ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 477
(By Senators White and Yoder)
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[Originating in the Committee on the Judiciary;
reported March 24, 2005.]
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A BILL to amend and reenact §3-4A-9 and §3-4A-28 of the Code of
West Virginia, 1931, as amended, all relating to vote-
recording devices; requiring a paper copy of a voter's votes
when using an electronic voting system to vote; establishing
standards; providing that the paper copy can only be used for
a random count of precincts or if an election is contested,
challenged or disputed; authorizing rules; and clarifying
post-election custody procedures for voting devices material.
Be it enacted by the Legislature of West Virginia:
That §3-4A-9 and §3-4A-28 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may
not be approved by the State Election Commission or be purchased, leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the
act of voting or, at the voter's election, provides for open
voting;
(2) It is constructed to ensure that no person, except in
instances of open voting as provided for in this section, can see
or know for whom any voter has voted or is voting;
(3) It permits each voter to vote at any election for all
persons and offices for whom and which he or she is lawfully
entitled to vote, whether or not the name of any person appears on
a ballot or ballot label as a candidate; and it permits each voter
to vote for as many persons for an office as he or she is lawfully
entitled to vote for; and to vote for or against any question upon
which he or she is lawfully entitled to vote. The automatic
tabulating equipment used in electronic voting systems is to reject
choices recorded on any ballot if the number of choices exceeds the
number to which a voter is entitled;
(4) It permits each voter to deposit, write in, affix upon a
ballot, card, envelope or other medium to be provided for that
purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots or
ballot labels;
(5) It permits each voter to change his or her vote for any
candidate and upon any question appearing upon the ballots or
ballot labels up to the time when his or her ballot is deposited in the ballot box or his or her ballot is cast by electronic means;
(6) It contains a program deck consisting of cards that are
sequentially numbered or consisting of a computer program disk,
diskette, tape or other programming media containing sequentially
numbered program instructions and coded or otherwise protected from
tampering or substitution of the media or program instructions by
unauthorized persons and capable of tabulating all votes cast in
each election;
(7) It contains two standard validation test decks approved as
to form and testing capabilities by the State Election Commission;
(8) It correctly records and counts accurately all votes cast
for each candidate and for and against each question appearing upon
the ballots or ballot labels;
(9) It permits each voter at any election other than primary
elections by one mark or punch to vote a straight party ticket as
provided in section five, article six of this chapter;
(10) It permits each voter in primary elections to vote only
for the candidates of the party for which he or she is legally
permitted to vote and precludes him or her from voting for any
candidate seeking nomination by any other political party, permits
him or her to vote for the candidates, if any, for nonpartisan
nomination or election and permits him or her to vote on public
questions;
(11) It, where applicable, is provided with means for sealing
or electronically securing the vote recording device to prevent its
use and to prevent tampering with ballot labels, both before the polls are open or before the operation of the vote recording device
for an election is begun and immediately after the polls are closed
or after the operation of the vote recording device for an election
is completed;
(12) It has the capacity to contain the names of candidates
constituting the tickets of at least nine political parties and
accommodates the wording of at least fifteen questions;
(13) (A) Direct recording electronic voting machines shall
generate a paper copy of each voter's votes that will be
automatically kept within a storage container that is locked,
closely attached to the direct recording electronic voting machine
and inaccessible to all but authorized voting officials who shall
handle the storage containers and paper copies contained in the
storage containers in accordance with section nineteen of this
article.
(B) The paper copy of the voter's vote shall be generated at
the time the voter is at the voting station using the direct
recording electronic voting machine.
(C) The voter may examine the paper copy visually or through
headphone readout and may accept or reject the printed copy.
(D) The voter may not touch, handle or manipulate the printed
copy.
(E) Upon acceptance of the printed copy of the voter's votes
by the voter as correctly reflecting the voter's intent, but not
before, it shall automatically be stored for recounts or random
checks and the electronic vote shall be cast within the computer mechanism of the direct recording electronic voting machine.
(F) Direct recording electronic voting machines with a
mandatory paper copy shall be approved by the Secretary of State.
The Secretary of State may promulgate emergency and legislative
rules to implement and enforce this subsection pursuant to the
provisions of article three, chapter twenty-nine-a of this code.
