CHAPTER 174

FORMERLY

SENATE BILL NO. 125

AS AMENDED BY

SENATE AMENDMENT NO. 1

AND

HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 11, TITLE 9 OF THE DELAWARE CODE RELATING TO THE NEW CASTLE COUNTY GOVERNMENT, COUNTY COUNCIL, AND COUNTY COUNCIL VACANCIES.

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

WHEREAS, in order to provide the citizens of New Castle County with an efficient and effective county government, the terms of all members of New Castle County Council, and the County Executive should begin on the same day following their election; and

WHEREAS, all members of County Council, including the County Council President, should take the oath of office on the same day as the County Executive; and

WHEREAS, in order to have a more open and democratic New Castle County Government, the way in which a vacancy on County Council is filled should be modified to follow the procedures that the State uses to fill a vacancy in the General Assembly; and

WHEREAS, whenever a vacancy on County Council occurs, a special election should take place to fill the vacancy.

NOW THEREFORE:

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

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

Ҥ 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 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 the official was elected;

(2) Violate any express prohibition of this title; or

(3) 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 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 Sunday and then on the Monday next following, the Department of Elections for New Castle County shall post a proclamation reciting the writ and appointing a day for holding a special election, and the Council member or members to be chosen, 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 public places in the council district for which it

received a writ of election.

(d)(1) President of 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 45th 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 45th day following the general election, or within 1 week thereafter.

(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 30th day following the previous special election.

(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 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 30th day following the general election, or within 1 week thereafter.

(f) Any political party eligible to have a candidate listed on a ballot in the most recent general election preceding the creation of the vacancy may select a candidate to be listed on the ballot for the special election. Candidate names must be received by the Department of Elections for New Castle County no more than 10 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. The candidate for a political party shall be selected by the county chair of that party, or in the event that a county chair does not exist, then by the party’s state chair.

(g) To the greatest extent feasible, the Department of Elections for New Castle County will 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.

(h) The Department of Elections for New Castle County will appoint election officers as necessary to conduct the special election.

(i) 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.

(j) 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.

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

(l) 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 subsections (d) and (e) of this section, shall be paid by New Castle County.”

Section 2. Severability clause. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and, to that end, the provisions of this Act are declared to be severable.

Section 3. This Act shall be effective upon its enactment into law.

Approved July 12, 2005