COMMITTEE SUBSTITUTE
FOR
H. B. 4429
(Delegates Smirl, Stemple and Romine)
(Originating in the House Committee on the Judiciary)
[March 2, 2000]
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 assistance in
elections; and setting forth conditions under which a handicap
voter may vote from an automobile outside the polling place.
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 that 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 that person be is physically or
otherwise unable to sign his or her 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 the affixation. No ballot shall
may be given to such the 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
that person's registration to the nearest polling place in the
county which is handicap accessible. Requests by such these
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 the 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 the ballot "spoiled" and
the same it 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 is 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 the 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 the
challenge 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 may 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 the voter the names of candidates on the
ballot as so prepared;
(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) If he or she is handicapped, vote from an automobile,
outside the polling place or precinct, in the presence of an
election commissioner of each political party if all of the
following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
(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 the 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 the 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 May 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 must not keep or make any memorandum or entry of anything
occurring within the voting booth or compartment, and shall must
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 the matter in a judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting
such the 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 The 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 a voter shall be is required to
sign such an 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 the 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 has
been assisted in voting the ballot as herein provided, the
commissioners shall likewise make and subscribe to an oath of that
fact on such the list.
(f) After preparing the ballot the voter shall fold the same
so that the face shall is not be exposed and so that the names of
the poll clerks thereon shall be are 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 the 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 may 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 the
oaths, affirmations and list available for public inspection and
who shall preserve the same these 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
swears falsely, or any person who shall counsel, or advise, aid or
abet counsels, advises, aids or abets another in the commission of
false swearing under this section, shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars, or imprisoned in the county or regional
jail for a period of not more than one year, or both fined and
imprisoned.
(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when such the voter is
known to such the election commissioner or poll clerk not to
require assistance in voting, shall be is guilty of a felony and,
upon conviction thereof, shall be fined not more than five thousand dollars, or imprisoned in the penitentiary a state correctional
facility for a period of not less than one year nor more than five
years, or both fined and imprisoned.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.