COMMITTEE SUBSTITUTE

FOR

H. B. 3066

(By Delegates Manuel, Mahan, Coleman, Craig, C. White and Smirl)


(Originating in the Committee on the Judiciary)


[April 2, 2001]


A BILL 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, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to absentee voting; eliminating the conditions limiting voters from voting during the regular absentee in person voting period; allowing any person confined in a hospital on election day to vote by emergency absentee ballot; requiring the clerk of the county commission to supervise and conduct absentee voting in certain elections; requiring the clerk of the circuit court to supervise and conduct absentee voting in certain elections; requiring the county commission to provide an area for absentee in person voting under certain circumstances; restricting in person absentee voting to locations which may be accessed without passing through security devices; requiring regular absentee voting in person continue through the day before an election; requiring regular absentee voting be available during certain hours on the Saturday before a Tuesday election; eliminating the requirement that an absentee ballot by mail be sent outside the county under certain circumstances; allowing absentee ballots which are received by the clerk no later than the day after the election to be accepted; requiring that a set of emergency absentee ballot commissioners be persons of different registered party affiliations; prohibiting a person who voted by absentee ballot from voting on election day at the polls; and eliminating the challenge to an absentee ballot because the voter was able to vote at the polls on election day.

Be it enacted by the Legislature of West Virginia:
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, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
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 county courthouse or judicial annex facility and the 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;
(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 certify to the county commission their agreement that the clerk of the circuit court supervise and conduct the absentee voting, the clerk of the circuit court is 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, his or her 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.

(a) 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, 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 officials 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 voting area of the office of the official designated to supervise and conduct absentee voting is accessible only by way of a security device, the clerk official shall request the county commission to designate an accessible room within the same building 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. Upon request by the official, the county commission shall designate an accessible area for absentee voting. The area shall be is subject to the same requirements as the regular absentee voting area.
(d) (b) 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.
(c) Notwithstanding any other provision of this code to the contrary, no absentee voting may occur in a location accessed only by way of a security device, including metal detectors.
§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 be maintained and maintain the list 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 States postal service; or (4) the The death of the person.
(d) The clerk official designated 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 official designated to supervise and conduct absentee voting 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 designated to supervise and conduct absentee voting, 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 official 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; penalties.
(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 who received assistance in voting if when in his, her or their opinion: (1) the 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. The list shall is to be divided into two parts.: (1) Part A shall be entitled "Unchallenged Assisted Voters"; and Part B shall 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, to the clerk of the county commission 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 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 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 are 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 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 no later than the hour at which the board of canvassers convenes to begin the canvass.
(h) 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) (i) Absentee ballots which are hand delivered to the clerk shall official designated to supervise and conduct absentee voting are to be accepted if they are received by the circuit clerk official 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) (j) 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 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 is to consist of two persons with different registered party affiliations, 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 authorized by 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 section one of this article who is present in the county in which he 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) of section one of this article who is or becomes able to vote in person at the polls on election day, 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.
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 had previously voted an absent voter's ballot in such election and the election commissioners and poll clerks fail to discover such fact at the time of voting in person, they shall, following the closing of the polls, challenge the absent voter's ballot of such person.
The absent voter's ballot of any such person described in the second paragraph 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 or she 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 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 official designated to supervise and conduct absentee voting 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 the person voted an absent voter's ballot under authority of subdivision (3) 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;
(11) 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) on (10) 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.
(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 officials designated to supervise and conduct absentee voting in each county 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 official designated to supervise and conduct absentee voting in 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 official designated to supervise and conduct absentee voting 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 officials designated to supervise and conduct absentee voting 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.