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Introduced Version Senate Bill 6 History

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Senate Bill No. 6

(By Senator Oliverio)

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[Introduced February 9, 2005; referred to the Committee

on the Judiciary.]

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A BILL to amend and reenact §3-1A-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact §3-3-8 of said code, all relating to election law generally; requiring rulemaking in certain circumstances; providing that counties using voting machines may count absentee ballots at the courthouse on election day; and prohibiting disclosure or posting of results prior to closing of the polls.

Be it enacted by the Legislature of West Virginia:
That §3-1A-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §3-3-8
of said code be amended and reenacted, all to read as follows:
ARTICLE 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.
§3-1A-6. Powers and duties of Secretary of State; exercise of powers by appointees.

The Secretary of State shall be the chief election official of the State. Except for those rules required by the provisions of section five of this article to be promulgated by the Commission, the Secretary of State shall have the authority, after consultation with the State Election Commission, of which he or she is a member, to make, amend and rescind such orders and to promulgate such legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, as may be necessary to standardize and make effective the provisions of this chapter. Any rule proposed for promulgation by the secretary of state pursuant to the provisions of this section, and all rules heretofore adopted or in any way represented to govern the administration or enforcement of the provisions of this chapter by the secretary of state, shall be submitted on or before the first day of August, one thousand nine hundred ninety-five, to the Legislature for review by the legislative rule-making review committee and approval by the Legislature. All rules which have not been submitted and approved as aforesaid shall be of no further force and effect as of the first day of April, one thousand nine hundred ninety-six. On or before the first day of May, two thousand five, the Secretary shall propose for promulgation emergency and legislative rules to establish requirements prohibiting nondisclosure of election or voting results by any person by any means before the voting has been closed and the precinct returns have been posted. It shall be the duty of all election officials, county commissions, clerks of county commissions, clerks of circuit courts, boards of ballot commissioners, election commissioners and poll clerks to abide by such orders as may be issued and such the legislative rules as may be promulgated by the Secretary of State and the Commission.
The Secretary of State also shall have authority to require collection and report of statistical information and to require other reports by county commissions, clerks of county commissions and clerks of circuit courts.
It shall be his or her further duty to advise with election officials; to furnish to the election officials a sufficient number of indexed copies of the current election laws of West Virginia and the administrative orders and rules issued or promulgated thereunder; to investigate the administration of election laws, frauds and irregularities in any registration or election; to report violations of election laws to the appropriate prosecuting officials; and to prepare an annual report.
The Secretary of State shall also have the power to administer oaths and affirmations, issue subpoenas for the attendance of witnesses, issue subpoena duces tecum to compel the production of books, papers, records, registration records and other evidence and fix the time and place for hearing any matters relating to the administration and enforcement of this chapter, or the rules promulgated by the State Election Commission or by the Secretary of State as the chief election official of the State. In case of disobedience to a subpoena or subpoena duces tecum, he or she may invoke the aid of any circuit court in requiring the attendance, evidence and testimony of witnesses and the production of papers, books, records, registration records and other evidence.
All powers and duties vested in the Secretary of State pursuant to the provisions of this article may be exercised by appointees of the Secretary of State at his or her discretion, but the Secretary of State shall be responsible for their acts.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-8. Disposition and counting of absent voters' ballots.
(a) In counties using paper ballots, all absentee ballots shall be processed as follows:
(1) The ballot boxes containing the absentee ballots shall be opened in the presence of the clerk of the county commission and two representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on the sealed envelopes containing the ballots; and
(3) Absentee ballots shall be delivered to the polls to be opened and counted in accordance with section thirty-three, article one of this chapter; section fifteen, article five of this chapter; and section six, article six of this chapter. Disclosure of any results before the voting has been closed and the precinct returns posted on the door of the polling place shall be a per se violation of the oath taken by the counting board. In all other counties, counting is to begin immediately after closing of the polls.
(b) In the counties using punch card systems, the absentee ballots shall be processed as follows:
(1) On election day, the ballot boxes containing the absentee ballots shall be delivered to the central counting center and opened in the presence of the clerk of the county commission and two representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on the sealed envelopes containing the ballots; and
(3) The absentee ballots shall be counted in accordance with section twenty-seven, article four-a of this chapter.
(c) In counties using optical scan systems, the absentee ballots shall be processed as follows:
(1) On election day, the ballot boxes containing the absentee ballots shall be delivered to the central counting center and opened in the presence of the clerk of the county commission and two representatives of opposite political parties; and
(2) The absentee ballots shall be counted in accordance with section twenty-seven, article four-a of this chapter.
(d) In counties using direct recording elections systems, the absentee ballots shall be counted in accordance with section twenty-seven, article four-a of this chapter.
(e) In counties using voting machines as provided in section twenty-four, article four of this chapter, that use paper ballots for early in-person voting and mail-in absentee voting, the ballots shall be processed as follows:
(1) The ballot boxes containing the early in-person and absentee paper ballots shall be opened at the courthouse in the presence of the clerk of the county commission and two representatives of opposite political parties;
(2) The early in-person and absentee paper ballots shall be separated by precincts as stated on the sealed envelopes containing the ballots; and
(3) The paper early in-person and absentee ballots shall be counted at the courthouse by absentee ballot counting commissioners. The counting commissioners shall be the same combination of election officials as the counting board provided in subdivision (3), subsection (a), section twenty-nine, article one of this chapter. The ballot counting commissioners may begin counting the early in-person and absentee ballots no sooner than nine o'clock a. m. on the day of the election.
(4) Disclosure of any results before the voting has been closed and the precinct returns posted on the door of the courthouse shall be a per se violation of the oath taken by the counting board.
Disclosure of any results by any person, other than the voluntary disclosure of his or her vote, before the voting has been closed and the precinct returns posted on the door of the courthouse shall be a per se violation of section twenty-three, article nine of this chapter.
(e) (f) The provisional ballots shall be deposited in a provisional ballot envelope and delivered to the board of canvassers.
(f) (g) Any election official who determines a person has voted an absent voter's ballot and has also voted at the polls on election day must report the fact to the prosecuting attorney of the county in which the votes were cast.




NOTE: The purpose of this bill is to provide that counties using nonelectronic voting machines may begin counting absentee ballots beginning at nine a.m. on election day.

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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