H. B. 2965
(By Delegates Hunt and Sponaugle )
(By Request of Secretary of State)
[Introduced March 19, 2013; referred to the
Committee on the Judiciary.]
A Bill to repeal §3-1-10 of the Code of West Virginia, 1931, as
amended; to amend and reenact §3-1-2a, §3-1-4, §3-1-21, §3-1-21a, §3-1-22, §3-1-26, §3-1-32, §3-1-36, §3-1-37, §3-1-38, §3-1-39, §3-1-41, §3-1-42 and §3-1-49 of said code, all relating to cleaning up outdated language in article one, chapter three of the West Virginia Code.
Be it enacted by the Legislature of West Virginia:
That §3-1-10 of the Code of West Virginia, 1931, as amended, be repealed; that §3-1-2a, §3-1-4, §3-1-21, §3-1-21a, §3-1-22, §3-1-26, §3-1-32, §3-1-36, §3-1-37, §3-1-38, §3-1-39, §3-1-41, §3-1-42 and §3-1-49 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-2a. Municipal elections.
(a) Notwithstanding other provisions of this code or of any special legislative or home rule city charter, the provisions of: (1) Articles eight and nine of this chapter; (2) any rules promulgated under authority granted in articles eight and nine of this chapter; and (3) any provisions of this chapter making a practice or conduct unlawful shall apply applies to every municipal election held for any purpose.
(b) For purposes of:
(1) This section;
(2) The application of articles eight and nine of this chapter;
(3) The application of the rules mentioned in this section; and
(4) The application of provisions of this chapter making a practice or conduct unlawful, the provisions of law which impose any a duty upon or define any an offense or prohibition with respect to the duty or authority of a county officer or county election officer or body of county election officers shall be construed to and shall apply applies with equal force and effect to the person or persons in a municipal election upon whom this code or the city charter or ordinance imposes such duty or vests the same or similar authority.
(c) Every municipality shall by charter or ordinance designate the persons in the municipality who perform the same duties as any officer in a county election. The designated persons shall attend a biannual election training held and training conducted by the Office of the Secretary of State every two years.
(d) This section shall not be construed to does not abrogate the applicability of other provisions of this chapter to municipal elections.
§3-1-4. Manner of voting.
In all elections, the mode of voting shall be by ballot but the voter shall be left free to vote by either open, sealed or secret ballot as he the voter may elect. Voting by ballot may be accomplished as provided in articles three, four, four-a, five and six of this chapter.
§3-1-21. Printing of official and sample ballots; number; packaging and delivery; correction of ballots.
(a) The board of ballot commissioners for each county shall provide the ballots and sample ballots necessary for conducting every election for public officers in which the voters of the county participate.
(b) The persons required to provide the ballots necessary for conducting all other elections are:
(1) The Secretary of State, for any a statewide special election ordered by the Legislature;
(2) The board of ballot commissioners, for any a countywide special election ordered by the county commission;
(3) The Board of Education, for any a special levy or bond election ordered by the Board of Education; or
(4) The municipal board of ballot commissioners, for any an election conducted for or within a municipality except an election in which the matter affecting the municipality is placed on the county ballot at a county election. Ballots other than those printed by the proper authorities as specified in this section may not be cast, received or counted in any an election.
(c) When paper ballots are used, the total number of regular official ballots printed shall equal one and one-twentieth times the number of registered voters eligible to vote that ballot. When paper ballots are used in conjunction with or as part of an electronic voting system, the total number of regular official ballots printed shall equal at a minimum eighty percent of the number of registered voters eligible to vote that ballot. The clerk of the county commission shall determine the number of absentee official ballots.
(d) The number of regular official ballots packaged for each precinct shall equal at a minimum seventy-five percent of the number of registered voters of the precinct. The remaining regular official ballots shall be packaged and delivered to the clerk of the county commission who shall retain them unopened until they are required for an emergency. Each package of ballots shall be wrapped and sealed in a manner which will immediately make apparent any attempt to open, alter or tamper with the ballots. Each package of ballots for a precinct shall be clearly labeled in a manner which cannot be altered with the county name, the precinct number and the number of ballots contained in each package. If the packaging material conceals the face of the ballot, a sample ballot identical to the official ballots contained therein shall be securely attached to the outside of the package or, in the case of ballot cards, the type of ballot shall be included in the label.
