Senate Bill No. 685
(By Senators Kessler, Minard, Foster, Edgell,
D. Facemire and Oliverio)
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[Introduced February 22, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §3-1-2 of the Code of West Virginia,
1931, as amended; to amend and reenact §3-4-18 and §3-4-19 of
said code; and to amend and reenact §3-4A-9 and §3-4A-20 of
said code, all relating to elections; general provisions and
definitions; bringing older contradicting language still
remaining in said code into conformity with the provisions of
§3-2-5(b)(3) of said code; and reestablishing a definition for
"independent voter" as the presently cited definition is no
longer in said code.
Be it enacted by the Legislature of West Virginia:
That §3-1-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §3-4-18 and §3-4-19 of said code be
amended and reenacted; and that §3-4A-9 and §3-4A-20 of said code
be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-2. Scope of chapter; definitions.
Unless restricted by the context, the provisions of this
chapter shall apply applies to every general, primary and special
election in which candidates are nominated or elected or in which
voters pass upon any public question submitted to them, except that
the provisions hereof shall be construed to be operative in
municipal elections only in those instances in which they are made
expressly so applicable.
Unless the context clearly requires a different meaning, as
herein used:
"Voter" shall mean means any person who possesses the
statutory and constitutional qualifications for voting;
"Independent" means any registered voter who declined to state
a preference for party affiliation on their voter registration or
who listed a party affiliation which is not qualified as a
political party as defined in section eight, article one of this
chapter.
"Election" shall mean means the procedures whereby the voters
of this state or any subdivision thereof elect persons to fill
public offices, or elect members of a constitutional convention, or
vote on public questions;
"Any election" or "all elections" shall include includes every
general, primary or special election held in this state, or in any of its subdivisions, for the purpose of nominating or electing
federal or state officers, or county, city, town or village
officers of any subdivision now existing or hereafter created, or
for the purpose of electing members of a constitutional convention,
or for voting upon any public question submitted to the people of
the state or any of the aforesaid subdivisions;
"Office" shall be construed to mean "public office" which
shall include: (1) Any elective office provided for by the
constitution or laws of the United States or of this state to which
a salary or other compensation attaches; and (2) membership in a
constitutional convention.
"Candidate" shall mean means any person to be voted for at an
election;
"Public question" shall mean means any issue or proposition,
now or hereafter required by the governing body of this state or
any of its subdivisions to be submitted to the voters of the state
or subdivision for decision at elections;
The term "minor" as used in article four, section one of the
State Constitution and as used in this chapter shall mean means a
person who has not become eighteen years of age.
ARTICLE 4. VOTING MACHINES.
§3-4-18. Conducting voting machine elections generally; duties of
election officials.
(1) The election officers shall constantly and diligently
maintain a watch in order to see that
no a person
votes does not
vote more than once and to prevent any voter from occupying the
voting machine for more than three minutes.
(2) In primary elections before a voter is permitted to use
the voting machine, the election officer representing the party
to
of which the voter belongs shall adjust the machine so that the
voter will be able to vote only for the candidates who are seeking
nomination on the ticket of the party with which the voter is
affiliated,
(3) If the machine is so constructed as to require adjustment
after one person has voted before another person can vote, the
election officers shall so adjust it after each person has voted.
(4) The election officers shall issue to each voter when he
signs the poll book a card or ticket numbered to correspond to the
number on the poll book of such voter, and in the case of a unless
the voter requests an alternative ballot of a political party which
has determined such a voter may participate in its primary election
voting.
indicating the party affiliation of such voter, which
numbered card or ticket shall be presented to the election officer
in charge of the machine
§3-4-19. "Independent" voting in primary elections.
If at any primary elections nonpartisan candidates for office and public questions are submitted to the voters and on which
candidates and questions persons registered as "independent" are
entitled to vote, as provided in section
eighteen five(b)(3) of
article two of this chapter, the election officers shall adjust the
voting machines, if mechanically possible to do so, so that such
"independent" voters may vote only those portions of the voting
machine ballot relating to the nonpartisan candidates and the
public questions submitted,
unless the voter requests an
alternative ballot of a political party which has determined such
a voter may participate in its primary election voting.
If the voting machines cannot be so adjusted for the
"independent" voters, then such "independent" voters, under the
close supervision of two commissioners of the election of different
political party affiliation, shall be permitted to use the voting
machines for voting only those parts of the ballot relating to such
nonpartisan candidates and public questions so submitted to the
voters,
unless the voter requests an alternative ballot of a
political party which has determined such a voter may participate
in its primary election.
In lieu of using the voting machines, such "independent"
voters may request official printed ballots.
relating to such
nonpartisan candidates and public questions. Such These ballots,
when signed on the back by the poll clerks as in other elections, shall be voted and folded by the "independent" voter and shall be
delivered to one of the election commissioners who shall secure
same in a sealed or locked container until canvassed and counted in
the same manner as provided for handling and recording absent voter
ballots as provided in the section next hereafter.
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 a person, except in
instances of open voting as provided in this section,
can may not
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
of 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
each for the 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
unless
that political party has determined such a voter may participate in
its primary election voting, permits him or her to vote for the
candidates, if any, for nonpartisan
nomination nominations 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
at 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 must
generate a paper copy of each voter's
votes vote 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 will
handle such storage containers and such paper copies contained
therein 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 manually in any way.
(E) Once the printed copy of the voter's votes is accepted by
the voter as correctly reflecting the voter's intent, but not
before, it will automatically be stored for recounts or random
checks and the electronic vote will 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 rules and emergency rules to
implement or enforce this subsection pursuant to the provisions of section five, article three, chapter twenty-nine-a of this code.
(14) Where vote recording devices are used, they shall:
(A) Be durably constructed of material of good quality and in
a workmanlike manner and in a form which makes it safely
transportable;
(B) 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 office 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
any from modification;
(C) Bear a number that will identify it or distinguish it from
any other machine;
(D) 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) 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:
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;
(i) 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, (ii) 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, (iii) 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, (iv) 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, (v) 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, (vi) 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, (vii) 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, (viii) 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, (ix) 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, (x) 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, (xi) 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-20. "Independent" voting in primary elections.
If at any primary elections, nonpartisan candidates for office
and public questions are submitted to the voters on which persons
registered as "independent" are entitled to vote, as provided in
section
eighteen five(b)(3), article two of this chapter, the
election officers shall provide a vote recording device, where
applicable, or the appropriate ballot to be marked by an
electronically sensible pen or ink, or by means of a stylus or by
means of touch, so that "independent" voters may vote only those
portions of the ballot relating to the nonpartisan candidates and
the public questions submitted, or shall provide a ballot containing
only provisions for voting for those candidates and upon those
issues submitted common to the ballots provided to all voters
regardless of political party affiliation, or both,
unless the voter
requests an alternative ballot of a political party which has
determined such a voter may participate in its primary election.
In counties utilizing electronic voting systems in which votes are recorded by perforating, if vote recording devices are not
available for the "independent" voters, provisions are to be made
for sealing the partisan section or sections of the ballot or ballot
labels on a vote recording device using temporary seals, thus
permitting the independent voter to vote for the nonpartisan section
or sections of the ballot or ballot labels,
unless the voter
requests an alternative ballot of a political party which has
determined such a voter may participate in its primary election.
After the "independent" voter has voted, the temporary seals may be
removed and the device may then be used by partisan voters.
NOTE: The purpose of this bill is to bring older contradicting
language still remaining in the code into conformity with §3-2-
5(b)(3) and to reestablish a definition for "independent voter" as
the presently cited definition is no longer in the code.
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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