ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 610
(Senators Kessler and Hunter, original sponsors)
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[Passed March 6, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §3-4A-1, §3-4A-8, §3-4A-23, §3-4A-26
and §3-4A-28 of the Code of West Virginia, 1931, as amended,
all relating to electronic voting systems generally; requiring
each county to develop a policy for securing electronic voting
equipment; requiring vendor of electronic voting equipment to
provide an annual report of any difficulties with electronic
voting machines; restricting certain recording and electronic
devices from the voting booth; providing for additional
testing of electronic voting machines in certain
circumstances; providing for testing a set of preaudited group
of ballots; and allowing qualified individuals to demand
recount.
Be it enacted by the Legislature of West Virginia:
That §3-4A-1, §3-4A-8, §3-4A-23, §3-4A-26 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 SYSTEM.
§3-4A-1. Use of electronic voting systems authorized.
(a) Electronic voting systems may be used for the purpose of
registering or recording and computing votes cast in general,
special and primary elections:
Provided, That the use of the
electronic voting systems shall be governed by the terms,
conditions, restrictions and limitations imposed by this article.
(b) Each county which is authorized to use electronic voting
systems in any statewide election shall establish a written policy
for securing the electronic voting equipment. The policy shall
outline how the equipment is secured from tampering and under what
circumstances county personnel are authorized to have access. The
clerk of the county commission shall submit a copy of the policy to
the Secretary of State by the first day of February in each
even-numbered year. The clerk shall also submit a copy of any
change to the policy within thirty days after its adoption.
§3-4A-8. Approval of electronic voting system by State Election
Commission; expenses; compensation of persons
examining system.
(a) Any person or corporation owning or interested in any
electronic voting system may apply to the State Election Commission
so that the system may be examined and a report be made on its
accuracy, efficiency, capacity and safety. Upon the written application of any vendor tendered to the Secretary of State or to
any clerks in his or her office in charge of receiving filings for
any purpose, the Secretary of State shall fix a date, time and
place, not more than thirty days after the receipt of the
application, for a meeting of the State Election Commission for
mutual consideration of the application. The Secretary of State
shall mail notice of the hearing by certified mail to each member
of the commission.
(b) The State Election Commission shall appoint two qualified
computer experts who are not members of the same political party to
examine the system and make full reports on the system to the
commission within thirty days from the date of the application.
They shall state in the report whether the examined system complies
with the requirements of this article and can be safely used by
voters at elections under the conditions prescribed in this
article. If the report is in the affirmative on that question, the
commission may approve the system and adopt a system of its make
and design for use at elections as provided in this article:
Provided, That under no circumstances may a system be approved that
is not capable of accurately tabulating returns based upon all
possible combinations of voting patterns including, but not limited
to, crossover voting and in accordance with section five, article
six of this chapter. The vendor of the approved system shall
provide the State Election Commission with a report, due on the first day of January of each even-numbered year, that outlines any
problem that has been experienced with the equipment by any
jurisdiction in the state or in any jurisdiction outside the state
that uses the same or a similar version of the equipment that has
been certified for use in this state.
(c) No electronic voting system may be used at any election
unless it has been approved under this section or its former
provisions and by the appropriate agency of the federal government
whose purpose is to review and issue a certificate of approval.
Each of the two qualified computer experts appointed by the
commission are entitled to reasonable compensation and expenses in
making the examination and report, to be paid in advance of the
examination required by subsection (b) of this section by the
person or corporation applying for the examination. This sum shall
be the sole compensation to be received by any expert for any work
performed pursuant to this section.
§3-4A-23. Persons prohibited about voting booths; penalties.
Excepting election officials acting under authority of
sections nineteen, twenty, twenty-one and twenty-two of this
article in the conduct of the election, and qualified persons
assisting voters pursuant to section twenty-two of this article, no
person other than the voter may be in, about or within five feet of
the voting booth during the time the voter is voting at any
election. While the voter is voting, no person may communicate with the voter in any manner and the voter may not communicate with
any other person or persons. No person may enter a voting booth
with any recording or electronic device in order to record or
interfere with the voting process. Any conduct or action of an
election official about or around the voting booth while the voter
is in the process of voting, except as expressly provided in this
article, is a violation of this section. Any person violating the
provisions of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars or be sentenced to imprisonment in the county jail for a
period not more than twelve months or, in the discretion of the
court, shall be subject to both such fine and imprisonment.
§3-4A-26. Test of automatic tabulating equipment.