(e) All absentee ballots necessary for conducting absentee voting in all voting systems shall be delivered to the clerk of the county commission of the appropriate county not later than the forty-second forty-sixth day before the election. All official ballots in paper ballot systems shall be delivered to the clerk of the county commission of the appropriate county not later than twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that an official ballot contains an error which, in the opinion of the board, is of sufficient magnitude to confuse or mislead the voters, the board shall cause the error to be corrected either by the reprinting of the ballots or by the use of stickers printed with the correction and of suitable size to be placed over the error without covering any other portion of the ballot.
§3-1-21a. Vendors authorized to print ballots; eligibility; application and certification; denial, suspension and revocation of authorization; appeal.
(a) The printing of ballots for any an election to be held pursuant to the provisions of this chapter shall be contracted for with a vendor authorized in accordance with the provisions of this section.
(b) Any A vendor authorized to do business in West Virginia and in good standing may apply for a certificate of authorization to print ballots for elections in this state. Provided, That any individual, partnership, association or corporation who does not qualify as a resident vendor pursuant to the provisions of section thirty-seven-a, article three, chapter five-a of this code or who prints the ballots in a state which prohibits that state or any of its political subdivisions from contracting with West Virginia resident vendors for the printing of ballots or which prohibits the printing of ballots outside of such state, is not eligible to obtain a certificate of authorization.
(c) (1) Every vendor desiring to print ballots for elections held pursuant to the provisions of this chapter shall, prior to the execution of any a contract for the printing of ballots with any a state, county, or municipal government, obtain a certificate of authorization to print ballots.
(2) A certificate of authorization may be obtained by application to the Secretary of State upon a form prescribed by the Secretary of State. The form shall include a statement that all printing, packaging and delivery specifications for ballots set forth in this chapter will be substantially met and that the vendor applying for certification is eligible in accordance with the provisions of this section.
(3) Upon receipt of the completed application, the Secretary of State shall issue a certificate of authorization to print ballots which shall will remain in effect for two years from the date of issuance and may be renewed upon application. therefor: Provided, That The Secretary of State may deny the application to issue or renew the certificate of authorization or may suspend or revoke the certificate of authorization upon a determination that the vendor has not substantially complied with the printing, packaging and delivery specifications in the printing of ballots for any a state, county or municipal election or that the vendor is not eligible or is no longer eligible to print ballots pursuant to the provisions of this section. The Secretary of State shall give written notice of any such the determination by certified mail, return receipt requested, to the vendor setting forth the reason for the suspension, revocation or the denial of the application or the denial of the renewal. thereof. The applicant may, within sixty days of the receipt of such the denial, file a written appeal with the State Election Commission. The State Election Commission shall promulgate rules establishing a hearing process for such appeals.
(d) On or before the second Monday of January of each year, the Secretary of State shall provide a list of all vendors authorized to print ballots for state, county and municipal elections to the clerk of each county commission of this state.
(e) The provision of electronic ballots for elections held pursuant to the provisions of this chapter shall be authorized by the Secretary of State.
§3-1-22. County court commission clerks to provide election supplies; requirements for poll books and ballot boxes.
The clerk of the county court commission of each county shall provide poll books, a list of all precincts within the county, tally sheets, ballot boxes, voting booths, registration records and forms, strong and durable envelopes upon which to make returns, blank forms for certifying returns and whatever further supplies are needed for holding the elections and making the returns thereof. The poll books shall bear upon each page the following heading: "Names of persons voting at precinct No. ...... in the District of ....................... in the county of ...................... on this (the) ................. day of ................. in the year ........" Such poll books shall have columns headed respectively: "Number of Voters," "Signature of Voter" and "Challenge of Voter”, and shall have under the heading "Number of Voters" numbers in consecutive order to the bottom of each page. Forms for oaths of commissioners of election and poll clerks shall be written or printed on the poll books. The poll books shall be printed from the statewide voter registration system. Each ballot box shall be provided with two locks with different keys so that the key for one lock will not open the other and shall be so constructed as to be safely and securely closed and locked with an opening in the lid of the box sufficient only for the passage of a single ballot.
§3-1-26. Election supplies in emergencies.
If, by any an accident or casualty, the ballots or ballot box or boxes delivered to a commissioner of election, or to any a messenger, shall be are lost or destroyed, it shall be the duty of such is the duty of the commissioner or messenger to report the loss forthwith to the board of ballot commissioners and clerk of the county court commission from whom the same were or was, these were obtained and make affidavit of the circumstances of the loss. whereupon such The board and clerk shall at once send a new supply by special messenger as provided in other cases. If, for any reason, there should be found no ballots or ballot box or other necessary means or contrivances for voting at the opening of the polls, it shall be is the duty of the commissioners of election to secure the same these as speedily as possible and, if necessary, the ballot commissioners may have ballots printed or written and the election commissioners may have a ballot box or boxes made.
