H. B. 2249
(By Delegate Manchin)
[Introduced January 15, 1999; referred to the
Committee on the Judiciary.]
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 authorizing
a handicapped or disabled person to vote from a motor
vehicle in the presence of an election commissioner of each
political party.
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 or her 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 or
she shall be required to sign his or her 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 or her 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 or she so signs his or her name on the pollbook or his
or her 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 was
transferred 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 or her then without
leaving the election room. If he or she 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 or her 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 this chapter.
(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 or
compartments to prepare his or her 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; or
(D)
Vote from an automobile, outside the polling place or
precinct, in the presence of an election commissioner of each
political party.
(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:
(A) 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 public question, 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 or she had
voted, or how he or she 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; and
(B) Shall sign a written oath or affirmation before
assisting such voter on a form prescribed by the secretary of
state stating that he or she will not override the actual
preference of the voter being assisted, attempt to influence the
voter's choice or mislead the voter into voting for someone other
than the candidate of voter's choice. Such person assisting the
voter shall also swear or affirm that he or she believes that the
voter is voting free of intimidation or manipulation: Provided,
That no person providing assistance to such voter shall be
required to sign such oath or affirmation where the reason for
requesting such assistance is the voter's inability to vote
without assistance because of blindness as defined in section
three, article fifteen, chapter five of this code, and such
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is
on file in the office of the clerk of the county commission.
(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 or her name and present his or her 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. The commissioner 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 or she
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 oaths or affirmations
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, affirmations 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 oath or affirmation 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 require
assistance 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.
NOTE: The purpose of this bill is to authorize disabled
persons to vote from a motor vehicle in the presence of an
election commissioner of each political party.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.