(13) (14) Where vote recording devices are used, they shall:
(A) Are Be durably constructed of material of good quality and
in a workmanlike manner and in a form which makes it safely
transportable;
(B) Are so Be constructed with frames for the placing of
ballot labels that the labels upon which are printed the names of
candidates and their respective parties, titles of offices and
wording of questions are reasonably protected from mutilation,
disfigurement or disarrangement or are constructed to ensure that
the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are
reasonably protected from any modification;
(C) Bear a number that will identify it or distinguish it from
any other machine;
(D) Are Be constructed to ensure that a voter may easily learn
the method of operating it and may expeditiously cast his or her
vote for all candidates of his or her choice and upon any public
question;
(E) Are Be accompanied by a mechanically or electronically
operated instruction model which shows the arrangement of ballot labels, party columns or rows and questions;
(F) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;
(G) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates
for any office or who attempts to cast his or her ballot prior to
its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of
the ballot;
(H) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the
voter sees all of the ballot options on all pages before completing
his or her vote and to allow the voter to review and change all
ballot choices prior to completing and casting his or her ballot;
(I) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to allow election commissioners to spoil a ballot where a voter fails to properly cast his or her ballot,
has departed the polling place and cannot be recalled by a poll
clerk to complete his or her ballot;
(J) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to allow election commissioners, poll
clerks, or both, to designate, mark or otherwise record provisional
ballots;
(K) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within
each device's internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;
(L) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;
(M) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;
(N) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to record all preelection, election and
post-election activities, including all ballot images and system
anomalies, in each device's internal electronic memory and are to
be accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed with a battery backup system in each
device to, at a minimum, prevent the loss of any votes, as well as
all preelection, election and post-election activities, including
all ballot images and system anomalies, stored in the device's
internal electronic memory and to allow voting to continue for two
hours of uninterrupted operation in case of an electrical power
failure; and
(P) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are be constructed to prevent the loss of any votes, as well
as all preelection, election and post-election activities,
including all ballot images and system anomalies, stored in each
device's internal electronic memory even in case of an electrical
and battery power failure.
§3-4A-28. Post-election custody and inspection of vote recording
devices; canvass and recounts.
(a) The vote recording devices, the ballot labels, ballot
cards, program decks and standard validation test decks are to remain sealed during the canvass of the returns of the election and
for a period of seven days thereafter, except that the equipment
may be opened for the canvass and it is to shall be resealed
immediately thereafter. During that a seven-day period after the
completion of the canvass, any candidate or the local chair of a
political party may be permitted to examine any of the sealed
materials: Provided, That a notice of the time and place of the
examination is to be posted at the central counting center before
and on the hour of nine o'clock in the morning on the day the
examination is to occur and all persons entitled to be present at
the central counting center may, at their option, be present. Upon
completion of the canvass and after a seven-day period has expired,
the vote-recording devices, the ballot labels, ballot cards,
program decks and standard validation test decks are to be sealed
for one year: Provided, however, That the vote-recording devices
and all tabulating equipment may be released for use in any other
lawful election to be held more than ten days after the canvass is
completed and any of the electronic voting equipment herein
discussed may be released for inspection or review by a request of
a circuit court or the supreme court of appeals.
(b) In canvassing the returns of the election, the board of
canvassers shall examine all of the vote-recording devices, the
ballot labels, ballot cards and, the automatic tabulating equipment
used in the election and the voter-verified paper ballots generated
by direct recording electronic vote machines as required by
subsection (d) of this section and shall determine the number of votes cast for each candidate and for and against each question and
by this examination shall procure the correct returns and ascertain
the true results of the election. Any candidate or his or her
party representative may be present at the examination.
(c) If any candidate demands a recount of the votes cast at an
election, the ballots and ballot cards are to be reexamined during
the recount for the purpose of reascertaining the total number of
votes cast for any candidate in the same manner the voter-verified
paper ballot shall be used for requested recounts according to the
same rules as are utilized in the original vote count pursuant to
section twenty-seven of this article.
(d) During the canvass and any requested recount, at least
five percent of the precincts are to be chosen at random and the
ballot cards cast voter-verified paper ballots are to be counted
manually. Where electronic voting systems are used that utilize
screens upon which votes are recorded by means of a stylus or by
means of touch, at least five percent of the precincts are to be
chosen at random, upon any requested recount, and the ballot images
are to be printed from the internal electronic memory of the voting
device and are to be counted manually. The same random selection
is also to be counted by the automatic tabulating equipment. If
the variance between the random manual count and the automatic
tabulating equipment count of the same random ballots, is equal to
or greater than one percent, then a manual recount of all ballot
cards is required. In the course of any recount, if a candidate
for an office demands, or if the board of canvassers elects to recount the votes cast for an office, the votes cast for that
office in any precinct are to be recounted by manual count.
Whenever the vote total obtained from the manual count of the voter
verified paper ballots for all votes cast in a randomly selected
precinct:
(1) Differs by more than one percent from the automated vote
tabulation equipment; or
(2) Results in a different prevailing candidate or outcome,
either passage or defeat, of one or more ballot issues in such
precincts for any contest or ballot issue;, then the discrepancies
shall immediately be disclosed to the public and all of the
voter-verified paper ballots shall be manually counted. In every
case that there is a difference between the vote totals obtained
from the automated vote tabulation equipment and the corresponding
vote totals obtained from the manual count of the voter-verified
paper ballots, the manual count of the voter-verified paper ballots
shall be the vote of record.
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