Senate Bill No. 139

(By Senator Bailey)

____________

[Introduced January 13, 2003; referred to the Committee on the Judiciary.]

____________




A BILL to repeal articles four and four-a, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article one of said chapter; and to amend and reenact sections two and five, article six of said chapter, all relating to abolishing the use of voting machines and electronic voting systems during primary and general elections in this state; and requiring voting by paper ballots.

Be it enacted by the Legislature of West Virginia:

That articles four and four-a, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section four, article one of said chapter be amended and reenacted; and that sections two and five, article six of said chapter be amended and reenacted, all to read as follows:

ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

§3-1-4. Manner of voting.

In all elections the mode of voting shall be by ballot, but
the voter shall be left free to vote by either open, sealed, or secret ballot, as he or she may elect. Voting by ballot may be accomplished as provided in articles three, four, five and six of this chapter.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.

§3-6-2. Preparation and form of general election ballots.

(a) All ballots prepared under the provisions of this section are to contain:

(1) The name and ticket of each party which is a political party under the provisions of section eight, article one of this chapter;

(2) The name chosen as the party name by each group of citizens which has secured nomination for two or more candidates by petition under the provisions of section twenty-three of this article;

(3) The names of every candidate for any office to be voted for at the election whose nomination in the primary election, nomination by petition or nomination by appointment to fill a vacancy on the ballot has been certified and filed according to law and no others.

(b) The provisions of subdivision (3), subsection (b); subsection (c); subdivisions (1) and (2), subsection (d); and subsections (g), (h), (i), (j) and (k), section thirteen of article five pertaining to the preparation and form of primary election ballots shall likewise apply to general election ballots.

(c) (1) For all ballot systems, the ballot heading is to be in
display type and contain the words "Official Ballot, General Election" and the name of the county and the month, day and year of the election.
(2) After the heading, each ballot is to contain, laid out in parallel columns, rows or pages as required by the particular voting system, the party emblem, the position for straight party voting for each party and the name of each party as prescribed in subsection (a) of this section. On paper ballots, the position for straight party voting is to be a heavy circle, three-fourths inch in diameter, surrounded by the words "For a straight ticket mark within this circle" printed in bold six-point type. On all other ballots or ballot labels, the positions for straight party voting is to be marked "Straight Party Ticket". For ballots tabulated electronically, the secretary of state shall prescribe a uniform number for the straight ticket position for each party.

(3) The party whose candidate for president received the highest number of votes at the last preceding presidential election is to be placed in the left, or first column, row or page, as is appropriate to the voting system. The party which received the second highest vote is to be next and so on. Any groups or third parties which did not have a candidate for president on the ballot in the previous presidential election are to be placed in the sequence in which the final certificates of nomination by petition were filed.

(4) (A) Except for lever machine ballot labels, the The following general instructions for straight party voters are to be
printed in no smaller than eight-point bold type: "IF YOU MARKED A STRAIGHT TICKET: When you mark any individual candidate in a different party, that vote will override your straight party vote for that office. When you mark any individual candidate in a different party for an office where more than one will be elected, YOU MUST MARK EACH OF YOUR CHOICES FOR THAT OFFICE because your straight ticket vote will not be counted for that office". The last sentence of the instructions may not be included on any ballot which does not contain any office or division where more than one candidate will be elected.
On paper ballots, the general instructions are to be placed below the party name and across the top of all columns, followed by a heavy line separating them from the rest of the ballot. On ballots marked with electronically sensible ink and on ballot labels for voting devices in punch card systems, the general instructions are to be placed after the position for straight voting and before any office.

(B) Except for lever machine ballot labels, the The following specific instructions are to be printed on the ballot for any partisan election for an office or division to which more than one candidate is to be elected: "If you marked a straight ticket and you mark any candidate in a different party for this office, you must mark all your choices for this office because your straight ticket vote will not be counted for this office".

On paper ballots, the specific instructions are to be placed below the office name of any partisan office where more than one is
to be elected and across the top of all columns for that office before the names of any candidates. On all other ballots and ballot labels, the specific instructions are to be placed above or to the side of the names of the candidates as the voting system requires.
(5) For all ballots, any columns, rows or sections in which the ticket of one party appears are to be clearly separated from the other columns, rows or sections by a heavy line or other clear division. For each party, the offices are to be arranged in the order prescribed in section thirteen-a, article five of this chapter under the appropriate tickets, which are to be headed "National Ticket", "State Ticket" and "County Ticket". The number of pages, columns or rows, where applicable, may be modified to meet the limitations of ballot size and composition requirements, subject to approval by the secretary of state.

(d) The arrangement of names within each office for all ballot systems is to be as follows:

(1) In elections for presidential electors, the names of the candidates for president and vice president of each party are to be placed beside a brace with a single voting position, so that a vote for any presidential candidate is a vote for the electors of the party for which the candidates were named.

