[HISTORY: Adopted by the Mayor and Council of the Town of
Elsmere 1-8-2009 by Ord. No. 487;[1] amended in its entirety 12-9-2010. Subsequent amendments noted where applicable.]
A.
The Town of Elsmere shall conduct all elections for local office
using voting machines that the Department of Elections shall provide.
(1)
Two members of the Board of elections shall certify the voting machines
to be used in the election prior to the voting machines being delivered
to the polling place(s).
[Added 10-11-2018 by Ord.
No. 639]
B.
Where a deadline in this chapter is a Saturday, Sunday, or a holiday
in the Town of Elsmere, the deadline shall be the next day that is
not a Saturday, Sunday, or a holiday in the Town of Elsmere.
C.
Deadlines shall be no earlier than 4:30 p.m. local time.
D.
The term "Department of Elections" as used in this chapter refers
to the Department of Elections for New Castle County.
This chapter enables the Town of Elsmere to comply with legislation
codified in Subchapters IV and V of Chapter 75 of Title 15 of the
Delaware Code, governing the conduct of municipal elections.
A.
A Board of Elections, consisting of three members, shall be appointed
by the Mayor and confirmed by the Council. The Board of Elections
shall oversee the election of the Town of Elsmere's government.
B.
Each member of the Town of Elsmere Board of Elections shall be a
qualified elector in the Town of Elsmere and shall not be an elected
official or candidate or an immediate family member of an elected
official or candidate (mother, father, son, daughter, brother, sister,
including half brothers and sisters, stepfamily members and in-laws).
C.
Members of the Town of Elsmere Board of Elections shall serve two-year
terms.
D.
Upon confirmation of a member to the Town of Elsmere's Board
of Elections, the Town of Elsmere shall issue a certificate of appointment
to the member, and the member shall swear or affirm the following
oath orally and in writing:
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I, ____________, do solemnly swear (or affirm) that I will support
the Constitution of the United States and the Constitution of the
State of Delaware, and that I will faithfully discharge the duties
as a member of the Board of Elections for the Town of Elsmere by ensuring
that elections within the Town of Elsmere are conducted fairly, impartially,
and in accordance with the Delaware Code and Town of Elsmere Charter
and ordinances to the best of my ability.
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E.
A Town of Elsmere Board of Elections member shall not participate
in electioneering. Electioneering includes political discussion of
issues, candidates, or partisan topics; the wearing of any button,
banner, or other object referring to issues, candidates, or partisan
topics; the display, distribution, or other handling of literature
or any writing or drawing referring to issues, candidates, or partisan
topics; and the deliberate projection of sound referring to issues,
candidates, or partisan topics from loudspeakers or otherwise. A Town
of Elsmere Board of Elections member who violates this section shall
be fined not more than $500 and shall forfeit that Board of Election
member's position on the Board.
F.
The Town of Elsmere Board of Elections shall oversee the absentee
ballot process for elections conducted in accordance with this chapter.
G.
The Town of Elsmere shall post the names and contact information
for its Board of Elections in the Town Hall and on the Town of Elsmere's
website (www.elsmere.delaware.gov).
H.
The Town of Elsmere shall notify the State Election Commissioner
and the Department of Elections of the members of its Board of Elections
when such members are installed.
A.
For all Town elections, the Town of Elsmere shall post a notice of
election conspicuously within the Town no later than 20 days prior
to the date of the election. Such notice shall include the date, time,
and location of the election; the candidates for each office on the
ballot; and the qualifications to vote in the election.
B.
For all Town elections, the Town of Elsmere shall post a notice of
solicitation of candidates conspicuously within the Town 20 days prior
to the filing deadline for the offices up for election. Such notice
shall include the term or terms of each office up for election, the
deadline and procedure for declaring candidacy for an office up for
election, and the qualifications for holding each office.
C.
All notices required by this section shall include information about
how to obtain an absentee ballot.
D.
The Town shall post the notices required by this section, at minimum,
in compliance with the Delaware Freedom of Information Act, Chapter
100 of Title 29.
E.
The Town shall post all election notices on its website.
F.
The Town shall provide a copy of each election notice to the Department
of Elections.
A.
Elective offices. The government of the Town and the exercising of
all powers conferred in the Town's Charter shall be vested in
a Mayor and a Town Council. The Mayor shall be elected at large by
the qualified voters of the Town. One person shall be elected to the
Town Council by the qualified voters of each of the Town's six
districts.
B.
Eligibility.
(1)
The Mayor. A candidate for Mayor shall be at least 21 years of age
on or before the date of the election, shall have been a qualified
elector of the Town of Elsmere for at least one year prior to the
date of the election and shall not have been convicted of a felony.
(2)
Councilpersons. A candidate for Councilperson shall be at least 21
years of age on or before the date of the election, shall have been
a qualified elector and resident of the Town of Elsmere for at least
one year prior to the date of the election, shall at the time of the
election reside in the district for which elected, and shall not have
been convicted of a felony.
C.
Terms of elective office.
(1)
The Mayor. The Mayor shall be elected at large for a term of two
years or until a successor shall be duly elected and qualified. If
any of the following occur, there shall be an automatic forfeiture
of the office, thereby creating a vacancy: loss of residence in the
Town, a conviction of any misdemeanor relating to the conduct of the
Mayor's office or any felony, or a failure to attend three consecutive
regular meetings of Council without being excused by the Council.
Before entering the duties of his/her office, the Mayor shall be sworn
or affirmed by a Justice of the Peace, or by a notary public, to perform
the duties thereof honestly, faithfully, and diligently.
(2)
Councilpersons. One Councilperson shall be elected from each district
for a term of two years or until a successor shall be duly elected
and qualified. If any of the following occur, there shall be an automatic
forfeiture of the office, thereby creating a vacancy: loss of residence
in the Town or in the district from which elected, a conviction of
any misdemeanor relating to the conduct of the Councilperson's
office or any felony, or a failure to attend three consecutive regular
meetings of Council without being excused by the Council.
(3)
In case of a vacancy for any cause, a special election, conducted
in the same manner as a regular election, except that the nominating
petitions shall be filed no later than 20 days before the date of
the special election, shall be held within 60 days after the occurrence
of the vacancy, as may be proclaimed by the Council; provided, however,
that if the vacancy occurs within 365 days of a regular election,
the vacancy shall be filled by appointment by the Mayor subject to
confirmation by a majority of the Council.
D.
Declaration of candidacy.
(1)
Any person desiring to be a candidate or to be voted for as a candidate
for nomination for Mayor or Councilperson must file notice in writing
to the Town Manager. 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 biennial Town of Elsmere elections, or the fifth Monday
prior to a special election. No person may file as a candidate for
more than one office.
(2)
All candidates at the time of giving notice, as required in this
section, shall tender to the Town a filing fee equal to 3% of the
total salary for the entire term of office for which the candidate
is filing.
