Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version House Bill 3065 History

   |  Email


H. B. 3065

 

         (By Delegates Miley and Poore)

         (By Request of the Secretary of State)

         [Introduced January 11

ole.gif

, 2012; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

A BILL to repeal §3-3-3a of the Code of West Virginia, 1931, as amended; and to amend and reenact §3-3-1, §3-3-2, §3-3-2b, §3-3-3, §3-3-4, §3-3-5, §3-3-5a, §3-3-5b, §3-3-5c and §3-3-6 of said code, all relating to the eligibility requirements, processes, and assistance of absentee voting, and early in person voting.

Be it enacted by the Legislature of West Virginia:

    That §3-3-3a of the Code of West Virginia, 1931, as amended, be repealed; and that §3-3-1, §3-3-2, §3-3-2b, §3-3-3, §3-3-4, §3-3-5, §3-3-5a, §3-3-5b, §3-3-5c and §3-3-6 of said code be amended and reenacted, all to read as follows:

ARTICLE 3. VOTING BY ABSENTEES.

§3-3-1. Persons eligible to vote absentee ballots.

    (a) All registered and other qualified voters of the county may vote an absentee ballot during the period of early voting in person.

    (b) Registered voters and other qualified voters in the county are authorized to vote an absentee ballot by mail. in the following circumstances:

    (1) Any voter who is confined to a specific location and prevented from voting in person throughout the period of voting in person because of:

    (A) Illness, injury or other medical reason;

    (B) Physical disability or immobility due to extreme advanced age; or

    (C) Incarceration or home detention: Provided, That the underlying conviction is not for a crime which is a felony or a violation of section twelve, thirteen or sixteen, article nine of this chapter involving bribery in an election;

    (2) Any voter who is absent from the county throughout the period and available hours for voting in person because of:

    (A) Personal or business travel;

    (B) Attendance at a college, university or other place of education or training; or

    (C) Employment which because of hours worked and distance from the county seat make voting in person impossible;

    (3)Any voter absent from the county throughout the period and available hours for voting in person and who is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including members of the uniformed services on active duty, members of the merchant marine, spouses and dependents of those members on active duty and persons who reside outside the United States and are qualified to vote in the last place in which the person was domiciled before leaving the United States is authorized to vote an absentee ballot by mail.

    (4) Any voter who is required to dwell temporarily outside the county and is absent from the county throughout the time for voting in person because of:

    (A) Serving as an elected or appointed federal or state officer; or

    (B) Serving in any other documented employment assignment of specific duration of four years or less; and

    (5) Any voter for whom the designated area for absentee voting within the county courthouse or annex of the courthouse and the voter’s assigned polling place are inaccessible because of his or her physical disability.

    (c) Registered voters and other qualified voters in the county may, in the following circumstances, vote an emergency absentee ballot, subject to the availability of the services as provided in this article:

     (1) Any voter who is confined or expects to be confined in a hospital or other duly licensed health care facility within the county of residence or other authorized area, as provided in this article, on the day of the election;

    (2) Any voter who resides in a nursing home within the county of residence and would be otherwise unable to vote in person, providing the county commission has authorized the services if the voter has resided in the nursing home for a period of less than thirty days; and

    (3) Any voter who is working as a replacement poll worker and is assigned to a precinct out of his or her voting district, if the assignment was made after the period for voting an absentee ballot in person has expired.

§3-3-2. Authority to conduct absentee voting; absentee voting application; form.

    (a) Absentee voting is to be supervised and conducted by the proper official for the political division in which the election is held, in conjunction with the ballot commissioners appointed from each political party, as follows:

    (1) For any election held throughout the county, within a political subdivision or territory other than a municipality, or within a municipality when the municipal election is conducted in conjunction with a county election, the clerk of the county commission; or

    (2) The municipal recorder or other officer authorized by charter or ordinance provisions to conduct absentee voting, for any election held entirely within the municipality, or in the case of annexation elections, within the area affected. The terms "clerk" or “clerk of the county commission” or “official designated to supervise and conduct absentee voting” used elsewhere in this article means municipal recorder or other officer in the case of municipal elections.