(2) The order of names of candidates for any office or division for which more than one is to be elected is determined as prescribed in section thirteen-a, article five of this chapter: Provided, That the drawing by lot is to be conducted on the
seventieth day next preceding the date of the general election, beginning at 9:00 a.m.
(3) Except in voting machine systems, in In any office where more than one person is to be elected, the names of the candidates for the office are to be staggered so that no two candidates for that office appear directly opposite any other candidate, as shown in the example below:

_________________________________________________________________

For House of DelegatesFor House of Delegates
First Delegate DistrictFirst Delegate District
(Vote For Not More Than Two) (Vote For Not More Than Two)
_______________________________
_______________________________


SUSAN B. ANTHONY
City (County)
_______________________________
_______________________________


JOHN ADAMS
City (County)
_______________________________
_______________________________


ABRAHAM LINCOLN
City (County)

______________________________
_______________________________


JAMES MONROE
City (County)
______________________________
_______________________________


(4) Each The paper ballot voting system is to provide a means for voters to vote for any person whose name does not appear on the ticket by writing it with pen or pencil or by using stamps, stickers, tapes, labels or other means of writing in the name of a candidate which does not interfere with the tabulation of the ballot.
(A) In paper ballot systems which allow for write-ins to be made directly on the ballot, a blank square and a blank line equal to the space which would be occupied by the name of the candidate is to be placed under the proper office for each vacancy in nomination and for an office for which more than one is to be elected, any vacancy is to appear after any other candidates for the office.
(B) In machine and electronically tabulated ballot systems in which write-in votes must be made in a place other than on the ballot label, if there is a vacancy in nomination leaving fewer candidates in any party than can be elected to that office, the words "No Candidate Nominated" is to be printed in the space that would be occupied by the name of the candidate and for an office for which more than one is to be elected, any such vacancy is to appear after any other candidates for the office. Notwithstanding any other provision of this code, if there are multiple vacant positions on a ballot for one office, the multiple vacant positions which would otherwise be filled with the words "No Candidate Filed" may be replaced with a brief detailed description, approved by the secretary of state, indicating that there are no candidates listed for the vacant positions.
(5) In a general election in any county in which unexpired terms of the board of education are to be filled by election, a separate section or page of the ballot is to be set off by means clearly separating the nonpartisan ballot from the ballot for the political party candidates and is to be headed "Nonpartisan Board of Education".
(e) Any constitutional amendment is to be placed following all offices, followed by any other issue upon which the voters are to cast a vote. The heading for each amendment or issue is to be printed in large, bold type according to the requirements of the resolution authorizing the election.
(f) The board of ballot commissioners may not place any issue on the ballot for election which is not specifically authorized under the West Virginia constitution or statutes or which has not been properly ordered by the appropriate governmental body charged with calling the election.
§3-6-5. Rules and procedures in election other than primaries.
The provisions of article one of this chapter relating to elections generally shall govern and control arrangements and election officials for the conduct of elections under this article. The following rules and procedures shall govern the voting for candidates in general and special elections:
(a) If the voter desires to vote a straight ticket, or in other words, for each and every candidate for one party for whatever office nominated, the voter shall either:
(1) Mark the position designated for a straight ticket in the manner appropriate to the voting system; or
(2) Mark the voting position for each and every candidate of the chosen party in the manner appropriate to the voting system.
(b) If the voter desires to vote a mixed ticket, or in other words, for candidates of different parties, the voter shall either:
(1) Omit marking any straight ticket voting position and mark, in the manner appropriate to the voting system, the name of each candidate for whom he or she desires to vote on whatever ticket the name may be; or
(2) Mark the position designated for a straight ticket for the party for some of whose candidates he or she desires to vote, and then mark the name of any candidate of any other party for whom he or she may desire to vote, in which case the cross mark in the circular space above the name of the party straight ticket mark will cast his or her vote for every candidate on the ticket of such party except for offices for which candidates are marked on other party tickets, and the marks for such candidates will cast a vote for them; or
(3) Write with ink or other means or affix a sticker or label or place an ink-stamped impression of the name of an official write-in candidate for an office for whom he or she desires to vote in the space designated for write-in votes for the particular voting system and mark that voting position as required in this chapter; or for For paper ballot systems, write or place the name and office designation in any position on the face of the ballot which makes the intention of the voter clear as to both the office and the candidate chosen.
(c) If in marking either a straight or mixed ticket as above defined, a straight ticket voting position is marked, and also one or more marks are made for candidates on the same ticket for offices for which candidates on other party tickets are not individually marked, such marks before the name of candidate on the ticket so marked shall be treated as surplusage and ignored.
(d) When a voter casts a straight ticket vote and also writes in any name for an office and, in electronic voting systems, punches or marks the voting position for that write-in, the straight ticket vote for that office shall be rejected, whether or not a vote can be counted for a write-in candidate.
(e) The secretary of state may proscribe devices for casting write-in votes which would cause mechanical difficulty with voting machines or electronic devices or which would obliterate or deface a paper ballot or any portion thereof, but the secretary of state shall preserve the right to vote by a write-in vote for those candidates who have filed and have been certified as official write-in candidates under the provisions of section four-a of this article.
(f) (e) If the voter marks more names than there are persons to be elected to an office, or if, for any reason, it is impossible to determine the voter's choice, for an office to be filled, the ballot shall not be counted for such office. The intention of the voter shall be deemed to be clear if the write-in vote cast for an office contains both the first and last name of an official write-in candidate for that office; and, if no two official write-in candidates for that office share a first or last name, either the first name or last name alone shall be deemed to express the clear intention of the voter.
(g) (f) Except as otherwise specifically provided in this chapter, no ballot shall be rejected for any technical error which does not make it impossible to determine the voter's choice.


NOTE: The purpose of this bill is to repeal articles 4 and 4A of chapter 3 of the West Virginia Code relating to abolishing the use of voting machines and electronic voting systems during primary and general elections in this state and requiring voting by paper ballots systems.

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