Senate Bill No. 731
(By Senators Oliverio, Hunter, Burnette, McKenzie, Wooton,
Caldwell, Fanning, Kessler, Minard, Mitchell, Redd, Rowe, Snyder
and Facemyer)
__________
[Originating in the Committee on the Judiciary;
reported April 4, 2001.]
__________
A BILL to amend and reenact sections five and twenty-one, article
one, chapter three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections six and seven, article two of said chapter; to amend
and reenact sections one, two, two-a, two-b, three, four,
five, five-a, five-b, five-c, seven, nine, ten, eleven and
twelve, article three of said chapter; to amend and reenact
sections one, two, six, nine, eleven, eleven-a, twelve,
fifteen, sixteen, seventeen, nineteen, nineteen-a, twenty,
twenty-one, twenty-four, twenty-six, twenty-seven, twenty-
eight and thirty, article four-a of said chapter; to further
amend said article by adding thereto a new section, designated
section twenty-four-a; and to amend and reenact section
twenty-three, article five of said chapter
, all relating to
election law reform generally.
Be it enacted by the Legislature of West Virginia:
That sections five and twenty-one, article one, chapter three
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted
;
that sections six and seven,
article two of said chapter be amended and reenacted;
that
sections one, two, two-a, two-b, three, four, five, five-a, five-b,
five-c, seven, nine, ten, eleven and twelve, article three of said
chapter be amended and reenacted; that sections one, two, six,
nine, eleven, eleven-a, twelve, fifteen, sixteen, seventeen,
nineteen, nineteen-a, twenty, twenty-one, twenty-four, twenty-six,
twenty-seven, twenty-eight and thirty, article four-a of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section twenty-
four-a; and that section twenty-three, article five of said chapter
be amended and reenacted, all
to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-5. Voting precincts and places established; number of voters
in precincts; precinct map; municipal map.
The precinct shall be the basic territorial election unit.
The county commission shall divide each magisterial district of the
county into election precincts, shall number the precincts, shall
determine and establish the boundaries thereof, and shall designate
one voting place in each precinct, which place shall be established
as nearly as possible at the point most convenient for the voters
of the precinct. Each magisterial district shall contain at least
one voting precinct and each precinct shall have but one voting
place therein.
Each precinct within any urban center shall contain not less
than three hundred nor more than eight one thousand five hundred
registered voters. Each precinct in a rural or less thickly
settled area shall contain not less than two hundred nor more than
seven hundred registered voters, unless upon a written finding by
the county commission that establishment of or retention of a
precinct of less than two hundred voters would prevent undue
hardship to the voters, the secretary of state determines that such
precinct be exempt from the two hundred voter minimum limit. If,
at any time the number of registered voters exceeds the maximum
number specified, the county commission shall rearrange the
precincts within the political division so that the new precincts
each contain a number of registered voters within the designated
limits. If a county commission fails to rearrange the precincts as
required, any qualified voter of the county may apply for a writ of
mandamus to compel the performance of this duty: Provided, That
when in the discretion of the county commission, there is only one
place convenient to vote within the precinct and when there are
more than seven hundred registered voters within the existing
precinct, the county commission may designate two or more precincts
with the same geographic boundaries and which have voting places
located within the same building. The county commission shall
designate alphabetically the voters who will be eligible to vote in
each precinct so created. Each such precinct shall be operated
separately and independently with separate voting booths, ballot
boxes, election commissioners and clerks, and whenever possible, in separate rooms. No two of such precincts may use the same counting
board.
In order to facilitate the conduct of local and special
elections and the use of election registration records therein,
precinct boundaries shall be established to coincide with the
boundaries of any municipality of the county and with the wards or
other geographical districts of the municipality except in
instances where found by the county commission to be wholly
impracticable so to do. Governing bodies of all municipalities
shall provide accurate and current maps of their boundaries to the
clerk of any county commission of a county in which any portion of
the municipality is located.
The provisions of this section are subject to the provisions
of section twenty-eight, article four of this chapter relating to
the number of voters in precincts in which voting machines are
used.
The county commission shall keep available at all times during
business hours in the courthouse at a place convenient for public
inspection a map or maps of the county and municipalities with the
current boundaries of all precincts.
§3-1-21. Printing of official and sample ballots; number;
packaging and delivery, correction of ballots.
(a) The board of ballot commissioners for each county shall
provide the ballots and sample ballots necessary for the conduct of
every election for public officers in which the voters of the
county participate.
(b) The persons who shall provide the ballots necessary for
the conduct of all other elections shall be:
(1) The secretary of state, for any statewide special election
ordered by the Legislature;
(2) The board of ballot commissioners, for any county-wide
special election ordered by the county commission; or
(3) The board of education, for any special levy or bond
election ordered by the board of education; or
(4) The municipal board of ballot commissioners, for any
election conducted for or within a municipality, except an election
in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those
caused to be printed by the proper authorities as specified in this
section shall not be cast, received, or counted in any election.
(c) When paper ballots are used, the total number of regular
official ballots printed shall equal one and one-twentieth times
the number of registered voters eligible to vote that ballot. The
circuit clerk shall determine the number of absentee official
ballots, which number shall be not more than one tenth of the
number of registered voters eligible to vote the ballot.
(d) The number of regular official ballots packaged for each
precinct shall equal the number of registered voters of the
precinct. The remaining regular official ballots shall be packaged
and delivered to the circuit clerk, who shall retain them unopened
until they are required for an emergency. Each package of ballots
shall be wrapped and sealed in a manner which will immediately make apparent any attempt to open, alter or tamper with the ballots
contained therein. Each package of ballots for a precinct shall be
clearly labeled, in a manner which cannot be altered, with the
county name, the precinct number, and the number of ballots
contained therein. If the packaging material conceals the face of
the ballot, a sample ballot identical to the official ballots
contained therein shall be securely attached to the outside of the
package, or, in the case of ballot cards, the type of ballot shall
be included in the label.
(e) All absentee ballots necessary for the conduct of absentee
voting in all voting systems shall be delivered to the circuit
clerk of the appropriate county not later than the forty-second day
before the election. All official ballots in paper ballot systems
shall be delivered to the circuit clerk of the appropriate county
not later than twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that
an official ballot contains an error which in the opinion of the
board is of sufficient magnitude as to confuse or mislead the
voters, the board shall cause the error to be corrected, either by
the reprinting of the ballots or by the use of stickers printed
with the correction and of suitable size to be placed over the
error without covering any other portion of the ballot.
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-6. Time of registration application before an election.
(a) Voter registration for before an election shall close on
the thirtieth twentieth day before the election, or on the first day thereafter which is not a Saturday, Sunday or legal holiday.
(b) An application for voter registration, transfer of
registration, change of name or change of political party
affiliation submitted by an eligible voter by the close of voter
registration shall be effective for any subsequent primary, general
or special election if the following conditions are met:
(1) The application contains the required information as set
forth in subsection (c), section five of this article: Provided,
That incomplete applications for registration containing
information which are submitted within the required time may be
corrected within four days after the close of registration if the
applicant provides the required information; and
(2) The application is received by the appropriate clerk of
the county commission no later than the hour of the close of
registration or is otherwise submitted by the following deadlines:
(A) If mailed, the application shall be addressed to the
appropriate clerk of the county commission and postmarked by the
postal service no later than the date of the close of registration:
Provided, That if the postmark is missing or illegible, the
application shall be presumed to have been mailed no later than the
close of registration if it is received by the appropriate clerk of
the county commission no later than the third day following the
close of registration;
(B) If accepted by a designated agency or motor vehicle
licensing office, the application shall be received by that agency
or office no later than the close of registration;
(C) If accepted through a registration outreach program, the
application shall be received by the clerk, deputy clerk or
registrar no later than the close of registration; and
(3) The verification notice required by the provisions of
section sixteen of this article mailed to the voter at the
residence indicated on the application is not returned as
undeliverable.
§3-2-7. Hours and days of registration in the office of the clerk
of the county commission; in person application for voter
registration; identification required.
(a) The clerk of the county commission shall provide voter
registration services at all times when the office of the clerk is
open for regular business. In addition, the office of the clerk
shall remain open for voter registration from 9:00 a.m. until 8:00
p.m. on the Friday and Monday, and from 9:00 a.m. until 5:00 p.m.
on the Saturday, prior to the close of registration for statewide
primary and general elections, and from 9:00 a.m. until 5:00 p.m.
on the day of a primary, general or special election.
(b) Any eligible voter who desires to apply for voter
registration in person at the office of the clerk of the county
commission shall complete a voter registration application on the
prescribed form and shall sign the oath required on that
application in the presence of the clerk of the county commission
or his or her deputy. The applicant shall then present valid
identification and proof of age, except that the clerk may waive
the proof of age requirement if the applicant is clearly over the age of eighteen.
(c) The clerk shall attempt to establish whether the residence
address given is within the boundaries of an incorporated
municipality and, if so, make the proper entry required for
municipal residents to be properly identified for municipal voter
registration purposes.
(d) Upon receipt of the completed registration application,
the clerk shall either:
(1) Provide a notice of procedure for verification and notice
of disposition of the application and immediately begin the
verification process prescribed by the provisions of section
sixteen of this article; or
(2) Upon presentation of a current driver's license or state
issued identification card containing the residence address as it
appears on the voter registration application, issue the receipt of
registration.
(e) Any person who registers to vote on the day of an election
who receives the receipt of registration as provided in subsection
(d) of this section may proceed to vote in the precinct in which he
or she is authorized to vote. The ballot shall be treated as a
challenged ballot under the provisions of section forty-one of this
article. The secretary of state is required to propose legislative
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code and as authorized under the provisions
of section three of this article to establish procedures for the
implementation of the provisions of this subsection.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a) Duly registered Registered and otherwise other qualified
voters of the county who for authorized reasons as provided in this
article are unable to vote in person at the polling place on the
day of a primary, general or special election may vote an absentee
ballot according to pursuant to the provisions of this article.
(b) Voters in the following circumstances shall be authorized
to All registered and other qualified voters of the county may vote
an absentee ballot and shall be required to vote that absentee
ballot in person in the office of the clerk of the circuit court
during the period of regular absentee voting in person:
(1) Any voter who is within the county and physically able to
vote in person during regular business hours of the clerk's office
during the prescribed period for absentee voting but is unable to
vote in person on election day because of: (A) Anticipated or
scheduled commitment to a hospital, institution or other
confinement for medical reasons; (B) absence from the county during
the entire time the polls are open; (C) appointment as an election
official in a precinct other than the one in which the voter is
registered; or (D) the inaccessibility of the polling place to the
voter because of his or her physical disability; and
(2) Any voter who is a member of a religious denomination with
an established history of observing Saturday as the Sabbath, when
the election is scheduled to be held on Saturday.
(c) Voters in the following circumstances shall be authorized to Any registered voter or other qualified voter of the county who
will be absent from the county throughout the regular period and
available hours for voting in person because of personal or
business travel or employment and who will be unable to receive an
absentee ballot by mail at an address outside the county during
that absence may vote an absentee ballot under special affidavit
and shall be required to vote that absentee ballot in person in the
office of the clerk of the circuit court during the period of
special absentee voting in person:
Any voter who will be absent from the county throughout the
regular period and available hours for voting in person at the
polls or at the clerk's office because of personal or business
travel or employment, who will be unable to receive an absentee
ballot by mail at an address outside the county during that
absence, and who will be present within the county between the
forty-second day before the election and the fifteenth day before
the election.
(d) Voters in the following circumstances shall be Registered
voters and other qualified voters in the county are authorized to
vote an absentee ballot by mail in the following circumstances:
(1) Any voter who is confined to a specific location and
prevented from voting in person throughout the period of voting in
person because of:
(A) Illness, injury or other medical reason;
(B) physical Physical disability or immobility due to extreme
advanced age; or
(C) incarceration Incarceration or home detention when not
under: Provided, That the underlying conviction of is not for a
crime which is a felony, treason or a violation of sections twelve,
thirteen or sixteen, article nine of this chapter, involving
bribery in an election;
(2) Any voter who is absent from the county throughout the
period and available hours for voting in person because of:
(A) Personal or business travel;
(B) attendance Attendance at a college, university or other
place of education or training; or
(C) employment Employment which because of hours worked and
distance from the county seat make voting in person impossible;
(3) Any voter absent from the county throughout the period and
available hours for voting in person and who is an absent uniformed
services voter or overseas voter, as defined by 42 U.S.C. § 1973,
et seq., the Uniformed and Overseas Citizens Absentee Voting Act of
1986 (Public Law 99-410, 42 U.S.C. 1973, et seq.). Members,
including members of the uniformed services on active duty, members
of the merchant marine, spouses and dependents of those members on
active duty, and persons who reside outside the United States and
are qualified to vote in the last place in which the person was
domiciled before leaving the United States are included in the
above definition;
(4) Any voter who is required to dwell temporarily outside the
county and is absent from the county throughout the time for voting
in person because of:
(A) Serving as an elected or appointed federal or state
officer; or
(B) serving Serving in any other documented employment
assignment of specific duration of four years or less; and
(5) Any voter for whom both the office of the circuit clerk
the designated area for absentee voting within the county
courthouse or annex of the courthouse and the voter's assigned
polling place are inaccessible to the voter because of his or her
physical disability.