    (b) A person authorized and desiring to vote a mail-in absentee ballot in any primary, general or special election is to make application in writing in the proper form to the proper official as follows:

    (1) The completed application is to be on a form prescribed by the Secretary of State and is to contain the name, date of birth and in the case of a primary political affiliation of the voter, residence address within the county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the absentee ballot is requested and, if the reason is illness or hospitalization, the name and telephone number of the attending physician, the signature of the voter to a declaration made under the penalties for false swearing as provided in section three, article nine of this chapter that the statements and declarations contained in the application are true, any additional information which the voter is required to supply, and any affidavit which may be required; and an indication as to whether it is an application for voting in person or by mail; or

    (2) For any person authorized to vote an absentee ballot under the provisions of 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed application may be on the federal postcard application for absentee ballot form issued under authority of that act, submitted by mail or electronically; or on the federal write-in absentee ballot;

    (3) For any person unable to obtain the official form for absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the proper official, the completed application may be in a form set out by the voter, provided all information required to meet the provisions of this article is set forth and the application is signed by the voter requesting the ballot.

§3-3-2b. Special absentee voting list.

    (a) Any person who is registered and otherwise qualified to vote and who is permanently and totally physically disabled and who is unable to vote in person at the polls in an election may apply to the official designated to supervise and conduct absentee voting for placement on the special absentee voting list.

    (b) The application is to be on a form prescribed by the Secretary of State which is to include the voter's name and signature, residence address, and a statement that the voter is permanently and totally physically disabled and would be unable to vote in person at the polls in any election. a description of the nature of that disability, and a statement signed by a physician to that effect.

    (c) Upon receipt of a properly completed application, the official designated to supervise and conduct absentee voting shall enter the name on the special absentee voting list, which is to be maintained in a secure and permanent record. The person's name will remain active on the list until: (1) The person requests in writing that his or her name be removed; (2) the person removes his or her residence from the county, is purged from the voter registration books or otherwise becomes ineligible to vote; (3) a ballot mailed to the address provided on the application is returned undeliverable by the United States postal service; or (4) the death of the person.

    (d) The official designated to supervise and conduct absentee voting shall mail an application for an absentee ballot by mail to each person active on the special absentee voting list not later than forty-six days before each election.

§3-3-3. Early voting in person.

    (a) The voting period for early in-person voting is to be conducted during regular business hours beginning on the twentieth day before the election and continuing through the third day before the election. For any election held on a Tuesday, the early voting period for in-person voting is to be available from 9:00 a.m. to 5:00 p.m. on the two Saturdays prior to the election.

    (b) Any person desiring to vote during the period of early in-person voting shall, upon entering the election room, clearly state his or her name and residence to the official or representative designated to supervise and conduct early-in-person absentee voting. If that person is found to be duly registered as a voter in the precinct of his or her residence, he or she shall be required to sign his or her name in the space marked “signature of voter” on the pollbook. If the voter is unable to sign his or her name due to illiteracy or physical disability, the person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided. No ballot may be given to the person until he or she signs his or her name on the pollbook or the voter’s mark is duly witnessed.

    (c) When the voter’s signature or mark is properly on the pollbook, two qualified representatives of the official designated to supervise and conduct absentee voting shall sign their names in the places indicated on the back of the official ballot. Provided, That if the ballot is provided electronically, the requirement for the signature of two qualified representatives shall be waived.

    (d) If the official designated to supervise and conduct absentee voting determines that the voter is not properly registered in the precinct where he or she resides, the clerk or his or her representative shall challenge the voter's absentee ballot as provided in this article.

    (e) The official designated to supervise and conduct absentee voting shall provide each person voting an absentee ballot in person the following items to be printed as prescribed by the Secretary of State:

    (1) In counties using paper ballots, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law;

    (2) In counties using punch card systems, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law, and a gray secrecy envelope;

    (2) (3) In counties using optical scan systems, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law, and a secrecy sleeve; or

    (3) (4) For direct recording election systems, access to the voting equipment in the voting booth.

    (f) The voter shall enter the voting booth alone and there mark the ballot: Provided, That the voter may have assistance in voting according to the provisions of section four of this article. After the voter has voted the ballot or ballots, the absentee voter shall: Place the ballot or ballots in the gray secrecy envelope and return the ballot or ballots to the official designated to supervise and conduct the absentee voting: Provided, however, That in direct recording election systems, once the voter has cast his or her ballot, the voter shall exit the polling place.