§3-1-32. Opening and closing polls; procedure.
At the time of opening the polls in all precincts wherein where voting machines are not to be used, the election commissioners shall examine the ballot box and ascertain that there are no ballots in the same, box and they shall thereupon securely lock the box and give one key to one of the commissioners and one to a commissioner of the opposite political party who shall hold the same. and such The boxes shall not be again opened until the time to begin counting the votes arrives and for that purpose. At or before opening the polls, the commissioners of election shall open the package containing the ballots in such manner as to preserve the seals intact and thereupon deliver all of the ballots to the poll clerk. Before any a voter is permitted to vote, the commissioners of election shall proclaim that such election is opened. When the polls are closed, proclamation must be made of the fact by one of the commissioners of election to the people outside in a loud and audible tone of voice and a minute of such the proclamation and of the time when it was made must be entered on the pollbooks form provided by the clerks. The election commissioner shall permit those electors to vote who are present at the polling place prior to the hour specified for the closing of the polls: Provided, That at that time they are in a line awaiting their turn to vote within the voting room itself or, if the line extends outside of the voting room itself, within that line. In that event an election commissioner from each party shall immediately, after the closing proclamation, begin with the last voter in line and together supply the voters within the line with waiting-voter permits which shall be prescribed by the Secretary of State. Each voter shall sign his or her permit in the presence of both commissioners who shall then likewise affix their signatures to the permit in the presence of the voter and each other. After each such voter in line has received and signed his or her permit and the election commissioners have affixed their signatures thereto, voting shall be resumed. Each voter shall present his or her permit to one of the poll clerks so that the signature thereon may be compared to the voter's signature when he the voter signs the pollbook. Each permit so presented shall be attached to the page in the pollbook on which the voter affixed his or her signature. In no case shall any may a person who arrives at the polling place after the closing hour be given a waiting-voter permit or be allowed to vote. After the final voter presents his or her waiting-voter permit and casts his or her ballot no more ballots shall be cast or received.
§3-1-36. Report on and disposition of ballots spoiled or not used.
Any A voter who shall spoil, deface or mutilate the ballot delivered to him or her, on returning the same ballot to the poll clerks, shall receive another in place thereof. Every person who does not vote any a ballot delivered to him or her shall, before leaving the election room, return such the ballot to the poll clerks. When a spoiled or defaced ballot is returned, the poll clerks shall make a minute of the fact on the pollbooks, at the time, and the word "spoiled" shall be written across the face of the ballot and such the ballot shall be placed in an envelope for spoiled ballots.
Immediately on closing the polls, the commissioners of election shall ascertain the number of ballots spoiled during the election and the number of ballots remaining not voted. The commissioners of election shall also ascertain from the pollbooks the number of persons who voted and shall report, over their signatures, to the clerk of the county commission, the number of votes case, cast, the number of ballots spoiled during the election and the number of ballots not voted. All unused ballots shall at the same time be returned to the clerk of the county commission who shall separately package the unused ballots from each precinct, mark the name and number of the precinct on the package and retain them securely along with other election materials.
Each commissioner who is a member of an election board which fails to account for every ballot delivered to it is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in the county jail for not more than one year, or both fined and imprisoned.
The board of ballot commissioners of each county, or the chairman thereof, shall preserve the ballots that are left over in their hands, after supplying the precincts as provided, until twenty-two months after the election.
§3-1-37. Restrictions on presence and conduct at polls.
(a) Except as otherwise provided in this section, no person other than the election officers and voters going to the election room to vote and returning therefrom, may be or remain within three hundred feet of the outside entrance to the building housing the polling place while the polls are open. This subsection does not apply to persons who reside or conduct business within such distance of the entrance to the building housing the polling place while in the discharge of their legitimate business or to persons whose business requires them to pass and repass within three hundred feet of such the entrance.
(b) A person who is delivering a voter to a polling place by motor vehicle may drive such his or her vehicle to a convenient and accessible location to discharge the voter notwithstanding that the location is within three hundred feet of the outside entrance to the building housing the polling place. Upon discharging such the voter from the vehicle, the person shall remove the vehicle from within three hundred feet of the entrance until such time as the voter is to be transported from the polling place or another voter delivered. Provided, That Vehicles delivering voters who require assistance by reason of blindness, disability or advanced age may remain within three hundred feet of the entrance until such time as the voter is to be transported from the polling place.