(e) Voters in the following circumstances shall be authorized
to Registered voters and other qualified voters in the county may,
in the following circumstances, vote an emergency absentee ballot,
subject to the availability of the services as provided in this
article:
(1) Any voter who is admitted for emergency medical treatment
on or after the seventh day next preceding the election and who
anticipates continued confinement in a hospital or other duly
licensed health care facility within the county of residence or
other authorized area, as provided in this article;
(2) Any voter who is admitted and confined in a hospital or
other duly licensed health care facility within the county of
residence or other authorized area, as provided in this article, on
the day of the election;
(2) (3) Any voter who resides in a nursing home within the
county of residence and would be otherwise unable to vote in
person, providing the county commission has authorized such the services; and
(3) (4) Any voter who is working as a replacement poll worker
and is assigned to a precinct out of his or her voting district, if
the assignment was made after the period for voting an absentee
ballot in person has expired.
§3-3-2. Authority to conduct absentee voting; absentee voting
application; form.
(a) Absentee voting shall is to be supervised and conducted by
the proper official for the political division in which the
election is held, in conjunction with the ballot commissioners
appointed from each political party, as follows:
(1) The clerk of the circuit court, for any election held
throughout the county, within a political subdivision or territory
other than a municipality, or within a municipality when the
municipal election is conducted in conjunction with a county
election For any election held throughout the county, within a
political subdivision or territory other than a municipality, or
within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county
commission: Provided, That if the clerk of the county commission
and the clerk of the circuit court jointly petition to the county
commission setting forth their agreement that the clerk of the
circuit court should continue to supervise and conduct the absentee
voting, the county commission shall designate the clerk of the
circuit court to supervise and conduct the absentee voting; or
(2) The municipal recorder or other officer authorized by charter or ordinance provisions to conduct absentee voting, for any
election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms "clerk"
or "circuit clerk" used elsewhere in this article shall be taken to
refer to such recorder or other officer in the case of municipal
elections.
(b) A person authorized and desiring to vote an absentee
ballot in any primary, general or special election shall is to make
application in writing in the proper form to the proper official.
as follows:
(1) The completed application shall is to be on a form
prescribed by the secretary of state, and shall is to contain the
name, date of birth and political affiliation of the voter,
residence address within the county, the address to which the
ballot is to be mailed, the authorized reason, if any, for which
the absentee ballot is requested, and, if the reason is illness or
hospitalization, the name and telephone number of the attending
physician, the signature of the voter to a declaration made under
the penalties for false swearing as provided in section three,
article nine of this chapter that the statements and declarations
contained in the application are true, any additional information
which the voter is required to supply, any affidavit which may be
required, and an indication as to whether it is an application for
voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under
the provisions of 42 U.S.C. § 1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (Public Law 99-410,
42 U.S.C. 1973, et seq.), the completed application may be on the
federal postcard application for absentee ballot form issued under
authority of that act; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for an
application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out
by the voter, provided all information required to meet the
provisions of this article is set forth and the application is
signed by the voter requesting the ballot.
§3-3-2a. Voting booths within public view to be provided;
prohibition against display of campaign material.
Throughout the period of absentee voting in person in the
clerk's office as provided in this article, the circuit clerk
official designated to supervise and conduct absentee voting shall
make the following provisions for voting:
(a) (1) The clerk official shall provide a sufficient number
of voting booths or devices appropriate to the voting system at
which voters may prepare their ballots. The booths or devices
shall are to be in an area separate from but within clear view of
the public entrance area of the clerk's official's office or other
area designated by the county commission for absentee voting, and
shall are to be arranged to ensure the voter complete privacy in
casting the ballot.
(b) (2) The clerk official shall make the voting area secure from interference with the voter and shall ensure that voted and
unvoted ballots are at all times secure from tampering. No person,
other than a person lawfully assisting the voter according to the
provisions of this chapter, may be permitted to come within five
feet of the voting booth while the voter is voting. No person,
other than the clerk or deputy clerks officials or employees of the
official designated to supervise and conduct absentee voting or
members of the board of ballot commissioners assigned to conduct
absentee voting, shall may enter the area or room set aside for
voting.
(c) (3) When the voting area of the office of the clerk
official designated to supervise and conduct absentee voting is not
fully accessible to voters with physical disabilities or if the
office of the official designated to supervise and conduct absentee
voting does not include an area for absentee voting within clear
view of the public entrance of the office or if there is otherwise
no suitable area for absentee voting within the office, the clerk
official shall request the county commission to designate an
accessible room within the same building another area within the
county courthouse or any annex of the courthouse as a portion of
the clerk's official's office for the purpose of absentee voting
only by persons unable to use the regular area. The Any designated
area shall be is subject to the same requirements as the regular
absentee voting area.
(d) (4) No person may do any electioneering, nor may any
person display or distribute in any manner, or authorize the display or distribution of, any literature, posters or material of
any kind which tends to influence the voting for or against any
candidate or any public question on the property of the county
courthouse or any judicial annex facilities thereof during the
entire period of regular in person absentee voting. The clerk
official designated to supervise and conduct absentee voting is
hereby authorized to remove such the material and to direct the
sheriff of the county to enforce the prohibition.
§3-3-2b. Special absentee voting list.
(a) Any person who is registered and otherwise qualified to
vote and who is permanently and totally physically disabled and who
is unable to vote in person at the polls in an election may apply
to the clerk of the circuit court official designated to supervise
and conduct absentee voting for placement on the special absentee
voting list.
(b) The application shall is to be on a form prescribed by the
secretary of state which shall is to include the voter's name and
signature, residence address, a statement that the voter is
permanently and totally physically disabled and would be unable to
vote in person at the polls in any election, a description of the
nature of that disability, and a statement signed by a physician to
that effect.
(c) Upon receipt of a properly completed application, the
circuit clerk official designated to supervise and conduct absentee
voting shall enter the name on the special absentee voting list,
which shall is to be maintained in a secure and permanent record. The person's name shall will remain active on such the list until:
(1) The person requests in writing that his or her name be removed;
(2) the The person removes his or her residence from the county, is
purged from the voter registration books or otherwise becomes
ineligible to vote; (3) a A ballot mailed to the address provided
on the application is returned undeliverable by the United State
postal service; or (4) the The death of the person.
(d) The clerk official d
esignated to supervise and conduct
absentee voting shall mail an application for an absentee ballot by
mail to each person active on the special absentee voting list not
later than forty-two days before each election.
§3-3-3. Voting an absentee ballot in person.
(a) Regular absentee voting in person shall is to be conducted
during regular business hours in the office of the clerk of the
circuit court beginning on the fifteenth day before the election
and continuing through the Saturday Monday before the election for
any election held on a Tuesday, or continuing through the third day
before the election for any election held on another day. For any
election held on a Tuesday, regular absentee voting in person is to
be available from nine a. m. to five p. m. on the Saturday before
the election.
(b) Special absentee voting in person for persons eligible to
vote an absentee ballot under the provisions of subsection (c),
section one of this article shall is to be conducted during regular
business hours in the office of the clerk of the circuit court
beginning on the forty-second day before the election and continuing until the first day when regular absentee voting in
person begins. Any person seeking to vote absentee under this
subsection shall is to first give an affidavit, on a form
prescribed by the secretary of state, stating under oath the
specific circumstances which prevent voting absentee during the
period for regular absentee voting in person or by mail.
(c) Upon oral request, the clerk of the circuit court official
designated to supervise and conduct absentee voting shall provide
the voter with the appropriate application for voting absentee in
person, 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.
(d) Upon completion, the application shall is to be
immediately returned to the clerk official, who shall determine:
(1) Whether the application has been completed as required by
law;
(2) Whether 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; and
(3) Whether the applicant is authorized for the reasons given
in the application to vote an absentee ballot by personal
appearance during the special absentee voting period at the time of
the application.
(e) If the clerk official designated to supervise and conduct
absentee voting determines the above conditions provided in
subsection (d) of this section have not been met, or has evidence
that any of the information contained in the application is not
true, the clerk shall challenge the voter's absentee ballot as
provided in this article.
(d) (f) The clerk official designated to supervise and conduct
absentee voting shall provide each person voting an absentee ballot
in person the following items to be printed as prescribed by the
secretary of state:
(1) One of each type of official absentee ballot the voter is
eligible to vote, prepared according to law;
(2) one One envelope, unsealed, which shall may have no marks
except the designation "Absent Voter's Ballot Envelope No. 1" and
printed instructions to the voter; and
(3) one One envelope, unsealed, designated "Absent Voter's
Ballot Envelope No. 2" and printed as prescribed by the secretary
of state.
(e) (g) The voter shall enter the voting booth alone and there
mark the ballot: Provided, That the voter may have assistance in
voting according to the provisions of section four 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 Place the sealed envelope No. 1 in envelope No.
2 and seal that envelope; (3) complete Complete and sign the forms
on envelope No. 2; and (4) return Return that envelope to the circuit clerk official designated to supervise and conduct the
absentee voting.
(f) (h) Upon receipt of the sealed envelope, the circuit clerk
official designated to supervise and conduct the absentee voting
shall:
(1) Enter onto the envelope any other required information;
(2) enter Enter the challenge, if any, to the ballot;
(3) enter Enter the required information into the permanent
record of persons applying for and voting an absentee ballot in
person; and
(4) place Place the sealed envelope in a secure location in
the clerk's official's office, to remain until delivered to the
polling place or, in the case of a challenged ballot, to the board
of canvassers.
§3-3-4. Assistance to voter in voting an absent voter's ballot by
personal appearance.
(a) Any duly registered voter, who requires assistance to vote
by reason of blindness, disability, advanced age, or inability to
read and write, may be given assistance by a person of the voter's
choice: Provided, That such the 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.
(b) Any voter who requests assistance in voting an absent
voter's ballot but who is determined by the clerk of the circuit
court official designated to supervise and conduct absentee voting not to be qualified for such assistance under the provisions of
this section and section thirty-four, article one, of this chapter
shall nevertheless be permitted to may vote a challenged absent
voter's ballot with the assistance of any person herein authorized
to render assistance pursuant to this section. The clerk of the
circuit court official designated to supervise and conduct absentee
voting shall in such this case challenge the absent voter's ballot
on the basis of such his or her determination that the voter is not
qualified for assistance.
(c) Any one or more of the election commissioners or poll
clerks in the precinct to which an absent voter's ballot has been
sent may challenge such the ballot on the ground that the voter
thereof received assistance in voting it when in his or their
opinion (1) the person who received the assistance in voting the
absent voter's ballot did not require such assistance, or (2) the
person who provided the assistance in voting did not make an
affidavit as required by this section. The election commissioner
or poll clerk or commissioners or poll clerks making such a
challenge shall enter the challenge and reason therefor for the
challenge on the form and in the manner prescribed or authorized by
this article.
(d) Before entering the voting booth or compartment, the
person who intends to provide a voter assistance in voting shall
make an affidavit, the form of which shall is to be prescribed by
the secretary of state, that he or she will 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 that he or she will not keep or make any
memorandum or entry of anything occurring within the voting booth
or compartment, and that he or she will 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.
(e) In accordance with instructions issued by the secretary of
state, the clerk of the circuit court official designated to
supervise and conduct absentee voting shall provide a form entitled
"List of Assisted Voters," the form of which list shall likewise be
prescribed by the secretary of state, which list shall is to be
divided into two parts. Part A shall is to be entitled
"Unchallenged Assisted Voters" and Part B shall is to be entitled
"Challenged Assisted Voters." Under Part A the clerk official
designated to supervise and conduct absentee voting shall enter the
name of each voter receiving unchallenged assistance in voting an
absent voter's ballot, the address of the voter assisted, the
nature of the disability which qualified the voter for assistance
in voting an absent voter's ballot, the name of the person
providing the voter with assistance in voting an absent voter's
ballot, the fact that the person rendering the assistance in voting
made and subscribed to the oath required by this section, and the signature of the clerk of the circuit court official designated to
supervise and conduct absentee voting certifying to the fact that
he or she had determined that the voter who received assistance in
voting an absent voter's ballot was qualified to receive such the
assistance under the provisions of this section. Under Part B the
clerk official designated to supervise and conduct absentee voting
shall enter the name of each voter receiving challenged assistance
in voting, the address of the voter receiving such challenged
assistance, the reason for the challenge, and the name of the
person providing the challenged voter with assistance in voting.
At the close of the period provided for voting an absent voter's
ballot by personal appearance, the clerk of the circuit court
official designated to supervise and conduct absentee voting shall
make and subscribe to an oath on such the list that the list is
correct in all particulars; if no voter shall have has been
assisted in voting an absent voter's ballot as herein provided in
this section, the clerk of the circuit court official designated to
supervise and conduct absentee voting shall likewise make and
subscribe to an oath of that fact on such the list. The "List of
Assisted Voters" shall is to be available for public inspection in
the office of the clerk of the circuit court official designated to
supervise and conduct absentee voting during regular business hours
throughout the period provided for voting an absent voter's ballot
by personal appearance, and unless otherwise directed by the
secretary of state, the clerk of the circuit court official shall
transmit such the list, together with the affidavits, applications and absent voters' ballots, to the precincts on election day.