(3)
A candidate for office within the Town of Elsmere shall file a certificate
of intention, or a statement of organization, establishing a campaign
committee with the State Election Commissioner no later than seven
days after declaring that candidate's candidacy. A certificate
of intention is submitted by a candidate when the yearly salary for
the office for which that candidate has filed a declaration of candidacy
is less than $1,000 or who does not intend to receive more than $2,000
in contributions, or expend more than $2,000 for campaign expenses
during the campaign pursuant to § 8004 of Title 15. Otherwise,
no later than seven days after making expenditures or receiving contributions
on behalf of the candidate or committee, the candidate shall notify
the Commissioner and file a statement of organization.
(4)
The State Election Commissioner shall notify the Town of Elsmere Board of Elections when a candidate has failed to comply with the provisions of Subsection D(3) of this section above.
(5)
Excepting candidacies otherwise provided for in the Town Charter and which have complied with the provisions of Subsection D(3) of this section within five days after the election, the Town of Elsmere Board of Elections shall declare a candidate who has failed to comply with the provisions of Subsection D(3) of this section ineligible to be a candidate and shall order that candidate's name removed from the ballot subject to the appeal provisions of § 19-6 of this chapter. Administrative errors or oversights by Town of Elsmere or state officials shall not be grounds for declaring a person ineligible to be a candidate.
(6)
Officials receiving any document required in this section shall provide
the person filing the document with a receipt showing the date and
time that the document was filed and the name of the person who received
the document.
(7)
Officials receiving any document required in this section shall immediately
notify the person submitting the document of any deficiency in the
submission. The person submitting the document shall have two business
days to correct the deficiency even if the extension extends beyond
the applicable deadline. If the person does not correct the deficiency
by the end of the second business day, the Town of Elsmere shall reject
it.
(8)
All documents filed in accordance with this section are public records,
and the Town of Elsmere shall make them available for inspection by
the public in accordance with the Delaware Freedom of Information
Act (Chapter 100 of Title 29).
(9)
Where the number of qualified candidates for an office is equal to
or less than the number of seats up for election, the Board of Elections
shall declare the candidate or candidates elected.
(10)
The Commissioner of Elections shall prepare a package of municipal
candidate forms required by this section and instructions for completing
and filing the forms. The Commissioner shall provide the Town of Elsmere
copies of the municipal candidate forms package and publish the package
on the Commissioner of Elections' website. The Town of Elsmere
and the Department of Elections shall publish the municipal candidate
forms package on their websites. The Town of Elsmere shall maintain
a sufficient supply of municipal candidate forms packages to meet
demand.
(11)
The Town of Elsmere shall submit the names of candidates for each
office up for election to the Department of Elections no later than
one business day following the filing deadlines for the elected positions.
(12)
A person may withdraw as a candidate by filing the form promulgated
by the State Election Commissioner for that purpose with the Town
of Elsmere. The notice of withdrawal shall be filed before 12:00 noon
of the second Monday in February prior to the biennial Town of Elsmere
elections, or the fourth Monday prior to a special election. The filing
fee shall be refunded after receipt of the notice of withdrawal.
[Amended 10-11-2018 by Ord. No. 639]
(13)
If there are two or more candidates remaining on the ballot for the
office and there are 14 or more days prior to the date of the election,
the Town of Elsmere shall mail new absentee ballots to all persons
to whom it had issued absentee ballots. If an absentee voter does
not return the replacement absentee ballot before 12:00 noon the day
before the election, the Town of Elsmere shall count the original
ballot.
(14)
Any votes cast for a person who has withdrawn that person's
own candidacy are invalid, and the Town of Elsmere shall not tally,
canvass, or report such votes.
A.
A citizen of the Town of Elsmere may submit a written complaint regarding
any aspect of pre-election activity that is contrary to the provisions
of this chapter to the Town of Elsmere Board of Elections. The complainant
shall state with specificity the action or activity that is contrary
to the provisions of this chapter. The Town of Elsmere Board of Elections
shall meet in a special public meeting held, as soon as practicable,
in compliance with the Delaware Freedom of Information Act (Chapter
100 of Title 29) following receipt of the complaint and determine
if the complaint has any merit. Within 24 hours of the special public
meeting, the Town of Elsmere Board of Elections shall issue a written
decision on whether the pre-election action or activity was legally
incorrect and ordering lawful action necessary to correct such legal
error in the pre-election action or activity. The Board of Elections
shall immediately make its decision available to the public.
B.
Decisions and orders of the Town of Elsmere Board of Elections may
be appealed to the State Election Commissioner in writing within two
business days of the Board's decision and order. The Elections
Commissioner shall take testimony at a special public hearing that
the Commissioner conducts within four business days following receipt
of the appeal. The Commissioner shall hold the hearing in accordance
with the Administrative Procedures Act (Chapter 101 of Title 29) except
as provided in this section. The Commissioner shall give 48 hours'
prior notice to all parties to such special public hearing in lieu
of the notice provisions of § 10122 of Title 29. Notice
of the hearing shall be posted as well as published on the Commissioner's
website in lieu of the notice provisions of § 10124 of Title
29. The Commissioner shall issue a written decision no later than
two business days following the hearing. Decisions of the Commissioner
may be appealed in writing to Superior Court no less than 48 hours
before the date of the election.
C.
Notwithstanding the foregoing, at the option of the complainant,
he or she may elect to appeal the decision of the Town of Elsmere
Board of Elections in writing to the Superior Court no less than 48
hours before the date of the election.
Voter eligibility shall be as specified in the Town of Elsmere
Charter.
For the purpose of Town elections, a separate form of ballot
shall be provided for each district. Each 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. The ballots provided for the purpose of the
Town of Elsmere election shall bear no political party designation.
A.
A regular Town of Elsmere election shall be held on the last Saturday
in April 2007 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 chapter, 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.
Unless otherwise specified in this chapter, write-in votes shall not
be permitted in any Town of Elsmere election.
B.
At all such elections, the voters shall be received at each polling
place by three qualified voters of the Town of Elsmere 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
"Election Officers," 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 Election Officers, who
shall certify said results under their hands to the Council. The Council
may appoint clerks to assist the officers of election.
C.
The Inspector shall be the Chief Election Officer in the polling
place.
D.
The Inspector shall determine all challenges and all other issues
involving the conduct of the election at the polling place. The Board
of Elections may provide advice and guidance to the Election Officers.
E.
Election Officers, individually and collectively, shall conduct elections
in a fair and equal manner.
F.
Election Officers who violate the provisions of this chapter shall
be removed forthwith by the Board of Elections.
G.
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.
A.
Election Officers shall admit the following persons to the voting
room:
(1)
Board of Elections members;
(2)
Election Officers;
(3)
Persons voting and waiting to vote;
(4)
A child, or children, 17 years of age or less accompanying the voter;
(5)
Department of Elections administrators or employees identified by
badge or other authorization;
(6)
The State Election Commissioner, or an employee of the Commissioner
of Elections' office, identified by badge or other authorizations;
(7)
Any person accompanying a Board of Elections member, a Department
of Elections administrator, or the State Election Commissioner, except
for an elected official of the Town of Elsmere, a candidate on the
ballot, or a person associated in any way with the campaign of a candidate
on the ballot;
(8)
Any other person deemed necessary to the conduct of the election
by the Inspector, except for an elected official of the Town of Elsmere,
a candidate on the ballot, or a person associated in any way with
the campaign of a candidate on the ballot; or
(9)
A person or persons required by a voter to assist the voter in voting
who is not the voter's employer, agent of that voter's employer
or union, or an elected official of the Town of Elsmere, a candidate
on the ballot, or a person associated in any way with the campaign
of a candidate on the ballot.
