CHAPTER 155

FORMERLY

SENATE BILL NO. 224

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND AN ACT BEING CHAPTER 3, VOLUME 68, LAWS OF DELAWARE, AS AMENDED ENTITLED "AN ACT TO RE-NCORPORATE THE TOWN OF ELSMERE".

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

WHEREAS, It is the wish of the Mayor and Council to allow all registered voters in the Town to vote in elections, and

WHEREAS, It is the wish of the Mayor and Council to eliminate political party affiliations from Town election, thereby eliminating the need for primary elections, and

WHEREAS, It is the wish of the Mayor and Council to set a unified and consistent manner for the casting of absentee ballots in Town elections, and

WHEREAS, It is the wish of the Mayor and Council to not hold an election when there exist only one official candidate for each office.

NOW THEREFORE:

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. Amend Section 1 of Chapter 3, Volume 68, Laws of Delaware, as amended, by deleting Article IX in its entirety, and by substituting in lieu thereof a new Article IX, to read as follows:

"Article IX. Nominations and Elections.

§901. Voter Qualification.

(A) Every person domiciled in the Town of Elsmere who shall have reached the required age to vote in State elections, who is a citizen of the United States and who is domiciled in the State of Delaware and in the Town of Elsmere for at least thirty (30) days preceding the elections and whose name is recorded in the list of registered voters provided to the Town by the New Castle County Department of Elections shall be entitled to vote at the bi-annual municipal elections, special elections, and referenda, except as otherwise provided in this Chapter.

(B) The Council shall by ordinance provide for the supplemental registration of voters in each of the respective districts, provided that there shall be at least two (2) registration days in each election year, the last of which not more than thirty (30) days prior to the election. The ordinance may provide for permanent registration lists. There need be not special registration for referenda and special elections, but the qualifications for voting as such shall be based upon the last previous registration.

§902. Council nominations.

(A) Any person desiring to be a candidate or to be voted for in an election as a candidate for nomination for Mayor, or Councilman shall give notice in writing to the Town Secretary. Such notification shall be made, on forms provided by the Town, on or before 7:00 p.m. of the first Monday in February prior to the bi-annual municipal elections, or the fifth Monday prior to a special election.

(B) All candidates at the time of giving notice as required in this section shall tender to the Town a filing fee equal to three percent (3%) of the total salary for the entire term of office for which the candidate is filing.

(C) Any candidate who has filed for nomination as required in this section may withdraw the filing by notifying the Town Secretary on forms to be provided by the Town. The notice of withdrawal shall be filed before 12:00 noon of the second Monday in February prior to the bi-annual municipal elections, or the fifth Monday prior to a special election. The filing fee shall be refunded after receipt of the notice of withdrawal.

§903. Elections.

(A) A regular municipal election shall be held on the last Saturday in April, 2003 and on the last Saturday of April in each two years thereafter. Council shall by ordinances set the hours during which the polls shall be open. The Council shall designate the place or places of election and make all necessary rules and regulations not inconsistent with this Charter, or with the general laws of the State of Delaware for the conduct of elections, for the prevention of fraud in elections and for the recount of ballots in case of doubt or fraud.

(B) At least ten (10) days prior to such elections, due notice thereof and of the time and place or places thereof shall be given by the Council. At all such elections the voters shall be received at each polling place by three (3) qualified voters of said Town appointed by the Council. One of the said persons for each polling place shall be designated as the inspector and the other two as judges of the election, and the three at each polling place shall be known as officers of election, and no such person shall be a candidate for office at any such election. In addition to the election officers, there shall be two clerks at each polling place. The clerks shall be appointed by the Council from a list of three names from each district. The result of the balloting at each polling place for said officers of said Town shall be ascertained by the said officers of election, who shall certify said results under their hands to the Council. The Council may appoint clerks to assist the officers of election.

(C) In case of referenda or special elections, the same procedure shall be followed to the extent applicable as with respect to the regular elections and the penalty for fraud and misconduct shall be the same.

§904. Ballots.

For the purpose of Town elections, a separate form of ballot shall be provided for each district, which ballot shall contain, in addition to the names of the candidates for the Town Council running in that district, the names of the candidates for those offices which are voted upon at large. If on the date provided in §902(c) of this chapter, only one candidate has filed for a particular district, the ballot for that particular district shall contain only the names of the candidates for those offices, which are voted upon at large. The ballots provided for the purpose of the municipal election shall bear no political party designation. Official ballots shall not be used as sample ballots but shall be used only at the election. The officers of the election shall not supply any ballots to any person except one ballot to each voter, proper to his district, as he enters the polis to vote. In the event of spoilage of a ballot, the spoiled ballot must be returned by the voter to entitle him to a new ballot. No ballot other than those supplied by the officers of election shall be used at the municipal election and the ballots shall contain only the names of candidates who have duly filed as herinbefore described. Council may by ordinance provide for the use of voting machines in municipal elections.