    (g) Upon receipt of the voted ballot, representatives of the official designated to supervise and conduct the absentee voting shall:

    (1) Remove the ballot stub;

    (2) Place punch card ballots and paper ballots into one envelope which shall not have any marks except the precinct number and seal the envelope;

    (3) Place ballots for all voting systems into a ballot box that is secured by two locks with a key to one lock kept by the president of the county commission and a key to the other lock kept by the county clerk;

    (4) Due to the reenactment of this section by the Legislature in the two thousand three regular session removing authorization for early in-person voting on the Monday prior to a Tuesday election, to assure notice to all persons that voted on the Monday before the Tuesday election day of the two thousand two general election are made aware of this change, the clerk of each county shall, for the primary election of the year two thousand four, include along with the sample ballots published in local newspapers as required by this chapter a notice to voters that Monday in-person voting will no longer be available.

§3-3-4. Assistance to voter in voting an absent voter's ballot by personal appearance; penalties.

    (a) Any registered voter who requires assistance to vote by reason of blindness, disability, advanced age or inability to read and write may be given assistance by a person of the voter's choice: Provided, That the assistance may not be given by the voter's present or former employer or agent of that employer, by the officer or agent of a labor union of which the voter is a past or present member or by a candidate on the ballot.

    (b) Any voter who requests assistance in voting an absent voter's ballot but who is determined by the official designated to supervise and conduct absentee voting not to be qualified for assistance under the provisions of this section and section thirty-four, article one of this chapter may vote a challenged absent voter's ballot with the assistance of any person authorized to render assistance pursuant to this section. The official designated to supervise and conduct absentee voting shall in this case challenge the absent voter's ballot on the basis of If in his or her determination that the voter is not qualified for assistance, the official designated to supervise and conduct early in-person voting shall challenge the voter’s ballot.

    (c) Any one or more of the election commissioners or poll clerks in the precinct to which an absent voter's ballot has been sent may challenge the ballot on the ground that the voter received assistance in voting it when in his or their opinion: (1) The person who received the assistance in voting the absent voter's ballot did not require assistance; or (2) the person who provided the assistance in voting did not make an affidavit as required by this section. The election commissioner or poll clerk or commissioners or poll clerks making a challenge shall enter the challenge and reason for the challenge on the form and in the manner prescribed or authorized by this article.

    (d) Before entering the voting booth or compartment, the person who intends to provide a voter assistance in voting shall make an affidavit, the form of which is to be prescribed by the Secretary of State, that he or she will not in any manner request or seek to persuade or induce the voter to vote any particular ticket or for any particular candidate or for or against any public question and that he or she will not keep or make any memorandum, image or recording, or entry of anything occurring within the voting booth or compartment and that he or she will not, directly or indirectly, reveal to any person the name of any candidate voted for by the voter or which ticket he or she had voted or how he or she had voted on any public question or anything occurring within the voting booth or compartment or voting machine booth, except when required pursuant to law to give testimony as to the matter in a judicial proceeding.

