Senate Bill No. 599
(By Senators Wooton, Ball, Dittmar, Hunter, Kessler, Ross,
Schoonover, Snyder, White, Deem and Scott)
[Originating in the Committee on the Judiciary;
reported February 18, 1998.]
A BILL to amend and reenact section five, article three, chapter
three of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to authorizing the
transmission of certain absent voter applications by
Be it enacted by the Legislature of West Virginia:
That section five, article three, 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 3. VOTING BY ABSENTEES.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the clerk of the circuit
court shall provide to any voter of the county, in person,
mail or by facsimile, if the clerk has facsimile equipment, the
appropriate application for voting absentee by mail, as provided in
this article. The voter shall complete and sign the application in
his or her own handwriting or, if the voter is unable to complete the application because of illiteracy or physical disability, the
person assisting the voter and witnessing the mark of the voter
shall sign his or her name in the space provided.
(b) Completed applications for voting an absentee ballot by
mail shall be accepted when received by the clerk in person, by
mail or by facsimile, if the clerk has facsimile equipment, within
the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (d), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year, or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application shall, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the circuit
clerk shall determine whether the following requirements have been
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail
under the provisions of subdivision (2), (3) or (4), subsection
(d), section one of this article;
(5) The applicant is not making his or her first vote after
having registered by postcard registration under the provisions of
section forty-one, article two of this chapter or, if the applicant
is making the first vote under these provisions, the applicant is
exempt from these requirements;
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
If the clerk determines the required conditions have not been
met, or has evidence that any of the information contained in the
application is not true, the clerk shall give notice to the voter
that the voter's absentee ballot will be challenged as provided in
this article, and shall enter that challenge.
(d) Within one day after the clerk has both the completed
application and the ballot, the clerk shall mail to the voter at
the address given on the application the following: (1) One of
each type of official absentee ballot the voter is eligible to
vote, prepared according to law; (2) one envelope, unsealed, which shall have no marks except the designation "Absent Voter's Ballot
Envelope No. 1" and printed instructions to the voter; (3) one
postage paid envelope, unsealed, designated "Absent Voter's Ballot
Envelope No. 2" and printed as prescribed by the secretary of
state; (4) instructions for voting absentee by mail; and (5) any
other supplies required for voting in the particular voting system.
(e) The voter shall mark the ballot alone: Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article. After the voter has voted the ballot
or ballots, the voter shall: (1) Place the ballot or ballots in
envelope no. 1 and seal that envelope; (2) place the sealed
envelope no. 1 in envelope no. 2 and seal that envelope; (3)
complete and sign the forms on envelope no. 2; and (4) return that
envelope to the clerk.
(f) Absentee ballots returned by United States mail or other
express shipping service shall be accepted if: (1) The ballot is
received by the clerk no later than the close of the polls on
election day; or (2) the ballot bears a postmark of the United
States postal service dated no later than election day and the
ballot is received by the clerk no later than the hour at which the
board of canvassers convenes to begin the canvass.
Ballots received after the proper time which cannot be
accepted shall be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they shall be destroyed without being opened.
(g) Absentee ballots which are hand delivered to the clerk
shall be accepted if they are received by the circuit clerk no
later than the day preceding the election: Provided, That no
person may hand deliver more than two absentee ballots in any
election, and any person hand delivering an absentee ballot shall
be required to certify that he or she has not examined or altered
the ballot. Any person who makes a false certification shall be in
violation of the penalty provisions of article nine of this chapter
and subject to those provisions.
(h) Upon receipt of the sealed envelope, the clerk shall: (1)
Enter onto the envelope any other required information; (2) enter
the challenge, if any, to the ballot; (3) enter the required
information into the permanent record of persons applying for and
voting an absentee ballot in person; and (4) place the sealed
envelope in a secure location in the clerk's office, to remain
until delivered to the polling place or, in the case of a
challenged ballot, to the board of canvassers.
(NOTE: The purpose of this bill is to authorize circuit
clerks to send requested absent voter applications by facsimile.
This bill would also provide that circuit clerks may accept
completed applications in person, by mail or by facsimile.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would