Bill H.688

HOUSE DOCKET, NO. 2844 FILED ON: 1/14/2009

HOUSE . . . . . . . . . . . . . . . No. 688

The Commonwealth of Massachusetts

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In the Year Two Thousand Nine

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An Act further regulating elections to provide for a voter consent 'None of the Above' option..

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

General Laws are hereby amended by inserting after chapter 57 the following chapter:

CHAPTER 57A.

ELECTIONS WITH VOTER CONSENT “NONE OF THE ABOVE” OPTIONS

None of the Above (NOTA) on the ballot

On all ballots electing a candidate to office there shall appear, after the list of candidates for each office, a votable line identified with the words “None of the Above; For a New Election”.

A voter may choose to vote for “None of the Above; For a New Election” instead of voting for a candidate. If a voter may vote for multiple candidates for an office, a vote for “None of the Above; For a New Election” counts as one vote. Votes cast for “None of the Above; For a New Election” shall be counted and reported as are votes for listed candidates.

When a candidate receives fewer votes than NOTA

Any candidate for office who receives fewer votes than the votes cast for “None of the Above; For a New Election” for that office shall not be elected.

NOTA election

In any election where no candidate is elected to an office because of votes cast for “None of the Above; For a New Election”, a None of the Above, hereinafter referred to as NOTA, Election shall be held to fill that office not less than sixty (60) days and not more than eighty (80) days after the prior election.

Election of the President of the United States

In elections to the offices of President and Vice President of the United States and their electors, “Prefer None of the Above” shall appear after the list of candidates. Voters may choose to vote both for “Prefer None of the Above” as well as for a candidate. Votes cast for “Prefer None of the Above” shall be counted and reported in the same manner as are votes for listed candidates, but shall not otherwise affect the election outcome.

Statement about NOTA options

The Secretary of State shall prepare a statement titled “Your Voter Consent Ballot Options:”, to be displayed, along with any other materials determined by the Secretary of State, so it is legible to voters at the polling place prior to voting as well as within each voting enclosure, indicating the options available to the voter. For example, such a statement might contain the following:

Your Voter Consent Ballot Options:

YOU MAY VOTE FOR A CANDIDATE OR “None of the Above; For a New Election”.

O Candidate A

O Candidate B

O None of the Above; For a New Election

When “None of the Above; For a New Election” appears on the ballot after the list of candidates for an office, then you may vote for “None of the Above; For a New Election” instead of voting for a candidate. If you may vote for more than one candidate for an office, then a vote for “None of the Above; For a New Election” counts as one vote.

If “None of the Above; For a New Election” receives more votes for an office than any candidate, then no one is elected to that office and a new election with new candidates must be held, not less than 60 days and not more that 80 days after this election, to fill the office.

YOU MAY VOTE FOR A CANDIDATE AND FOR “Prefer None of the Above.”

O Candidate A

O Candidate B

O Prefer None of the Above

When “Prefer None of the Above” appears on the ballot after the list of candidates for an office, you may vote for a candidate and also vote for “Prefer None of the Above”. Voting for “Prefer None of the Above” indicates you found no listed candidate acceptable.

The “Prefer None of the Above” votes are counted and reported; however, the candidate for an office with the most votes is elected whatever the “Prefer None of the Above” vote.

Temporary appointment to offices and assignment of duties

Temporary appointment to offices, pending NOTA elections and an elected candidate taking office, required to execute the duties of an office, may be made by the Governor, or by majority vote of the Board of Selectmen for town offices, provided the person so appointed is either the office’s current incumbent or would be otherwise eligible for election to that office. Temporary appointment to the office of Governor shall be by majority vote of the General Court. No temporary appointment under this provision shall be made to the offices of Town Meeting Representative, State Representative, State Senator, United States Representative, or United States Senator.

If no appointment is made by the day before expiration of an office’s current term, the office’s incumbent is appointed by default.

In elections to the office of Secretary of State, or an office for which the incumbent Secretary of State is a candidate, the duties normally performed by the Secretary of State under this act shall be performed by the office of Secretary of State under the direction of the Attorney General.

Campaign finance reporting

Candidates in a NOTA election must conform to the same, or equivalent, campaign financing and reporting requirements as a candidate for that office in a general election. Campaign financing and reporting for activities related to the issue of voters voting for “None of the Above; For a New Election”, or for “Prefer None of the Above”, shall have the same, or equivalent, requirements as a ballot question. All such requirements shall be subject to those changes necessary, as determined by the Secretary of State, to adjust for the varying election dates and campaign durations of NOTA elections, provided such changes adhere to the original intent of those requirements and avoid unreasonable burden to election participants.