(f) Following the election, the affidavits required by this
section from persons providing assistance in voting, together with
the "List of Assisted Voters," shall are to 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 and list available for public inspection and who
shall preserve the same the oaths and list for twenty-two months
or, if under order of the court, until their destruction or other
disposition is authorized or directed by the court.
(g) Any person making an affidavit required under the
provisions of this section who shall therein knowingly swear swears
falsely in the affidavit, or any person who shall counsel, counsels
or advise, aid advises, aids or abet 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 confined in the county
or regional jail for a period of not more than one year, or both
such fine and imprisonment.
(h) Any person who provides a voter assistance in voting an
absent voter's ballot in the office of the clerk of the circuit
court official designated to supervise and conduct absentee voting
who is not qualified or permitted by this section to provide such
assistance 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 such fine and imprisonment.
(i) Any clerk of the circuit court official designated to
supervise and conduct absentee voting, election commissioner or
poll clerk who authorizes or allows a voter to receive or to have
received unchallenged assistance in voting an absent voter's ballot
when such the voter is known to the clerk of the circuit court
official designated to supervise and conduct absentee voting or
election commissioner or poll clerk not to be or have been
authorized by the provisions of this section to receive or to have
received assistance in voting 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 such fine and
imprisonment.
(j) The term "physical disability" as used in this section
shall mean means only blindness or such a degree of blindness as
will prevent the voter from seeing the names on the ballot, or
amputation of both hands, or such a disability of both hands that
neither can be used to make cross marks on the absent voter's
ballot.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the clerk of the circuit
court official designated to supervise and conduct the absentee
voting shall provide to any voter of the county, in person, by mail
or by facsimile, if the clerk official has access to 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 is to be accepted when received by the clerk official
designated to supervise and conduct absentee voting in person, by
mail or by facsimile, if the clerk official has access to 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 is to, upon the voter's request, be accepted as
an application for the ballots for all elections in the calendar
year; and
(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 official designated to supervise and conduct absentee voting
shall determine whether the following requirements have been met:
(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)(A), (2)(B), (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 his or her first vote under these provisions after
having registered by postcard registration, the applicant is exempt
from these requirements; and
(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.
(d) If the clerk official designated to supervise and conduct
absentee voting 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 official 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) (e) Within one day after the clerk official designated to
supervise and conduct absentee voting has both the completed
application and the ballot, the clerk official shall mail to the
voter at the address given on the application the following items
as prescribed by the secretary of state:
(1) One of each type of official absentee ballot the voter is
eligible to vote, prepared according to law;
(2) one One envelope, unsealed, which shall may have no marks
except the designation "Absent Voter's Ballot Envelope No. 1" and
printed instructions to the voter;
(3) one One postage paid envelope, unsealed, designated
"Absent Voter's Ballot Envelope No. 2" and printed as prescribed by
the secretary of state;
(4) instructions Instructions for voting absentee by mail; and
(5) any Any other supplies required for voting in the
particular voting system.
(e) (f) 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 Place
the sealed envelope no. 1 in envelope no. 2 and seal that envelope;
(3) complete Complete and sign the forms on envelope no. 2; and (4)
return Return that envelope to the official designated to supervise
and conduct absentee voting.
(f) (g) Absentee Except as provided in subsection (h) of this section, absentee ballots returned by United States mail or other
express shipping service shall are to be accepted if: (1) The
ballot is received by the clerk official designated to supervise
and conduct absentee voting no later than the close of the polls on
day after the 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 official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (d), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvas.
(i) Ballots received after the proper time which cannot be
accepted shall are to 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 are to be destroyed without
being opened.
(g) (j) Absentee ballots which are hand delivered to the clerk
shall are to be accepted if they are received by the circuit clerk
official designated to supervise and conduct absentee voting 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 is 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 violates the provisions of
article nine of this chapter and is subject to those provisions.
(h) (k) Upon receipt of the sealed envelope, the clerk
official designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) enter Enter the challenge, if any, to the ballot;
(3) enter Enter the required information into the permanent
record of persons applying for and voting an absentee ballot in
person; and
(4) place Place the sealed envelope in a secure location in
the clerk's official's office, to remain until delivered to the
polling place or, in the case of a challenged ballot, to the board
of canvassers.
§3-3-5a. Processing federal postcard applications.
(a) When a federal postcard registration and absentee ballot
request (FPCA), as defined in subdivision (2), subsection (b),
section two of this article, is received by the clerk of the
circuit court, the clerk official designated to supervise and
conduct absentee voting, the official shall examine the application
and take the following steps:
(1) The clerk official shall first enter the name of the
applicant in the permanent absentee voter's record for each
election for which a ballot is requested, make a photocopy of the application for each such election for which a ballot is requested
and place the separate copies in secure files to be maintained for
use in the various elections.
(2) The clerk official designated to supervise and conduct
absentee voting shall then determine if the applicant is registered
to vote at the residence address listed in the voting residence
section of the application. If the applicant is properly
registered, the clerk shall maintain the original application. If
the applicant is not registered, or not registered at the address
given, the clerk official shall deliver the original FPCA to the
clerk of the county commission for processing, and the clerk of the
county commission shall process the application as an application
for registration and, if such the application is received after the
close of voter registration for the next succeeding election, the
clerk of the circuit court official shall challenge the absentee
ballot for that election.
(3) Except as provided herein in subdivision (2) of this
section, the federal application for an absentee ballot received
from a person qualified to use the application as provided in
section two of this article shall is to be processed as all other
applications and the ballot or ballots for each election for which
ballots are requested by the applicant shall is to be mailed to the
voter on the first day on which both the application and the ballot
are available.
(b) When a federal postcard registration and absentee ballot
request (FPCA) is received by the clerk of the county commission, the clerk of the county commission shall examine the application
and take the following steps:
(1) The clerk shall determine if the applicant is registered
to vote at the residence address listed in the voting residence
section of the application. If the applicant is properly
registered, the clerk shall deliver the original FPCA to the clerk
of the circuit court for processing as an application for absentee
voting. If the applicant is not registered, or not registered at
the address given, the clerk of the county commission shall make a
photocopy of such application and deliver the photocopy to the
clerk of the circuit court for processing as an application for
absentee voting, and shall register the voter and maintain the
original copy in the registration files. If the application for
registration is received after the close of registration for the
next succeeding election, the clerk of the county commission shall
hold the application to be entered into the registration records
after that election and shall forward a copy of the application to
the clerk of the circuit court, along with a notice that the
absentee ballot for that election shall be challenged.
(2) Upon receiving the original or the photocopy of the
application from the clerk of the county commission, the clerk of
the circuit court shall process the application as prescribed in
subsection (a) of this section.
§3-3-5b. Procedures for voting a special write-in absentee ballot
by qualified persons.
(a) Notwithstanding any other provisions of this chapter, a person qualified to vote an absentee ballot in accordance with
subdivision (3), subsection (d), section one of this article may
apply not earlier than the first day of January of an election year
for a special write-in absentee ballot for a primary or general
election, in conjunction with the application for a regular
absentee ballot or ballots. If the application is received after
the forty-ninth day preceding the election, the clerk of the
circuit court official designated to supervise and conduct absentee
voting shall honor only the application for local, state and
federal offices in general, special and primary elections.
(b) The application for a special write-in absentee ballot may
be made on the federal postcard application form.
(c) In order to qualify for a special write-in absentee
ballot, the voter must state that he or she is unable to vote by
regular absentee ballot or in person due to requirements of
military service or due to living in isolated areas or extremely
remote areas of the world. This statement may be made on the
federal postcard application or on a form prepared by the secretary
of state and supplied and returned with the special write-in
absentee ballot.
(d) Upon receipt of said the application within the time
required, the clerk official designated to supervise and conduct
absentee voting shall issue the special write-in absentee ballot
which shall is to be the same ballot issued under the provisions of
42 U.S.C. § 1973, et seq., the Uniformed and Overseas Citizens
Absentee Voting Act of 1986 (Public Law 99-410, 42 U.S.C. § 1973, et seq.). Such The ballot shall is to permit the elector to vote
in a primary election by indicating his or her political party
affiliation and the names of the specific candidates for each
office, and in a general election by writing in a party preference
for each office, the names of specific candidates for each office,
or the name of the person whom the voter prefers for each office.
(e) When a special federal write-in ballot is received by the
clerk official designated to supervise and conduct absentee voting
from a voter: (1) Who mailed the write-in ballot from any location
within the United States; (2) who Who did not apply for a regular
absentee ballot; (3) who Who did not apply for a regular absentee
ballot by mail; or (4) whose Whose application for a regular
absentee ballot by mail was received less than thirty days before
the election, the write-in ballot shall may not be counted.
(f) Any write-in absentee ballot must be received by the clerk
official designated to supervise and conduct absentee voting prior
to the close of the polls on election day or it may not be counted.
§3-3-5c. Procedures for voting an emergency absentee ballot by
qualified voters.
(a) Notwithstanding any other provision of this chapter, a
person qualified to vote an emergency absentee ballot, as provided
in subsection (e), section one of this article may vote an
emergency absentee ballot under the procedures established in this
section. The county commission may adopt a policy extending the
emergency absentee voting procedures to: (1) Hospitals or other
duly licensed health care facilities within an adjacent county or within thirty-five miles of the county seat; or (2) nursing homes
within the county: Provided, That the policy shall is to be
adopted by the county commission at least ninety days prior to the
election that will be affected and a copy of such the policy shall
is to be filed with the secretary of state.
(b) On or before the fifty-sixth day preceding the date on
which any election is to be held the clerk of the circuit court of
each county official designated to supervise and conduct absentee
voting shall notify the county commission of the number of sets of
emergency absentee ballot commissioners which he or she deems
determines necessary to perform the duties and functions
hereinafter set forth pursuant to this section.
(c) A set of emergency absentee ballot commissioners at-large
shall consist of two persons appointed by the county commission in
accordance with the procedure prescribed for the appointment of
election commissioners under the provisions of article one of this
chapter. Emergency absentee ballot commissioners shall have the
same qualifications and rights and take the same oath required
under the provisions of this chapter for commissioners of
elections. Such Emergency absentee ballot commissioners shall are
to be compensated for services and expenses in the same manner as
commissioners of election obtaining and delivering election
supplies under the provisions of section forty-four, article one of
this chapter.
(d) Upon request of the voter or a member of the voter's
immediate family or, when the county commission has adopted a policy to provide emergency absentee voting services to nursing
home residents within the county, upon request of a staff member of
the nursing home, the clerk of the circuit court official
designated to supervise and conduct absentee voting, upon receiving
a proper request for voting an emergency absentee ballot no earlier
than the seventh day next preceding the election and no later than
noon of election day, shall supply to the emergency absentee ballot
commissioners the application for voting an emergency absentee
ballot and the balloting materials. The emergency absentee ballot
application shall is to be prescribed by the secretary of state and
shall is to include the name, residence address and political party
affiliation of the voter, the date, location and reason for
confinement in the case of an emergency, and the name of the
attending physician.
(e) The application for an emergency absentee ballot is to be
signed by the person applying. If the person applying for an
emergency absentee ballot is unable to sign his or her application
because of illiteracy, he or she shall is to make his or her mark
on the signature line above provided for an illiterate applicant
which mark shall is to be witnessed.
(f) A declaration is to be completed and signed by each of the
emergency absentee ballot commissioners, stating their names, the
date on which they appeared at the place of confinement of the
person applying for an emergency absentee ballot, and the
particulars of the confinement.
(e) (g) At least one of the emergency absentee ballot commissioners receiving the balloting materials shall sign a
receipt which shall is to be attached to the application form.
Each of the emergency absentee ballot commissioners shall deliver
the materials to the absent voter, await his or her completion of
the application and then the ballot and return the same the
application and the ballot to the circuit clerk official designated
to supervise and conduct absentee voting and, upon delivering the
application and the voted ballot to the clerk of the court
official, sign an oath that no person other than the absent voter
voted the ballot. The application and the voted ballot shall are
to be returned to the clerk of the circuit court official
designated to supervise and conduct absentee voting prior to the
close of the polls on election day. Any ballots received by the
clerk official after the time that delivery may reasonably be made
but before the closing of the polls shall are to be delivered to
the canvassing board along with the absentee ballots challenged in
accordance with the provisions of section ten of this article.
(f) (h) Upon receiving the application and emergency absentee
ballot, the clerk of the circuit court official designated to
supervise and conduct absentee voting shall ascertain whether the
application is complete, whether the voter appears to be eligible
to vote an emergency absentee ballot, and whether the voter is
properly registered to vote with the office of the clerk of the
county commission. If the voter is found to be properly registered
in the precinct shown on the application, the ballot shall is to be
delivered to the precinct election commissioner pursuant to section seven of this article. If the voter is found not to be registered
or is otherwise ineligible to vote an emergency ballot, then the
ballot shall is to be challenged for the appropriate reason
provided for in section ten of this article.
(g) (i) If either or both of the emergency absentee ballot
commissioners should refuse to sign any application for voting an
emergency absentee ballot, then the voter shall be permitted to may
vote as an emergency absentee and any such the ballot shall is to
be challenged in accordance with the provisions of section ten of
this article, in addition to those absentee ballots subject to
challenge as enumerated therein provided in that section.