B.
Electioneering.
(1)
No Election Officer, challenger, or any other person within the polling
place or within 50 feet of the entrance to the building in which the
voting room is located shall electioneer during the conducting of
the election. No political headquarters or gathering shall be permitted
within that building during the conducting of the election.
(2)
Whoever violates Subsection B(1) of this section shall be fined not more than $200 or imprisoned not more than 90 days, or both.
(3)
Whoever, being an Election Officer, violates Subsection B(1) of this section shall be deemed to have knowingly and willfully violated his or her official duty.
(4)
For the purposes of this section the following definition shall apply:
"Electioneering" includes political discussion of issues, candidates
or partisan topics, the wearing of any button, banner, or other object
referring to issues, candidates, or partisan topics; the display,
distribution, or other handling of literature or any writing or drawing
referring to issues, candidates, or partisan topics; the deliberate
projection of sound referring to issues, candidates, or partisan topics
from loudspeakers, or otherwise, into the polling place or the area
within 50 feet of the entrance to the building in which the voting
room is located.
C.
Challenges and challengers.
(1)
At the Town of Elsmere elections, each candidate on the ballot may
appoint and accredit one or more suitable persons as challengers.
One challenger at a time for each candidate on the ballot at each
voting location in a building may be present to observe the conduct
of the election and all election records. The challengers may be changed,
and their places filled in like manner during the day. Each challenger
shall present the Inspector a challenger authorization for that election.
(2)
The Inspector shall issue each challenger a challenger badge that
the challenger shall wear while in the polling place. If the person
leaves the polling place, the challenger shall surrender the badge
to the Inspector and retrieve the challenger authorization from the
Inspector.
(3)
Challengers may act as peace officers with the same powers of preserving
the peace as Election Officers. The Election Officers shall protect
them in the discharge of their duty, as long as the challengers do
not create any disturbance or obstruction and do not unreasonably
prolong any challenge. The Inspector shall caution challengers concerning
the foregoing. If a challenger persists in objectionable behavior,
the Inspector may eject the challenger. Nothing in this subsection
of this section shall prevent the substitution of another challenger
for one whom the Inspector ejected.
(4)
If an Inspector willfully ejects a challenger without cause, that
Inspector shall be deemed to have knowingly and willfully violated
that Inspector's own official duty.
(5)
Any person legally in the polling place may challenge any voter for
identity, address, or bribery. The Inspector shall hear each challenge
before the person being challenged enters a voting machine. Once the
Inspector decides the challenge, the matter is decided, and the challenged
person will be either permitted to vote, or not permitted to vote,
depending on the decision. A person denied permission to vote shall
leave the polling place immediately. A person challenged for bribery
may take and subscribe to the oath as provided in § 4940
of Title 15. Once the person has taken and subscribed to the oath,
the person shall be permitted to vote.
D.
Voting machines; election supplies; certification.
(1)
Two members of the Town of Elsmere Board of Elections conducting
an election shall certify the voting machines to be used in the election
prior to the voting machines being delivered to the polling place
or places.
(2)
The Town of Elsmere shall be responsible for providing pens, rubber
bands, tape, and other supplies needed at the polling place.
E.
Oath of office. Before opening the election, the Inspector, and any
other appointed Election Officer, shall subscribe to the following
oath:
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I do solemnly swear (or affirm) that in the election to be held
on the _____ day of _____ A.D., I will not knowingly or willfully
receive or consent to the receiving of the vote of any person who
is not a citizen, and also that I will not receive or consent to the
receiving of the vote of any person whom I shall believe not entitled
to vote, unless my associates shall adjudge such person to be entitled
to vote. That I will not receive or reject, nor concur in receiving
or rejecting any vote through partiality or under bias, and that I
will determine every matter that shall come before me and perform
every act and duty by law required of me, touching the election, truly,
faithfully and impartially, according to the best of my skill and
judgment; that I have not received, nor will I receive directly or
indirectly from or through any candidate to be voted for at such election,
or any other person, any money, pay or other valuable thing or reward;
that I have not been promised, or in any manner been led to believe
that I will at any time directly or indirectly receive any money,
pay or other valuable thing or reward from such candidate or other
person other than that provided by law and if I shall discover any
partiality, unfairness or corruption in the conduct of the election,
I shall disclose the same to the Board of Elections that is conducting
the election and to the Attorney General to the end that the subject
may be investigated, so help me God (or so I solemnly affirm).
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F.
Bribery.
(1)
No person who is accused of receiving or accepting or offering to
receive or accept, or who pays, transfers or delivers, or offers or
promises to pay, transfer or deliver, or who contributes or offers
or promises to contribute to another to be paid or used any money
or other valuable thing as a compensation, inducement or reward for
giving or withholding or in any manner influencing the giving or withholding
a vote at any Town of Elsmere election shall vote at such election
unless such person being challenged for any of said causes takes and
subscribes to the oath or affirmation as provided for in § 4940
of Title 15.
(2)
Such oath or affirmation shall be conclusive evidence to the Election
Officers of the truth of such oath or affirmation, but if any such
oath or affirmation shall be false, the person making the same shall
be guilty of perjury, and no conviction thereon shall bar any prosecution
under § 8 of Article V of the Constitution of this state.
Such oath or affirmation, when signed and attested as provided in
this section shall be competent evidence in any proceeding against
the party making the same.
G.
Polling places. Polling places shall be convenient and readily accessible
to the voters.
H.
Preparing the polling place prior to the election.
(1)
The Election Officers for each polling place shall arrive at least
one hour prior to the time set for opening of the polls and shall
proceed to arrange the furniture, documents, forms, envelopes, signs,
posters and voting machines for the conduct of the election. They
shall inspect the ballot cover and curtain of the machine or machines
to make certain that the machine or machines have not been damaged
or tampered with in any manner. The Election Officers shall also take
reasonable steps to ensure that no mirror or camera is in a position
that would permit anyone to view the ballot.
(2)
The Election Officers shall post or place the following posters and
signs as follows:
(a)
In the voting room:
[1]
A voter information poster that includes information on voter
eligibility, the date of the election and the hours that the polling
place or places are open, general information on the right to vote,
instructions on how to contact the appropriate officials if these
rights are alleged to have been violated, and general information
on the prohibition of acts or frauds and misrepresentation;
[2]
A sample ballot; and
[3]
Instructions on how to use the voting machine.
(d)
Signs marking the route between the entrance and the accessible
entrance and the voting room.
(e)
A poster or other visible object at the entrance to the building
used by voters and at the accessible entrance, if different, that
marks the building as a polling place.