    (e) In accordance with instructions issued by the Secretary of State, the official designated to supervise and conduct early-in-person absentee voting shall provide a form entitled “List of Assisted Voters”. The form of which is to be prescribed by the Secretary of State. The which list is to be divided into two parts. : Part A is to be entitled “Unchallenged Assisted Voters” and Part B is to be entitled “Challenged Assisted Voters”. Under Part A, the official designated to supervise and conduct absentee voting shall enter the name of each voter receiving unchallenged assistance in voting an absent voter's ballot, the address of the voter assisted, the nature of the disability which qualified the voter for assistance in voting an absent voter's ballot, the name and address of the assisted voter, the name of the person providing assistance, and an indication of the person providing the voter with assistance in voting an absent voter's ballot, the fact that the person rendering the assistance has completed the affidavit as prescribed in subsection (c) in voting made and subscribed to the oath required by of this section and the signature of the official designated to supervise and conduct absentee voting certifying to the fact that he or she had determined that the voter who received assistance in voting an absent voter's ballot was qualified to receive the assistance under the provisions of this section. Under Part B shall also include a description of the reason for the challenge issued by the official designated to supervise and conduct early-in-person absentee voting. shall enter the name of each voter receiving challenged assistance in voting, the address of the voter receiving challenged assistance, the reason for the challenge and the name of the person providing the challenged voter with assistance in voting. At the close of the period provided for early-in-person voting, an absent voter's ballot by personal appearance the official designated to supervise and conduct early-in-person absentee voting shall make and subscribe to an oath on the list that the list is correct in all particulars; if no voter has been assisted in voting an early-in-person absent voter's ballot as provided in this section, the official designated to supervise and conduct absentee voting shall make and subscribe to an oath of that fact on the list. The “List of Assisted Voters” is to be available for public inspection in the office of the official designated to supervise and conduct absentee voting during regular business hours throughout the period provided for early-in-person voting an absent voter's ballot by personal appearance and, unless otherwise directed by the Secretary of State, or a court of competent jurisdiction the official shall retain this transmit the list, together with the affidavits of early-in-person voters assistants and other related records for a period of twenty-two months or, if under order of the court, until their destruction or other disposition is authorized or directed by the court. During the time the “List of Assisted Voters” shall remain available for public inspection. applications and absent voters' ballots, to the precincts on election day.

    (f)Following the election, the affidavits required by this section from persons providing assistance in voting, together with the “List of Assisted Voters”, are to be returned by the election commissioners to the clerk of the county commission, along with the election supplies, records and returns, who shall make the oaths and list available for public inspection and who shall preserve the oaths and list for twenty-two months or, if under order of the court, until their destruction or other disposition is authorized or directed by the court.

    (g) (f) Any person making an affidavit required under the provisions of this section who knowingly swears falsely in the affidavit or any person who counsels or advises, aids or abets another in the commission of false swearing under this section, or who renders assistance in the voting an early-in-person ballot when not qualified or permitted under this section to provide assistance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than §1,000 or confined in jail for a period of not more than one year, or both.

    (h) Any person who provides a voter assistance in voting an absent voter's ballot in the office of the official designated to supervise and conduct absentee voting who is not qualified or permitted by this section to provide assistance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in the county or regional jail for a period of not more than one year, or both.

    (i) (g) Any official designated to supervise and conduct early-in-person absentee voting, election commissioner or poll clerk who authorizes or allows a voter to receive or to have received unchallenged assistance in voting an early-in-person absent voter's ballot when the voter is known to the official designated to supervise and conduct absentee voting or election commissioner or poll clerk not to be or have been authorized by the provisions of this section to receive or to have received assistance in voting is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in jail for a period of not more than one year, or both.

    (j) The term "physical disability" as used in this section means blindness or a degree of blindness as will prevent the voter from seeing the names on the ballot or amputation of both hands or a disability of both hands that neither can be used to make cross marks on the absent voter's ballot.

    (h) “Physical Disability” or “Physically Disabled” shall mean blindness or a degree of blindness as will prevent a person from seeing any form, posting, document, ballot, or other writing set forth in this chapter, whether presented on paper or electronically; or any physical condition, whether chronic or temporary, which results in substantial impairment or the person’s ability to conduct any action prescribed by this chapter.

§3-3-5. Voting an absentee ballot by mail or electronically; penalties.

    (a) Upon oral or written request, the official designated to supervise and conduct absentee voting shall provide to any voter of the county, in person, by mail, or electronically the appropriate application for voting absentee by mail as provided in this article. The voter shall complete and sign the application in his or her own handwriting or, if the voter is unable to complete the application because of illiteracy or physical disability, the person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided.

    (b) Completed applications for voting an absentee ballot by mail are to be accepted when received by the official designated to supervise and conduct absentee voting in person, by mail, or electronically within the following times:

    (1) For persons eligible to vote an absentee ballot under the provisions of subdivision (3), subsection (b), section one of this article, relating to absent uniformed services and overseas voters, not earlier than January 1 of an election year or eighty-four days preceding the election, whichever is earlier, and not later than the sixth day preceding the election, which application is to, upon the voter's request, be accepted as an application for the ballots for all elections in the calendar year; and

    (2) For all other persons eligible to vote an absentee ballot by mail, not earlier than eighty-four days preceding the election and not later than the sixth day preceding the election.

