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.