by Election Board.

The Election Board shall refuse to receive any absentee voter's ballot from any person other than a duly authorized representative of the Council.

(N) Procedure at polling place.

At any time between the opening and the closing of the polls on election day the Election Board or a judge of the election shall open the outer or carrier envelope only and ascertain the name of the absentee voter as appears by the executed affidavit of the absentee voter on the voucher envelope enclosing the marked ballot, whereupon he shall announce the absentee voter's name for the purpose of challenges and upon the determination that such person is a qualified voter of the Town of Dagsboro by comparing the voter's signature upon the voucher envelope with the signature of the voter appearing in the Election Record, and that such voter has not voted in person at the election he shall open the voucher envelope containing such absentee voter's ballot in such a manner as not to deface or destroy the number thereof, or the affidavit thereon, and take therefrom the official envelope containing the marked ballot, and without opening or permitting the official envelope to be opened or the contents examined, shall cause 2 members of the Election Board to write their names on the official envelope, and shall then enter the name and address of the absentee voter on the poll lists. The ballot shall then be voted by depositing same (still in its official envelope) in the ballot box provided for receipt of absentee ballots, and the proper notations of such vote shall then be recorded in the election records in the same fashion as if the voter had appeared to cast his vote in person.

All voucher envelopes from which ballots have been taken and voted and all voucher envelopes containing ballots which have been rejected and endorsed as provided in subsection (P) of this section shall be preserved by the Election Board, and at the close of the count shall be placed in the ballot box as provided by the general election laws.

(0) Challenges.

The vote of any absentee voter may be challenged for the same causes and in the same manner as provided in this Charter for other voters. In addition, the vote of an absentee voter may be challenged on the ground that the affidavit filed by the voter in compliance with subsection (B) of this section is false. Upon challenge, proceedings thereon shall be as provided elsewhere in this Charter.

(P) Rejected ballots.

(1) In case the affidavit of the absentee voter is found to be insufficient, or the absentee voter is not a duly qualified voter in such election, or the voucher envelope is open, or has been opened and resealed, or it is evident that the voucher

envelope has been tampered with our altered, or such ballot has been forwarded to the polls by someone other than a duly authorized representative of the Council, such vote shall not be accepted or counted. If the voucher envelope has not been opened at the time the Election Board decides that the offered ballot contained therein should be rejected for any of the foregoing reasons, it shall not be opened by the Election Board, but they shall endorse thereon, "REJECTED," giving reason therefor, and if the voucher envelope has been opened and the ballot is rejected, the official envelope containing the ballot shall be replaced in the same voucher envelope from which it was taken and the Election shall endorse on the voucher envelope, "REJECTED," giving reason therefor.

(2) Whenever it is made to appear by due proof to the Election Board that any absentee voter, who has marked and forwarded his ballot, has died, the voucher envelope containing the ballot shall not be opened but shall be marked "REJECTED, Dead," and shall be preserved and disposed of as other rejected ballots.

(3) Whenever a ballot has not been counted but has been rejected for any reason, the Election Board shall make the required notation on the absentee ballot tally sheet and shall note the number of ballots so rejected on the certificates of election.

(Q) Procedure if requests or ballots sent to wrong official.

If any request for an absentee ballot and accompanying envelopes or any marked ballot of any such voter are addressed to and returned to any official of the Town of Dagsboro other than the Town Council, then such other official, shall immediately transmit such request or returned marked ballot to the Town Council, to be acted upon by the Council as provided by this section.

(R) Persons before whom affidavits may be taken.

Any affidavit required under the provisions of this section may be taken before any person with authority to administer oaths and affirmations in the place where such affidavit may be taken, and whenever taken outside this State, the authority of such person shall be conclusively presumed.

Any affidavit required under the provisions of this section, when made by n voter in the nrmed forces or merchant marine of the United States, or by persons serving with the American Red Cross, the Society of Friends and the United Service Organizations who arc attached to and .serving with the armed forces of the United States, may be taken before any commissioned or noncommissioned officer not below the rank of sergeant, or petty officer in the nrmed forces of the United States, or any member of the merchant marine of the United States properly designated for such purpose, or any other person authorized to adminster and attest oaths or affirmations, and whenever taken outside the State, the authority of such person shall be conclusively presumed.

(S) File of absentee voters.

(I) The Town Council shall maintain records providing for the prevention of fraud and to make possible the tracing and detection of any attempt to do so. Such records shall include the following entries: Name of voter; address; address where ballot is to be mailed; date affidavit received by the Council; the date of the election; voucher number; date ballot mailed or delivered to the voter; date ballot is returned; the names of any physicians executing affidavits for sick or disabled persons; and the names of all officers administering oaths for all affidavits received.

(2) The Town council shall compile from its files fi list of names and addresses of all applicants for absentee ballots, and shall send current and complete copies thereof without cost to nil candidates on the ballot in the forthcoming election. Such lists shall be provided upon completion of the nominations of enndidntes.

(T) Authority to alter forms in certain cases; procedure.

(1) If, on or before the 1st day of January in the year of a municipal election, in the joint judgment of the President of the Town Council and the Town Solicitor, it is deemed expedient to make certain changes in the size, weight or material of the ballots, envelopes, instructions to absentee voters, form of request for ballot, form of affidavit of voter, the address or any other direction or printing or endorsement upon the voucher or carrier envelopes, postage or manner of transmission, then such officers jointly shall cause to be made effective any or all such changes to the end that there shall be extended to the absentee voters full opportunity to receive and return a marked ballot to the Council for delivery to the polling place on election day to be acted upon and counted as other votes personally cast at such poll, provided, however, that the plan and arrangement of any official ballot and the list of candidates thereon, as provided for by the general election law, shall not be changed or altered under any circumstances.

(2) Upon the making of any such changes, the President of the Town Council and the Town Solicitor shall jointly in writing forthwith notify the Council of such changes, and the Council shall cause such changes to be carried into effect, and the ballots, envelopes and instructions, as so changed, to be so printed, transmitted and distributed.

(U) Penalties.

(1) Whoever wilfully makes a false affidavit shall be guilty of perjury and shall be punished as in such case by law provided.

(2) Whoever, other than the Election Board on the day of the municipal election at the polls, opens or attempts to open any sealed voucher or carrier envelope; or

(3) Whoever prints or causes to be printed any envelope identical or purportedly similar to the voucher envelope or either carrier envelope, other than the printing of such envelopes by the official printer selected by the Council for the printing of such envelopes pursuant to the provisions of this section; or

(4) Whoever aids or abets, or attempts to aid or abet, any fraud in connection with any vote cast, or to be cast, under this section shall be imprisoned not less than 15 days nor more than 30 days.

(5) Whoever fraudulently signs the name of a voter to the affidavit on any voucher envelope shall be guilty of forgery and shall be punished for such crime as by law provided.

(6) Whoever, being an election officer or public official:

(a) Knowingly violates this section and thereby aids in any way the illegal casting of a vote, or attempting to cast a vote; or

(b) Connives to nullify any provision of this section, in order that fraud may be perpetrated shall be fined not less than $50.00 nor more than $100.00 and imprisoned not less than 15 days nor more than 30 days.

(7) Whoever, in any Way in voting or attempting to vote himself, or any other person pursuant to the provisions of this section who violates any of the provisions enacted to secure secrecy and the independence of the voter, preserve the freedom and purity of elections and prevent fraud, corruption and intimidation, shall be punished as provided by law."

Approved July 10, 1980.