    (c) Upon acceptance of a completed application, the official designated to supervise and conduct absentee voting shall determine whether the following requirements have been met:

    (1) The application has been completed as required by law;

    (2) The applicant is duly registered to vote in the precinct of his or her residence and, in a primary election, is qualified to vote the ballot of the political party requested;

    (3) The applicant is authorized for the reasons given in the application to vote an absentee ballot by mail;

    (4) The address to which the ballot is to be mailed is an address outside the county if the voter is applying to vote by mail under the provisions of paragraph (A) or (B), subdivision (2), subsection (b), section one of this article; or subdivision (3) or (4) of said subsection;

    (3) (4) The applicant is not making his or her first vote after having registered by postcard registration or, if the applicant is making his or her first vote after having registered by postcard registration, the applicant is exempt from these requirements if they are physically disabled, a uniformed and overseas voter or attend school out of state; and

    (6) No regular and repeated pattern of applications for an absentee ballot by mail for the reason of being out of the county during the entire period of voting in person exists to suggest that the applicant is no longer a resident of the county.

    (d) If the official designated to supervise and conduct absentee voting determines that the required conditions have been met, two representatives that are registered to vote with not the same different political party designation affiliations shall sign their names in the places indicated on the back of the official ballot. If the official designated to supervise and conduct absentee voting determines the required conditions have not been met, or has evidence that any of the information contained in the application is not true, the official shall give notice to the voter that the voter's absentee ballot will be challenged as provided in this article and shall enter that challenge.

    (e) (1) Within one day after the official designated to supervise and conduct absentee voting has both the completed application and the ballot, the official shall provide mail to the voter at the address given on the application the following items as required and as prescribed by the Secretary of State:

    (A) One of each type of official absentee ballot the voter is eligible to vote, prepared according to law;

    (B) One envelope, unsealed, which may have no marks except the designation "Absent Voter's Ballot Envelope No. 1" and printed instructions to the voter;

    (C) One postage paid envelope, unsealed, designated "Absent Voter's Ballot Envelope No. 2";

    (D) Instructions for voting absentee by mail;

    (E) For electronic systems, a device for marking by electronically sensible pen or ink, as may be appropriate;

    (E) (F) Notice that a list of write-in candidates is available upon request; and

    (F) (G) Any other notice supplies required for voting in the particular voting system.

    (2) If the voter is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. §1973, et seq., the official designated to supervise and conduct absentee voting shall transmit the ballot to the voter via mail, or electronically as requested by the voter. If the voter does not designate a preference for transmittal, the clerk may select either method of transmittal for the ballot. If the ballot is transmitted electronically pursuant to this subdivision, the official designated to supervise and conduct absentee voting shall also transmit electronically:

    (A) A waiver of privacy form, to be promulgated by the Secretary of State;

    (B) Instructions for voting absentee utilizing a federally approved system for voting by mail or electronically;

    (C) Notice that a list of write-in candidates is available upon request; and

    (D) Statement of the voter affirming the voter’s current name and address and whether or not he or she received assistance in voting.

    (f) The voter shall mark the ballot alone: Provided, That the voter may have assistance in voting according to the provisions of section six of this article.

    (1) After the voter has voted the ballot or ballots to be returned by mail, the voter shall:

    (A) Place the ballot or ballots in envelope no. 1 and seal that envelope;

    (B) Place the sealed envelope no. 1 in envelope no. 2 and seal that envelope;

    (C) Complete and sign the forms on envelope no. 2; and

    (D) Return that envelope to the official designated to supervise and conduct absentee voting.

    (2) If the ballot was transmitted electronically as provided in subdivision (2), subsection (e) of this section, the voter shall return the ballot in the same manner the ballot was received, or the voter may return the ballot by United States mail, along with a signed privacy waiver form.

    (g) Except as provided in subsection (h) of this section, absentee ballots returned by United States mail or other express shipping service are to be accepted if:

    (1) The ballot is received by the official designated to supervise and conduct absentee voting no later than the day after the election; or

    (2) The ballot bears a postmark of the United States Postal Service dated no later than election day and the ballot is received by the official designated to supervise and conduct absentee voting no later than the hour at which the board of canvassers convenes to begin the canvass.