(h) (j) Any voter who receives assistance in voting an
emergency absentee ballot shall comply with the provisions of
section six of this article. Any other provisions of this chapter
relating to absentee ballots not altered by the provisions of this
section shall are to govern the treatment of emergency absentee
ballots.
§3-3-7. Delivery of absentee ballots to polling places.
(a) Except as otherwise provided in this article, the absentee
ballots of each precinct, together with the applications therefor
for the absentee ballots, the affidavits made in connection with
assistance in voting, and such any forms, lists and records as may
be designated by the secretary of state, shall are to be delivered
in a sealed carrier envelope to the election commissioner of the
precinct at the time he or she picks up the official ballots and
other election supplies as provided in section twenty-four, article one of this chapter.
(b) Absentee ballots received after the election commissioner
has picked up the official ballots and other election supplies for
the precinct shall are to be delivered to the election commissioner
of the precinct who has been so designated pursuant to section
twenty-four, article one of this chapter, by the clerk official
designated to supervise and conduct absentee voting in person, or
by messenger, before the closing of the polls, provided such the
ballots are received by the clerk official in time to make such the
delivery. Any ballots received by the clerk official after the
time that delivery may reasonably be made but within the time
required as provided in subsection (f) (g), section five of this
article, shall are to be delivered to the board of canvassers along
with the challenged ballots.
§3-3-9. Voting in person after having received and after having
voted an absent voter's ballot.
(a) Any person who has applied for and received an absent
voter's ballot but has not voted and returned the same to the clerk
of the circuit court official designated to supervise and conduct
absentee voting may vote in person at the polls on election day
provided he or she returns such the absent voter's ballot to the
election commissioners at the polling place. In such case Upon
return of the absent voter's ballot shall be destroyed by the
election commissioners shall destroy the ballot in the presence of
the voter, and one of the poll clerks shall make a notation of such
this fact as directed by instructions issued by the secretary of state. In the event such the person does not return the absent
voter's ballot, he or she shall will have his or her vote
challenged by one or more of the election commissioners or poll
clerks.
(b) Any No person who has voted an absent voter's ballot under
authority of subdivision (3), of subsection (d), section one of
this article who is present in the county in which he or she is
registered to vote between the opening and closing of the polls on
election day, and any person who has voted an absent voter's ballot
under authority of subdivision (1), subsection (d) of section one
of this article who is or becomes able to vote in person at the
polls on election day, shall go to the polling place in the
precinct of his residence on election day and vote in person and
ask that the absent voter's ballot voted by him be destroyed in his
presence. In such case, one of the poll clerks shall make a
notation of such fact as directed by instructions issued by the
secretary of state may vote in person on the day of the election.
(c) In the event a person who has voted an absent voter's
ballot votes in person at the polls on election day and fails to
notify the election commissioners and poll clerks that he or she
had previously voted an absent voter's ballot in such the election
and the election commissioners and poll clerks fail to discover
such this fact at the time of voting in person, they shall,
following the closing of the polls, challenge the absent voter's
ballot of such voted by that person.
(d) The absent voter's ballot of any such person described in the second paragraph subsection (b) of this section who fails to go
to the polling place in the precinct of his residence on election
day and vote in person shall be subject to challenge by any one or
more of the election commissioners or poll clerks or by any
registered voter in the county who has personal knowledge that such
person was either in the county between the opening and closing of
the polls on election day or was able to vote in person at the
polls on election day, as the case may be: Provided, That any such
challenge by a registered voter shall be made by affidavit, the
form of which shall be prescribed by the secretary of state.
§3-3-10. Challenging of absent voters' ballots.
(a) The clerk of the circuit court official designated to
supervise and conduct absentee voting may challenge an absent
voter's ballot on any of the following grounds:
(1) That the application for an absent voter's ballot has not
been completed as required by law;
(2) that That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) that That the applicant for an absent voter's ballot is
not registered to vote in the precinct of his or her residence as
provided by law;
(4) that That the person voting an absent voter's ballot by
personal appearance in his or her office had assistance in voting
such the ballot when the person was not qualified for such voting
assistance because (a) (A) the affidavit of the person who received
such assistance does not indicate a legally sufficient reason for such assistance, or (b) (B) the person who received such assistance
did not make an affidavit as required by this article, or (c) (C)
the person who received such assistance is not so illiterate as to
have been unable to read the names on the ballot or that he is not
so physically disabled as to have been unable to see or mark the
absent voter's ballot;
(5) that That the person who voted an absent voter's ballot by
mail and received assistance in voting such the ballot was not
qualified under the provisions of this article for such assistance;
and
(6) that That the person who has voted absentee by mail as a
result of being out of the county more than four consecutive times:
Provided, That the determination as to whether the person has voted
more than four consecutive times shall does not apply if the person
is a citizen residing out of the United States; or a member, spouse
or dependent of a member serving in the uniformed services; or a
college student living outside of his or her home county.
(b) Any one or more of the election commissioners or poll
clerks in a precinct may challenge an absent voter's ballot on any
of the following grounds:
(1) That the application for an absent voter's ballot was not
completed as required by law;
(2) that That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) that That the person voting an absent voter's ballot is
not registered to vote in the precinct of his or her residence as provided by law;
(4) that That the signatures of the person voting an absent
voter's ballot as they appear on his or her registration record,
his or her application for an absent voter's ballot, and the absent
voter's ballot envelope are not in the same handwriting;
(5) that That the absent voter's ballot does not have thereon
the official seal of the clerk of the circuit court and all
signatures of members of the board of ballot commissioners on it;
(6) that That the person voting an absent voter's ballot by
personal appearance in the office of the clerk of the circuit court
had assistance in voting such the ballot when the person was not
qualified for such assistance because (a) (A) the affidavit of the
person who received such assistance does not indicate a legally
sufficient reason for such assistance, or (b) (B) the person who
received such assistance did not make an affidavit as required by
this article, or (c) (C) the person who received such assistance is
not so illiterate as to have been unable to read the names on the
ballot or that he or she was not so physically disabled as to have
been unable to see or mark the absent voter's ballot;
(7) that That the person voted an absent voter's ballot by
mail and received assistance in voting such the ballot when not
qualified under the provisions of this article for such assistance;
(8) that That the person who voted the absent voter's ballot
voted in person at the polls on election day;
(9) that That the person voted an absent voter's ballot under
authority of subdivision (3), subsection (d) of section one of this article and is or was present in the county in which he is
registered to vote between the opening and closing of the polls on
election day;
(10) that That the person who voted an absent voter's ballot
had died before election day; and
(11) that That the person voted an absent voter's ballot under
authority of subdivision (1) of section one of this article and was
able to vote at the polls on election day; and
(12) (11) on On any other ground or for any reason on which or
for which the ballot of a voter voting in person at the polls on
election day may be challenged.
Any registered voter in the county may challenge an absent
voter's ballot voted under authority of subdivision (3) of section
one of this article on the ground that the voter of such ballot is
or was in the county in which he is registered to vote between the
opening and closing of the polls on election day and may challenge
an absent voter's ballot voted under authority of subdivision (1)
of section one of this article on the ground that the voter of such
ballot was able to vote at the polls on election day.
No challenge may be made to any absent voter ballot if the
voter was registered and qualified to vote pursuant to the
provisions of subsection (b), section one of this article.
(c) Forms for, and the manner of, challenging an absent
voter's ballot under the provisions of this article shall are to be
prescribed by the secretary of state.
(d) Absent voters' ballots challenged by the clerk of the circuit court official designated to supervise and conduct absentee
voting under the provisions of this article shall are to be
transmitted by the clerk official directly to the county commission
sitting as a board of canvassers; and the. The absent voters'
ballots challenged by the election commissioners, and poll clerks
and registered voters of the county under the provisions of this
article shall may not be counted by the election officials but
shall are to be transmitted by them to the county commission
sitting as a board of canvassers. Action by the board of
canvassers on such challenged absent voters' ballots shall is to be
governed by the provisions of section forty-one, article one of
this chapter.
§3-3-11. Preparation, number and handling of absent voters'
ballots.
(a) Absent voters' ballots shall are to be in all respects like
other ballots. Not less than seventy days before the date on which
any primary, general or special election is to be held, unless a
lesser number of days is provided for in any specific election law
in which case the lesser number of days applies, the clerks of the
circuit courts of the several counties shall estimate and determine
the number of absent voters' ballots of all kinds which will be
required in their respective counties for that election. The
ballots for the election of all officers, or the ratification,
acceptance or rejection of any measure, proposition or other public
question to be voted on by the voters, shall are to be prepared and
printed under the direction of the board of ballot commissioners constituted as provided in article one of this chapter. The
several county boards of ballot commissioners shall prepare and
have printed, in the number they may determine, absent voters'
ballots that are to be printed under their directions as
hereinbefore provided in this chapter, and those ballots shall are
to be delivered to the clerk of the circuit court of the county not
less than forty-two days before the day of the election at which
they are to be used. Before any ballot is mailed or delivered, the
clerk of the circuit court shall affix his or her official seal and
he or she and the other members of the board of ballot
commissioners shall place their signatures near the lower left-hand
corner on the back thereof of the ballot. The clerks of the
circuit courts are authorized to have their signatures affixed by
a facsimile printed on the back of absentee ballots, by a facsimile
signature stamp, or by signing their original signatures. An
absent voter's ballot not containing the seal and signatures is
invalid and is subject to challenge by any election commissioner or
poll clerk.
(b) The clerk of the circuit court official designated to
supervise and conduct absentee voting shall be primarily
responsible for the preparation, mailing, receiving, delivering and
otherwise handling of all absent voters' ballots. He or she shall
keep a record, as may be prescribed by the secretary of state, of
all ballots so delivered for the purpose of absentee voting, as
well as all ballots, if any, marked before him or her, and shall
deliver to the commissioner of election to whom the ballots for the precinct are delivered and at the time of the delivery of those
ballots a certificate stating the number of ballots delivered or
mailed to absent voters, and those marked before him or her, if
any, and the names of the voters to whom those ballots have been
delivered or mailed, or by whom they have been marked, if marked
before him or her.
§3-3-12. Rules, regulations, orders, instructions, forms, lists
and records pertaining to absentee voting.
(a) The secretary of state shall make, amend and rescind such
rules, regulations, orders and instructions, and prescribe such
forms, lists and records, and consolidation of such forms, lists
and records as may be necessary to carry out the policy of the
Legislature as contained in this article and as may be necessary to
provide for an effective, efficient and orderly administration of
the absentee voter law of this state. In the case of West Virginia
voters residing outside the continental United States, the
secretary of state shall promulgate rules and regulations necessary
to implement procedures relating to absentee voters contained in 42
U.S.C. § 1973, et seq., the Uniformed and Overseas Citizens
Absentee Voting Act of 1986 (P.L. 99-410, 42 U.S.C. 1973, et seq.)
and shall forward a copy of the act to all clerks of the circuit
courts and clerks of the county commissions officials designated to
supervise and conduct absentee voting before the first day of
January of each even-numbered year.
(b) The secretary of state may establish special procedures to
allow absentee voting for those categories of registered voters who, because of special circumstances, would otherwise be unable to
vote in the election.
(c) It shall be is the duty of all clerks of the circuit court
officials designated to supervise and conduct absentee voting,
other county officers, and all election commissioners and poll
clerks to abide by such the rules, regulations, orders and
instructions and to use such the forms, lists and records which,
without limiting the foregoing, may include or relate to:
(a) (1) The consolidation of the two application forms
provided for herein in this article into one form;
(b) (2) The size and form of Absent Voter's Ballot Envelope
Nos. 1 and 2, and carrier envelopes;
(c) (3) The information which shall is to be placed on Absent
Voter's Ballot Envelope No. 1 and the forms and information which
shall are to be placed on Absent Voter's Ballot Envelope No. 2;
(d) (4) The forms and manner of making the challenges to
absentee ballots authorized by this article;
(e) (5) The forms of, information to be contained in, and
consolidation of lists and records pertaining to applications for,
and voting of, absentee ballots and assistance to persons voting
absentee ballots;
(f) (6) The supplying of application forms, envelopes,
challenge forms, lists, records and other forms; and
(g) (7) The keeping and security of voted absentee ballots in
the office of the clerk of the circuit court official designated to
supervise and conduct absentee voting.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-1. Use of electronic voting systems authorized.
(a) Electronic voting systems may be used for the purpose of
registering or recording and computing votes cast in general,
special and primary elections, provided that the use thereof shall
be governed by the terms, conditions, restrictions and limitations
imposed by this article.
(b) Notwithstanding any other provision of this code, no
electronic voting system which utilizes a ballot or any vote
recording device by which votes are cast by means of perforating
may be purchased for use in any election conducted subsequent to
the general election in the year two thousand.
§3-4A-2. Definitions.
