H. B. 2679


(By Delegates Caputo, Coleman, Mahan, Manuel,

Webster, Faircloth and Schadler)

[Introduced January 27, 2003; referred to the

Committee on the Judiciary.]



A BILL to amend and reenact section eight, article three, and section six, article six, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing certain counties to count absentee ballots during election period.

Be it enacted by the Legislature of West Virginia:
That section eight, article three, and section six, article six of chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
§ 3-3-8. Disposition and counting of absent voters' ballots.
(a) All absentee ballots voted must be deposited in the absentee ballot box. The ballots deposited in the ballot box must be counted and merged with the election day ballots at the counting center on election night or, at the option of the clerk of the county commission, be delivered for counting at the precinct in which the absent voter is registered to vote, as provided in section seven of this article.
(b) The county clerk shall appoint at least one team of five absentee ballot counting commissioners. The composition of each team shall consist of the same combination of election officials as provided for a counting board in subdivision (3), subsection (a), section twenty-nine, article one of this chapter. The absentee ballot counting commissioners must count the absentee ballots at the counting center as follows:
(1) In counties using paper ballots, absentee ballot counting commissioners may begin counting absentee ballots beginning at nine a.m. on election day. In all other counties, counting is to begin immediately after closing of the polls. Immediately after the closing of the polls on election day the The absentee ballot counting commissioners, in the presence of each other, shall open the ballot box in which are enclosed the absent voters' ballots.
(2) After the ballot box has been opened, each of the absentee ballot counting commissioners shall examine each of the mail-in sealed absent voter's ballot envelopes no. 2 contained therein, as well as the information contained thereon, the application for such ballot, the affidavits, records and lists, if any, made, prepared or authorized under the provisions of this article which relate thereto and make a decision as to each ballot whether a challenge is or is not to be made to such ballot. The appropriate form indicating the challenge shall be completed as to each ballot challenged by one or more of the absentee ballot counting commissioners. Each ballot challenged shall remain sealed in absent voter's ballot envelope no. 2 and be deposited in the box or envelope for challenged ballots.
(3) The absentee ballot counting commissioners shall next determine whether any challenge has been made to any absent voter's ballot by any registered voter in the county under the provisions of section nine of this article. Each such ballot challenged shall remain sealed in absent voter's ballot envelope no. 2 and be deposited in the box or envelope for challenged ballots.
(4) The absentee ballot counting commissioners, in the presence of each other, shall then open, in a manner as not to deface or destroy the information thereon, all of the mail-in absent voter's ballot envelopes no. 2 which contain ballots not challenged and remove therefrom the absent voter's ballot envelopes no. 1. These envelopes shall then be shuffled and intermingled.
(5) The absentee ballot counting commissioners, 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 absentee ballot counting commissioners who are poll clerks shall write their names on the back of each of such ballots in the same manner as other ballots are required to be endorsed by the poll clerks at precinct voting. The absentee ballot counting commissioners who are poll clerks shall then indicate with the letter "a" in the appropriate place on the registration record the fact that the voter had voted by absent voter's ballot in that election and shall enter the absent voter's name on the pollbook.
(6) The absentee ballot counting commissioners shall next count the mail-in and in-person absentee ballots and enter the totals onto the precinct election records.
(7) The challenged ballots shall be deposited in a challenged ballot envelope and delivered to the board of canvassers.
(c) Any election official who determines a person has voted an absent voter's ballot and has also voted at the polls on election day must report the fact to the prosecuting attorney of the county in which the votes were cast.
§ 3-6-6. Ballot counting procedures in paper ballot systems.
When the polls are closed in an election precinct where only a single election board has served, the receiving board shall perform all of the duties prescribed in this section. When the polls are closed in an election precinct where two election boards have served, both the receiving and counting boards shall together conclude the counting of the votes cast, the tabulating and summarizing of the number of the votes cast, unite in certifying and attesting to the returns of the election and join in making out the certificates of the result of the election provided for in this article. They shall not adjourn until the work is completed.
In all election precincts, as soon as the polls are closed and the last voter has voted, the receiving board shall proceed to ascertain the result of the election in the following manner:
(a) In counties in which the clerk of the county commission has determined that the absentee ballots should be counted at the precincts in which the absent voters are registered, the receiving board must first process the absentee ballots and deposit the ballots to be counted in the ballot box. The receiving board shall then proceed as provided in subsections (b) and (c) of this section. In counties in which the absentee ballots are counted at the central counting center, the receiving board shall proceed as provided in subsections (b) and (c) of this section.
(b) The receiving board shall ascertain from the pollbooks and record on the proper form the total number of voters who have voted. The number of ballots challenged shall be counted and subtracted from the total, which result should equal the number of ballots deposited in the ballot box. The commissioners and clerks shall also report, over their signatures, the number of ballots spoiled and the number of ballots not voted.
(c) The procedure for counting ballots, whether performed throughout the day by the counting board as provided in section thirty-three, article one of this chapter, or as provided in section eight, article three of this chapter, or after the close of the polls by the receiving board or by the two boards together, shall be as follows:
(1) The ballot box shall be opened and all votes shall be tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the box at a time and shall determine if the ballot is properly signed by the two poll clerks of the receiving board. If not properly signed, the ballot shall be placed in an envelope for the purpose, without unfolding it. Any ballot which does not contain the proper signatures shall be challenged. If an accurate accounting is made for all ballots in the precinct in which the ballot was voted and no other challenge exists against the voter, the ballot shall be counted at the canvas. If properly signed, the commissioner shall hand the ballot to a team of commissioners of opposite politics, who shall together read the votes marked on the ballot for each office. Write-in votes for election for any person other than an official write-in candidate shall be disregarded. When a voter casts a straight ticket vote and also casts 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;
(3) The commissioner responsible for removing the ballots from the box shall keep a tally of the number of ballots as they are removed and whenever the number shall equal the number of voters entered on the pollbook minus the number of challenged ballots, as determined according to subsection (a) of this section, any other ballot found in the ballot box shall be placed in the same envelope with unsigned ballots not counted, without unfolding the same or allowing anyone to examine or know the contents thereof, and the number of excess ballots shall be recorded on the envelope;
(4) Each poll clerk shall keep an accurate tally of the votes cast by marking in ink on tally sheets, which shall be provided for the purpose, so as to show the number of votes received by each candidate for each office and for and against each issue on the ballot; and
(5) When the reading of the votes is completed, the ballot shall be immediately strung on a thread.

 NOTE: The purpose of this bill is to allow ballot counting commissioners in counties that use paper ballots to begin counting absentee ballots at the court house beginning at 9:00 a.m. on election day.


This bill was recommended for introduction and passage by the Joint Standing Committee on the Judiciary.

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