    (h) Absentee ballots received through the United States mail from persons eligible to vote an absentee ballot under the provisions of subdivision (3), subsection (b), section one of this article, relating to uniform services and overseas voters, are to be accepted if the ballot is received by the official designated to supervise and conduct absentee voting no later than the hour at which the board of canvassers convenes to begin the canvass.

    (i) Voted ballots submitted electronically pursuant to subdivision (2), subsection (f) of this section are to be accepted if the ballot is received by the official designated to supervise and conduct absentee voting no later than the close of polls on election day: Provided, That the Secretary of State's office shall enter into an agreement with the Federal Voting Assistance Program of the United States Department of Defense to transmit the ballots to the county clerks at a time when two individuals of opposite political parties are available to process the received ballots.

    (j) Ballots received after the proper time which cannot be accepted are to be placed unopened in an envelope marked for the purpose and kept secure for twenty-two months following the election, after which time they are to be destroyed without being opened.

    (k) Absentee ballots which are hand delivered are to be accepted if they are received by the official designated to supervise and conduct absentee voting no later than the day preceding the election: Provided, That no person may hand deliver more than two absentee ballots in any election and any person hand delivering an absentee ballot is required to certify that he or she has not examined or altered the ballot. Any person who makes a false certification violates the provisions of article nine of this chapter and is subject to those provisions.

    (l) Upon receipt of the sealed envelope, the official designated to supervise and conduct absentee voting shall:

    (1) Enter onto the envelope any other required information;

    (2) Enter the challenge, if any, to the ballot;

    (3) Enter the required information into the permanent record of persons applying for and voting an absentee ballot in person; and

    (4) Place the sealed envelope into a ballot box that is secured by two locks with a key to one lock kept by the president of the county commission and a key to the other lock kept by the county clerk.

    (m) Upon receipt of a ballot submitted electronically pursuant to subdivision (2), subsection (f) of this section, the official designated to supervise and conduct absentee voting shall place the ballot in an envelope marked "Absentee by Electronic Means" with the completed waiver: Provided, That no ballots are to be processed without the presence of two individuals of opposite political parties.

    (n) All ballots received electronically prior to the close of the polls on election day are to be tabulated in the manner prescribed for tabulating absentee ballots submitted by mail to the extent that those procedures are appropriate for the applicable voting system. The clerk of the county commission shall keep a record of absentee ballots sent and received electronically.

§3-3-5a. Processing federal postcard applications.

    When a federal postcard registration and absentee ballot request (FPCA), as defined in subdivision (2), subsection (b), section two of this article, is received by the official designated to supervise and conduct absentee voting, the official shall examine the application and take the following steps:

    (1) The official shall first enter the name of the applicant in the permanent absentee voter's record for each election for which a ballot is requested, make a photocopy of the application for each election for which a ballot is requested and place the separate copies in secure files to be maintained for use in the various elections. Unless otherwise specified by the voter, the application shall serve for any federal, state or local election held during the calendar year. Voters must indicate a political party preference on the FPCA or, if not affiliated with a political party as defined in section eight, article one of this chapter, must specifically request the ballot of a political party in order to receive a primary election ballot, provided the political party has elected to allow unaffiliated voters to participate in that party’s primary election.

    (2) The official designated to supervise and conduct absentee voting shall determine if the applicant is registered to vote at the residence address listed in the voting residence section of the application. If the applicant is not registered, or not registered at the address given, the official shall deliver the original FPCA to the clerk of the county commission for processing, and the clerk of the county commission shall process the application as an application for registration and, if the application is received after the close of voter registration for the next succeeding election, the official shall challenge the absentee ballot for that election. up to and including the final day to accept an application for an absentee ballot prior to any election.

    (3) Except as provided in subdivision (2) of this section, the federal application for an absentee ballot received from a person qualified to use the application as provided in section two of this article is to be processed as all other applications and the ballot or ballots for each election for which ballots are requested by the applicant is to be mailed provided to the voter on the first day on which both the application and the ballot are available.

