H. B. 2556
(By Delegates Manuel, Pethtel, Douglas and Doyle)
[Introduced March 11, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections twenty-eight, twenty-nine,
thirty and forty-six, article one, chapter three of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; to further amend said article one by adding thereto
a new section, designated section thirty-a; and to amend and
reenact section thirteen, article four, and section
fourteen, article four-a, both of said chapter three, all
relating to the eligibility; nomination; appointment;
substitution and oaths and training of election officials.
Be it enacted by the Legislature of West Virginia:
That sections twenty-eight, twenty-nine, thirty and forty-
six, article one, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; that said article one be further amended by adding
thereto a new section, designated section thirty-a; and that
section thirteen, article four, and section fourteen, article
four-a, both of said chapter three be amended and reenacted, allto read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-28. Election officers; eligibility, suspension of
eligibility.
(a) To be eligible to be appointed or serve as an election
official in any state, county or municipal election held in West
Virginia, a person:
(1) Must be a registered voter of the county for elections
held throughout the county, and a registered voter of the
municipality for elections held within the municipality;
(2) Must be registered as affiliated with the political
party for which appointed; except that, persons registered
without party affiliation or as adherents to a political group
other than the two majority political parties then recognized are
eligible to serve in nonpartisan elections;
(3) Must be able to read and write;
(4) May not be a candidate on the ballot in the election;
(5) May not be the parent, child, sibling or spouse of the
candidate on the ballot in the precinct where the official
serves;
(6) May not be a person prevented from serving as an
election official by any other federal or state statute;
(7) May not have been previously convicted of any violation
of election law; and
(8) May not be a person who has served as deputy sheriffwithin six months prior to the election.
(b) Eligibility to serve as election official in any
election may be suspended for four years, upon majority vote of
county commission for the following reasons:
(1) Failure to appear at the polling place at the designated
time without proper notice and just cause;
(2) Failure to perform the duties of an election official as
required by law;
(3) Improper interference with a voter casting a ballot, or
violating the secrecy of the voter's ballot;
(4) Being under the influence of alcohol or drugs while
serving as election officer; or
(5) Having anything wagered or bet on an election.
(c) Eligibility to serve as an election official in any
election may be suspended by the county commission for two years,
upon petition of twenty-five registered voters of the precinct
where the official last served, upon presentation of evidence of
the grounds listed above, providing the petition requesting the
suspension of the election official is filed with the county
commission at least ninety days before any election. Such names
of those persons signing such petition shall be kept
confidential.
§3-1-29. Boards of election officials; definitions, composition
of boards, determination of number and type.
(a) For the purpose of this article:
(1) The term "standard receiving board" means those electionofficials charged with conducting the process of voting within a
precinct, and consists of five persons, including one team of
poll clerks, one team of election commissioners for the ballot
box, and one additional election commissioner;
(2) The term "expanded receiving board" means a standard
receiving board as defined herein plus one additional team of
poll clerks;
(3) The term "counting board" means those election officials
charged with counting the ballots at the precinct in counties
using paper ballots, and includes one team of poll clerks, one
team of election commissioners and one additional commissioner;
and
(4) The term "team of poll clerks" or "team of election
commissioners" means two persons of opposite political parties
appointed to perform the specific functions of the office.
(b) The composition of boards of election officials shall be
as follows:
(1) In any primary, general or special election other than
a presidential primary or presidential general election, each
election precinct shall have one standard receiving board;
(2) In presidential primary and presidential general
elections, each election precinct shall have one receiving board,
as follows:
(A) For precincts of less than five hundred registered
voters, one standard receiving board;
(B) For precincts of five hundred to seven hundredregistered voters, one standard receiving board, or at the
discretion of the county commission, one expanded receiving
board; and
(C) For precincts of more than seven hundred registered
voters, one expanded receiving board;
(3) No counting board shall be allowed for any special
election. In any primary or general election in a county or
municipality using paper ballots, counting boards shall be
allowed or required as follows:
(A) For precincts of at least two hundred but no more than
four hundred registered voters, one counting board may be allowed
at the discretion of the county commission; and
(B) For precincts of more than four hundred registered
voters, one counting board shall be required.