(a) One week prior to the start of the count of the votes
recorded on ballots or screens, the clerk of the county commission
shall have the automatic tabulating equipment tested to ascertain
that it will accurately count the votes cast for all offices and on
all measures. This test shall consist of a test of the entire
voting system, including removal of data from a vote-recording
device and its transferral to automatic tabulating equipment. The
county commission shall give public notice of the time and place of
the test not less than forty-eight hours nor more than two weeks
prior to the test by publication of a notice as a Class I-0 legal
advertisement in the county involved, in compliance with the provisions of article three, chapter fifty-nine of this code.
(b)(1) Vote-recording devices used and tested for early voting
may also be used on election day upon compliance with all of the
following requirements:
(A) Following the close of early voting, the personal
electronic ballot and the programable memory chip shall be removed
and replaced with another personal electronic ballot and
programable memory chip prepared for, but unused during, the
current election period;
(B) The printed paper trail used during the early voting
period shall be removed and replaced with a new paper trail; and
(C) The vote-recording device shall be retested prior to being
used on election day.
(2) Any personal electronic ballot programable memory chip and
printed paper trail removed from a vote-recording device used for
early voting shall be securely stored by the county clerk until
such time as it is used to tally the votes on election day in
accordance with section twenty-seven of this article.
(c) (1) A test performed pursuant to this section shall be
open to representatives of the political parties, candidates, the
press and the public. It is to be conducted by processing a set of
preaudited ballots marked to record a predetermined number of valid
votes for each candidate or each measure. For each multicandidate
office, the test shall include one or more ballots which have cross-over votes in order to test the ability of the automatic
tabulating equipment to record those votes in accordance with the
provisions of this article and any other applicable law. For each
office, the test shall include one or more ballots which have votes
in excess of the number allowed by law in order to test the ability
of the automatic tabulating equipment to reject votes. If, in the
process of any of the test counts, any error is detected, the cause
of the error is to be ascertained and corrective action promptly
taken. After the completion of the corrective action, the test
counts are to continue, including a retesting of those precincts
previously test counted. Prior to the continuation of the testing,
the county commission shall certify in writing, signed by each
commissioner, the nature of the error, its cause and the type of
corrective action taken. The certification shall be recorded in
the office of the clerk of the county commission in the record
book. Immediately after conclusion of this completed test, a
certified duplicate copy of the test results shall be sent by
certified mail to the offices of the State Election Commission,
where it is to be preserved and secured for one year and made
available for comparison or analysis by order of a circuit court or
the Supreme Court of Appeals.
(2) The tabulating equipment to be used in the election shall
be immediately certified by the county commission to be free from
error as determined by the test. All testing material shall be placed with the certification in a sealed container and kept under
individual multiple locks with individual keys for each lock. The
number of locks and keys shall be the same as the number of county
commissioners together with the county clerk, with each
commissioner and the county clerk having a single key in his or her
possession. The sealed container shall be opened to conduct the
test required immediately before the start of the official count.
(3) The test shall be repeated immediately before the start of
the official count and at the conclusion of the official count
before the count is approved as errorless and before the election
returns are approved as official.
(4) All results of all of the tests are to be immediately
certified by the county commission, filed in the office of the
clerk of the county commission and immediately recorded in the
record book. On completion of the count, the test materials and
test ballots are to be sealed, except for purposes of the canvass
as provided in section twenty-eight of this article, and retained
and kept under individual multiple locks and individual keys for
each lock. The number of locks and keys shall be the same as the
number of county commissioners together with the county clerk, with
each commissioner and the county clerk having a single key in his
or her possession.
§3-4A-28. Post-election custody and inspection of vote-recording
devices; canvass and recounts.
(a) The vote-recording devices, tabulating programs and
standard validation test ballots are to remain sealed during the
canvass of the returns of the election, except that the equipment
may be opened for the canvass and must be resealed immediately
thereafter. During the 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 shall 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 the seven-day period has expired, the vote-
recording devices, test results and standard validation test
ballots 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 discussed in this section 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, as required by subsection (d) of this
section, all of the vote-recording devices, the automatic tabulating equipment used in the election and those voter-verified
paper ballots generated by direct recording electronic vote
machines, 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 qualified individual demands a recount of the votes
cast at an election, the voter-verified paper ballot shall be used
according to the same rules that are used in the original vote
count pursuant to section twenty-seven of this article. For
purposes of this subsection, "qualified individual" means a person
who is a candidate for office on the ballot or a voter affected by
an issue, other than an individual's candidacy, on the ballot.
(d) During the canvass and any requested recount, at least
five percent of the precincts are to be chosen at random and the
voter-verified paper ballots are to be counted manually. 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 the
randomly selected 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 where 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 is the vote of record.