Senate Bill No. 556
(By Senators Kessler, Snyder and Williams)
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[Introduced February 12, 2010; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §3-1-31, §3-1-34 and §3-1-50 of the
Code of West Virginia, 1931, as amended; and to amend and
reenact §8-5-14 of said code, all relating to elections;
hours of municipal elections and notice of changes; voting
procedures; and administrative complaint procedures.
Be it enacted by the Legislature of West Virginia:
That §3-1-31, §3-1-34 and §3-1-50 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that
§8-5-14 of said code be amended and reenacted, all to read as
follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-31. Days and hours of elections.
General elections shall be held in the several election precincts of the state on the Tuesday next after the first Monday
in November of each even year. Primary and special elections shall
be held on the days provided by law therefor.
Other than as provided for municipal elections in section
fourteen, article five, chapter eight of this code, at every
primary, general or special election the polls shall be opened in
each precinct on the day of such election at six-thirty o'clock
in the forenoon and be closed at seven-thirty o'clock in the
evening.
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and
residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall sign his or her name in the designated location provided at
the precinct. If that person is physically or otherwise unable to
sign his or her name, his or her mark shall be affixed by one of
the poll clerks in the presence of the other and the name of the
poll clerk affixing the voter's mark shall be indicated immediately
under the affixation. No ballot may be given to the person until
he or she signs his or her name on the designated location or his
or her signature is affixed thereon.
(b) The clerk of the county commission is authorized, upon verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person
for a transfer of registration must be received by the county clerk
no later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of
registration at least thirty days prior to the date of the election
may vote a provisional ballot at a handicap accessible polling
place in the county of his or her registration. If during the
canvass the county commission determines that the person had been
registered in a precinct that is not handicap accessible, the voted
ballot, if otherwise valid, shall be counted. The handicapped
person may vote in the precinct to which the registration was
transferred only as long as the disability exists or the precinct
from which the handicapped person was transferred remains
inaccessible to the handicapped. To ensure confidentiality of the
transferred ballot, the county clerk processing the ballot shall
provide the voter with an unmarked envelope and an outer envelope
designated "provisional ballot/handicapped voter". After
validation of the ballot at the canvass, the outer envelope shall
be destroyed and the handicapped voter's ballot shall be placed
with other approved provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) When the voter's signature is properly marked, the two poll clerks shall sign their names in the places indicated on the
back of the official ballot and deliver the ballot to the voter to
be voted by him or her without leaving the election room. If he or
she returns the ballot spoiled to the clerks, they shall
immediately mark the ballot "spoiled" and it shall be preserved and
placed in a spoiled ballot envelope together with other spoiled
ballots to be delivered to the board of canvassers and deliver to
the voter another official ballot, signed by the clerks on the
reverse side. The voter shall thereupon retire alone to the booth
or compartment prepared within the election room for voting
purposes and there prepare his or her ballot. In voting for
candidates in general and special elections, the voter shall comply
with the rules and procedures prescribed in section five, article
six of this chapter.
(d) It is the duty of a poll clerk, in the presence of the
other poll clerk, to indicate by a check mark, or by other means,
inserted in the appropriate place on the registration record of
each voter the fact that the voter voted in the election. In
primary elections the clerk shall also insert thereon a
distinguishing initial or initials of the political party for whose
candidates the voter voted. If a person is challenged at the
polls, the challenge shall be indicated by the poll clerks on the
registration record, together with the name of the challenger. The
subsequent removal of the challenge shall be recorded on the
registration record by the clerk of the county commission.
(e) (1) No voter may receive any assistance in voting unless,
by reason of blindness, disability, advanced age or inability to
read and write, that voter is unable to vote without assistance.
Any voter qualified to receive assistance in voting under the
provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request,
shall read to the voter the names of the candidates selected on the
ballot;
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner
hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter
is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct by the absentee balloting
method provided in subsection (e), section five, article three of
this chapter in the presence of an election commissioner of each political party if all of the following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
(2) The voted ballot shall then be returned to the precinct
officials and secured in a sealed envelope to be returned to the
clerk of the county commission with all other election materials.
The ballot shall then be tabulated using the appropriate method
provided in section eight of this chapter as it relates to the
specific voting system in use.
(3) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(4) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that
the voter thereof received assistance in voting it when in his, her
or their opinion the person who received assistance in voting is
not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the
form and in the manner prescribed or authorized by article three of
this chapter.