(c) For each primary and general election in the county, the
county commission shall designate the number and type of election
boards for the various precincts according to the provisions of
this section. At least eighty-four days before such election,
the county commission shall notify the county executive
committees of the two major political parties in writing of the
number of nominations which may be made for poll clerks and
election commissioners.
(d) For each municipal election, the governing body of the
municipality shall perform the duties of the county commission as
provided in this section.
§3-1-30. Nomination and appointment of election officials and
alternates; notice of appointment; appointment to
fill vacancies in election boards.
(a) For any primary, general or special election held
throughout a county, poll clerks and election commissioners may
be nominated as follows:
(1) The county executive committee for each of the two major
political parties may, by a majority vote of the committee at a
duly called meeting, nominate one qualified person for each team
of poll clerks and one qualified person for each team of election
commissioners to be appointed for the election;
(2) The appointing body shall select one qualified person as
the additional election commissioner for each board of election
officials;
(3) Each county executive committee may also nominate as
many qualified persons as alternates as there are precincts in
the county, which alternates may be called upon to serve in the
event any of the persons originally appointed fail to accept
appointment or fail to appear for the required training or for
the preparation or execution of their duties;
(4) When an executive committee nominates qualified persons
as poll clerks, election commissioners or alternates, the
committee or its chairman or secretary on their behalf shall file
in writing with the appointing body, no later than the fifty-
sixth day before the election, a list of those persons nominated
and the positions for which they are designated.
(b) For any municipal primary, general or special election,the poll clerks and election commissioners may be nominated as
follows:
(1) In municipalities which have municipal executive
committees for the two major political parties in the
municipality, each such committee may nominate election officials
in the manner provided for the county executive committees in
subsection (a) of this section;
(2) In municipalities which do not have executive
committees, the governing body shall provide by ordinance for a
method of nominating election officials; or shall nominate as
many eligible persons as are required, giving due consideration
to any recommendations put forward by voters of the municipality
or by candidates on the ballot.
(c) The governing body responsible for appointing election
officials shall be:
(1) The county commission for any primary, general or
special election ordered by the county commission, and any joint
county and municipal election;
(2) The board of education for any special election ordered
by the board of education conducted apart from any other
election;
(3) The municipal governing body for any primary, general or
special municipal election ordered by the governing body.
(d) The appropriate governing body shall appoint the
election officials for each designated election board no later
than the forty-ninth day before the election.
(1) Those eligible persons whose nominations for poll clerk
and election commissioner were filed by the executive committees
within the time required, and those additional persons selected
as election commissioner shall be appointed;
(2) The governing body shall fill any positions for which no
nominations were filed.
(e) At the same time as the appointment of election
officials, or at a subsequent meeting, the governing body shall
appoint persons as alternates: Provided, That no alternate shall
be eligible for compensation for election training unless the
alternate is subsequently appointed as an election official, or
is instructed to attend and attends training as an alternate and
also serves at the polls on election day if called to do so;
(1) Those alternates nominated by the executive committees,
shall be appointed;
(2) The governing body may appoint additional alternates,
who may be called upon to fill vacancies after all alternates
designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons
who may be instructed to attend training as alternates.
(f) The clerk of the county commission shall appoint
qualified persons to fill all vacancies existing after all
previously appointed alternates have been assigned, have declined
to serve or have failed to attend training.
(g) Within seven days following appointment, the clerk ofthe county commission shall notify by first-class mail all
election commissioners, poll clerks and alternates of their
appointment, and include with such notice a response notice form
for the appointed person to return indicating whether or not he
or she agrees to serve in the specified capacity in the election.
(h) The position of any person so notified of appointment
who fails to return the response notice or otherwise confirm to
the county clerk their agreement to serve within fourteen days
following the date of appointment shall be considered vacant, and
the clerk shall proceed to fill the vacancies according to the
provisions of this section.