Nomination of candidates

Any person who is eligible for nomination as a candidate in the general election for an office shall be eligible for nomination as a candidate in a NOTA election for that office, provided the person did not receive, as a listed candidate in a prior election for the same office and term, fewer votes than those cast for “None of the Above; For a New Election” the office.

All candidates for office in NOTA elections shall be nominated to be listed on the ballot either by nominating petition, or by receiving a requisite number of write-in votes in the prior election for that office.

Nomination by petition; eligibility to sign petitions; collecting signatures at polling places

The nomination period for a NOTA election shall commence on the day of the prior election. The nomination period shall continue for fourteen (14) days after the results of the prior election for that office are announced by the Secretary of State.

Voters eligible to vote in the NOTA election for an office are eligible to sign, once for each nomination, one or more nominating petitions for one or more candidates for that office during the nomination period.

Signatures for nominating petitions may be gathered at polling places, provided they are gathered in one, or two if required, Petition Areas that shall be reserved at each polling place for such purpose, and in such a manner as to provide easy access for voters wishing to sign such petitions or not, and in such a manner that voters shall pass by those collecting nominating signatures before and after voting.

Any person collecting nominating signatures at a polling place for one or more petitions, hereinafter referred to as Collector, must be registered to vote at that polling place. A Collector may assist in the gathering of signatures for any Nominating Petition. No signed petition may be removed from a Petition Area, except, after the polls close, by the vote counting authority, who shall deliver all signed petitions to the signature verifying authority.

The Collector shall be seated in a chair behind a table, provided at no cost to the Collector, upon which such petitions shall be placed and kept while collecting signatures. The Collector shall not speak to, or otherwise communicate with, any voter unless addressed first by that voter, and shall display no sign except, optionally, one reading “Nominating Petition: <office>”, where <office> shall be the name of the office for which the petition is being gathered, using letters no greater than three inches in height and affixed to the table in such a manner as to be visible to passing voters. The number of Collectors in each Petition Area shall be no more than two (2) per one (1) or more petition sheets with the same Candidate and Party designation. A petition may be brought into and left unattended in the Petition Area by any person.

The Petition Area shall be part to the polling place, and any person failing to conform to its requirements shall be considered a disorderly person.

Nomination by write-in

An unlisted write-in candidate in the prior election may be nominated to be listed as a candidate for an office in the following NOTA election by receiving write-in votes equal to at least ten percent (10%) of either: a) the number of nominating signatures required for that office; or, b) the total votes cast for the office in the current election. Such candidates shall submit to the Town Clerk in town wide offices, or otherwise the Secretary of State, by the last day of the nomination period, a completed nominating petition, containing no filled in signature lines, with an attached affirmation by the candidate, stating the candidate received the requisite write-in votes for that office in the prior election. Unlisted write-in candidates who do not receive the number of write-in votes needed for nomination may seek nomination by petition.

Signature verification; number of signatures required; submitting petitions

The authority responsible for signature verification for nominations for a office in the general election shall be responsible for verifying the signatures on the nominating petitions for a NOTA election are valid and of the requisite number within fourteen (14) days after the end of the nomination period.

The number of valid signatures under the same party designation required for nomination by petition shall be the same for all candidates for the same office and shall be: either equal to the number of the most signatures required for a general election nomination for the office, divided by number of days in the general election nomination period, and then multiplied by number of days in the current nomination period, and then divided by three (3); or, equal to twenty (20), whichever is greater.

Each original nominating petition sheet shall be submitted to the offices of the same verifying authority as for general elections, within three (3) days after the end of the nomination period.

Multiple nominations of a candidate

In NOTA elections, if a candidate has been separately nominated with different political party designations, the candidate shall appear on the ballot separately for each such nomination. The same political party designation may not appear with more candidates for an office than the number of positions to be elected to that office. The party designation of either “No Party” or “Write-In” shall be allowed once each for a candidate so nominated.

Nomination notification and acceptance

The Secretary of State, or Town Clerk for town wide elections, shall have delivered to each nominee, within three (3) days of the nominee qualifying for the nomination, a Nomination Notification, notifying the nominee of the nomination, along with other materials determined by the Secretary of State. The nominee shall respond to the Nomination Notification within five (5) days by returning the Nomination Acceptance, as determined by the Secretary of State, to the offices of the notifying authority. Failure to respond shall be deemed an acceptance of the nomination.