(3)
The Department of Elections shall provide a voting machine certificate
that lists the serial number, ballot number, machine case seal number,
printer door number, and the protective counter number for each voting
machine assigned to the district (where voting by district is permitted)
or polling place. Each Election Officer shall witness and verify that
the numbers listed on the voting machine certificate are the same
as the voting machine serial number, case seal number, printer door
seal number, ballot number and protective counter number on the voting
machine. If a number is different, the Inspector shall strike through
the number, enter the appropriate correction, and initial the entry
on each of the certificates.
(4)
The Election Officers shall then observe the opening of the polls
procedure for each voting machine assigned to the district or polling
place. If the light in the "polls ready to open" box on the officer's
control panel is in any other but the top position prior to the Inspector
pressing the open polls button, stop the procedure and contact the
Board of Elections. The machine cannot be used. If, during the opening
of the polls procedure, the paper tape shows "error all counters not
zero," stop the procedure and contact the Board of Elections. The
machine cannot be used. At the conclusion of the open polls procedure
for each voting machine assigned to the district or polling place
as appropriate, each Election Officer signs the paper tape. Each Election
Officer shall then sign § 1 of the voting machine certificate
after any discrepancies that were observed were noted on the certificate.
(5)
At the time the polls are scheduled to open, the Inspector shall
admit voters and authorized challengers to the voting room.
I.
Voting procedure.
(1)
Since the Town uses the state's voter registration information
as the basis of permitting a person to vote, the following procedure
applies: A person shall show proof of identity and address, the Election
Officer shall circle the person's name on the poll list, have
that person sign the voter log, give the person an authorization to
vote, and direct that person to the voting machine.
(2)
If the Election Officer determines that the person is not eligible
to vote in the election, the Election Officer shall refer the person
to the Inspector. The Inspector, after hearing and considering evidence,
shall determine whether to permit the person to vote. Upon making
the decision, the Inspector shall appropriately annotate the poll
list and/or voter log.
(3)
If a person's eligibility to vote is challenged by anyone for
any reason, the Inspector shall immediately hear and consider the
evidence and then decide whether the person is eligible to vote. Once
the Inspector has made that Inspector's decision, there is no
appeal at the polling place.
J.
At the close of the polls; unofficial results.
(1)
Thirty minutes prior to the closing of the polls, the Inspector shall
announce or have another Election Officer announce that the polls
shall close in 30 minutes, both in the voting room and outside of
the entrance of the building used by voters.
(2)
At the time that the polls close, the Inspector shall announce or
have another Election Officer announce that the polls have closed,
both in the voting room and outside of the entrance to the building
used by voters. The Election Officers shall permit any person to vote
who was in line at the time the polls closed.
(3)
The Election Officers shall remove the cartridges and tapes from
each voting machine, record the protective counter and seal numbers
on the voting machine certificate, close the voting machines, complete
the vote tabulation for the election, and post a copy of the results
tape from each voting machine on the door of the polling place.
(4)
The Election Officers, as soon as possible after the polls have closed
and the unofficial results announced, shall deliver all election documents,
envelopes and absentee ballots to the Town of Elsmere's Board
of Elections.
(5)
The Town of Elsmere's Board of Elections shall secure the documents,
envelopes and absentee ballots until such time that they need to canvass
the election.
A.
Votes cast on a direct recording electronic voting machine shall
be considered legal votes once the voter has taken the necessary action(s)
to cast a ballot. A voter who has cast a ballot on a direct recording
electronic voting machine shall not be permitted to cast a second
ballot under any circumstances.
B.
Votes cast at any election on paper ballots shall be counted for
whom they are intended as far as can be ascertained by the marks on
the ballot. The following rules shall be observed in determining those
votes on paper ballots that shall be counted:
(1)
The voter shall mark the ballot for the voter's selections by
placing a distinct mark in the box at the right of the name of the
candidate and/or response to a question for which the voter wants
to vote;
(2)
Where a voter indicates the voter's own selections in a manner not in accordance with Subsection B(1) of this section, the Election Officers shall attempt to determine from the marks on the ballot the candidate or response that the voter intended to select;
(3)
If it is not possible to determine a voter's choice for an office
or response to a question, the ballot shall not be counted for that
office or question but shall be counted for all other offices and
questions on the ballot where the voter's intention can be determined;
(4)
A voter may only vote for two or more choices for any office or question
when specifically instructed on the ballot that it is allowable;
(5)
Where a voter is permitted to make more than one choice for candidates
and/or responses to a question, the voter may make fewer than the
allowable number of choices;
(6)
If a ballot is marked for more names or responses than are permitted,
it shall not be counted for that office or question, but it shall
be counted for all other offices or questions on the ballot in accordance
with these rules; and
(7)
If a ballot has been defaced or torn so that it is impossible to
determine the voter's choice for one or more offices or questions,
it shall not be counted for such offices or questions but shall be
counted for all other offices and questions where the voter's
choice(s) can be determined.
C.
The State Election Commissioner, in collaboration with the Department
of Elections, shall promulgate the documents, forms, and envelopes
required by this chapter.
D.
The Town of Elsmere shall contract with the Department of Elections
to conduct an election to elect members of the Town of Elsmere at
least 60 days prior to the date of the election.
E.
A voter may ask a person or persons of that voter's choice,
who is not that voter's employer or an agent of that voter's
employer or union, to assist that voter in voting.
A.
General.
[Amended 10-11-2018 by Ord. No. 639]
(1)
The Town of Elsmere Board of Elections shall announce the unofficial
results of an election as soon as possible following the close of
the polls.
(2)
No later than 48 hours following the closing of the polls, the Board
of Elections shall convene within to determine the result of the election
and certify the names of the winning candidates.
(3)
The Board of Elections shall recount the absentee ballots if the
difference between the top two candidates is 1/2 of 1% or less than
the total votes cast for the office. Where electors vote for more
than one candidate for an office, the Board of Elections shall recount
absentee ballots if the difference between the last candidate elected
and the next closest candidate is 1/2 of 1% or less than the total
votes cast for the office.
(4)
If, following certification of the election and the resolution of
any contest, there is a tie vote, then the State Election Commissioner
shall order a new election in which only the candidates or positions
tied will be on the ballot. The Town shall conduct the special election
in accordance with this chapter; provided, however, that the Department
of Elections shall defray the cost of such election to a cap of $2,500.
(5)
The Board of Election, following certification of the election and
the resolution of any contest, shall audit the election records in
order to reconcile the number of voters who cast ballots as compared
to the number of voters who returned absentee ballots and voted on
voting machines. The results of this audit shall be reported to the
Mayor and be made available for public review.
(6)
A person certified as being elected shall not take office before
the seventh day following certification of the election.
(a)
After a biennial election, on the date to which the candidates
take office, a special meeting of the Mayor and Council shall be held
which shall be known as an "Organizational Meeting." At such meeting,
the President Pro Tempore and Secretary of Council shall be elected
by the Council from among the members of the Council.
B.
Who may contest; causes. Any person claiming to be elected to an
office within the Town of Elsmere may contest the right of any person
declared to be duly elected to such office for any of the following
causes:
(1)
For malconduct on the part of the Election Officers or clerks holding
the election, or any one of them.
(2)
When the person whose right to the office is contested was not at
the time of the election eligible for such office.
