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1998 SESSION


CHAPTER 866
An Act to amend and reenact §§ 24.2-101 and 24.2-803 of the Code of Virginia, relating to election law definitions and contested elections to the General Assembly.
[H 1073]
Approved April 22, 1998

Be it enacted by the General Assembly of Virginia:

1. That §§ 24.2-101 and 24.2-803 of the Code of Virginia are amended and reenacted as follows:

§ 24.2-101. Definitions.

As used in this title, unless the context requires a different meaning:

"Candidate" means a person who seeks or campaigns for an office of the Commonwealth or one of its governmental units in a general, primary, or special election and who is qualified to have his name placed on the ballot for the office. "Candidate" shall include a person who seeks the nomination of a political party or who, by reason of receiving the nomination of a political party for election to an office, is referred to as its nominee. For the purposes of Chapters 8 (§ 24.2-800 et seq.) and 9 (§ 24.2-900 et seq.) of this title, "candidate" shall include any write-in candidate. However, no write-in candidate who has received less than fifteen percent of the votes cast for the office shall be eligible to initiate an election contest pursuant to Article 2 (§ 24.2-803 et seq.) of Chapter 8 of this title.

"Central absentee voter precinct" means a precinct established by a county or city pursuant to § 24.2-712 for the processing of absentee ballots for the county or city or any combination of precincts within the county or city.

"Constitutional office" or "constitutional officer" means a county or city office or officer referred to in Article VII, Section 4 of the Constitution of Virginia: clerk of the circuit court, attorney for the Commonwealth, sheriff, commissioner of the revenue, and treasurer.

"Election" means a general, primary, or special election.

"Election district" means the territory designated by proper authority or by law which is represented by an official elected by the people, including the Commonwealth, a congressional district, a General Assembly district, or a district for the election of an official of a county, city, town, or other governmental unit.

"Electoral board" or "local electoral board" means a board appointed pursuant to § 24.2-106 to administer elections for a county or city. The electoral board of the county in which a town or the greater part of a town is located shall administer the town's elections.

"General election" means an election held in the Commonwealth on the Tuesday after the first Monday in November or on the first Tuesday in May for the purpose of filling offices regularly scheduled by law to be filled at those times.

"Officer of election" means a person appointed by an electoral board pursuant to § 24.2-115 to serve at a polling place for any election.

"Party" or "political party" means an organization of citizens of the Commonwealth which, at either of the two preceding statewide general elections, received at least ten percent of the total vote cast for any statewide office filled in that election. The organization shall have a state central committee and an office of elected state chairman which have been continually in existence for the six months preceding the filing of a nominee for any office.

"Polling place" means the one place provided for each precinct at which the qualified voters who are residents of the precinct may vote.

"Precinct" means the territory designated by the governing body of a county, city, or town to be served by one polling place.

"Primary" or "primary election" means an election held for the purpose of selecting a candidate to be the nominee of a political party for election to office.

"Qualified voter" means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) eighteen years of age, (ii) a resident of the Commonwealth and of the precinct in which he offers to vote, and (iii) registered to vote. No person who has been convicted of a felony shall be a qualified voter unless his civil rights have been restored by the Governor or other appropriate authority. No person adjudicated incapacitated shall be a qualified voter unless his capacity has been reestablished as provided by law.

"Qualified voter in a town" means a person who is a resident within the corporate boundaries of the town in which he offers to vote, duly registered in the county of his residence, and otherwise a qualified voter.

"Referendum" means any election held pursuant to law to submit a question to the voters for approval or rejection.

"Registered voter" means any person who is maintained on the Virginia voter registration system. All registered voters shall be maintained on the Virginia voter registration system with active status unless assigned to inactive status by a general registrar in accordance with Chapter 4 (§ 24.2-400 et seq.) of this title. For purposes of applying the precinct size requirements of § 24.2-307, calculating election machine requirements pursuant to Article 3 (§ 24.2-625 et seq.) of Chapter 6 of this title and determining the number of signatures required for candidate and voter petitions, "registered voter" shall include only persons maintained on the Virginia voter registration system with active status.

"Registration records" means all official records concerning the registration of qualified voters and shall include all records, lists, and files, whether maintained in books, on cards, on automated data bases, or by any other legally permitted record-keeping method.

"Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. In determining domicile, consideration may be given to a person's expressed intent, conduct, and all attendant circumstances including, but not limited to, financial independence, business pursuits, employment, income sources, residence for income tax purposes, marital status, residence of parents, spouse and children, if any, leasehold, sites of personal and real property owned by the person, motor vehicle and other personal property registration, and other factors reasonably necessary to determine the qualification of a person to register or vote.

