ENGROSSED
Senate Bill No. 242
(By Senators Ross and Helmick)
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[Introduced February 2, 1994; referred to the Committee
on Government Organization.]
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A BILL to amend and reenact section thirty-four, article one,
chapter three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to assisting
handicapped voters.
Be it enacted by the Legislature of West Virginia:
That section thirty-four, article one, chapter three of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-34. Voting procedures generally; assistance to voters;
voting records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his name and residence
to one of the poll clerks who shall thereupon announce the same
in a clear and distinct tone of voice. If such person is found
to be duly registered as a voter at that precinct, he shall berequired to sign his name in the space marked "signature of
voter" on the pollbook prescribed and provided for the precinct.
If such person be physically or otherwise unable to sign his
name, his mark shall be affixed by one of the poll clerks in the
presence of the other and the name of the poll clerk affixing the
voter's mark shall be indicated immediately under such
affixation. No ballot shall be given to such person until he so
signs his name on the pollbook or his signature is so affixed
thereon.
(b) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer such
person's registration to the nearest polling place in the county
which is handicap accessible. Requests by such persons for a
transfer of registration shall be received by the county clerk no
later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of
registration at least thirty days prior to the date of the
election may vote a challenged ballot, at a handicap accessible
polling place in the county of his or her registration, and, if
during the canvass the county commission determines that the
person had been registered in a precinct not handicap accessible,
the voted ballot, if otherwise valid, shall be counted. The
handicapped person may vote in the precinct to which the
registration was transferred only as long as the disability
exists or the precinct from which the handicapped person wastransferred remains inaccessible to the handicapped. To ensure
confidentiality of such transferred ballot, the county clerk
processing the ballot shall provide the voter with an unmarked
envelope and an outer envelope designated "challenged
ballot/handicapped voter". After validation of the ballot at the
canvass, the outer envelope shall be destroyed and the
handicapped voter's ballot shall be placed with other approved
challenged ballots prior to removal of the ballot from the
unmarked envelope.
(c) When the voter's signature is properly on the pollbook,
the two poll clerks shall sign their names in the places
indicated on the back of the official ballot and shall deliver
the ballot to the voter to be voted by him then without leaving
the election room. If he returns the ballot spoiled to the
clerks, they shall immediately mark such ballot "spoiled" and the
same shall be preserved and placed in a spoiled ballot envelope
together with other spoiled ballots to be delivered to the board
of canvassers and deliver to the voter another official ballot,
signed by the clerks on the reverse side as before done. The
voter shall thereupon retire alone to the booth or compartment
prepared within the election room for voting purposes and there
prepare his ballot, using a ballpoint pen of not less than five
inches in length or other indelible marking device of not less
than five inches in length. In voting for candidates in general
and special elections, the voter shall comply with the rules and
procedures prescribed in section five, article six of thischapter.
(d) It shall be the duty of a poll clerk, in the presence of
the other poll clerk, to indicate by a check mark inserted in the
appropriate place on the registration record of each voter the
fact that such voter voted in the election. In primary elections
the clerk shall also insert thereon a distinguishing initial or
initials of the political party for whose candidates the voter
voted. If a person is challenged at the polls, such fact shall
be indicated by the poll clerks on the registration record
together with the name of the challenger. The subsequent removal
of the challenge shall be recorded on the registration record by
the clerk of the county commission.
(e) (1) No voter shall receive any assistance in voting
unless, by reason of blindness, disability, advanced age or
inability to read and write, that voter is unable to vote without
assistance. Any voter qualified to receive assistance in voting
under the provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided, and, on request,
shall read over to such voter the names of candidates on the
ballot as so prepared; or
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths orcompartments to prepare his ballot in the manner hereinbefore
provided; or
(C) Be assisted by any person of the voter's choice:
Provided,
That such assistance may not be given by the voter's
present or former employer or agent of that employer or by the
officer or agent of a labor union of which the voter is a past or
present member.
(2) Any voter who requests assistance in voting but who is
believed not to be qualified for such assistance under the
provisions of this section shall nevertheless be permitted to
vote a challenged ballot with the assistance of any person herein
authorized to render assistance.
(3) Any one or more of the election commissioners or poll
clerks in the precinct may challenge such ballot on the ground
that the voter thereof received assistance in voting it when in
his or their opinion that the person who received assistance in
voting is not so illiterate, blind, disabled or of such advanced
age as to have been unable to vote without assistance. The
election commissioner or poll clerk or commissioners or poll
clerks making such challenge shall enter the challenge and reason
therefor on the form and in the manner prescribed or authorized
by article three of this chapter.
(4) An election commissioner or other person who assists a
voter in voting shall not in any manner request, or seek to
persuade, or induce the voter to vote any particular ticket or
for any particular candidate or for or against any publicquestion, and shall not keep or make any memorandum or entry of
anything occurring within the voting booth or compartment, and
shall not, directly or indirectly, reveal to any person the name
of any candidate voted for by the voter, or which ticket he had
voted, or how he had voted on any public question, or anything
occurring within the voting booth or compartment or voting
machine booth, except when required pursuant to law to give
testimony as to such matter in a judicial proceeding.
(5) In accordance with instructions issued by the secretary
of state, the clerk of the county commission shall provide a form
entitled "List of Assisted Voters", the form of which list shall
likewise be prescribed by the secretary of state. The
commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip
number of that voter and the signature of the person or the
commissioner from each party who assisted the voter. If no voter
shall have been assisted in voting the ballot as herein provided,
the commissioners shall likewise make and subscribe to an oath of
that fact on such list.
(f) After preparing the ballot the voter shall fold the same
so that the face shall not be exposed and so that the names of
the poll clerks thereon shall be seen. The voter shall then
announce his name and present his ballot to one of the
commissioners who shall hand the same to another commissioner, of
a different political party, who shall deposit it in the ballot
box, if such ballot is the official one and properly signed. Thecommissioner of election may inspect every ballot before it is
deposited in the ballot box, to ascertain whether it is single,
but without unfolding or unrolling it, so as to disclose its
content. When the voter has voted, he shall retire immediately
from the election room, and beyond the sixty-foot limit thereof,
and shall not return, except by permission of the commissioners.
(g) Following the election, the affidavits required by this
section from those assisting voters together with the "List of
Assisted Voters", shall be returned by the election commissioners
to the clerk of the county commission along with the election
supplies, records and returns, who shall make such oaths and list
available for public inspection and who shall preserve the same
for a period of twenty-two months or until disposition is
authorized or directed by the secretary of state or court of
record.
(h) Any person making an affidavit required under the
provisions of this section who shall therein knowingly swear
falsely, or any person who shall counsel, or advise, aid or abet
another in the commission of false swearing under this section,
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than one thousand dollars, or imprisoned
in the county jail for a period of not more than one year, or
both.
(i) Any election commissioner or poll clerk who authorizes
or provides unchallenged assistance to a voter when such voter is
known to such election commissioner or poll clerk not to requireassistance in voting, shall be guilty of a felony, and, upon
conviction thereof, shall be fined not more than five thousand
dollars, or imprisoned in the penitentiary for a period of not
less than one year nor more than five years, or both fined and
imprisoned.