(3)
When the person whose right is contested has given to any elector,
Inspector, Judge, or clerk of election any bribe or reward or shall
have offered any bribe or reward for the purpose of procuring his
or her election.
(4)
On account of illegal votes.
C.
Irregularities not invalidating election. No inequality or improper
conduct in the proceedings of the Election Officers or clerks or any
one of them shall be construed to amount to such malconduct as to
annul or set aside any election unless the inequality or improper
conduct shall have been such as to procure the person whose right
to the office may be contested to be declared duly elected when he
or she has not received the highest number of legal votes cast at
the election.
D.
Requirements to set aside election because of illegal voting. Nothing in § 19-12 of this chapter shall be so construed as to authorize an election to be set aside or annulled on account of illegal votes unless it shall appear that an amount of illegal votes has been given to the person whose right to the office is contested which, if taken from the person, would reduce the number of the person's legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.
E.
Circumstances under which contestant need not claim to have been elected. When an election is contested because of alleged malconduct of the Election Officers holding the election, or because the person whose right to office is contested was not eligible for such office, a proceeding may be instituted under § 19-12 of this chapter against such person by the person who received the next highest number of votes for the office at the election under which such ineligible person was declared elected, notwithstanding the person so contesting the election does not claim to have been elected.
F.
Statement of contestant; contents. When any person authorized to do so under § 19-12 of this chapter desires to contest the right of any person declared duly elected to such office, he or she shall, within 20 days after the result of the election shall have been officially ascertained by the Board of Canvass or officers legally authorized to ascertain the same, and at least 60 days before the first day of the term of court at which the contest shall be tried or called for trial, file with the Prothonotary in the county in which the contest is made a full, particular, and explicit statement setting forth fully and specifically the names of any and all Election Officers upon the malconduct of whom he or she will rely and respecting which he or she intends to procure evidence, and setting forth the election districts of such Election Officers and the particular malconduct of each, respectively, and the names and residences of the witnesses and the substance of their testimony, by whom he or she expects to prove such malconduct. If such contest is based upon ineligibility of a person to hold the office, the statement shall specifically, fully, and explicitly state the grounds and causes of the ineligibility of the person whose right to the office is contested. When such contest is based on alleged bribe or reward, or the offer of a bribe or reward, the statement shall explicitly, fully, and clearly state the name of any elector, Election Officer, or other person to whom any bribe or reward shall have been offered and the time, place and amount of such bribe or reward and the name and residence of the witnesses by whom the contestant expects to prove the offering of any bribe or reward, with a brief statement of their testimony. When the contest shall be on the ground of illegal votes, the statement shall specifically, fully, and explicitly set forth the names, residences and respective causes of disqualification of each person alleged to have illegally voted, the polls at which such illegal vote has been received, the names of the Election Officers favoring the acceptance of such vote, whether such vote was challenged by the duly accredited challenger of the party of which the contestant was the candidate, and whether all the judges or inspectors present at such polls concurred in accepting and receiving such vote. If it appears that all of such judges or inspectors concurred in accepting or receiving such vote, or that the right of the voters respectively, to deposit such votes was not at the time challenged by the duly accredited challenger of the party of which the contestant was a candidate, the legality or illegality of such vote shall not be brought into question in any such contest. The statement shall further set forth the names and residences of the witnesses who shall be produced on behalf of the contestant to prove such illegal votes and the substance of the testimony to be given by each.
G.
Verification of contestant's statement. The statement shall
be verified by the oath of the contestant that the matters therein
set forth are, so far as they relate to his or her own act and deed,
true and that what relates to the act and deed of any other person
he or she believes to be true.
H.
Security for costs. Any person contesting any election under § 19-12 of this chapter shall be required to give security for costs in such amount and manner as the Court shall order. Such security, however, shall in no case be enforced unless judgment for costs is rendered against the contestant.
I.
Citation; service and return. Before the statement is filed, the
Prothonotary shall docket the case in the appearance docket and immediately
issue a citation for the person whose right to the office is contested
to appear on the first day of the second term of the Superior Court
to make such defense as he or she may have, which citation shall be
delivered to the Sheriff or, if the Sheriff is a party to the contest,
to the coroner of the county, and be served by him or her upon the
party defendant in person or, if the party defendant cannot be found,
by leaving a copy thereof at the house where the party defendant last
resided at least five days before the day to which such citation is
returnable. The original citation shall be returned to the Prothonotary
on or before the first day of the next term of Court after it is issued,
and the manner of service shall be endorsed thereon and signed by
the officer serving the same.
J.
Dismissal of proceedings. The Court may dismiss the proceedings if the statement of the cause or causes of contest do not conform to the requirements set forth in § 19-12 of this chapter or for want of prosecution.
K.
Trial. If proceedings are not dismissed, the case shall proceed upon
its merits and be tried and determined by the Court by the rules of
law and evidence governing the determination of questions of law and
facts in the Superior Court, so far as the same are applicable.
L.
Trial by Court; by jury. All cases of contest under § 19-12 of this chapter shall be fully heard and determined by the Court, without the aid or intervention of a jury, unless one or both of the parties to the contest shall claim a trial by jury, and the Court shall, in its judgment, determine that it is a case which, under the Constitution and laws of this state, the party or parties are entitled to a trial by jury. In such case, a jury shall be empanelled and the cause proceeds according to the rules and practice of the Court in jury trials.
M.
Proof and evidence limited by statement. At the trial of any contest under § 19-12 of this chapter, the contestant shall be limited in his or her proof and in the admission of evidence to the witnesses named in the statement, and the witnesses shall be limited in their testimony to the facts set forth in the statement with respect to which it shall be stated that they will be expected to testify.
N.
Examination of ballots by Court. In the trial of any contested election under § 19-12 of this chapter, the Court may make an examination of the ballots given in such election, except that wherever the ballot boxes, ballots, poll lists, tally sheets, or other books or records pertaining to any election, excepting the certificate of election of the officer against whom the contest may be made, duly signed by the Court constituting the Board of Canvass and under the seal of court and delivered according to law, shall have come in any way, legally or illegally, into the possession, care or custody of any person, officially or otherwise, who shall have been a candidate and voted for upon the same official ballot as a candidate of the same political party as the contestant, no such ballot boxes, poll lists, tally sheets or other books or records pertaining to the said election, excepting the certificate of election, shall be offered in evidence in any contest begun or prosecuted under the provisions hereof, and the Court may make and enforce by attachment all necessary orders to obtain possession of the same.
O.
Judgment.
(1)
After hearing the allegations and proofs in the cause, the Court
shall render judgment (in accordance with the verdict of the jury,
if a jury shall have tried the cause) either confirming or annulling
such election altogether.
(2)
If it appears by the judgment of the Court or the verdict of the
jury (if there be a jury) that any other person than the one whose
election is contested received the highest number of legal votes,
judgment shall be rendered declaring such person duly elected.
(3)
When the person whose election is contested is proved to be ineligible
to the office, judgment shall be rendered declaring the election void
and the office vacant, and such proceedings shall then be had as in
vacancies happening from any other cause. When it shall appear that
two persons have received an equal number of legal votes for the same
office, the provisions of law for the settlement of such cases shall
prevail, if there be any such provision; if there be none, then the
office shall be adjudged and declared vacant, and such proceedings
shall then be had as in vacancies happening from any other cause.