§ 905. Absentee Ballots.

Any qualified elector, duly registered, may cast his/her vote by absentee ballot in any Town election, if he/she is unable to appear at the polling place in the Town due to the following reasons:

(A) Because such person is in the public service of the United States or of this state;

(B) Because such person is 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;

(C) Because such person is unavoidably absent from the Town on the day of the election;

(D) Because such person is sick or physically disabled;

(E) Because such person is absent from the Town while on vacation; or

(F) Because such person is unable to vote at a certain time or on a certain day due to the tenets or teachings of his/her religion.

§ 905-1. Filing for affidavit; exceptions.

(A) Any elector desiring to receive an absentee ballot because he/she qualifies under any of the reasons set forth in §905 shall file an affidavit with the Absentee Ballot Clerk, who shall be appointed by City Council two months prior to any election subscribed and sworn to by him/her before an officer authorized by law to administer oaths. The affidavit shall be dated not more than 45 days prior to the day of the election. It shall state the reason why he/she cannot appear at the regular polling place on the day of the election, his/her birth date, social security number, his/her expected location, including his/her 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 elector's inability to go to the polling place on the day of election. The Absentee ballot Clerk shall deliver the official ballot, envelopes and instructions to the elector as soon as possible after receiving the affidavit.

(B) Nothing contained in this section shall prevent the issuance of an absentee ballot to any qualified elector serving in the armed forces of the United States, or the merchant marine in 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 an elector is lawfully entitled to an absentee ballot and has made a request to the Absentee Ballot Clerk if, in the judgment of the Absentee Ballot Clerk, the elector has been reasonably unable to comply fully with the requirements for an affidavit set forth in Subsection A above.

§ 905-2. Time limit for requesting ballot.

Any elector who is qualified under § 905 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 election, request the Absentee Ballot Clerk for an official ballot to be voted at such election.

§ 905-3. Providing an absentee ballot.

Upon receipt of a request from an elector, together with an affidavit if required, the Absentee Ballot Clerk shall deliver to the elector, an official absentee ballot for the Town enclosed in an official envelope along with a voucher envelope marked 'voucher envelope', a copy of instructions to absentee voters and a mailing envelope marked 'mailing envelope'.

§ 905-4. Format of affidavit.

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 am a bona fide resident of the Town of Elsmere and will be a resident of the Town on the date of the election _____________,____________________ 20__ and that my residence address is Number, Street Name, Elsmere, Delaware 19805.

I further swear (affirm) That I will be unable to be at the poling place on the day of election because of being ( ) In the public services 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 city, ( ) Sick or physically disabled. For the reason indicated, I cannot appear at the polling place in the city. I further swear (affirm) that I marked my ballot in secret.

I do solemnly swear (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)

Write name here

Print name here

Subscribed and sworn (affirmed) before me this ______ day of _______________________, A.D. 20__ and I hereby certify that the affiant did in such manner that I could not see his/her 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'

§ 905-5. Voucher envelopes.

(A) The voucher envelope shall be of the type known as a security mailing envelope and shall be of 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.

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

§ 905-6. Instruction for ballot.

A list of instructions to assist an absentee voter in properly marking and returning his/her ballot shall be prepared by the Absentee Ballot Clerk which shall be known as 'Instructions to absentee voters'.

§ 905-7. Procedure for filing absentee 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 official 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 and, after the voter has enclosed the voucher containing the marked ballot in the mailing envelope, he/she shall securely seal the mailing envelope and mail it, postage prepaid, to the Town, or if more convenient, it may be delivered to the Town by any person on behalf of the voter in person, to be received in either case by the Town before 12:00 noon of the day before the election and not thereafter.

§ 905-8. Submission of ballot; rotation of time.

The absentee voter shall return his/her marked ballot enclosed in the voucher envelope to the Town before 12:00 noon of the day before election; and any absentee ballot received by the Town after 12:00 noon of the day before election shall not be forwarded to the polls, but the Town shall endorse on the voucher envelope containing such ballot the time such was received and shall retain all such envelopes unopened and so endorsed, with the election returns.

§ 905-9. Processing of envelopes.