As used in this article, unless otherwise specified:
(a) "Automatic tabulating equipment" means all apparatus
necessary to electronically count votes recorded on ballots and
tabulate the results;
(b) "Ballot" means a tabulating card or paper on which votes
may be recorded by means of perforating or marking with
electronically sensible ink or pencil or a screen upon which votes
may be recorded by means of a stylus or by means of touch;
(c) "Ballot labels" means the cards, papers, booklet, pages or
other material showing the names of offices and candidates and the
statements of measures to be voted on, which are placed on the vote
recording device used for recording votes by means of perforating,
or which are displayed on a screen upon which votes may be recorded by means of a stylus or by means of touch;
(d) "Central counting center" means a facility equipped with
suitable and necessary automatic tabulating equipment, selected by
the county commission, for the electronic counting of votes
recorded on ballots;
(e) "Electronic voting system" is a means of conducting an
election whereby votes are recorded on ballots by means of an
electronically sensible marking ink, by perforating or are recorded
on equipment that registers votes on a computer disc, or by
touching a screen with a stylus or by means of touch, and votes are
subsequently counted by automatic tabulating equipment at the
central counting center;
(f) "Program deck" means the actual punch card deck or decks,
or a computer program disk, diskette, tape or other programming
media, containing the program for counting and tabulating the
votes, including the "application program deck";
(g) "Application program deck" means the punch card deck or
equivalent capacity in other program medias as provided, containing
specific options used and necessary to modify the program of
general application, to conduct and tabulate a specific election
according to applicable law;
(h) "Standard validation test deck" means a group of ballots
wherein all voting possibilities which can occur in an election are
represented; and
(i) "Vote recording device" means equipment in which ballot
labels and ballots are placed to allow a voter to record his or her vote by perforating or equipment with a screen upon which votes may
be recorded by means of a stylus or by means of touch.
§3-4A-6. Acquisition of vote recording devices by purchase or
lease; acquisition of use of automatic tabulating
equipment; counting centers.
(a) The A county court commission may acquire vote recording
devices by any one or any combination of the following methods:
(1) By purchasing the same and paying the purchase price
therefor in cash from funds available from the maximum general levy
or from any other lawful source; and
(2) By leasing the same under written contract of lease and
paying the rentals therefor in cash from funds available from the
maximum general levy or any other lawful source.
(b) The A county court commission may acquire the use of
automatic tabulating equipment by leasing or renting the same under
written contract of lease or rental and paying the rentals therefor
in cash from funds available from the maximum general levy or other
lawful source.
(c) A county commission may enter into an agreement with
another county commission to share automatic tabulating equipment
if the automatic tabulating equipment may be transported to the
appropriate central counting centers. No ballots may be
transported for counting in any county other than the county in
which the votes were cast.
(d) The A county court commission is authorized to accept as
a gift the use of suitable automatic tabulating equipment.
(c) (e) The county court may also secure a counting center.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design
shall not be approved by the state election commission or be
purchased, leased or used, by any county commission unless it shall
fulfill the following requirements:
(1) It shall secure or ensure the voter absolute secrecy in
the act of voting, or, at the voter's election, shall provide for
open voting;
(2) It shall be so constructed that no person except in
instances of open voting, as herein provided for, can see or know
for whom any voter has voted or is voting;
(3) It shall permit each voter to vote at any election for all
persons and offices for whom and which he or she is lawfully
entitled to vote, whether or not the name of any such person
appears on a ballot or ballot label as a candidate; and it shall
permit each voter to vote for as many persons for an office as he
or she is lawfully entitled to vote for; and to vote for or against
any question upon which he or she is lawfully entitled to vote.
The automatic tabulating equipment used in such electronic voting
systems shall reject choices recorded on any ballot if the number
of such choices exceeds the number to which a voter is entitled;
(4) It shall permit each voter to deposit, write in, or affix
upon a ballot, card, or envelope or other medium to be provided for
that purpose, ballots containing the names of persons for whom he
or she desires to vote whose names do not appear upon the ballots or ballot labels;
(5) It shall permit each voter to change his or her vote for
any candidate and upon any question appearing upon the ballots or
ballot labels up to the time when his or her ballot is deposited in
the ballot box or his or her ballot is cast by electronic means;
(6) It shall contain a program deck consisting of cards that
are sequentially numbered, or consisting of a computer program
disk, diskette, tape or other programming media containing
sequentially numbered program instructions and coded or otherwise
protected from tampering or substitution of the media or program
instructions by unauthorized persons, and capable of tabulating all
votes cast in each election;
(7) It shall contain two standard validation test decks
approved as to form and testing capabilities by the state election
commission;
(8) It shall correctly record and count accurately all votes
cast for each candidate and for and against each question appearing
upon the ballots or ballot labels;
(9) It shall permit each voter at any election other than
primary elections, by one mark or punch to vote a straight party
ticket, as provided in section five, article six of this chapter.
(10) It shall permit each voter in primary elections to vote
only for the candidates of the party for which he or she is legally
permitted to vote, and preclude him or her from voting for any
candidate seeking nomination by any other political party, permit
him or her to vote for the candidates, if any, for nonpartisan nomination or election, and permit him or her to vote on public
questions;
(11) It shall, where applicable, be provided with means for
sealing or electronically securing the vote recording device to
prevent its use and to prevent tampering with ballot labels, both
before the polls are open or before the operation of the vote
recording device for an election is begun and immediately after the
polls are closed or after the operation of the vote recording
device for an election is completed;
(12) It shall have the capacity to contain the names of
candidates constituting the tickets of at least nine political
parties, and to accommodate the wording of at least fifteen
questions;
(13) Where vote recording devices are used, they shall:
(A) Be durably constructed of material of good quality and in
a workmanlike manner and in a form which shall make it safely
transportable;
(B) Be so constructed with frames for the placing of ballot
labels and with suitable means for the protection of such labels,
that the labels on which are printed the names of candidates and
their respective parties, titles of offices, and wording of
questions shall be so reasonably protected from mutilation,
disfigurement or disarrangement, or shall be so constructed that
the screens upon which appear the names of the candidates and their
respective parties, titles of offices, and wording of questions
shall be so reasonably protected from any modification;
(C) Bear a number that will identify it or distinguish it from
any other machine;
(D) Be so constructed that a voter may easily learn the method
of operating it and may expeditiously cast his or her vote for all
candidates of his or her choice, and upon any public question; and
(E) Be accompanied by a mechanically or electronically
operated instruction model which shall show the arrangement of
ballot labels, party columns or rows, and questions.
(F) Be constructed, for electronic voting systems that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, to provide for the direct electronic recording
and tabulating of votes cast in a system specifically designed and
engineered for the election application;
(G) Be constructed, for electronic voting systems that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, to prevent any voter from voting for more than
the allowable number of candidates for any office, to include an
audible and/or visual signal warning any voter who attempts to vote
for more than the allowable number of candidates for any office or
who attempts to cast his or her ballot prior to its completion, and
to include a visual and/or audible confirmation to the voter upon
completion and casting of the ballot;
(H) Be constructed, for electronic voting systems that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, to present the entire ballot to the voter, in a
series of sequential pages, and ensure that the voter sees all of the ballot options on all pages before completing his or her vote
and to allow the voter to review and change all ballot choices
prior to completing and casting his or her ballot;
(I) Be constructed, for electronic voting systems that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, to allow election commissioners to spoil a
ballot where a voter fails to properly cast his or her ballot, has
departed the polling place, and cannot be recalled by a poll clerk
to complete his or her ballot;
(J) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, to allow election commissioners and/or poll
clerks to designate, mark or otherwise record challenged ballots;
(K) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, such that each device is an independent,
nonnetworked voting system such that each vote is recorded and
retained within each device's internal nonvolatile electronic
memory, and such that each device contains an internal security
code such that the absence of such code prevents substitution of
any other device;
(L) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, such that each vote is stored in no fewer than
three separate, independent, nonvolatile electronic memory
components, and such that each device contains comprehensive diagnostics to ensure that failures do not go undetected;
(M) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, such that each device used to activate, retain,
and record votes contains a unique, embedded internal serial number
for auditing purposes;
(N) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, such that all preelection, election and
postelection activities, including all ballot images and system
anomalies, are recorded in each device's internal electronic
memory, and shall be accessible in electronic or printed form;
(O) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, such that each device shall have a battery
backup system that will, at a minimum, prevent the loss of any
votes, as well as all preelection, election and postelection
activities, including all ballot images and system anomalies,
stored in the device's internal electronic memory, and will allow
voting to continue for two hours of uninterrupted operation in case
of an electrical power failure;
(P) Be constructed, for electronic voting system that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, such that each device will prevent the loss of
any votes, as well as all preelection, election and postelection
activities, including all ballot images and system anomalies, stored in the device's internal electronic memory, even in case of
an electrical and battery power failure.
§3-4A-11. Ballot labels, instructions and other supplies;
procedure and requirements.
The ballot commissioners of any county in which an electronic
voting system utilizing voting devices for registering the voter's
choices is to be used in any election shall cause to be printed for
use in such election the ballot cards and ballot labels, as
appropriate, for the electronic voting system, or shall cause to be
printed a reasonable facsimile of the screens as they shall appear
to the voter for the electronic voting system.
(a) The ballot labels shall be clearly printed in black ink on
clear white material of such size as will fit the vote recording
devices or as will be displayed on the screens as they shall appear
to the voter for the electronic voting system. Arrows shall be
printed on the ballot labels to indicate the place to punch the
ballot card, which may be to the right or left of the name or
proposition, or boxes shall be printed as they shall appear to the
voter on the screens for the electronic voting system.
(b) The ballot labels shall contain the party emblem and shall
clearly indicate the party designation of each candidate. The
titles of offices may be arranged on the ballot labels in vertical
columns or in a series of separate pages, and shall be printed
above or at the side of the names of candidates so as to indicate
clearly the candidates for each office and the number to be
elected. The names of candidates for each office shall be printed in vertical columns or on separate pages, grouped by the offices
which they seek.
(c) For the primary election, the heading of the ballot, the
type faces, the names and arrangement of offices and the printing
of names and arrangement of candidates within each office shall
conform as nearly as possible to the provisions of sections
thirteen and thirteen-a, article five of this chapter.
(d) For the general election, the heading of the ballot, the
straight ticket positions, the instructions to straight ticket
voters, the type faces, the names and arrangement of offices and
the printing of names and the arrangement of candidates within each
office shall conform as nearly as possible to the provisions of
section two, article six of this chapter, except as otherwise
provided in this article. Except for electronic voting systems
that utilize a screen upon which votes may be recorded by stylus or
by means of touch, the secretary of state shall assign uniform
numbers which shall be used by all counties using electronic voting
for all straight party tickets and for all candidates running for
offices to be voted upon by all of the voters of the state. After
taking into account the numbers so assigned by the secretary of
state, the clerk of the circuit court shall arrange the offices and
the candidates within each office as prescribed by said section,
and shall assign the appropriate number for each candidate. When
one candidate is to be elected and only two parties are on the
ballot, the ballot label and the arrangement of the ballot shall
conform as nearly as practical to the following example:
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
Democratic TicketRepublican Ticket
For GovernorFor Governor
(Vote for One)(Vote for One)
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
(candidate's name) 10 ---
(residence, county)
--- 11 (candidate's name)
(residence, county)
When more than two parties are on the ballot for an office,
the arrangement of the ballot shall be specified by the secretary
of state, and may conform to the following example if practical:
- - - - - - - - - - - - - - - - - - - - - - - -
For Governor
(Vote for One)
- - - - - - - - - - - - - - - - - - - - - - - -
Democrat(candidate's name)10 -
(residence, county)
Republican(candidate's name)11 -
(residence, county)
People's(candidate's name)12 -
(residence, county)
The ballot label and the arrangement of the ballot for multi-
candidate offices shall conform as nearly as practical to the
following example:
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -
Democratic TicketRepublican Ticket
For House of DelegatesFor House of Delegates
First Delegate DistrictFirst Delegate District
(Vote For Not More Than Two)(Vote For Not More Than Two)
[If you marked a straight[If you marked a straight
ticket and you mark anyticket and you mark any
candidate in a differentcandidate in a different
party for this office, youparty for this office, you
must mark all your choicesmust mark all your choices
because your straight ticketbecause your straight ticket
vote will not be countedvote will not be counted
for this office.]for this office.]
- - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -
(candidate's name) 69 ---
(residence, county)
--- 70 (candidate's name)
(residence, county)
(candidate's name) 71 ---
(residence, county)
--- 72 (candidate's name)
(residence, county)
(e) Any nonpartisan office such as board of education and any question to be voted on shall be placed or displayed on a separate
page or otherwise separated from the partisan ballots, which
separate page shall constitute a separate ballot where required.
(f) In elections in which voters are authorized to vote for
official write-in candidates whose names do not appear on the
ballot label, there shall be provided, as described herein, a
write-in position on the ballot label for the voter to indicate his
or her preference for a write-in candidate and a form on the inside
of the secrecy envelope to permit a voter to enter the title of the
office and the names of official write-in candidates for whom he or
she wishes to vote, except for electronic voting systems that
utilize a screen upon which votes may be recorded by means of a
stylus or by means of touch, in which case, such devices shall
provide an alpha-numerical screen which shall allow the voter to,
by use of a stylus or by touch, to enter the name of the write-in
candidate for whom he or she wishes to vote.
For an office to be filled by election in a primary, except
delegate to national convention, and for each office in a general
election, the ballot label shall include, following all candidates
for the office, a single numbered position with an arrow or box
indicating the location to punch the ballot card or touch the
screen to indicate a preference for a write-in candidate. The
following instructions shall be printed beside the arrow in at
least ten point type. "TO WRITE-IN FOR THIS OFFICE: Punch here
and put name of office and candidate on inside of secrecy envelope.
