ENROLLED
Senate Bill No. 648
(By Senators Oliverio, Jenkins, Hunter, White, McKenzie, Kessler, Caldwell,
Fanning, Minard, Rowe and Deem)
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[Passed March 7, 2003; in effect ninety days from passage.]
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AN ACT to repeal section forty, article one, chapter three of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to repeal section twenty, article two of said
chapter; to repeal section twenty-one, article four-a of said
chapter; to repeal section twenty-one, article nine of said
chapter; to amend and reenact sections seven, nine, twenty,
twenty-one, twenty-four, twenty-five, twenty-eight, twenty-
nine, thirty, thirty-four, thirty-nine, forty-one, forty-four
and forty-five, article one of said chapter; to further amend
said article by adding thereto three new sections, designated
sections forty-eight, forty-nine and fifty; to amend and
reenact sections two, three, five, seven, ten, thirteen,
nineteen and thirty, article two of said chapter; to further
amend said article by adding thereto a new section, designated
section four-a; to amend and reenact sections one, two, two-a, three, five, five-c, seven, eight, ten and eleven, article
three of said chapter; to amend and reenact sections ten and
twenty-three, article four of said chapter; to amend and
reenact sections nine, nineteen, twenty-two, twenty-four-a and
twenty-seven, article four-a of said chapter; to amend and
reenact sections ten, thirteen, fifteen and nineteen, article
five of said chapter; to amend and reenact sections three,
four-a, five, six, seven and nine, article six of said
chapter; to amend and reenact sections one and four, article
seven of said chapter; to amend and reenact sections two,
four, five and twelve, article eight of said chapter; to amend
and reenact sections seven and eight, article ten of said
chapter; and to amend and reenact section two, article six,
chapter eight of said code, all relating to elections
generally; requiring written notice to registered voters if
precinct is changed; clarifying how members of the state
executive committees are elected and providing for additional
members; specifying the information to be on the general
information cards; providing instruction on casting a
provisional ballot; requiring posting of names of official
write-in candidates; requiring all information available to
voters on election day to be available during the early in-
person voting period; requiring the circuit clerk to transfer
absentee ballots to the clerk of the county commission where clerk of the county commission is responsible for absentee
voting; authorizing poll clerks to pick up election supplies;
authorizing reimbursement for county employees who deliver
election supplies; prohibiting election officials from also
being official write-in candidates; making expanded receiving
boards optional; clarifying that alternate election officials
be paid for attending training; changing challenged ballot to
provisional ballot throughout; clarifying that the clerk of
the county commission may use election records and returns to
update voter registration records; eliminating the requirement
for the immediate arrest of a person accused of voting
illegally; establishing procedures for taking and securing
affidavits regarding illegal voting; providing for the secured
affidavits to be given to the prosecuting attorney;
establishing procedures for challenging ballots and voting a
provisional ballot; requiring that the secretary of state
establish a system to allow provisional voters to learn
whether or not their vote was counted and why; requiring the
circuit court to decide proceedings to compel performance of
election duties within fifteen days; establishing a state
election fund; setting new standards for voting systems;
providing for state administrative complaint procedures for
election law violations; authorizing the secretary of state to
establish and maintain a statewide voter registration list; providing for stricter identification procedures for voter
registration; clarifying when seventeen-year-olds may vote in
municipal elections; providing that voter registration
services will be provided whenever the office of the clerk of
the county commission is open for business; clarifying that
the secretary of state must periodically review and revise the
rule relating to voter registration; clarifying that voter
registration lists or data files may not be used or sold for
commercial or charitable solicitations or advertising;
changing regular absentee voting to early in-person voting;
allowing voters who have resided in a nursing home for less
than thirty days to vote by an emergency absentee ballot;
clarifying that absentee ballots require a mail-in absentee
ballot application; authorizing two representatives to assist
with absentee voting and establishing qualifications;
expanding the early in-person voting period to twenty days;
eliminating voting on Monday before a Tuesday election and
adding voting on the two Saturdays prior to the election;
requiring notice to voters that Monday voting is no longer
available; clarifying procedures for, and materials required
for, early in-person voting; authorizing representatives to
sign the back of mail-in ballots; requiring proper supplies be
sent to mail-in absentee voters; establishing measures for
securing mail-in absentee ballots; providing that the emergency absentee ballot commissioners must sign an oath;
authorizing counties that use paper ballots to begin counting
absentee ballots at nine o'clock the morning of election day;
removing certain requirements for challenging absentee
ballots; removing language that require ballot commissioner's
signatures on absentee ballots; requiring that all electronic
voting system materials be retained twenty-two months;
providing that a person who assists voters casting their
ballots cannot be a candidate on the ballot or an official
write-in candidate; removing the requirement that write-in
votes be indicated by punching out write-in voting position on
