H. B. 2681
(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 sections one and three, article three
of chapter three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to absentee
voting; changing voting dates for early in person voting;
providing for emergency early person voting the Monday prior
to a Tuesday election; and requiring notice to certain voters
of law change.
Be it enacted by the Legislature of West Virginia:
That sections one and three, article three, article three 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:
§3-3-1. Persons eligible to vote absentee ballots.
(a) Registered and other qualified voters of the county may
vote an absentee ballot pursuant to the provisions of this article.
(b) All registered and other qualified voters of the county
may vote an absentee ballot during the period of regular absentee voting in person.
(c) 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 in
person during the period of special absentee voting in person.
(d) 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 disability or immobility due to extreme advanced
age; or
(C) Incarceration or home detention: Provided, That the
underlying conviction is not for a crime which is a felony or a
violation of section 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 at a college, university or other place of
education or training; or
(C) 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, 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;
(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 in any other documented employment assignment of
specific duration of four years or less; and
(5) Any voter for whom the designated area for absentee voting
within the county courthouse or annex of the courthouse and the
voter's assigned polling place are inaccessible because of his or
her physical disability.
(e) 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 confined or expects to be confined in a
hospital or other duly licensed health care facility within the
county of residence or other authorized area, as provided in this
article, on the day of the election;
(2) 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 the services; and
(3) 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.
(f) Registered voters and other qualified voters in the county
may, in the following circumstances, vote an absentee ballot in
person on a Monday
for any election held on a Tuesday
as provided
in subsection (a), section three of this article, if the person
attests to the following:
That due to one of the following reasons, which the voter was
unaware until following the expiration of the early voting period,
that he or she would be unavailable to vote on election day due to:
(1) Illness, injury or other medical reason; or
(2) Employment which because of hours worked and distance from
the county seat make voting in person impossible.
§3-3-3. Voting an absentee ballot in person.
(a) Regular absentee voting in person is to be conducted
during regular business hours beginning on the fifteenth day before
the election and continuing through 1:00 p.m. the Monday Saturday
before the election for any election held on a Tuesday, or
continuing through 1:00 p.m. the day two days 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
9:00 a.m. to 5:00 p.m. on the two prior Saturday Saturdays before
the election.
Registered voters and other qualified voters in the
county may vote an emergency absentee ballot in person on a Monday
for any election held on a Tuesday in cases of personal emergency,
as provided in subsection (f), section one of this article
(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 is to be conducted during regular
business hours in the office of the 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 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 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 is to be immediately
returned to the 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 official designated to supervise and conduct
absentee voting determines the conditions provided in subsection (d) of this section have not been met, or has evidence that any of
the information contained in the application is not true, the clerk
shall challenge the voter's absentee ballot as provided in this
article.
(f) The 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) For all punch card and paper ballot voting and for optical
scan ballots voted after election supplies are delivered to the
election supply commissioner, one envelope, unsealed, which may
have no marks except the designation "Absent Voter's Ballot
Envelope No. 1" and printed instructions to the voter;
(3) For all punch card and paper ballot voting and for optical
scan ballots voted after election supplies are delivered to the
election supply commissioner, one envelope, unsealed, designated
"Absent Voter's Ballot Envelope No. 2"; and
(4) For optical scan voting systems, ballots, a secrecy sleeve
and access to a ballot box secured by two locks with keys kept by
the president of the county commission and the county clerk.
(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 punch card and
paper absentee voter shall: (1) Place the ballot or ballots in
envelope no. 1 and seal that envelope; (2) place the sealed
envelope no. 1 in envelope no. 2 and seal that envelope; (3)
complete and sign the forms on envelope no. 2; and (4) return that
envelope to the official designated to supervise and conduct the
absentee voting.
(h) Upon receipt of the sealed envelope, the official
designated to supervise and conduct the absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record
of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope in a secure location in the
official's office, to remain until delivered to the polling place
or, in the case of a challenged ballot, to the board of canvassers.
(i) Due to the reenactment of this section by the Legislature
in the two thousand and three regular session removing
authorization for in person early voting on the Monday prior to a
Tuesday election, to assure notice to all persons that voted on the
Monday before the Tuesday election day of the two thousand and two
general election are made aware of this change, the clerk of each county shall, for the primary election of the year two thousand and
four, include along with the sample ballots published in local
newspapers as required by this chapter, a notice to voters that
Monday in person voting will no longer be available.
NOTE: The purpose of this bill is remove the Monday before
Tuesday elections as a voting day for early in person voting and
require opening of polls the Saturday a week ahead of election day;
allowing voters to vote on the Monday before a Tuesday election day
in certain emergency circumstances; and requiring notice to voters
that voted Monday in the last general election that Monday will no
longer be available for early in person voting.
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.