§3-3-5b. Procedures for voting a special write-in absentee ballot by qualified persons.

    (a) Notwithstanding any other provisions of this chapter, a person qualified to vote an absentee ballot in accordance with subdivision (3), subsection (d b), section one of this article may apply not earlier than January 1 of an election year for a special federal write-in absentee ballot for a primary or general election, in conjunction with the application for a regular absentee ballot or ballots. If the application is received after the forty-ninth day preceding the election, the The official designated to supervise and conduct absentee voting shall honor only the application for local, state and federal offices in general, special and primary elections.

    (b) The application for a special federal write-in absentee ballot may be made on the federal postcard application form write-in absentee ballot at the time the federal write-in absentee ballot is submitted.

    (c) In order to qualify for a special federal write-in absentee ballot, the voter must state that he or she is unable to vote by regular absentee ballot or in person due to requirements of military service, or due to living in isolated areas or extremely remote areas of the world, or due to other circumstances making standard absentee voting impracticable or impossible. The federal write-in absentee ballot may be used as a failsafe voting mechanism in the case of a qualified voter who has not timely received a previously requested absentee ballot. This statement may be made on the federal postcard application or on a form prepared approved by the Secretary of State and supplied and returned submitted with the special federal write-in absentee ballot.

    (d) Upon receipt of the application request of a qualified voter within the time required, the official designated to supervise and conduct absentee voting shall issue provide the special federal write-in absentee ballot which is to be the same ballot issued under the provisions of 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986. The ballot is to permit the elector to vote in a primary election by indicating his or her political party affiliation and the names of the specific candidates for each office, and in a general election by writing in a party preference for each office, the names of specific candidates for each office, or the name of the person whom the voter prefers for each office.

    (e) When a special federal write-in absentee ballot is received by the official designated to supervise and conduct absentee voting from a voter: (1) Who mailed the write-in ballot from any location within the United States county of residence; or (2) who is not a qualified voter as defined in accordance with subdivision (3), subsection (b), section one of this article, who did not apply for a regular absentee ballot; (3) who did not apply for a regular absentee ballot by mail; or (4) whose application for a regular absentee ballot by mail was received less than thirty days before the election the write-in ballot may not be counted.

    (f) Any write-in absentee ballot must be received by the official designated to supervise and conduct absentee voting prior to the close of the polls on election day or it may not be counted as provided in subsection (g), section five of this article.

§3-3-5c. Procedures for voting an emergency absentee ballot by qualified voters.

    (a) Notwithstanding any other provision of this chapter, a person qualified to vote an emergency absentee ballot, as provided in subsection (c), section one of this article may vote an emergency absentee ballot under the procedures established in this section. The county commission may adopt a policy extending the emergency absentee voting procedures to: (1) Hospitals or other duly licensed health care facilities within an adjacent county or within thirty-five miles of the county seat; or (2) nursing homes within the county: Provided, That the policy is to be adopted by the county commission at least ninety days prior to the election that will be affected and a copy of the policy is to be filed with the Secretary of State.

    (b) On or before the fifty-sixth day preceding the date on which any election is to be held the official designated to supervise and conduct absentee voting shall notify the county commission of the number of sets of emergency absentee ballot commissioners which he or she determines necessary to perform the duties and functions pursuant to this section.

    (c) A set of emergency absentee ballot commissioners at-large shall consist of two persons with different political party affiliations appointed by the county commission in accordance with the procedure prescribed for the appointment of election commissioners under the provisions of article one of this chapter. Emergency absentee ballot commissioners have the same qualifications and rights and take the same oath required under the provisions of this chapter for commissioners of elections. Emergency absentee ballot commissioners are to be compensated for services and expenses in the same manner as commissioners of election or poll clerks obtaining and delivering election supplies under the provisions of section forty-four, article one of this chapter.

    (d) Upon request of the voter or a member of the voter's immediate family or, when the county commission has adopted a policy to provide emergency absentee voting services to nursing home residents within the county, upon request of a staff member of the nursing home, the official designated to supervise and conduct absentee voting, upon receiving a proper request for voting an emergency absentee ballot no earlier than the seventh day next preceding the election and no later than noon of election day shall supply to the emergency absentee ballot commissioners the application for voting an emergency absentee ballot and the balloting materials. The emergency absentee ballot application is to be prescribed by the Secretary of State and is to include the name, residence address and political party affiliation of the voter, the date, location and reason for confinement in the case of an emergency, and the name of the attending physician if any.