(i) When any appointed election official fails to appear at
the polling place by forty-five minutes past five o'clock a. m.
on election day, the election officials present shall contact the
office of the clerk of the county commission for assistance in
filling the vacancy:
(1) The clerk may attempt to contact the person originally
appointed, may assign an alternate of the same political party as
the person absent if one is available, or if no alternate is
available, may appoint another eligible person of the same
political party;
(2) If the election officials present are unable to contact
the county clerk within a reasonable time, they shall diligently
attempt to fill the position with an eligible person of the same
political party as the person absent until a qualified person has
agreed to serve;
(3) If two teams of election officials, as defined in this
section, are present at the polling place, the person appointed
to fill a vacancy in the position of the additional commissioner
may be of either political party.
(j) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the county clerk
specified in this section.
§3-1-30a. Oaths of election commissioners and poll clerks,
substitution of persons.
(a) Each commissioner of election and poll clerk, as defined
in this article, before entering upon his or her duties, shall
take orally and subscribe to the appropriate oath, as prescribed
herein. Such oath may be taken before and administered by one of
the election commissioners or poll clerks, who in turn may take
the same before another election commissioner or poll clerk. For
the purposes of this article, all election commissioners and poll
clerks, having first been sworn, are authorized to administer
oaths.
(1) The oath for members of the receiving board shall be as
follows:
State of West Virginia
............... County
I, ......................., a qualified and registered voter
of the county affiliated with the .................... Party, do
solemnly swear that I will faithfully and honestly discharge myduties as ..................... (poll clerk or election
commissioner) of the receiving board according to the
requirements of law in this election; that I will not knowingly
permit any person to vote an unchallenged ballot who is not a
resident of the precinct and a property registered voter
qualified to vote the ballot provided; that I will not challenge
a ballot without just cause; that I will not cause any
unnecessary delay in voting; that I will not disclose to any
person how any voter has voted, nor how any ballot has been
folded, marked, printed or stamped; that I do not have any
agreement, understanding or arrangement that I will receive any
money, position or other benefit for service in the election
apart from my official pay; that I do not have any agreement,
understanding or arrangement that I will perform any act for the
benefit of any candidate in the election; and that I have nothing
wagered or bet on the result of this election.
Subscribed and sworn to before me this ............... day
of .........., 19....
.................................
Signature and official title of
person before whom sworn
(2) The oath for the members of the counting board shall be
as follows:
State of West Virginia
............... County
I, ..................., a qualified and registered voter of
the county affiliated with the ........................ Party, dosolemnly swear that I will faithfully and honestly discharge my
duties as .....................(poll clerk or election
commissioner) of the counting board according to the requirements
of law in this election; that I will carefully and accurately
read and record the votes cast on each ballot voted in the
election which contains the signatures of both poll clerks; that
I will not disclose to any person how any voter has voted, nor
how any ballot has been folded, marked, printed or stamped; that
I will not disclose the votes cast for any candidate or any other
information about the result of the election prior to the posting
of the precinct returns on the door of the polling place; that I
do not have any agreement, understanding or arrangement that I
will receive any money, position or other benefit for service in
the election apart from my official pay; that I do not have any
agreement, understanding or arrangement that I will perform any
act for the benefit of any candidate in the election; and that I
have nothing wagered or bet on the result of this election.
..............................
Subscribed and sworn to before me this .......... day
of ........, 19....
..............................
Signature and official title
of person before whom sworn
(3) The secretary of state may prescribe the form of such
oaths.