(c) The election commissions commissioners shall limit the number of voters in the election room so as to preserve order. No person may approach nearer than five feet to any booth or compartment while the election is being held except the voters to prepare their ballots or the poll clerks when called on by a voter to assist in the preparation of his or her ballot. and No person, other than election officers and voters engaged in receiving, preparing and depositing their ballots, may be permitted to be within five feet of any ballot box except by authority of the board of election commissioners and then only for the purpose of keeping order and enforcing the law.
(d) Not more than one person may be permitted to occupy any a booth or compartment at one time. No person may remain in or occupy a booth or compartment longer than may be necessary to prepare his or her ballot and in no event longer than five minutes. except that any A person who claims a disability pursuant to section thirty-four of this article shall have additional time up to ten additional minutes to prepare his or her ballot. No voter or person offering to vote may hold any conversation or communication with any a person, other than the poll clerks or commissioners of election, while in the election room.
(e) The provisions of this section do not apply to persons rendering assistance to blind voters as provided in section thirty-four of this article or to any a child fourteen years of age or younger who accompanies a parent, grandparent or legal guardian who is voting. Any A dispute concerning the age of a child accompanying a parent, grandparent or legal guardian who is voting shall be determined by the election commissioners.
§3-1-38. Disorder at polls; procedure.
The commissioners of election shall preserve order at and in the vicinity of the polls, and keep the way to the polls open and free from obstruction and may direct disorderly persons to be removed. therefrom, and, if necessary and proper, to be taken and held in custody until sunrise of the next day, or for any shorter time, which may be done by any sheriff or constable or other person or persons designated by the commissioners of election. For such purpose no warrant or authority in writing shall be necessary. The jail of the county or other place designated by the commissioners of election may be used as the place of custody. But any person so arrested shall have an opportunity to vote, if he be entitled to do so, before he shall be committed to jail, if he so desires and shall be prepared to do so promptly.
§3-1-39. Illegal voting; affidavit; procedure.
(a) If at any time during the election, any a qualified voter shall appear appears at the polls for the purpose of stating that any a person who has voted is an illegal voter in the precinct, that person shall be admitted to the election room and shall appear before a commissioner of election to make an affidavit explaining why he or she believes the accused to be an illegal voter.
(b) All affidavits alleging illegal voting shall be placed in a strong and durable envelope by the commissioners of election. The envelope shall be securely sealed and each of the commissioners shall endorse his or her name on the back of the envelope. At the close of the count, the envelope shall be delivered to the clerk of the circuit court county commission in accordance with section sixteen, article five of this chapter and section eight, article six of this chapter. The clerk of the circuit court county commission shall carefully preserve the envelope containing the affidavits and deliver it, with the seal unbroken, to the prosecuting attorney in the county. The prosecuting attorney shall proceed as if it had been made before him or her.
§3-1-41. Challenged and provisional voter procedures; counting of provisional voters' ballots; ballots of election officials.
(a) It is the duty of the members of the receiving board, jointly or severally, to challenge the right of any a person requesting a ballot to vote in any an election:
(1) If the person's registration record is not available at the time of the election;
(2) If the signature written by the person in the poll book does not correspond with the signature purported to be his or hers on the registration record; on file in the poll book;
(3) If the registration record of the person indicates any other legal disqualification; or
(4) If any other valid challenge exists against the voter pursuant to section ten, article three of this chapter.
(b) Any A person challenged shall nevertheless be permitted to vote in the election. He or she shall be furnished an official a provisional ballot not endorsed by the poll clerks. In lieu of the endorsements, the poll clerks shall complete and sign an appropriate form indicating the challenge, the reason thereof and the name or names of the challengers. The form shall be securely attached to the voter's ballot and deposited together with the ballot in a separate box or envelope marked "provisional ballots".
(c) At the time that an individual casts a provisional ballot, the poll clerk shall give the individual written information stating that an individual who casts a provisional ballot will be able to ascertain under the free access system established in this section whether the vote was counted and, if the vote was not counted, the reason that the vote was not counted.
(d) Before an individual casts a provisional ballot, the poll clerk shall provide the individual written instructions, supplied by the board of ballot commissioners, stating that if the voter is casting a ballot in the incorrect precinct, the ballot cast may not be counted for that election:. Provided, That If the voter is found to be in the incorrect precinct, then the poll worker shall attempt to ascertain the appropriate precinct for the voter to cast a ballot and immediately give the voter the information if ascertainable.