"Special election" means any election which is held pursuant to law to fill a vacancy in office or to hold a referendum.

"State Board" or "Board" means the State Board of Elections.

"Virginia voter registration system" or "voter registration system" means the automated central record-keeping system for all voters registered within the Commonwealth which is maintained as provided in Article 2 (§ 24.2-404 et seq.) of Chapter 4 of this title.

§ 24.2-803. Contest of election to General Assembly.

A. This section applies to any general or special election of members to the General Assembly.

B. A contest of the election of any member to the General Assembly may be initiated by an unsuccessful candidate in the election, referred to hereafter as the contestant.

To initiate a contest, the contestant shall give written notice, in the manner provided in subsection D, of his intent to contest the election to the person or persons apparently elected, referred to hereafter as the contestee, and to the Clerk of the House of Delegates if he is contesting a House election or of the Senate if he is contesting a Senate election, within twenty days following the date of the election.

The notice shall state the grounds on which the contestant intends to contest the election. The grounds shall include (i) objections to the eligibility of the contestee based on specific allegations, (ii) objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election, or (iii) both.

The notice shall state that an answer by the contestee must be filed with the clerk of the appropriate house within ten days following service of the notice. The contestant shall sign and verify the notice by his oath or affirmation.

C. Within ten days after service of the contestant's notice on the contestee, the contestee shall file with the clerk of the appropriate house a written answer. His answer shall admit or deny the allegations on which the contestant relies, or state that he has no knowledge or information concerning an allegation which shall be deemed denial, and state any other defenses, in law or fact, on which he relies. The contestee shall sign and verify his answer by his oath or affirmation.

D. The notice of intent to contest shall be filed by the contestant with the clerk of the appropriate house and copies thereof served by the contestant as provided under § 8.01-296 on each contestee. The answer, petition, and any reply and copies thereof shall be filed with the appropriate clerk, and the copies shall be served by the clerk on the counsel of record as provided under on the opposing party or his counsel, if any, in the manner prescribed by Rule 1:12 of the Rules of the Supreme Court of Virginia.

After service of the notice of intent, any party, after reasonable notice to the other party or parties, shall be authorized to take depositions to sustain or invalidate the election. The contestant shall complete the taking of depositions to submit with his petition at any time within thirty days following the date of the election, and the contestee shall complete the taking of his depositions within forty-five days following the date of the election. By written stipulation of the parties, the testimony of any witness may be filed in the form of an affidavit by the witness within the same time limitations prescribed for the taking of depositions.

Subpoenas for witnesses shall be issued by the clerk of the circuit court of the county or city in which the contestee resides on the application of either party. Witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses summoned to attend the courts.

Every deposition shall be taken before a person authorized by law to administer oaths, who shall certify and seal the deposition in the same manner as in judicial civil proceedings, and file the same with the clerk of the appropriate house.

E. A written petition shall be filed by the contestant with the clerk of the appropriate house (i) within two days following the second Wednesday in January if the contested election was held at a November general election and (ii) within twenty days following the date of the election or within two days following the commencement of the next session of the General Assembly, whichever is later, if the election was held on a different date. The contestee may file a written reply to the petition within five days following its service on him.

No affidavit may be made a part of, or filed in support of, a petition or reply thereto unless the affidavit has previously been filed with the clerk of the appropriate house, pursuant to the written stipulation of the parties or their counsel, on or before the date established by subsection D for the completion of the taking of depositions by the proponent of the affidavit.

F. If the election was held during a regular session of the General Assembly, the times for filing the notice of intent to contest, the answer, petition, and reply and for taking depositions and affidavits shall be set by the Committee on Privileges and Elections of the appropriate house. The Committee may consider the contestant's and contestee's recommendations for the procedural schedule.

G. The clerk shall refer the notice, answer, petition, reply, depositions, and affidavits to the Committee on Privileges and Elections, which documents shall constitute the record in the contest.

Unless another committee has been designated by the rules of the house to hear contest matters, the Committee on Privileges and Elections shall hear the contest and conduct such investigation as has been directed by resolution of its house. It shall report its findings and recommendations to the house for its action.

H. The house, in its judgment, may find for the contestant and declare him elected, find for the contestee and confirm his election, or declare the election void and order a writ of election as in other cases of vacancy. If the house finds a tie vote has occurred, it shall direct a determination by lot in accordance with § 24.2-674, but no right to a recount shall be permitted. If the house finds, by two-thirds vote of the house, that the contestant has prosecuted the election contest in bad faith, the house may order the contestant to pay to the contestee a sum that is not more than the contestee's actual costs of defending against the contest, including, but not limited to, reasonable attorneys' fees, expert witnesses' fees, and such costs as would be taxable in an action at law.