H. B. 2091


(By Delegate Kuhn)
[Introduced Janaury 13, 1999; 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 county commissioners canvassing primary and general election returns; county commissioners who are candidates in primary or general elections may not serve on the board of canvassers or otherwise participate in the canvassing of returns from that election; circuit judge to appoint replacement; penalties for violation.

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.

§3-6-9. Canvass of returns; declaration of results; recounts; recordkeeping.

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 any 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) 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 that 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) 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) 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) 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) 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 any recount in the event the result of the election is not changed by the recount; but the amount of the bond shall in no case exceed three hundred dollars.
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.
(e) Notwithstanding any provision in this chapter to the contrary, a county commissioner who is a candidate in a primary or general election may not serve on the board of canvassers or otherwise participate in the canvassing of returns from that election. When a county commissioner is prohibited from serving on the board of canvassers or otherwise participating in the canvassing of returns pursuant to this subsection, the senior circuit judge of that county shall appoint a qualified replacement from the office of the clerk of the county commission to assume the county commissioner's canvassing duties. A county commissioner violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than two thousand dollars, or confined in the county or regional jail not more than sixty days, or both fined and imprisoned.



NOTE: The purpose of this bill is to prohibit county commissioners who are candidates in a general or primary election from serving on the board of canvassers or otherwise participating in the canvassing of returns from that election.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.