DO NOT put name here," or, where electronic voting systems are used with screens upon which votes may be recorded by means of a stylus
or by means of touch, the word "WRITE-IN" will appear beside a box
indicating the location for the voter to touch the screen and, when
activated, another screen shall appear allowing the voter to enter
a write-in candidate.
(g) In addition to all other equipment and supplies required
by the provisions of this article, the ballot commissioners shall
cause to be printed a supply of instruction cards, sample ballots,
facsimile diagrams of the vote recording device ballot and official
printed ballots or ballot cards adequate for the orderly conduct of
the election in each precinct in their county. In addition they
shall provide all other materials and equipment necessary to the
conduct of the election, including voting booths, appropriate
facilities for the reception and safekeeping of ballot cards, the
ballots of absentee and of challenged voters and of such
"independent" voters who shall, in primary elections, cast their
votes on nonpartisan candidates and public questions submitted to
the voters.
§3-4A-11a. Ballots tabulated electronically; arrangement, quantity
to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using
ballots upon which votes may be recorded by means of marking with
electronically sensible ink or pencil and which marks are tabulated
electronically shall cause the ballots to be printed or displayed
upon the screens of the electronic voting system for use in
elections.
(b) (1) The heading of the ballot, the arrangement of offices
in columns, the spaces for marking votes, the printing of offices,
instructions and candidates names shall conform as nearly as
possible to that prescribed in this chapter for paper ballots,
except that the secretary of state may prescribe necessary
modifications to accommodate the tabulating system. Nonpartisan
elections for board of education and any question to be voted upon
shall be separated from the partisan ballot and separately headed
in display type with a title clearly identifying the purpose of the
election, and such separate section shall constitute a separate
ballot wherever a separate ballot is required under the provisions
of this chapter.
(2) Both the face and the reverse side of the ballot may
contain the names of candidates, only if means to ensure the
secrecy of the ballot are provided and lines for the signatures of
the poll clerks on the ballot are printed on a portion of the
ballot which is deposited in the ballot box and upon which marks do
not interfere with the proper tabulation of the votes.
(3) The arrangement of candidates within each office shall be
determined in the same manner as for other electronic voting
systems, as prescribed in this chapter. On the general election
ballot for all offices, and on the primary election ballot only for
those offices to be filled by election, except delegate to national
convention, lines for entering write-in votes shall be provided
below the names of candidates for each office, and the number of
lines provided for any office shall equal the number of persons to be elected, or three, whichever is fewer. The words or "WRITE-IN,"
IF ANY" shall be printed, where applicable, directly under each
line for write-ins. Such lines shall be opposite a position to
mark the vote.
(c) Except for electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary election ballots shall be printed in the
color of ink specified by the secretary of state for the various
political parties, and the general election ballot shall be printed
in black ink. For electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary ballots and the general election ballot shall
be printed in black ink. All ballots shall be printed, where
applicable, on white paper suitable for automatic tabulation and
shall contain a perforated stub at the top or bottom of the ballot
which shall be numbered sequentially in the same manner as provided
in this article for ballots upon which votes are recorded by means
of perforating or shall be displayed on the screens of the
electronic voting system upon which votes are recorded by means of
a stylus or touch. The number of ballots printed and the packaging
of ballots for the precincts shall conform to the requirements for
paper ballots as provided in this chapter.
(d) In addition to the official ballots, the ballot
commissioners shall provide all other materials and equipment
necessary to the proper conduct of the election.
§3-4A-12. Ballot label arrangement in vote recording devices; sealing of devices; record of identifying numbers.
In counties using electronic voting systems utilizing vote
recording devices:
(1) The number of ballot labels printed, where applicable,
shall equal one and one-half times the total number of
corresponding vote recording devices to be used in the election.
All such labels shall be delivered to the clerk of the county
commission at least thirty-five days prior to the election. The
circuit clerk shall immediately examine the ballot labels for
accuracy and assure that the appropriate ballot labels are
designated for each voting precinct.
(2) The total number of ballot cards printed and the number
packaged for each precinct and the requirements for ballot colors
and packaging shall conform as nearly as possible to the
requirements for paper ballots. Official ballot cards printed and
packaged for the various precincts shall be delivered to the clerk
of the circuit court at least twenty-eight days prior to the
election.
(3) The necessary number of ballot cards, ballot labels,
sample ballots, and other supplies necessary for absentee voting
shall be delivered to the clerk of the circuit court at least
forty-two days prior to the election. The clerk shall immediately
check the ballot labels to assure their accuracy and shall place
them in vote recording devices which are clearly designated for the
proper district and/or party for the purpose of absentee voting.
(4) When the ballot labels are delivered to the clerk of the county commission, the clerk shall place them in the vote recording
devices in the proper order. The remainder of such ballot labels
for each machine shall be retained by the clerk of the county
commission for use in an emergency.
(5) The clerk of the county commission shall then seal the
vote recording devices so as to prevent tampering with ballot
labels, and enter in an appropriate book, opposite the number of
each precinct, the identifying or distinguishing number of the
specific vote recording device or devices to be used in that
precinct.
§3-4A-15. Instructions and help to voters; vote recording device
models; facsimile diagrams; sample ballots; legal ballot
advertisements.
(a) For the instruction of the voters on any election day in
counties utilizing an electronic voting system where votes are to
be recorded by means of perforating, there shall be provided for
each polling place one instruction model for each vote recording
device: Provided, That for electronic voting systems that utilize
a screen upon which votes may be recorded by means of a stylus or
by means of touch, there shall be provided for each polling place
a sample ballot with each screen as they shall appear on the
devices, together with written instructions regarding the operation
of the devices. Each such instruction model shall be constructed
so as to provide a replica of a vote recording device, and shall
contain the arrangement of the ballot labels, party columns or
rows, office columns or rows, and questions. Fictitious names shall be inserted in the ballot labels of the models. Such models
shall be located on the election officers' tables or in some other
place in which the voter must pass to reach the vote recording
device. Each voter, upon request, before voting, shall be offered
instruction by the election officers in the operation of the vote
recording device by use of the instruction model, and each voter
shall be given ample opportunity to operate the model himself or
herself.
(b) The ballot commissioners shall also provide facsimile
ballots or ballot labels, as may be appropriate, at least two of
which, or complete sets of which, shall be posted on the walls of
each polling place. The facsimile diagrams shall be exact diagrams
of the ballots or ballot labels or paper ballots or screens to the
end that the voter may become familiar with the location of the
parties, offices, candidates and questions as they appear on the
ballot to be used in his or her precinct.
(c) The ballot commissioners may, with the consent of the
county commission, or the county commission may, prepare and mail
to each qualified voter at the address shown on the registration
books a facsimile sample of the ballot or ballot labels or screens
for his or her precinct.
(d) In counties where an electronic voting system has been
adopted, the legal ballot advertisements required by articles five
and six of this chapter which specify the publication of a
facsimile sample ballot, shall consist of a facsimile of the ballot
or ballot labels or screens with the names of the candidates and the offices for which they are running shown in their proper
positions.
§3-4A-16. Delivery of vote recording devices; time, arrangement
for voting.
The clerk of the county commission shall deliver or cause to
be delivered each vote recording device, where applicable, and the
package of ballots to the polling place where they are to be
employed. Such delivery shall be made not less than one hour prior
to the opening of the polls and shall be made in the presence of
the precinct election commissioners. At the time of the delivery
of such vote recording device, where applicable, and the ballots,
the device shall be sealed in such a way to prevent its use prior
to the opening of the polls and any tampering with the ballot
labels and the ballots shall be packaged and sealed in such a way
to prevent any tampering with the ballots. Immediately prior to
the opening of the polls on election day, the sealed packages of
ballots shall be opened, where applicable, and the seal of the vote
recording device shall be broken in the presence of the precinct
election commissioners, who shall certify in writing signed by them
to the clerk of the county commission, that the devices, where
applicable, and the ballots have been delivered in their presence,
that the devices and packages of ballots were found to be sealed
upon such delivery, and that the seals have been broken and the
devices opened in their presence, as may be appropriate. The
election commissioners shall then cause the vote recording device,
where applicable, to be arranged in the voting booth in such manner that the front of the vote recording device on which the ballot
labels appear will not be visible, when the vote recording device
is being operated, to any person other than the voter if the voter
shall elect to close the curtain, screen or hood to the voting
booth.
§3-4A-17. Check of vote recording devices before use; corrections;
reserve vote recording devices.
In counties utilizing an electronic voting system where votes
are to be recorded by means of perforating or by touching a screen
with a stylus or by means of touch before permitting the first
voter to vote, the election commissioners shall examine the vote
recording devices to ascertain whether the ballot labels are
arranged as specified on the facsimile diagram furnished to the
precinct. If the ballot labels are arranged incorrectly, the
commissioners shall immediately notify the clerk of the county
commission of the foregoing facts in writing, indicating the number
of the device, and obtain from such clerk a reserve vote recording
device, and thereafter proceed to conduct the election. Any
reserve vote recording device so used shall be prepared for use by
the clerk or his or her duly appointed deputy and said reserve vote
recording device shall be prepared, inspected and sealed, and
delivered to the polling place wherein the seal shall be broken and
such device opened in the presence of the precinct election
commissioners who shall certify in writing signed by them to the
clerk of the county commission, that the reserve vote recording
device was found to be sealed upon delivery to the polling place, that the seal was broken and the device opened in their presence at
the polling place. The vote recording device found to have been
with incorrect ballot labels shall be returned immediately to the
custody of the clerk who shall then promptly cause such vote
recording device to be repaired, prepared and resealed in order
that it may be used as a reserve vote recording device if needed.
§3-4A-19. Conducting electronic voting system elections generally;
duties of election officers.
(1) The election officers shall constantly and diligently
maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.
(2) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing the
party to which the voter belongs shall direct the voter to the vote
recording device or supply the voter with a ballot, as may be
appropriate, which will allow the voter to vote only for the
candidates who are seeking nomination on the ticket of the party
with which the voter is affiliated.
(3) The poll clerk shall issue to each voter when he or she
signs the pollbook a card or ticket numbered to correspond to the
number on the pollbook of such voter, and in the case of a primary
election, indicating the party affiliation of such voter, which
numbered card or ticket shall be presented to the election
commissioner in charge of the voting booth.
(4) One hour before the opening of the polls the precinct election commissioners shall arrive at the polling place and set up
the voting booths so that they will be in clear view of the
election commissioners. Where applicable, they shall open the vote
recording devices, place them in the voting booths, examine them to
see that they have the correct ballots or ballot labels, where
applicable by comparing them with the sample ballots, and determine
whether they are in proper working order. They shall open and
check the ballots, supplies, records and forms, and post the sample
ballots or ballot labels and instructions to voters. Upon
ascertaining that all ballots, supplies, records and forms arrived
intact, the election commissioners shall so certify in writing
their findings upon forms provided and collected by the clerk of
the county commission over their signatures to the clerk of the
county commission. Any discrepancies shall be so noted and
reported immediately to the clerk of the county commission. The
election commissioners shall then number in sequential order the
ballot stub of each ballot in their possession and report in
writing to the clerk of the county commission the number of ballots
received. They shall issue such ballots in sequential order to
each voter.
(5) Where applicable, each voter shall be instructed how to
operate the vote recording device before he or she enters the
voting booth.
(6) Where applicable, any voter who shall spoil, deface or
mutilate the ballot delivered to him or her, on returning the same
to the poll clerks, shall receive another in place thereof. Every person who does not vote any ballot delivered to him or her shall,
before leaving the election room, return such ballot to the poll
clerks. When a spoiled or defaced ballot is returned, the poll
clerks shall make a minute of the fact on the pollbooks, at the
time, and the word "spoiled" shall be written across the face of
the ballot and it shall be placed in an envelope for spoiled
ballots.
Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the pollbooks the number of
persons who voted and shall report, in writing signed by them to
the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused. All
unused ballots shall at the same time be returned to the clerk of
the county commission who shall count them and record the number.
If there is no discrepancy, the unused ballots shall be destroyed
forthwith, before a representative of each party on the ballot, by
fire or otherwise, by the clerk of the county commission or a duly
designated deputy clerk. If there is a discrepancy, the unused
ballots shall be impounded and secured under double locks until the
discrepancy is resolved. The county clerk and the president or
president pro tempore of the county commission shall each have a
key. Upon resolution of the discrepancy, the unused ballots shall
forthwith, before a representative of each party on the ballot, be destroyed by fire or otherwise, by the clerk of the county
commission or a duly designated deputy clerk.
Each commissioner who is a member of an election board which
fails to account for every ballot delivered to it shall be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or confined in the county jail for
not more than one year, or both.
The board of ballot commissioners of each county, or the
chairman thereof, shall preserve the ballots that are left over in
their hands, after supplying the precincts as provided, until the
close of the polls on the day of election, and such ballots shall
then be destroyed by such board, or the chairman thereof, by fire
or otherwise.
