H. B. 2554
(By Mr. Speaker, Mr. Kiss, and Delegates
Miller, Ashley, Doyle and Kelley)
[Introduced March 14, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section nine, article six, chapter
three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to elections;
canvass of returns; declaration of results; recounts; record
keeping; and establishing a process for verifying the
accuracy of a canvass or recount.
Be it enacted by the Legislature of West Virginia:
That section nine, article six, 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 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
ยง3-6-9. Canvass of returns; declaration of results; recounts;
record keeping.
(a) The commissioners of the county commission shall be ex
officio a board of canvassers and, as such, shall keep in a well-bound book, marked "election record," a complete record of all
their proceedings in ascertaining and declaring the results of
every election in their respective counties. They shall convene
as the canvassing board at the courthouse on the fifth day
(Sundays excepted) after every election held in their county, or
in any district thereof, and the officers in whose custody the
ballots, pollbooks, registration records, tally sheets and
certificates have been placed shall lay them before the board for
examination. They may, if considered necessary, require the
attendance of any of the commissioners, poll clerks or other
persons present at the election, to appear and testify respecting
the same, and make such other orders as shall seem proper, to
procure correct returns and ascertain the true results of the
election in their county; but in this case all the questions to
the witnesses and all the answers thereto, and evidence, shall be
taken down in writing and filed and preserved. All orders made
shall be entered upon the record. They may adjourn from time to
time, but no longer than absolutely necessary and, when a
majority of the commissioners are not present, their meeting
shall stand adjourned until the next day, and so from day to day,
until a quorum is present. All meetings of the commissioners
sitting as a board of canvassers shall be open to the public.
The board shall proceed to open each sealed package of ballots so laid before them and, without unfolding them, count the number in
each package and enter the number upon their record. The ballots
shall then be again sealed up carefully in a new envelope, and
each member of the board shall write his or her name across the
place where the envelope is sealed. After canvassing the returns
of the election, the board shall publicly declare the results of
the election; however, they shall may not enter an order
certifying the election results for a period of forty-eight hours
after the declaration.
(a) (b) Within the forty-eight-hour period a candidate voted
for at the election may demand the board to open and examine any
of the sealed packages of ballots, and recount them; but in such
case they shall seal the ballots again, along with the envelope
above named, and the clerk of the county commission and each
member of the board shall write his or her name across the places
where it is sealed, and endorse in ink, on the outside: "Ballots
of the election held at precinct No.____, in the district of
_______________, and county of _______________, on the
____________ day of _____________." In computing the forty-eight- hour period as used in this section, Saturdays, Sundays and legal
holidays shall be excluded: Provided, That at the end of the
forty-eight-hour period, an order shall be entered certifying all
election results except for those offices in which a recount has been demanded.
(b) (c) If a recount has been demanded, the board shall have
an additional twenty-four hours after the end of the
forty-eight-hour period, in which to send notice to all
candidates who filed for the office in which a recount has been
demanded, of the date, time and place where the board will
convene to commence the recount. The notice shall be served
under the provisions of subdivision (c) (d) of this section. The
recount shall be set for no sooner than three days after the
serving of the notice: Provided, That after the notice is
served, candidates so served shall have an additional twenty-four
hours in which to notify the board, in writing, of their
intention to preserve their right to demand a recount of
precincts not requested to be recounted by the candidate
originally requesting a recount of ballots cast: Provided,
however, That there shall be only one recount of each precinct,
regardless of the number of requests for a recount of any
precinct. A demand for the recount of ballots cast at any
precinct may be made during the recount proceedings only by the
candidate originally requesting the recount and those candidates
who notify the board, pursuant to this subdivision, of their
intention to preserve their right to demand a recount of
additional precincts.
(c) (d) Any sheriff of the county in which the recount is to
occur shall deliver a copy thereof in writing to the candidate in
person; or if the candidate is not found, by delivering the copy
at the usual place of abode of the candidate, and giving
information of its purport, to the spouse of the candidate or any
other person found there who is a member of his or her family and
above the age of sixteen years; or if neither the spouse of the
candidate nor any other person be found there, and the candidate
is not found, by leaving the copy posted at the front door of the
place of abode. Any sheriff, thereto required, shall serve a
notice within his or her county and make return of the manner and
time of service; for a failure so to do, he or she shall forfeit
twenty dollars. The return shall be evidence of the manner and
time of service.
(d) (e) Every candidate who demands a recount shall be
required to furnish bond in a reasonable amount with good
sufficient surety to guarantee payment of the costs and the
expenses of such the recount in the event the result of the
election is not changed by the recount; but the amount of the
bond shall may in no case exceed three hundred dollars.
(f) During the canvass and any requested recount, at least
five percent of the precincts shall be chosen at random and the
ballots cast therein counted manually to ascertain the accuracy of the original vote count made by the counting board. If the
variance between the random manual count and the recorded results
entered by the county board is one percent or greater, then a
manual recount of all ballots is required. Once a determination
of the accuracy has been made, the board shall open each
remaining sealed package of ballots so laid before them and,
without unfolding them, count the number in each package and
enter the number upon their record.
(g) When they have made their certificates and declared the
results as hereinafter provided, they shall deposit the sealed
packages of ballots, absent voter ballots, registration records,
pollbooks, tally sheets and precinct certificates with the clerks
of the county commissions and circuit courts from whom they were
received, who shall carefully preserve them for twenty-two
months, and if there is no contest pending as to any election,
and their further preservation is not required by any order of a
court, the ballots, pollbooks, tally sheets and certificates
shall be destroyed by fire or otherwise, without opening the
sealed packages of ballots; and if there is a contest pending,
then they shall be so destroyed as soon as the contest is ended.
If the result of the election is not changed by the recount,
the costs and expenses thereof shall be paid by the party at
whose instance the recount was made.
NOTE: The purpose of this bill is to establish a process
for verifying the accuracy of a canvass or recount.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.