Candidate Statement; requirements and limitations; qualifying for distribution

To assist the voters in assessing candidates for office in NOTA elections, the Secretary of State, or Town Clerk for town wide elections, shall distribute Candidate Statements by mail to the electorate at least seven (7) days before the election at no cost to the candidates.

When a candidate submits a Nomination Acceptance for an office, the candidate may also submit a Candidate Statement for distribution, which shall be subject to the following requirements and limitations: required to be a black and white statement, consisting only of spaces, letters, punctuation marks, and numeric or other textual notation, contained within both sides of a single 8.5 x 11 inch white paper sheet, and, optionally, one photograph of the candidate from the neck up no greater than 3 x 3 inches, for the purpose of allowing the candidate to communicate with the voters; and, shall be limited to identifying the candidate, and, optionally, describing the candidate’s qualifications for office, party affiliations, proposed policies, and contact information; limited to one per candidate, even if the candidate receives multiple nominations for an office; and, shall contain no solicitation for funds nor refer to other candidates. The requirements and limitations of the Candidate Statement must be met, in the opinion of the Secretary of State, in order to qualify for distribution as a Candidate Statement

Across the top inch of the first page of every Candidate Statement shall be the Statement Header. The Statement Header shall be blank except for the state seal and the words, in large font, “Candidate Statement of <candidate name> for <office>”, where <candidate name> shall be the name of the candidate as it shall appear on the ballot and <office> shall be the name of the office as it shall appear on the ballot; and then, in a smaller font, “Prepared by the candidate and distributed to voters without cost to the candidate by the Office of the Secretary of State.”; and then, a line at the lower boundary of the Statement Header; and, anywhere within the Statement Header, any other content determined by the Secretary of State. At Nomination Notification, the candidate shall receive sample Candidate Statements and an assigned Statement Header from the Secretary of State that the candidate is required to use as the Statement Header for any Candidate Statement the candidate submits.

The area of the Candidate Statement apart from the Statement Header is the Candidate Content determined by the candidate. The Secretary of State, or Town Clerk for town elections, shall take care to distribute Candidate Content as submitted, except as follows: The Secretary of State, and the Town Clerk for town elections, shall review Candidate Statements submitted to them to insure they qualify for distribution as a Candidate Statement. The Town Clerk shall have delivered to the Secretary of State all Candidate Statements, along with their Candidate Instructions, if any, for final review, within three (3) days of receipt, along with a Town Clerk Opinion, defined by the Secretary of State, indicating whether the Candidate Statement meets the requirements and limits of a Candidate Statement.

If, in the opinion of the Town Clerk, a Candidate Statement does not meet the requirements and limits of a Candidate Statement, the Town Clerk Opinion shall include an explanation of the nonconformance, along with a proposed Deletion Notification to make the Candidate Statement conformant, and any other relevant document. Before submitting the Town Clerk Opinion to the Secretary of State, the Town Clerk may contact the candidate directly to verbally suggest changes to the Candidate Statement to make it conformant. If the candidate then submits one or more revised drafts, the Town Clerk shall submit the last such draft as the Candidate Statement, retaining prior drafts as part of the Candidate Statement’s record.

Should the Secretary of State determine a Candidate Statement does not qualify for distribution because it does not meet the requirements and limits of a Candidate Statement, then the Secretary of State shall have delivered to the candidate, within ten (10) days of the submission of the Candidate Statement by the candidate, a Deletion Notification, defined by the Secretary of State, which shall include a copy of the Candidate Statement to show the deletions needed to bring the statement into compliance and a letter stating the reasons for those deletions. The Secretary of State, or representative, shall meet with the candidate at the offices of the Secretary of State, upon the candidate’s request, within two (2) days of receipt of a request for such a meeting, to review the Candidate Statement with the candidate’s representatives. The candidate shall have delivered to the Secretary of State within five (5) days of the receipt of the Deletion Notification or within two (2) days after such meeting, whichever is later: the candidate’s response to the Deletion Notification; and/or a corrected Candidate Statement; and/or a Candidate Instruction, to be defined by the Secretary of State, in the event of a non qualifying Candidate Statement, instructing Secretary of State either to withdraw the Candidate Statement completely or to distribute the original Candidate Statement with the deletions indicated by the Deletion Notification.