(e) Provisional ballots may not be counted by the election officials. The county commission shall, on its own motion, at the time of canvassing of the election returns, sit in session to determine the validity of any challenges according to the provisions of this chapter. If the county commission determines that the challenges are unfounded, each provisional ballot of each challenged voter, if otherwise valid, shall be counted and tallied together with the regular ballots cast in the election. The county commission, as the board of canvassers, shall protect the privacy of each provisional ballot cast. The county commission shall disregard technical errors, omissions or oversights if it can reasonably be ascertained that the challenged voter was entitled to vote.
(f) Any A person duly appointed as an election commissioner or clerk under the provisions of section twenty-eight of this article who serves in that capacity in a precinct other than the precinct in which the person is legally entitled to vote, may cast a provisional ballot in the precinct in which the person is serving as a commissioner or clerk. The ballot is not invalid for the sole reason of having been cast in a precinct other than the precinct in which the person is legally entitled to vote. The county commission shall record the provisional ballot on the voter's permanent registration record: record in the statewide voter registration system and Provided, That the county commission may count only the votes for the offices that the voter was legally authorized to vote for in his or her own precinct.
(g) The Secretary of State shall establish a free access system which may include a toll-free telephone number or an Internet website that may be accessed by any an individual who casts cast a provisional ballot to discover whether his or her vote was counted and, if not, the reason that the vote was not counted.
§3-1-42. Time off for voting.
Every person entitled to vote at any an election who may be employed by any a person, company or corporation on the day on which such election shall be the election is held in this state, shall, on written demand of such the employee made at least three days prior thereto, be given a period of not more than three hours, if necessary, between the opening and the closing of the polls on such day, for the purpose of enabling such person to repair go to the place of voting to cast his or her vote and return, without liability to any a penalty or deduction from his or her usual salary or wages. on account of such absence, except that any employee, An employee, however, who has three or more hours of his or her own time away from his or her work or place of employment at any time between the hours of the opening and the closing of the polls on election day and who fails or neglects to vote or elects not to vote during such the free time away from his or her work or employment, may be subject to wage or salary deductions for the time actually absent from his or her work or employment for voting in such the election.
In essential government, health, hospital, transportation and communication services and in production, manufacturing and processing works requiring continuity in operation, the employer may, upon receipt of such a written demand for voting time off, arrange and schedule a calendar of time off for any and all of his or her employees for voting so as to avoid impairment or disruption of essential services and operations. but every such The schedule or calendar of time off for voting so arranged shall provide ample and convenient time and opportunity for each employee of such services or works to cast his or her vote. as herein provided.
§3-1-49. Voting system standards.
(a) In accordance with 42 U. S. C. §1530, et seq., the Help America Vote Act of 2002, Public Law 107-252, each voting system used in an election for federal office shall:
(1) Permit the voter to verify, in a private and independent manner, the votes selected by the voter on the ballot before the ballot is cast and counted;
(2) Provide the voter with the opportunity, in a private and independent manner, to change the ballot or correct any error before the ballot is cast and counted including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error; and
(3) If the voter selects votes for more than one candidate for a single office: (A) Notify the voter that the voter has selected more than one candidate for a single office on the ballot; (B) notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office; and (C) provide the voter with the opportunity to correct the ballot before the ballot is cast and counted. Provided, That A county that uses a paper ballot voting system a punch card voting system or an optical scan voting system may meet the requirements of this paragraph by establishing a voter education program specific to that voting system that notifies each voter of the effect of casting multiple votes for an office and providing the voter with instructions on how to correct the ballot before it is cast and counted including instructions on how to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error.
(4) Ensure that any notification required under this section preserves the privacy of the voter and the confidentiality of the ballot.
(b) Each voting system used in an election for federal office shall produce a record with an audit capacity for the system which shall meet meets the following requirements:
(1) Produce Produces a permanent paper record with a manual audit capacity for the system; and
(2) Provide Provides the voter with an opportunity to change the ballot or correct any error before the ballot is cast and counted and before the permanent paper record is produced.
(c) Each voting system used in an election for federal office shall be accessible for individuals with disabilities including nonvisual accessibility for the blind and visually impaired in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters. Provided, That The provisions of this subsection may be satisfied through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.
NOTE: The purpose of this bill is to clean up existing language in select sections of article one, chapter three of the West Virginia Code, 1931, as amended.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.