H. B. 3097


(By Delegates Smirl, Craig, Hubbard,
Stephens, Morgan and Leach)
[Introduced March 29, 2001; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend article four-a, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section twenty-four-a; and to amend and reenact sections two, nine, eleven, eleven-a, twelve, fifteen, sixteen, seventeen, nineteen, nineteen-a, twenty, twenty-one, twenty-four, twenty-six, twenty-seven and twenty-eight, article four-a, chapter three of this code, all relating to electronic voting systems; definitions; and details and specifications of electronic voting; all relating to electronic voting systems; definitions and methods of balloting.

Be it enacted by the Legislature of West Virginia:
That article four-a, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section twenty-four-a; and that sections two, nine, eleven, eleven-a, twelve, fifteen, sixteen, seventeen, nineteen, nineteen-a, twenty, twenty-one, twenty-four, twenty-six, twenty-seven and twenty-eight, article four-a, 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 4A. ELECTRONIC VOTING SYSTEMS.
 §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-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 Ticket
Republican Ticket


For Governor
For 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 Ticket
Republican Ticket


For House of Delegates
For House of Delegates

First Delegate District
First 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 any
ticket and you mark any

candidate in a different
candidate in a different

party for this office, you
party for this office, you

must mark all your choices
must mark all your choices

because your straight ticket
because your straight ticket

vote will not be counted
vote 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.




NOTE: The purpose of this bill is to refine the terms and the mechanisms of electronic balloting.
 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.