(7) Where ballots are used, the voter, after he or she has
marked his or her ballot shall, before leaving the voting booth,
place the ballot inside the envelope provided for this purpose,
with the stub extending outside said envelope, and return it to an
election commissioner who shall remove the stub and deposit the
envelope with the ballot inside in the ballot box. No ballot from
which the stub has been detached shall be accepted by the officer
in charge of the ballot box, but such ballot shall be marked
"spoiled" and placed with the spoiled ballots. Where electronic
voting systems are used that utilize a screen on which votes may be
recorded by means of a stylus or by means of touch, such systems
shall include an audible and/or visual signal for purposes of
warning any voter who attempts to cast his or her ballot, has departed the polling place, and cannot be recalled by a poll clerk
to complete his or her ballot while the voter remains physically
present in the polling place, two election commissioners of
different political parties, two poll clerks of different political
parties, or an election commissioner and a poll clerk of different
political parties, shall spoil the ballot.
(8) The precinct election commissioners shall prepare a report
in quadruplicate of the number of voters who have voted and, where
electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch,
the number of ballots that were spoiled, as indicated by the
pollbooks, and shall place two copies of this report in the ballot
box, or where electronic voting systems are used that utilized a
screen upon which votes may be recorded by means of a stylus or by
means of touch, shall place two copies of this report and the
electronic ballot devices in a container provided by the clerk of
the county commission, which thereupon shall be sealed with a paper
seal signed by the election commissioners so that no additional
ballots may be deposited or removed from the ballot box. Two
election commissioners of different political parties shall
forthwith deliver the ballot box or container to the clerk of the
county commission at the central counting center and receive a
signed numbered receipt therefor, which receipt shall carefully set
forth in detail any and all irregularities pertaining to the ballot
boxes or containers and noted by the precinct election officers.
The receipt shall be prepared in duplicate, a copy of which shall remain with the clerk of the county commission who shall have
any and all irregularities noted. The time of their departure from
the polling place shall be noted on the two remaining copies of the
report, which shall be immediately mailed to the clerk of the
county commission.
(9) The pollbooks, register of voters, unused ballots, spoiled
ballots and other records and supplies shall be delivered to the
clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-19a. Form of ballots; requiring the signatures of poll
clerks; prohibiting the counting of votes cast on ballots
without such signatures.
Where applicable, every ballot utilized during the course of
any electronic voting system election conducted under the
provisions of this article shall provide two lines for the
signatures of the poll clerks. Both of the signature lines shall
be printed on a portion of the ballot where votes are not recorded
by perforation or marking, but which portion is an actual part of
the ballot deposited in the ballot box after the voter has
perforated or marked his or her ballot and after the ballot stub
has been removed.
Each of the two poll clerks shall sign his or her name on one
of the designated lines provided on each ballot before any ballot
is distributed to a voter. After a voter has signed the pollbook,
as required in section nineteen of this article, the two poll
clerks shall deliver a ballot to the voter, which ballot has been signed by each of the two poll clerks as provided herein:
Provided, That where an electronic voting system that utilizes
screens upon which votes may be recorded by means of a stylus or by
means of touch, an election commissioner shall accompany the voter
to the voting device and shall activate the device for voting.
In the course of an election contest, if it is established
that a ballot does not contain the two signatures required by this
section, such ballot shall be null, void and of no effect, and
shall not be counted.
§3-4A-20. "Independent" voting in primary elections.
If at any primary elections, nonpartisan candidates for office
and public questions are submitted to the voters and on which
candidates and questions persons registered as "independent" are
entitled to vote, as provided in section eighteen, article two of
this chapter, the election officers shall provide a vote recording
device, where applicable, or the appropriate ballot to be marked by
an electronically sensible pen or ink, or by means of a stylus or
by means of touch, so that such "independent" voters may vote only
those portions of the ballot relating to the nonpartisan candidates
and the public questions submitted, or provide a ballot containing
only provision for voting for those candidates and/or upon those
issues common to the ballots provided to all voters regardless of
political party affiliation.
In counties utilizing electronic voting systems in which votes
are recorded by perforating, if vote recording devices are not
available for the "independent" voters, provision shall be made for sealing the partisan section or sections of the ballot or ballot
labels on a vote recording device using temporary seals, thus
permitting the independent voter to vote for the nonpartisan
section or sections of the ballot or ballot labels. After the
"independent" voter has voted, the temporary seals may be removed
and the device may then be used by partisan voters.
§3-4A-21. Absent voter ballots; issuance, processing and
tabulation.
Absentee voters shall cast their votes on absent voter
ballots. If absentee voters shall be deemed eligible to vote in
person at the office of the clerk of the circuit court, in
accordance with the provisions of article three of this chapter,
the clerk of the circuit court of each county shall provide a vote
recording device or other means, as may be appropriate for votes
recorded by electronically sensible ink or pencil, or by means of
a stylus or by means of touch, for the use of such absentee voters.
Notwithstanding any provision of article three of this chapter to
the contrary, any voter who desires to vote by absentee ballot in
a county using an electronic voting system with a screen upon which
votes are recorded by means of a stylus or by means of touch shall
complete an application prescribed by the secretary of state which
shall be processed in the manner otherwise prescribed by law,
except that a copy of the application shall be delivered by the
clerk of the circuit court to each polling place, and except that
any voter who votes in person by absentee ballot shall not be
permitted to vote in person on the date of the election. For all absentee voters deemed considered eligible to vote an absent
voter's ballot by mail, in accordance with the provisions of
article three of this chapter, the clerk of the circuit court of
each county shall prepare and issue an absent voter ballot packet
consisting of the following:
(a) One official absent voter ballot;
(b) One punching tool for perforating or a device for marking
by electronically sensible pen or ink, as may be appropriate;
(c) If a punching tool is to be utilized, one disposable
styrofoam block to be placed behind the ballot card for voting
purposes and to be discarded after use by the voter;
(d) One absent voter instruction ballot;
(e) One absent voter's ballot envelope No. 1, unsealed, which
shall have no writing thereon and which shall be identical to the
secrecy envelope used for placement of ballots at the polls; and
(f) One absent voter's ballot envelope No. 2, which envelope
shall be marked with the proper precinct number and shall provide
a place on its seal for the absent voter to affix his or her
signature. Such envelope shall also otherwise contain the forms
and instructions as provided in section five, article three of this
chapter, relating to the absentee voting of paper ballots.
Upon receipt of an absent voter's ballot by mail, the voter
shall mark the ballot with the punch tool or marking device,
whichever is appropriate, and the voter may receive assistance in
voting his or her absent voter's ballot in accordance with the
provisions of section six, article three of this chapter.
After the voter has voted his or her absent voter's ballot, he
or she shall: (1) Enclose the same in absent voter's ballot
envelope No. 1, and seal that envelope; (2) enclose sealed absent
voter's ballot envelope No. 1 in absent voter's ballot envelope No.
2; (3) complete and sign the forms, if any, on absent voter's
ballot envelope No. 2 according to the instructions thereon; and
(4) mail, postage prepaid, sealed absent voter's ballot envelope
No. 2 to the clerk of the circuit court of the county in which he
or she is registered to vote, unless the voter has appeared in
person, in which event he or she shall hand deliver the sealed
absent voter's ballot envelope No. 2 to the clerk.
Upon receipt of such sealed envelope, the circuit clerk shall
(1) enter onto the envelope such information as may be required of
him or her according to the instructions thereon; (2) enter his or
her challenge, if any, to the absent voter's ballot; (3) enter the
required information into a record of persons making application
for and voting an absent voter's ballot by personal appearance or
by mail (the form of which record and information to be entered
therein shall be prescribed by the secretary of state); and (4)
place such sealed envelope in a secure location in his or her
office, there to remain until delivered to the polling place in
accordance with the provisions of this article or, in case of a
challenged ballot, to the county commission sitting as a board of
canvassers.
Notwithstanding any provision of article three of this chapter
to the contrary, no voter who has voted by absentee ballot in accordance with the provisions of article three of this chapter, or
otherwise as provided by law, in a county using an electronic
voting system with screens upon which votes are recorded by means
of a stylus or by means of touch, shall be permitted to vote in
person on the date of the election.
When absent voters' ballots have been delivered to the
election board of any precinct, the election commissioners shall,
at the close of the polls, proceed to determine the legality of
such ballots as prescribed in article three of this chapter. The
commissioners shall then open all of the absent voter's ballot
envelopes No. 2 which contain ballots not challenged and remove
therefrom the absent voter's ballot envelopes No. 1. These ballot
envelopes No. 1 shall then be shuffled and intermingled. The
election commissioners and poll clerks, in the presence of each
other, shall next open all of the absent voter's ballot envelopes
No. 1 and remove the ballots therefrom. The poll clerks shall then
affix their signatures thereto as provided in section nineteen-a of
this article. The commissioners shall then insert each ballot into
a secrecy envelope identical to the secrecy envelopes used for the
placement of ballots of voters who are voting in person at the
polls and shall deposit the ballot in the ballot box.
§3-4A-24. Voting by challenged voter.
Except for electronic voting systems using screens on which
votes may be recorded by means of a stylus or by means of touch,
If the right of any person to vote be challenged in accordance with
the provisions of article one of this chapter, relating to the challenging of voters, and a vote recording device or ballot is
used that tabulates the vote as an individual vote, such person
shall be permitted to cast his or her vote by use of the vote
recording device or ballot, as may be appropriate. He or she shall
be provided with a challenged ballot and ballot envelopes for the
insertion of the ballot after voting. There shall be an inner
envelope marked with the precinct number for the challenged ballot.
There shall also be an other envelope for the inner envelope and
the challenged voter stub, which envelope shall provide a place for
the challenged voter to affix his or her signature on the seal of
such outer envelope.
After the county commission, as prescribed in article one of
this chapter, has determined that the challenges are unfounded, the
commissioners shall remove the outer envelopes. Without opening
the inner envelope, the commissioners shall shuffle and intermingle
such inner envelopes. The commissioners shall then open the inner
envelopes, remove the ballots and add the votes to the previously
counted totals.
§3-4A-24a. Voting by challenged voter where touch-screen
electronic voting systems are used.
If the right of any person to vote is challenged in accordance
with the provisions of article one of this chapter, relating to the
challenging of voters, and a vote recording device or ballot is
used that tabulates the vote as an individual vote, such person
shall be permitted to cast his or her vote by use of the vote
recording device or ballot, as may be appropriate. An election commissioner shall enter into the voting device a voter-specific
electronic code for any person voting a challenged ballot. Such
devices shall retain challenged ballots in electronic memory, such
that they will not be tabulated in accordance with the provisions
of this code, but such that they may otherwise be reviewed in
accordance with the provisions of this code.
After the county commissioner, as prescribed in article one of
this chapter, has determined that the challenges are unfounded, the
commissioners shall ensure that such ballots shall be included in
the tabulation.
§3-4A-26. Test of automatic tabulating equipment.
One week prior to the start of the count of the votes recorded
on ballots or ballot cards or screens, the clerk of the county
commission shall have the automatic tabulating equipment tested to
ascertain that it will accurately count the votes cast for all
offices and on all measures. Public notice of the time and place
of the test shall be given not less than forty-eight hours nor more
than two weeks prior thereto by publication of such notice as a
Class I-0 legal advertisement, in compliance with the provisions of
article three, chapter fifty-nine of this code, and the publication
area for such publication shall be the county involved.
The test shall be open to representatives of the political
parties, candidates, the press and the public. It shall be
conducted five times by processing two separate sets of a
preaudited group of ballots or ballot cards as appropriate, so
punched or marked as to record a predetermined number of valid votes for each candidate and on each measure. It shall include for
each multicandidate office one or more ballot cards which have
cross-over votes in order to test the ability of the automatic
tabulating equipment to record those votes in accordance with the
provisions of this article and applicable law, and it shall include
for each office one or more ballot cards which have votes in excess
of the number allowed by law in order to test the ability of the
automatic tabulating equipment to reject such votes. If, in the
process of any of the test counts, any error is detected, the cause
of such error shall be ascertained and corrective action promptly
taken. After the completion of said corrective action, the test
counts shall continue, including a retesting of those precincts
previously test counted. Prior to the continuation of the testing,
the county commission shall certify in writing, signed by them, the
nature of the error, the cause thereof and the type of corrective
action taken. Such certification shall be recorded in the office
of the clerk of the county commission in the miscellaneous record
book. Immediately after conclusion of this completed test, a
certified duplicate copy of the program deck shall be sent by
certified mail to the offices of the state election commission,
where it shall be preserved and secured for one year, and made
available for comparison or analysis by order of a circuit court or
the supreme court of appeals.
The program deck to be used in the election shall immediately
be certified by the county commission to be free from error as
determined by the test, shall be placed with such certification in a sealed container and kept under individual multiple locks with
individual keys for each lock. The number of locks and keys shall
be the same as the number of county commissioners together with the
county clerk, with each commissioner and the county clerk having a
single key in his or her possession. Such sealed container shall
be opened to conduct the test required to be conducted immediately
before the start of the official count.
The test shall be repeated immediately before the start of the
official count. The test shall also be conducted at the conclusion
of the official count before the count is approved as errorless and
before the election returns are approved as official.