A.
Individual candidates who are unopposed. If upon the expiration of the date and time provided for withdraw of nomination in § 19-5D(1) of this chapter, only one candidate has filed for a particular council district or for a particular office that is voted upon at large, neither the candidate nor the particular office shall appear on the official ballot of the Biennial Town Election. These unopposed candidates shall be deemed to have been elected to the office to which they filed.
B.
Cancellation of the biennial election. If upon the expiration of the date and time provided for withdraw of nomination in § 19-5D(1) of this chapter, only one candidate has filed for each particular council district and for each of the offices that are voted upon at large, there shall be no Biennial Town Election. Each of the unopposed candidates 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.
A.
Persons eligible to vote by absentee ballot. Any qualified elector
who is duly registered may vote by absentee ballot in any Town of
Elsmere election for any of the following reasons:
(1)
Because such person is in the public service of the United States
or of this state, or is a citizen of the United States temporarily
residing outside the territorial limits of the United States and the
District of Columbia, or such person's spouse or dependents when
residing with or accompanying the person, or is absent from this state
because of illness or injury received while serving in the Armed Forces
of the United States.
(2)
Because such person is in the Armed Forces of the United States,
or the Merchant Marines 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.
(3)
Because of the nature of such person's business or occupation,
including the business or occupation of providing care to a parent,
spouse or that person's child who is living at home and requires
constant care due to illness or injury.
(4)
Because such person is sick or physically disabled.
(5)
Because such person is absent from the Town of Elsmere while on vacation.
(6)
Because such person is unable to vote at a certain time, or on a
certain day, due to the tenets or teachings of that person's
religion.
B.
Request for ballot; affidavits for absentee ballots; delivery of
absentee ballots.
(1)
An elector desiring to vote by absentee ballot in a Town of Elsmere
election for which the elector is a qualified elector may request
an absentee ballot from the Town of Elsmere by filing a written affidavit
with the Town of Elsmere no later than 12:00 noon the day before the
election.
(2)
An affidavit may be filed pursuant to this section by mailing it,
delivering it, or causing it to be delivered to the Town of Elsmere.
(3)
Affidavits filed pursuant to this section shall:
(a)
Indicate the election or elections for which the elector is
requesting an absentee ballot;
(b)
Include at least the following information:
[1]
The elector's name;
[2]
The address within the Town of Elsmere at which the elector
establishes eligibility to vote;
[3]
The address to which the elector requests that the absentee
ballot be mailed;
[4]
The elector's date of birth;
[5]
The elector's expected location on election day;
[6]
The reason that the elector cannot appear at the regular polling place on the day of the election which reason shall be any of the reasons listed in § 19-14A of this chapter;
[7]
A telephone number, if available, to assist in resolving any
challenge;
[8]
An e-mail address, if available, to assist in resolving any
challenge; and
[9]
The elector's signature.
(c)
Be subscribed and sworn to by the elector, before an officer
authorized by law to administer oaths, affirming that, under penalty
of perjury, the information on the affidavit is correct and true,
except that the affidavit for a person voting in person at the Town
of Elsmere shall not be notarized but shall be accepted upon the voter
presenting a form of ID acceptable by a notary.
(5)
The State Election Commissioner shall create an absentee affidavit
template that the Town of Elsmere shall use in creating its own absentee
affidavit by adding additional reasons that a person may vote by absentee
ballot. The state election shall also designate envelopes and create
a set of instructions for voters casting their votes by absentee ballot
that the Town of Elsmere may use to comply with the provisions of
this chapter.
(6)
The Town of Elsmere may adopt a printed or electronic affidavit form
(or both), containing blanks associated with each item required by
this section to be listed on an affidavit, which may be completed
by any elector wishing to receive an absentee ballot pursuant to this
section. An elector may submit a written or electronic request to
the Town of Elsmere for the Town's prepared affidavit form, which
the Town of Elsmere shall forward to the elector upon receipt of a
request therefor.
C.
Distribution of ballots, envelopes, and instructions; envelope specifications;
prepaid postage.
(2)
Not more than 60 nor less than four days prior to an election, and within three days after the absentee ballots, envelopes, and instructions therefor become available, the Town of Elsmere shall mail, to each elector who requests and qualifies for an absentee ballot pursuant to § 19-14A of this chapter, the following:
(a)
An absentee ballot for the Town of Elsmere election in which
the elector is qualified to vote;
(b)
Instructions for completing the absentee ballot and returning
it to the Town of Elsmere, marked "INSTRUCTIONS FOR COMPLETING AND
RETURNING AN ABSENTEE BALLOT"; and
(c)
An envelope marked "BALLOT ENVELOPE," which shall be:
(3)
Postage for all mailings made pursuant to this subsection shall be
prepaid by the Town of Elsmere.
(4)
Nothing contained in this section shall prevent the issuance of an
absentee ballot to those lawfully entitled thereto when the request
is made less than four days prior to the election.
D.
Requirements for ballot envelope; numbering and coding; voter identification
label; affidavit of eligibility.
(2)
Upon each envelope provided pursuant to this section shall appear:
(a)
The words "BALLOT ENVELOPE";
(b)
An alphanumeric symbol and/or barcode for use in accounting
for the absentee ballot;
(c)
Identification information for the elector receiving the absentee
ballot, including: the name of the municipality where the elector
is qualified to vote; the elector's name; the elector's
mailing address; the address within the Town of Elsmere that establishes
the elector's eligibility to vote if different from the elector's
mailing address; and such other information as the Town of Elsmere
may require; and
(d)
The following oath:
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"I do solemnly swear (affirm) that to the best of my knowledge
I am a bona fide resident of the Town of Elsmere and will be on the
date of the election, that I am eligible to vote in this Town of Elsmere
election, and that the address that appears on the label on this envelope
is the address at which I am qualified to vote in this Town of Elsmere
election. I also do solemnly swear (affirm) under penalty of perjury
that I have not received or accepted, or offered to receive or accept,
any money or other item of value as compensation, inducement or reward
for the giving or withholding of a vote at this Town of Elsmere election,
nor that I am acting under duress or threat of duress or harm."
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(e)
The voter's signature.
E.
Voting procedure; execution of affidavit; return of ballot. The procedure
for completing an absentee ballot and returning it to the Town of
Elsmere is as follows:
(1)
An elector who receives an absentee ballot pursuant to this chapter
shall complete the ballot by marking it with the elector's selections
and shall place the completed ballot in the envelope marked "BALLOT
ENVELOPE."
(2)
The elector shall confirm that the information about that elector
on the ballot envelope is correct and then sign the self-administered
oath.
(3)
The elector shall then seal the ballot envelope.
(4)
The elector shall return the sealed ballot envelope to the Town of
Elsmere by:
F.
Time limit for return of ballot; late ballots.
(1)
The Town of Elsmere shall endorse the date and time of receipt on
the ballot envelope of each absentee ballot received by the Town of
Elsmere.