Upon receipt of the mailing envelope from the absentee voter, the Absentee Ballot Clerk shall open only the mail envelope and take there from the voucher envelope containing the ballot of the absentee voter and shall deposit the voucher envelope in the special envelope for the Elections Judges when all ballots are received. When all ballots are received, on the day of the election, they shall be placed in an envelope and turned over to the appropriate Election Judge in the polling place for which the absentee voter resides.

§ 905-10. Receipt of ballots.

The election judges shall refuse to receive any absentee voter's ballot from any person other than the Absentee Ballot Clerk.

§ 905-11. Procedure for processing absentee ballots.

(A) At any time between the opening and the closing of the polls on election day the Election Officers 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/she shall announce the absentee voter's name for the purpose of challenges and upon the determination that such person is a duly registered voter, and that such elector has not voted in person at the election. He/She 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 there from the official envelope containing the marked ballot, and without opening or permitting the official envelope to be opened or the contents examined, shall cause two Election Officials to write there names on the official envelope, and the Election Officials shall enter the name and address of the absentee voter on the poll lists. The ballot shall then be voted by depositing the 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/her vote in person.

(B) 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 §905-8 of this chapter, shall be preserved by the inspector, and at the close of the count shall be secured. The judges shall see to it that a voter sheet is marked with the absentee voter's name and bearing a notation that the person has voted absentee shall be placed with the official election results.

§ 905-12. Challenging of votes.

The vote of any absentee voter may be challenged for the same causes and in the same manner as provided 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 § 905-1 is false.

§ 905-13. Rejection of votes.

(A) In case the affidavit of the absentee voter is found to be insufficient, or the absentee voter is not a duly registered elector in the Town, or the voucher envelope is open, or has been opened and resealed, or it is evident that the voucher envelope has been tampered with or altered, or such ballot has been forwarded to the polls by someone other than the Absentee Ballot Clerk, such vote shall not be accepted or counted. If the voucher envelope has not been opened at the time the election officers decide that the offered ballot contained therein should be rejected for any of the foregoing reasons, it shall not be opened by the election officers, but they shall endorse thereon, 'REJECTED', giving reason therefore, 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 officers shall endorse on the voucher envelope, 'REJECTED', giving reason therefore.

(B) Whenever it is made to appear by due proof to the election official and judges of election that any absentee voter, who has marked and forwarded his/her 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.

(C) Whenever a ballot has not been counted but has been rejected for any reason, the election officers 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.

§ 905-14. Authority to receive affidavits.

(A) Any affidavit required under this chapter 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.

(B) Any affidavit required under this chapter, when made by an elector in the armed 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 are attached to and serving with the armed forces of the United States, may be taken before a commissioned or noncommissioned officer not below the rank of sergeant, or petty officer in the armed 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 administer and attest oaths or affirmations, and whenever taken outside the state, the authority of such person shall be conclusively presumed.

§ 905-15. Clerk to maintain records.

(A) The Absentee Ballot Clerk 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: The name of the elector; the address at which he/she is registered; the address where the ballot is to be delivered; the date the affidavit is received by the Absentee Ballot Clerk; the voucher number; the date the ballot is delivered to the elector; the date the ballot is returned; the names of any physicians executing affidavits for sick or disabled person; and the names of all officers administering oaths for all affidavits received.

(B) The Absentee Ballot Clerk shall compile a list of names and addresses of all applicants for absentee ballots and shall make sure the lists are available to all candidates.

§906. Individual Candidates who are unopposed.

If upon the expiration of the date and time provided for withdraw of nomination in § 902(C) of this chapter, only one candidate has filed for each particular council district or for a particular office which is voted upon at large, neither the candidate nor the particular office shall appear on the official ballot of the Bi-Annual Town Election. Additionally an unopposed candidates who has properly filed for office under § 902(A) & (B), of this chapter shall be deemed to have been elected to the office to which they filed. The unopposed candidates shall take office in accordance with section 304 of this charter.

§907. Cancellation of the Bi-Annual Election.

If upon the expiration of the date and time provided for withdraw of nomination in § 902(C) of this chapter, only one candidate has filed for each particular council district and for each of the offices, which are voted upon at large, there shall be no Bi-Annual Town Election as required by §903 of this chapter. Additionally, each of the unopposed candidates who properly filed for office under § 902(A) & (B), of this chapter shall be deemed to have been elected to the office to which they filed. Town Council shall make public notice that the General Town Election is canceled and shall list the names of all unopposed candidates and the office to which they will serve. The unopposed candidates shall take office on the Monday following the date, which would have been the date of the Bi-Annual Election.

§908. Payment of Election Cost.

The Town Council shall pay all expenses incurred by the town associated with the holding of any Town Election."

Approved July 10, 2001