All results of all of the tests shall be immediately certified
by the county commission and filed in the office of the clerk of
the county commission and immediately recorded in the miscellaneous
record book. On completion of the count, the program deck, test
materials and ballot cards shall be sealed, except for purposes of
the canvass as provided in section twenty-eight of this article,
and retained and kept under individual multiple locks and
individual keys for each lock.
Said numbers of locks and keys shall be the same as the number
of county commissioners together with the county clerk, with each
commissioner and the county clerk having a single key in his or her
possession.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center shall be
under the supervision of the clerk of the county commission, and shall be conducted under circumstances which allow observation from
a designated area by all persons entitled to be present. The
proceedings shall take place in a room of sufficient size and
satisfactory arrangement to permit such observation. Those persons
entitled to be present shall include all candidates whose names
appear on the ballots being counted, or if such candidate be
absent, a representative of such candidate who presents a written
authorization signed by the candidate for the purpose, and two
representatives of each political party on such ballot, who shall
be chosen by the county executive committee chairperson. A
reasonable number of the general public shall also be freely
admitted to the room. In the event all members of the general
public desiring admission to the room cannot be admitted at one
time, the county commission shall provide for a periodic and
convenient rotation of admission to the room for observation, to
the end that each member of the general public desiring admission
shall, during the proceedings at the central counting center, be
granted such admission for reasonable periods of time for
observation: Provided, That no person except those authorized for
the purpose shall touch any ballot or ballot card or other official
records and papers utilized in the election during such
observation.
(b) All persons who are engaged in processing and counting of
the ballots shall work in teams consisting of two persons of
opposite political parties, and shall be deputized in writing and
take an oath that they will faithfully perform their assigned duties. Such deputies shall be issued an official badge or
identification card which shall be assigned an identity control
number, and such deputies shall prominently wear on his or her
outer garments the issued badge or identification card. Upon
completion of the deputies' duties, the badges or identification
cards shall be returned to the county clerk.
(c) Ballots shall be handled and tabulated and the write-in
votes tallied according to procedures established by the secretary
of state, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards and
secrecy envelopes for a precinct shall be removed from the box and
examined for write-in votes before being separated and stacked for
delivery to the tabulator. Immediately after valid write-in votes
are tallied, the ballot cards shall be delivered to the tabulator.
No write-in vote shall be counted for an office unless the voter
has punched the write-in voting position for that office and
entered the name of that office and the name of an official
write-in candidate for that office on the inside of the secrecy
envelope, either by writing, affixing a sticker or label or placing
an ink-stamped impression thereon;
(2) In systems using ballots marked with electronically
sensible ink, ballots shall be removed from the boxes and stacked
for the tabulator, which shall separate ballots containing marks
for a write-in position. Immediately after tabulation, the valid
write-in votes shall be tallied. No write-in vote shall be counted
for an office unless the voter has marked the write-in voting position for that office and entered the name of an official
write-in candidate for that office on the line provided, either by
writing, affixing a sticker or placing an ink-stamped impression
thereon;
(3) In systems using ballots in which votes are recorded upon
screens with a stylus or by means of touch, the personalized
electronic ballots shall be removed from the containers and stacked
for the tabulator. Systems using ballots in which votes are
recorded upon screens with a stylus or by means of touch shall
tally write-in ballots simultaneously with the other ballots;
(3) (4) When more than one person is to be elected to an
office and the voter desires to cast write-in votes for more than
one official write-in candidate for that office, a single punch or
mark, as appropriate for the voting system, in the write-in
location for that office shall be sufficient for all write-in
choices. When there are multiple write-in votes for the same
office and the combination of choices for candidates on the ballot
and write-in choices for the same office exceed the number of
candidates to be elected, the ballot shall be duplicated or hand
counted, with all votes for that office rejected;
(4) (5) Write-in votes for nomination for any office and
write-in votes for any person other than an official write-in
candidate shall be disregarded;
(5) (6) When a voter casts a straight ticket vote and also
punches or marks the location for a write-in vote for an office,
the straight ticket vote for that office shall be rejected, whether or not a vote can be counted for a write-in candidate; and
(6) (7) Official write-in candidates are those who have filed
a write-in candidate's certificate of announcement and have been
certified according to the provisions of section four-a, article
six of this chapter.
(d) If any ballot card is damaged or defective so that it
cannot properly be counted by the automatic tabulating equipment,
a true duplicate copy shall be made of the damaged ballot card in
the presence of representatives of each political party on the
ballot and substituted for the damaged ballot card. All duplicate
ballot cards shall be clearly labeled "duplicate" and shall bear a
serial number which shall be recorded on the damaged or defective
ballot card and on the replacement ballot card.
(e) The returns printed by the automatic tabulating equipment
at the central counting center, to which have been added write-in
and other valid votes, shall, when certified by the clerk of the
county commission, constitute the official preliminary returns of
each precinct or election district. Further, all such returns
shall be printed on a precinct basis. Periodically throughout and
upon completion of the count, the returns shall be open to the
public by posting such returns as have been tabulated precinct by
precinct at the central counting center. Upon completion of the
canvass, the returns shall be posted in the same manner.
(f) If for any reason it becomes impracticable to count all or
a part of the ballots with tabulating equipment, the county
commission may direct that they be counted manually, following as far as practicable the provisions governing the counting of paper
ballots.
(g) As soon as possible after the completion of the count, the
clerk of the county commission shall have the vote recording
devices properly boxed or securely covered and removed to a proper
and secure place of storage.
§3-4A-28. Postelection custody and inspection of vote recording
devices; canvass and recounts.
(1) The vote recording devices, the ballot labels, ballot
cards, program decks and standard validation test decks shall
remain sealed during the canvass of the returns of the election and
for a period of seven days thereafter, except that such equipment
may be opened for the canvass and it shall be resealed immediately
thereafter. During such period any candidate or the local chairman
of a political party may be permitted to examine any of the
materials so sealed: Provided, That a notice of the time and place
of such examination shall be posted at the central counting center
before and on the hour of nine o'clock in the morning on the day of
the examination is to occur, and all persons entitled to be present
at the central counting center may, at their option, be present.
Upon completion of the canvass and after a seven-day period has
expired, the vote recording devices, the ballot labels, ballot
cards, program decks and standard validation test decks shall be
sealed for one year: Provided, however, That the vote recording
devices and all tabulating equipment may be released for use in any
other lawful election to be held more than ten days after the canvass is completed, and any of the electronic voting equipment
herein discussed may be released for inspection or review by a
request of a circuit court or the supreme court of appeals.
(2) In canvassing the returns of the election, the board of
canvassers shall examine all of the vote recording devices, the
ballot labels, ballot cards and the automatic tabulating equipment
used in such election and shall determine the number of votes cast
for each candidate and for and against each question and by such
examination shall procure the correct returns and ascertain the
true results of the election. Any candidate or his or her party
representative may be present at such examination.
(3) If any candidate shall demand a recount of the votes cast
at an election, the ballots and ballot cards shall be reexamined
during such recount for the purpose of reascertaining the total
number of votes cast for any candidate in the same manner and
according to the same rules as are utilized in the original vote
count pursuant to section twenty-seven of this article.
(4) During the canvass and any requested recount, at least
five percent of the precincts shall be chosen at random and the
ballot cards cast therein counted manually. Where electronic
voting systems are used that utilize screens upon which votes are
recorded by means of a stylus or by means of touch, at least five
percent of the precincts shall be chosen at random, upon any
requested recount, and the ballot images shall be printed from the
internal electronic memory of the voting device and shall be
counted manually. The same random selection shall also be counted by the automatic tabulating equipment. If the variance between the
random manual count and the automatic tabulating equipment count of
the same random ballots, is equal to or greater than one percent,
then a manual recount of all ballot cards shall be required. In
the course of any recount, if a candidate for an office shall so
demand, or if the board of canvassers shall so elect to recount the
votes cast for an office, the votes cast for that office in any
precinct shall be recounted by manual count.
§3-4A-30. Adjustments in voting precincts where electronic voting
system used.
The provisions of section five, article one of this chapter,
relating to the number of registered voters in each precinct, shall
apply to and control in precincts in counties in which electronic
voting systems have been adopted, except that the maximum number of
registered voters shall be one thousand five hundred per precinct.
The county commissions of such counties, subject to other
provisions of this chapter with respect to the altering or changing
of the boundaries of voting precincts, may change the boundaries of
precincts or consolidate precincts as practicable, to achieve the
maximum advantage from the use of electronic voting systems.
The county commission may, in the urban centers of any county
adopting an electronic voting system, designate a voting place
without the limits of a precinct, provided such voting place is in
a public building, and in an adjoining precinct. In such event
more than one precinct may vote in any such public building.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-23. Certificate nominations; requirements and control;
penalties.
(a) Groups of citizens having no party organization may
nominate candidates for public office otherwise than by conventions
or primary elections. In such case, the candidate or candidates,
jointly or severally, shall file a declaration with the secretary
of state if the office is to be filled by the voters of more than
one county, or with the clerk of the circuit court of the county if
the office is to be filled by the voters of one county or political
subdivision thereof; such declaration to be filed at least thirty
days prior to the time of filing the certificate provided by
section twenty-four of this article: Provided, That the deadline
for filing the certificate for persons seeking ballot access as a
candidate for the office of president or vice president shall be
filed not later than the first day of August preceding the general
election. At the time of filing of such declaration each candidate
shall pay the filing fee required by law, and if such declaration
is not so filed or the filing fee so paid, the certificate shall
not be received by the secretary of state, or clerk of the circuit
court, as the case may be.
(b) The person or persons soliciting or canvassing signatures
of duly qualified voters on such certificate or certificates, may
solicit or canvass duly registered voters residing within the
county, district or other political division represented by the
office sought, but must first obtain from the clerk of the county
commission credentials which must be exhibited to each voter
canvassed or solicited, which credentials may be in the following
form or effect:
State of West Virginia, County of ................., ss:
This certifies that ............................, a duly
registered voter of this State; whose post-office address is
........................., is hereby authorized to solicit and
canvass duly registered voters residing in ....................
(here place the county, district or other political division
represented by the office sought) to sign a certificate purporting
to nominate ................................ (here place name of
candidate heading list on certificate) for the office of
................................. and others, at the general
election to be held on ..........................., 19......
Given under my hand and the seal of my office this
................. day of ........................., 19......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application
made as herein provided, shall issue such credentials and shall
keep a record thereof.
(c) The certificate shall be personally signed by duly
registered voters, in their own proper handwriting or by their
marks duly witnessed, who must be residents within the county,
district or other political division represented by the office
sought wherein such canvass or solicitation is made by the person
or persons duly authorized. Such signatures need not all be on one
certificate. The number of such signatures shall be equal to not
less than two one percent of the entire vote cast at the last
preceding general election for the office in the state, district,
county or other political division for which the nomination is to be made, but in no event shall the number be less than twenty-five.
The number of such signatures shall be equal to not less than two
percent of the entire vote cast at the last preceding general
election for any statewide, congressional or presidential
candidate, but in no event shall the number be less than
twenty-five. Where two or more nominations may be made for the
same office, the total of the votes cast at the last preceding
general election for the candidates receiving the highest number of
votes on each ticket for such office shall constitute the entire
vote. No signature on such certificate shall be counted unless it
be that of a duly registered voter of the county, district or other
political division represented by the office sought wherein such
certificate was presented. It shall be the duty of those
soliciting signatures to read to each voter whose signature is
solicited the statement written on the certificate which gives
notice that no person signing such certificate shall vote at any
primary election to be held to nominate candidates for office to be
voted for at the election to be held next after the date of signing
such certificate.
(d) Such certificates shall state the name and residence of
each of such candidates; that he is legally qualified to hold such
office; that the subscribers are legally qualified and duly
registered as voters and desire to vote for such candidates; and
may designate, by not more than five words, a brief name of the
party which such candidates represent and may adopt a device or
emblem to be printed on the official ballot. All candidates
nominated by the signing of such certificates shall have their
names placed on the official ballot as candidates, as if otherwise nominated under the provisions of this chapter.
The secretary of state shall prescribe the form and content of
the nomination certificates to be used for soliciting signatures.
The content shall include the language to be used in giving written
and oral notice to each voter that signing of the nominating
certificate forfeits that voter's right to vote in the
corresponding primary election.
Offices to be filled by the voters of more than one county
shall use separate petition forms for the signatures of qualified
voters for each county.
(e) The secretary of state, or the clerk of the circuit court,
as the case may be, may investigate the validity of such
certificates and the signatures thereon, and if upon such
investigation there may be doubt as to the legitimacy and the
validity of such certificate, he may request the attorney general
of the state, or the prosecuting attorney of the county, to
institute a quo warranto proceeding against the nominee or nominees
by certificate to determine his or their right to such nomination
to public office, and upon request being made, the attorney general
or prosecuting attorney shall institute such quo warranto
proceeding.
(f) Any person violating the provisions of this section, in
addition to penalties prescribed elsewhere for violation of this
chapter, is guilty of a misdemeanor and, upon conviction, shall be
fined not more than one thousand dollars, or confined in the county
or regional jail for not more than one year, or both, in the
discretion of the court: Provided, That no criminal penalty may be
imposed upon anyone who signs a nomination certificate and votes in the primary election held after the date the certificate was
signed.
_____________
(Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§3-4A-24a is new; therefore, strike-throughs and underscoring
have been omitted.)