(2)
For an absentee ballot to be counted pursuant to this chapter, an
elector voting by absentee ballot shall return the elector marked
ballot to the Town of Elsmere before the polls close on the day of
the election.
(3)
The Town of Elsmere shall retain, unopened, any ballot envelope it
receives after the polls close on the day of the election for 60 days
after the election, or longer if directed by proper authority or required
to do so by federal law.
G.
Procedure on receipt of ballot envelope by the Town of Elsmere.
(1)
Upon receipt of a ballot envelope, the Town of Elsmere, or a person
authorized by the Town of Elsmere, shall:
(a)
Ascertain the names of each elector as they appear on the face
of each ballot envelope;
(b)
Ascertain from the information on the ballot envelope the Town
of Elsmere election district with whose votes the ballot within it
shall be tallied; and
(c)
Place the ballot envelope in a secure location until such time
as it is opened and the ballot within it is counted.
(2)
No agent or employee of the Town of Elsmere shall open or attempt
to open the ballot envelope, or change or alter or attempt to change
or alter the ballot envelope, or any writing, printing or anything
whatsoever thereon.
H.
Counting procedure for absentee ballots. At any time between the
opening and the closing of the polls on an election day, absentee
election judges selected by Town of Elsmere's Board of Elections
shall count absentee ballots at a properly noticed public meeting
in the Town of Elsmere's offices or at the place of the election,
at the Town of Elsmere's discretion, in accordance with the procedures
set out below. Anything herein to the contrary notwithstanding, at
the discretion of the Town of Elsmere, the Board of Elections may
itself act as the absentee election judges.
(1)
The Town of Elsmere's Board of Elections shall appoint a sufficient
number of teams of absentee election judges, each consisting of an
odd number of electors, to open and tally the absentee ballots before
the close of the polls. The Board of Elections shall be responsible
for deciding all challenges and overseeing the process.
(2)
The Town of Elsmere shall provide a list of persons who have returned
absentee ballots for review by the public and challengers at the meeting.
Challenges must be made prior to the opening of the ballot envelope
for the voter being challenged.
(3)
If a person has challenged an absentee voter as provided in § 19-10C(5) of this chapter, an absentee election judge shall give that person's ballot envelope to the Board of Elections who shall then hear the evidence and decide the challenge. If the Board of Elections upholds the challenge, the Chairperson shall write the word "CHALLENGED" on the ballot envelope, the reason for the challenge and then sign the Chairperson's own name. When the challenge is denied, the ballot envelope shall be returned to the team to be opened and counted. The Board of Elections, after the close of the polls, shall seal the ballot envelopes for all voters who were successfully challenged in a carrier envelope along with a log sheet showing the serial number of the carrier envelope.
(4)
Where absentee ballots have been prepared for counting in advance of the opening of the polls in accordance with § 19-14I of this chapter and are in a carrier envelope, the absentee election judges, upon opening a carrier envelope, shall verify that the serial number on the log sheet is the same as the serial number on the carrier envelope. If the numbers are not the same, the judges shall report the discrepancy to the Board of Elections and then follow the instructions of the Board regarding that carrier envelope. If there are no discrepancies or the discrepancy has been resolved, the team shall remove the ballots from the carrier envelope.
(5)
Where the ballots are in the ballot envelopes, a team of absentee
election judges shall:
(a)
Check the ballot envelopes against the list of absentee voters.
The teams shall not process any ballot envelopes that the Town of
Elsmere has not listed as returned on the list of absentee voters
until the discrepancy has been resolved to the Board of Elections'
satisfaction.
(b)
Reject ballot envelopes that the voter did not sign or seal,
or for a voter who is known to be dead. An absentee election judge
shall print the word "REJECTED" and the reason for the rejection on
the front of the ballot envelope and then at least two of the absentee
elections judges shall initial beside the entry.
(c)
Open each ballot envelope in such a manner as not to deface
or destroy the self-administered affidavit thereon or the absentee
ballot enclosed and then remove the ballot in such manner as to avoid
seeing the markings thereon from the ballot envelope. If there is
no ballot in the ballot envelope or if there is more than one ballot
in a ballot envelope, an absentee election judge shall write the word
"REJECTED" and the reason for the rejection on the front of the ballot
envelope and then at least two absentee elections judges shall initial
beside the entries. In the case where there was more than one ballot
in a ballot envelope, the team shall put the ballots back into the
ballot envelope.
(d)
Once an absentee ballot judge has removed a ballot from a ballot
envelope, the judge shall put it face down on the table without examining
it. The team shall open ballot envelopes until they have a sufficient
number of ballots and ballot envelopes to fill a carrier envelope,
create a predetermined batch, or they have opened all of the ballot
envelopes for a Town of Elsmere election district or the election,
whichever occurs first. The team shall then shuffle the ballots and
then proceed to tally the votes for that group of ballots.
(6)
The team of absentee election judges shall then tally the votes for a group of ballots on absentee vote tally sheets with one person reading the votes and two others tallying the votes on separate absentee vote tally sheets. Once the team has tallied a group of ballots, they shall verify that the results on both absentee vote tally sheets are the same. If the results are not the same, the team shall retally the votes until the result is the same. During the tally process, the team shall attempt to determine the voters' intent pursuant to § 19-11 of this chapter in the event that a voter did not mark the ballot as instructed.
(7)
Once a team has tallied the absentee votes for a group of ballots,
the members shall sign both copies of the absentee vote tally sheet
and then put the voted ballots, rejected ballots, ballot envelopes,
and one copy of the absentee vote tally sheet into a carrier envelope.
The team shall then complete the log sheet showing the serial number
of the carrier envelope, put the log sheet into the carrier envelope
and then seal the carrier envelope. The team shall then give the carrier
envelope and the second copy of the absentee vote tally sheet to the
Board of Elections.
(8)
Upon receipt of a carrier envelope and the second copy of the absentee
vote tally sheet for that carrier envelope, the Board of Elections
shall:
(a)
Put the carrier envelope in a secure location until such time
as it is needed for a recount, legal action, or is to be destroyed
as provided in this chapter; and
(b)
Record the results from the absentee vote tally sheet onto a
master absentee vote tally sheet for the election. After the Board
of Elections has received all of the absentee vote tally sheets and
has entered the results for each candidate on the master absentee
vote tally sheet, the Board shall total the votes for each candidate
and then, after the polls have closed, enter the results on the vote
tabulation for the election. The Board of Elections shall then seal
the absentee vote tally sheet, or sheets, in a carrier envelope along
with a log sheet showing the serial number of the carrier envelope.
(9)
Ballot envelopes received after the ballots have been counted, or
the ballots for a specific Town of Elsmere election district have
been counted, shall be opened and tallied in accordance with the above
procedure except that they all shall be sealed in one or more carrier
envelopes, as necessary, after the polls have closed.
(10)
The teams shall repeat the above process as many times as necessary
in order to count the absentee ballots.
(11)
The Town of Elsmere shall establish a procedure to insure that
persons who voted by absentee ballot shall not be permitted to vote
at a polling place on the day of the election.