(5) An election commissioner or other person who assists a
voter in voting:
(A) May 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 must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must 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; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the Secretary of State stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation:
Provided, That no person providing
assistance to a voter is required to sign an oath or affirmation
where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(6) In accordance with instructions issued by the Secretary of
State, the clerk of the county commission shall provide a form
entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the Secretary of State. The
commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) After preparing the ballot, the voter shall fold the
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall announce his or her
name and present his or her ballot to one of the commissioners who
shall hand the same to another commissioner, of a different
political party, who shall deposit it in the ballot box if the
ballot is the official one and properly signed. The commissioner
of election may inspect every ballot before it is deposited in the
ballot box to ascertain whether it is single, but without unfolding
or unrolling it so as to disclose its content. When the voter has
voted, he or she shall retire immediately from the election room
and beyond the
sixty-foot three hundred-foot limit thereof and may not return except by permission of the commissioners.
(g) Following the election, the oaths or affirmations required
by this section from those assisting voters, together with the
"list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the
election supplies, records and returns. The clerk of the county
commission shall make the oaths, affirmations and list available
for public inspection and shall preserve them for a period of
twenty-two months or until disposition is authorized or directed by
the Secretary of State or court of record:
Provided, That the
clerk may use these records to update the voter registration
records in accordance with subsection (d), section eighteen,
article two of this chapter.
(h) Any person making an oath or affirmation required under
the provisions of this section who knowingly swears falsely or any
person who counsels, advises, aids or abets another in the
commission of false swearing under this section 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 fined and confined.
(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when the voter is known
to the election commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than $5,000 or imprisoned in a state correctional facility for a period of not less than one year
nor more than five years, or both fined and imprisoned.
§3-1-50. Establishment of state-based administrative complaint
procedures.
The Secretary of State shall establish and maintain a state-
based administrative complaint procedure for complaints received
concerning election violations which shall meet the following
requirements:
(1) The procedures shall be uniform and nondiscriminatory.
(2) Under the procedures, any person who believes that there
is a violation of any provision of
this chapter Title III of the
Help America Vote Act of 2002, 42 United States Code §§15481 and
15485, including a violation which has occurred, is occurring or is
about to occur, may file a complaint.
(3) Any complaint filed under the procedures shall be in
writing, notarized and signed and sworn by the person filing the
complaint.
(4) The Secretary of State may consolidate complaints filed
under this section.
(5) At the request of the complainant, there shall be a
hearing on the record.
(6) Violations of any provision of this chapter shall be
punishable in accordance with the provisions of article nine of
this chapter.
(7) If, under the procedures, the Secretary of State determines that there is no violation, the Secretary of State shall
dismiss the complaint and publish the results of the procedures.
(8) The Secretary of State shall make a final determination
with respect to a complaint prior to the expiration of the
ninety-day period which begins on the date the complaint is filed
unless the complainant consents to a longer period for making a
determination.
(9) If the Secretary of State fails to meet the deadline
applicable under subdivision (8) of this section, the complaint
shall be resolved within sixty days under alternative dispute
resolution procedures established for purposes of this section.
The record and other materials from any proceedings conducted under
the complaint procedures established under this section shall be
made available for use under the alternative dispute resolution
procedures.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 5. ELECTION, APPOINTMENT, QUALIFICATION AND COMPENSATION
OF OFFICERS; GENERAL PROVISIONS RELATING TO OFFICERS
AND EMPLOYEES; ELECTIONS AND PETITIONS GENERALLY;
CONFLICT OF INTEREST.
§8-5-14. Municipal executive committees; election expenses;
applicability of state primary and general election
laws; election days and hours; notice
.
Except as otherwise provided by charter provision or ordinance or this code, municipal executive committees shall exercise similar
functions and be governed by the same laws in regard to municipal
primary elections and regular municipal elections as county
executive committees in regard to county-state primary and general
elections, so far as the same may be applicable. All expenses of
conducting municipal primary elections and regular municipal
elections shall be paid by the municipality. The provisions of
chapter three of this code, referring more particularly to primary
elections and general elections, shall, so far as the same can be
applied and so far as not otherwise provided by charter provision
or ordinance, govern the conduct of municipal primary elections and
regular municipal elections, as the case may be. No municipal
primary election shall be held on the day of the county-state
primary election except as provided in section five of this article
nor less than twenty-five days immediately preceding the regular
municipal election, unless a shorter period of time is established
by charter or ordinance.
A municipality may, by charter provision
or ordinance, set times that polls are open on election day other
than the times provided in section thirty-one, article one, chapter
three of this code: Provided, That the municipal election
officials provide written notice of hours differing from those
proscribed in section thirty-one, article one, chapter three of
this code to each eligible voter not less than twenty-five days
prior to election day through publication in a qualified newspaper
in the manner as outlined in section ten (b), article five, chapter three of this code.
NOTE: The purpose of this bill is to remove ambiguity in the
required hours of municipal elections and to provide for notice to
voters of differing times; to correct a conflicting distance limit
provided in the voting procedures code from 60 feet to 300 feet;
and to modify the complaint procedure code to reflect passage of
the Help America Vote Act of 2002, 42 United States Code §§15481
and 15485.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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