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Engrossed Version Senate Bill 477 History

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SB477 SUB1 eng
ENGROSSED


COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 477

(By Senators White and Yoder)

____________

[Originating in the Committee on the Judiciary;

reported March 24, 2005.]

____________


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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