    (e) The application for an emergency absentee ballot is to be signed by the person applying. If the person applying for an emergency absentee ballot is unable to sign his or her application because of illiteracy or physical disability, he or she is to make his or her mark on the signature line provided for an illiterate or disabled applicant, the mark is to be witnessed. The person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided.

    (f) A declaration is to be completed and signed by each of the emergency absentee ballot commissioners, stating their names, the date on which they appeared at the place of confinement of the person applying for an emergency absentee ballot and the particulars of the confinement.

    (g) At least one of the emergency absentee ballot commissioners receiving the balloting materials shall sign a receipt which is to be attached to the application form. Each of the emergency absentee ballot commissioners shall deliver the materials to the absent voter, await his or her completion of the application and ballot and return the application and the ballot to the official designated to supervise and conduct absentee voting. Upon delivering the application and the voted ballot to the official, the emergency absentee ballot commissioners shall sign an oath that no person other than the absent voter voted the ballot. The application and the voted ballot are to be returned to the official designated to supervise and conduct absentee voting prior to the close of the polls on election day. Any ballots received by the official after the time that delivery may reasonably be made but before the closing of the polls are to be delivered to the canvassing board along with the absentee ballots challenged in accordance with the provisions of section ten of this article.

    (h) Upon receiving the application and emergency absentee ballot, the official designated to supervise and conduct absentee voting shall ascertain whether the application is complete, whether the voter appears to be eligible to vote an emergency absentee ballot, and whether the voter is properly registered to vote with the office of the clerk of the county commission. If the voter is found to be properly registered in the precinct shown on the application, the ballot is to be delivered to the precinct election commissioner pursuant to section seven of this article. If the voter is found not to be registered or is otherwise ineligible to vote an emergency ballot, the ballot is to be challenged for the appropriate reason provided for in section ten of this article.

    (i) If either or both of the emergency absentee ballot commissioners refuse to sign any application for voting an emergency absentee ballot, the voter may vote as an emergency absentee and the ballot will be challenged in accordance with the provisions of section ten of this article, in addition to those absentee ballots subject to challenge as provided in that section.

    (j) Any voter who receives assistance in voting an emergency absentee ballot shall comply with the provisions of section six of this article. Any other provisions of this chapter relating to absentee ballots not altered by the provisions of this section are to govern the treatment of emergency absentee ballots.

§3-3-6. Assistance to voter in voting an absent voter's ballot by mail.

    No voter shall receive any assistance in voting an absent voter's ballot by mail unless he or she shall make a declaration at the time he or she makes application for an absent voter's ballot that because of blindness, disability, advanced age or inability to read or write he or she requires assistance in voting an absent voter's ballot.

    Upon receipt of an absent voter's ballot by mail, the voter who requires assistance in voting such ballot and who has indicated he or she requires such assistance and the reasons therefor on the application may select any eligible person to assist him or her in voting as defined in section three, article three, of this chapter.

    The person providing assistance in voting an absent voter's ballot by mail shall make an affidavit on a form as may be prescribed by the Secretary of State, that he or she will not in any manner request, or seek to persuade, or induce the voter to vote any particular ticket or for any particular candidate or for or against any public question, and that he or she will not keep or make any memorandum or entry of anything occurring within the voting booth or compartment, and that he or she will not, directly or indirectly, reveal to any person the name of any candidate voted for by the voter, or which ticket he or she had voted, or how he or she had voted on any public question, or anything occurring within the voting booth or compartment or voting machine booth, except when required pursuant to law to give testimony as to such matter in a judicial proceeding.

    The term "assistance in voting" as used in this section shall mean assistance in physically marking the official absent voter's ballot for a voter, or reading or directing the voter's attention to any part of the official absent voter's ballot.

 



    NOTE: The purpose of this bill is to eliminate noncompliance with federal law; to remove restrictions on absentee ballots; and to remove obsolete and outdated code language.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ****