Senate Bill No. 351

(By Senators Snyder, Caldwell, Fanning,

Hunter, Minard, Rowe, McKenzie and White)

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[Introduced January 24, 2003;

referred to the Committee on the Judiciary.]

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A BILL to amend and reenact section twenty-one, article four-a, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to processing certain absentee ballots prior to closure of the polls.

Be it enacted by the Legislature of West Virginia:
That section twenty-one, article four-a, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
§3-4A-21. Absent voter ballots; issuance, processing and tabulation.

(a) Absentee voters shall cast their votes on absent voter ballots.
(b) If absentee voters are deemed eligible to vote in person at the office of the official designated to supervise and conduct absentee voting, in accordance with the provisions of article three of this chapter, the official for 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 the 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 is to be processed in the manner otherwise prescribed by law, except that the official designated to supervise and conduct absentee voting shall deliver a copy of the application to each polling place. No voter who votes in person by absentee ballot may vote in person on the date of the election.
(c) For all absentee voters considered eligible to vote an absent voter's ballot by mail, in accordance with the provisions of article three of this chapter, the official designated to supervise and conduct absentee voting for each county shall prepare and issue an absent voter ballot packet consisting of the following:
(1) One official absent voter ballot;
(2) One punching tool for perforating or a device for marking by electronically sensible pen or ink, as may be appropriate;
(3) 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;
(4) One absent voter instruction ballot;
(5) One absent voter's ballot envelope no. 1, unsealed, which may have no writing on it and which is to be identical to the secrecy envelope used for placement of ballots at the polls; and
(6) One absent voter's ballot envelope no. 2, marked with the proper precinct number and providing a place on its seal for the absent voter to affix his or her signature. The envelope is also to contain the forms and instructions as provided in section five, article three of this chapter relating to the absentee voting of proper ballots.
(d) 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.
(e) After the voter has voted his or her absent voter's ballot, he or she shall: (1) Enclose the ballot 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 on the envelope; and (4) mail, postage prepaid, sealed absent voter's ballot envelope no. 2 to the official designated to supervise and conduct absentee voting for 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 official.
(f) Upon receipt of the sealed envelope, the official designated to supervise and conduct absentee voting shall: (1) Enter onto the envelope any information as may be required of him or her according to the instructions on the envelope; (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 on a form prescribed by the secretary of state; and (4) place the sealed envelope in a secure location in his or her office, there to remain until after the close of the polling place on election day 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.
(g) 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 may vote in person on the date of the election.
(h) The absentee ballot counting commissioners shall, at the close of the polls, beginning anytime following 9:00 a.m. election day, proceed to determine the legality of the ballots as prescribed in article three of this chapter. No tabulation of absentee ballots may begin until closure of the polls. The absentee ballot counting commissioners shall then open all of the absent voter's ballot envelopes no. 2 which contain ballots not challenged and remove from the envelopes the absent voter's ballot envelopes no. 1. These ballot envelopes no. 1 are then to be shuffled and intermingled. 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 from the envelopes. The absentee ballot counting commissioners who are poll clerks shall then affix their signatures to the ballots 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. The requirement that two poll clerks sign a ballot according to this subsection is a mandatory duty and is not to be construed as merely directory.
(i) In the course of an election contest, if it is established that a ballot does not contain the two signatures required by this section, the ballot is null, void and of no effect and may not be counted. The requirement that a ballot not be counted if it does not meet the requirements of this section is mandatory and not to be construed as merely directory.
NOTE: This bill allows counties which utilize electronic voting systems to process absentee ballots on election day, prior to closure of polls.

 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.