(b) When any election official is unable to perform the
duties for which he or she was appointed, a substitution may bemade, as follows:
(1) An eligible person of the same political party shall
assume the duties after taking the oath. One of the election
commissioners shall make an entry in the space provided on the
oath form, indicating the name of the official being replaced,
the reason for the change, the name of the person assuming the
duties, the time at which the change occurred, and the poll slip
number of the last voter who signed a poll slip before the change
occurred;
(2) If it is necessary for a poll clerk of one political
party to exchange duties with an election commissioner of the
same political party, the change of duties for each person shall
be recorded in the same manner;
(3) If an election commissioner or poll clerk is unable or
fails to perform the duties of the office adequately and
according to the requirements of law to the extent such failure
interferes with the conduct of the election, the county clerk may
order the exchange of duties with another official of the same
party, or if necessary, remove the official. The fact of that
order shall be entered on the record, along with the information
required in subsection (b) (1) of this section.
(c) In a municipal election, the recorder of other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the county clerk
specified in this section.
§3-1-46. Training program for election officials.
(a) The secretary of state in conjunction with West Virginia
board of regents the state election commission shall produce a
motion picture film one or more audio-visual programs which shall
explain and illustrate the procedures for conducting elections,
the duties of the various election officials and the methods of
voting both on paper ballots and machines on each voting system
in use in the state.
(b) One copy of such film the appropriate training program
shall be distributed to and kept and preserved by the clerk of
the county commission of each county to be kept and preserved by
him. Such film The program shall be shown to all election
officials before each primary or general election as part of
their instructional program. The clerk of the county commission
shall conduct such instructional program an adequate number of
sessions to train all election officials, and shall schedule the
regular sessions not less than fifteen seven days before each
primary and general election and shall notify all election
officials of the exact date, time and place such instructional
program will be conducted.
(c) No person shall serve as an election commissioner or
poll clerk in any election unless he or she has attended such
instructional program. A person to replace any election official
who fails to attend the instructional program shall be appointed
in the same manner as persons are appointed under the provisions
of section twenty-eight thirty of this article to replace
election officials refusing to serve, and the clerk of the countycommission shall conduct an additional instructional program
within the seven days prior to the election for any such person
or persons so appointed: Provided, That in cases of emergency
which prevent a person from attending the instructional program
when no person who has attended the instructional program for
that election is available to fill a vacancy on the election
board, the clerk of the county commission may appoint such person
as a commissioner or poll clerk notwithstanding that such person
has not received the instruction.
(d) The requirements of this section shall apply to all
elections conducted by municipalities, except that the recorder
or municipal clerk responsible for the election shall have the
duties of the clerk of the county commission defined herein. The
county clerk may assist the recorder of municipal clerk in
conducting the instructional program.
(e) While such film program is not being used by the clerk
for instructional purposes, it shall be available to any duly
organized civic, religious, educational or charitable group
without charge, except that the clerk shall require a cash
deposit on such use in an amount to be determined by the
secretary of state.
(f) The secretary of state shall cause such film program to
be amended, edited or reproduced whenever he or she is of the
opinion such revision is necessary in light of changes in the
election laws of this state.
(g) No office holder or person seeking election to anyoffice elected official shall appear in such film program either
in person or by visual image or by name.
ARTICLE 4. VOTING MACHINES.
§3-4-13. Election boards where voting machines used.
One receiving board, as defined in article one of this
chapter, shall conduct the election in each precinct in which
voting machines are used. The provisions of article one of this
chapter relating to the qualifications, appointment,
substitution, training and compensation of election officers, and
to the procedure for filling vacancies, apply.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-14. Election boards where electronic voting systems used.
One receiving board, as defined in article one of this
chapter, shall conduct the election in each precinct in which
electronic voting systems are used. The provisions of article
one of this chapter relating to the qualifications, appointment,
substitution, training and compensation of election officers and
to the procedure for filling vacancies, apply.
NOTE: The purpose of this bill is to provide additional
poll clerks for large precincts in presidential primary and
general elections to eliminate delays in voting, to clarify and
make practical the eligibility requirements, methods of
nominating, appointing and training election officials and
alternates and to provide for the replacement of election
officials when necessary.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§3-1-28, 29, 30, §3-4-13 and §3-4a-14 are completely
rewritten; therefore, strike-throughs and underscoring have been
omitted.
§3-1-30a is new; therefore, strike-throughs and underscoring
have been omitted.