Changes to the Candidate Content by Secretary of State shall be by deletion only, using methods to be established in advance of the election by Secretary of State so as to be obvious to voters which parts of the Candidate Content were deleted. Should the candidate fail to provide an acceptable, corrected Candidate Statement and fail to provide Candidate Instructions for such an event, the Secretary of State shall distribute the original Candidate Statement with the deletions specified in the Deletion Notification. The Secretary of State shall make available at its offices to any person, within one day of a written request, copies of any original Candidate Statement as well as associated Town Clerk Opinion, corrected Candidate Statement, Deletion Notification, and Candidate Instruction, and other related documents during the election campaign and for ten (10) years after the election.

Whenever possible, all Candidate Statements for the same office shall be assembled into a single ballot pamphlet for distribution. Reference copies of the Candidate Statements shall be made available at polling places for voter use.

Confirming nominations

The Secretary of State, or Town Clerk for town wide elections, shall confirm by Party Confirmation, as defined by the Secretary of State, with the governing body of the designated political party, that the party accepts the party designation on the ballot for a candidate. If the party designation of the nomination is not accepted by the governing body of the party within ten (10) days of notification, or if the authority of the governing body is determined by the Secretary of State to be in dispute, then the candidate shall be listed with a “No Party” party designation. Write-in nominations shall be designated as “Write-In”, or with any other political party designation acceptable to both the candidate and the governing body of the political party.

Ballot determination; election date determination

The Secretary of State shall determine the date, offices, and candidate lists for NOTA elections, and shall announce such determinations, whenever possible, at least thirty days in advance of the date set for the NOTA election.

The Secretary of State shall insure, whenever possible, various NOTA Elections take place throughout the state on the same day.

Counting votes; recounts

In cases of multiple listings of a candidate for an office, the number of votes cast for each such listing of a candidate shall be counted and reported separately; however, the sum of all votes for a candidate for an office shall be used in determining the candidate’s vote for election to the office.

A qualified write-in candidate who receives more votes than any listed candidate, and more votes than any other write-in candidate, and more votes than “None of the Above; For a New Election” for that office shall be elected.

The Secretary of State shall conduct a recount of any election where the number votes cast for “None of the Above; For a New Election” would require, or would allow a candidate to request, a recount if that number of votes had been cast for a candidate, and otherwise act on behalf of voters who cast votes for “None of the Above; For a New Election.” Delegation of this duty to the Secretary of State shall in no way limit voters, who affirm they voted for “None of the Above; For a New Election” in an election, from also acting on behalf of themselves and other such voters.

Failure to nominate

Should no candidate qualify for nomination for an office in a NOTA Election, the office shall appear on the ballot with no listed candidate with only the “None of the Above; For a New Election” line.

Nominating Petition Description

The nominating petitions shall consist of 8.5 x 11 inch white paper with the first printed title line reading “NOTA Election Nominating Petition”;

The next printed line shall state: “To be signed only by voters eligible to vote for the office.”;

The next printed line of the petition shall state: “For the office of: ”, followed immediately by the title the office, as it appears on the ballot, for which the candidate is to be nominated; and, followed immediately by the text “ for ”; and, followed by the jurisdiction of the office;

The next printed line of the petition shall state: “Nominating: ”, followed immediately by the candidate’s legal name and, optionally, in quotes, an informal name, as it is intended to appear on the ballot;

The next printed line of the petition shall state: “Whose legal address is: ”, followed immediately by the candidate’s legal address, as it is intended to appear on the ballot;

The next printed line of the petition shall state: “Political Party: ”, followed immediately by the name of the political party, as it is intended to appear on the ballot. “No Party” is permitted. “Write-In” is permitted for candidates nominated by write-in votes; and, “For the Town or City:”, followed immediately by the name of the town or city where the signers below must be registered to vote.

The next printed line shall identify the appropriate columns for voters to fill out with the words “Voter’s Name (print)”; “Street Address”; “Signature”; “Date”;

There shall follow sixteen (16) thin, straight lines, indicating the space for the voter to make a nomination.

Petition Sample

NOTA Election Nominating Petition

To be signed only by voters eligible to vote for the office.

For the office of: United States Representative for 5th Congressional District

Nominating: William P. Doe “Billy Doe”

Whose legal address is: 600 Elm Street, Harvard, MA 01451

Political Party: No Party For the Town or City: Harvard

Voter’s Name (print) Street Address Signature Date m/d/y

__________________ ______________________ ___________________ _________

Conflicting provisions

The provisions of this act shall prevail over any conflicting provisions of any other law.

Severability

The provisions of this act are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.

Effective date

The provisions of this act shall take effect two (2) years after enactment.