(12)
Anything herein to the contrary notwithstanding, when the number
of absentee ballots returned to the Town of Elsmere is less than five,
the Town of Elsmere may develop a counting procedure protective of
the secrecy of the ballot.
I.
Preparing absentee ballots to be counted. Notwithstanding any other provision of this chapter, the Town of Elsmere Board of Elections may open absentee ballot envelopes in a public meeting in order to prepare them to be counted. Such meeting shall take place, upon proper notice, at any time between 8:00 a.m. of the day prior to the election and up to one hour before the polls are scheduled to open. The Town of Elsmere shall notify each candidate on the ballot that they may have challengers at the meeting during which the Board of Elections opens the absentee ballots. At such meeting, the Board of Elections shall act in accordance with the same procedures as set out in § 19-14H(1), (2), (3) and (5)(a) through (d) of this chapter inclusive, with the exception that the absentee ballot judges shall not proceed to tally the votes for any group of ballots, but shall then secure such ballots, ballot envelopes, and any rejected ballot envelopes in a carrier envelope along with the log sheet showing the serial number of the log sheet. The absentee ballot judges shall then seal the carrier envelope, or envelopes, and deliver it/them to the Board of Elections. The Board of Elections shall then secure the carrier envelope, or envelopes, in locked cabinets until opened at a subsequent public meeting to tally the ballots on the day of the election in accordance with § 19-14H(4) and (6) through (10) of this chapter.
J.
Carrier envelope specifications; carrier envelopes as ballot boxes.
(1)
The Town of Elsmere shall purchase envelopes to be used as carrier
envelopes, which shall be security mailing envelopes, designed to
securely protect the contents thereof from tampering, removal, or
substitution without detection and shall be large enough to accommodate
multiple absentee ballots cast in the election.
(2)
Carrier envelopes shall:
(a)
For all purposes of this chapter be considered the official
ballot boxes for absentee votes cast during a given election;
(b)
Contain voted absentee ballots from Town of Elsmere;
(c)
Be labeled to reflect that the Town of Elsmere's absentee
ballots are held inside; and
(d)
Ensure the security of said ballots in the event they must be
moved for the purposes of certifying an election or recounting votes
cast in an election.
(3)
A sealed carrier envelope may be reopened only when necessary to
certify an election or recount votes cast in an election.
(4)
In the event the Town of Elsmere must move absentee ballots for the
purposes of certifying an election or recounting votes cast in an
election, it shall select the carrier envelopes for the affected Town
of Elsmere election districts and move them, in a secure fashion,
to the location where the carrier envelopes will be opened and the
votes inside inspected.
(5)
Upon completion of any inspection of votes pursuant to this subsection,
absentee ballots shall be returned to the carrier envelopes from which
they were removed and the carrier envelopes shall be:
(a)
Resealed in a secure manner or shall be placed in another security
envelope, for the purposes of securely protecting the contents thereof
from tampering, removal, or substitution without detection; and
(b)
Put in a secure location until such time as it is needed for
a recount, legal action, or is to be destroyed as provided in this
chapter.
K.
Challenges.
(1)
The ballot of any elector choosing to vote by absentee ballot may
be challenged for the same causes and in the same manner as provided
in this chapter for other voters.
(3)
If a challenge is made pursuant to Subsection K(1) of this section, an absentee judge shall return the ballot to its ballot envelope, shall mark the ballot envelope as "CHALLENGED," and shall set the envelope aside in a secure location for consideration at a later time as provided elsewhere in this chapter. If a challenge is made pursuant to Subsection K(2) of this section, an absentee judge shall mark the ballot envelope as "CHALLENGED" and shall set it aside in a secure location for consideration at a later time as provided elsewhere in this chapter.
(4)
All challenges to absentee ballots must be resolved before the counting
of votes may be considered complete. Any challenge not resolved by
the absentee judges within a reasonable time of the challenge having
been made shall be referred to the Town of Elsmere's Board of
Elections for the Town of Elsmere for resolution.
L.
Rejected ballots.
(1)
No vote shall be accepted or counted if:
(a)
The affidavit of the absentee voter that appears on the front
of the ballot envelope is found to have been altered or is not signed;
or
(b)
The absentee voter is not a duly qualified elector entitled
to vote in the Town of Elsmere;
(c)
The ballot envelope is open; or
(d)
It is evident that the ballot envelope has been opened and resealed;
(e)
It is evident that the ballot envelope has been tampered with
or altered.
(2)
If the ballot envelope has not been opened at the time an absentee judge decides that the offered ballot contained therein should not be accepted or voted for any of the reasons set forth in Subsection L(1) of this section, it shall not be opened but shall instead be endorsed thereon as, "REJECTED," giving reason therefor.
(3)
If the ballot envelope has been opened at the time an absentee judge decides that the offered ballot contained therein should not be accepted or voted for any of the reasons set forth in Subsection L(1) of this section, the ballot shall be returned to its ballot envelope and the absentee judge shall endorse on the ballot envelope "REJECTED," giving reason therefor.
(4)
Whenever it is made to appear by due proof to an absentee judge that
any absentee voter who has marked and forwarded the absentee voter's
ballot has died, the ballot 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.
(5)
Whenever a ballot has not been counted but has been rejected pursuant
to this section, the appropriate notation shall be made on the absentee
ballot tally, and the number of ballots so rejected shall be noted
on the certificates of election.
(6)
Ballots rejected pursuant to this section shall be deposited in a
carrier envelope for the Town of Elsmere election district to which
they apply.
M.
Validity of absentee voter's ballot for wrong Town of Elsmere
election district. If an absentee voter marks and returns an absentee
ballot for a Town of Elsmere election district other than the one
of which the absentee voter is a duly registered elector, such ballot,
because thereof, shall not be adjudged invalid, but, as indicated
by the marking of the ballot by the voter, shall be counted as a vote
for every candidate appearing thereon who is a candidate for an office
to be duly voted for in the Town of Elsmere election district.
N.
Procedure if requests or ballots sent to wrong official; absentee ballots received by election officers. If any request for an absentee ballot and accompanying envelopes or any marked ballot of any such elector is addressed to and returned to any official other than the proper official of the Town of Elsmere, then the official shall immediately transfer such request or returned marked ballot to the proper officer of the Town of Elsmere where the elector is qualified to vote, to be acted upon by the Town of Elsmere as provided by § 19-14 of this chapter.
O.
File of absentee voters.
(1)
The Town of Elsmere 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, but shall not be limited to,
the following entries:
(a)
The name of elector;
(b)
The address at which the elector establishes eligibility to
vote;
(c)
The address where ballot is to be mailed;
(d)
The date the affidavit is received by the Town of Elsmere;
(e)
The elector's Town of Elsmere election district, if applicable;
(f)
The ballot envelope identification number;
(g)
The date the ballot is mailed or delivered to the elector; and
(h)
The date the ballot is returned.
(2)
The Town of Elsmere shall compile from its files a list of names
and addresses of all applicants for absentee ballots and shall, upon
request, send current and complete copies thereof without cost to
candidates on the ballot in the forthcoming election. Such lists shall
be provided no later than two weeks prior to the date of the election.