a punch card ballot in addition to entering the candidate's
name; providing that the publication of sample ballots will be
made not more than twenty-six nor less than twenty days prior
to the primary and general elections; requiring numbers and
perforated stubs on paper ballots; clarifying the requirements
for an executive committee to call a meeting to fill vacancies
on a ballot; allowing issues of candidate eligibility to be
brought before the election commission; requiring the
certificate of announcement for a write-in candidate be
received by the close of business the eighteenth day prior to
the election; requiring contests for state offices,
legislative seats and judgeships to be filed within ten days
of the certification of the election; removing the requirement that political committees advocating for or against an issue
file financial statements; excluding federal political action
committees from filing with the state; allowing a change of
treasurer of a campaign committee by filing a written
statement; requiring that candidates in a primary election
file financial statements on the last Saturday in March or
within six days thereafter; requiring that candidates in a
general election file financial statement on the first
Saturday in September or within six days thereafter;
eliminating requirement that financial reports be notarized
and requiring them to be sworn; allowing corporations to
participate in nonpartisan registration and get-out-the-vote
campaigns; prohibiting anonymous radio or television
advertisements advocating the election or defeat of
candidates; clarifying how a vacancy in the office of county
commissioner or clerk of the county commission is to be
filled; removing requirement to fill certain vacancies by
election if the unexpired term is greater than one year;
removing inconsistent time frames for holding annexation
election; and clarifying that a majority of votes in the
municipality and a majority of votes in the territory to be
annexed determine the outcome of annexation elections.
Be it enacted by the Legislature of West Virginia:
That section forty, article one, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; that section twenty, article two of said chapter be
repealed; that section twenty-one, article four-a of said chapter
be repealed; that section twenty-one, article nine of said chapter
be repealed; that sections seven, nine, twenty, twenty-one, twenty-
four, twenty-five, twenty-eight, twenty-nine, thirty, thirty-four,
thirty-nine, forty-one, forty-four and forty-five, article one of
said chapter be amended and reenacted; that said article be further
amended by adding thereto three new sections, designated sections
forty-eight, forty-nine and fifty; that sections two, three, five,
seven, ten, thirteen, nineteen and thirty, article two of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section four-a;
that sections one, two, two-a, three, five, five-c, seven, eight,
ten and eleven, article three of said chapter be amended and
reenacted; that sections ten and twenty-three, article four of said
chapter be amended and reenacted; that sections nine, nineteen,
twenty-two, twenty-four-a and twenty-seven, article four-a of said
chapter be amended and reenacted; that sections ten, thirteen,
fifteen and nineteen, article five of said chapter be amended and
reenacted; that sections three, four-a, five, six, seven and nine,
article six of said chapter be amended and reenacted; that sections
one and four, article seven of said chapter be amended and
reenacted; that sections two, four, five and twelve, article eight of said chapter be amended and reenacted; that sections seven and
eight, article ten of said chapter be amended and reenacted; and
that section two, article six, chapter eight of said code be
amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-7. Precinct changes; procedure; precinct record.
(a) Subject to the provisions and limitations of section five
of this article, the county commission of any county may change the
boundaries of any precinct within the county, or divide any
precinct into two or more precincts, or consolidate two or more
precincts into one, or change the location of any polling place
whenever the public convenience may require it.
(b) No order effecting the change, division or consolidation
shall be made by the county commission within ninety days prior to
an election nor without giving notice at least one month before the
change, division or consolidation by publication of the notice as
a Class II-0 legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code. The publication
area is the county in which the precinct or precincts are located.
The county commission shall also, within fifteen days after the
date of the order, publish the order in the manner required for
publication of the notice.
(c) The county commission shall also, before the next succeeding election, cause the voters in the several precincts
affected by the order to be duly registered in the proper precinct
or precincts and shall mail written notification to all registered
voters affected by the change.
(d) The county commission shall keep in a well-bound book,
marked "election precinct record", a complete record of all their
proceedings hereunder and of every order made creating a precinct
or precincts or establishing a place of voting therein. The
"election precinct record" shall be kept by the county commission
clerk in his or her office and shall, at all reasonable hours, when
not actually in use by the county commission, be open to inspection
by any citizen of the county.
(e) When the county commission establishes a polling place at
a location other than the location used for holding the preceding
primary, general or special election in that precinct, the
commission shall cause a notice to be posted on election day on the
door of the previous polling place describing the location of the
newly established polling place and shall mail written notification
to all registered voters affected by the change.
(f) If for any reason the election cannot be held at the
designated polling place in a precinct and no provision has been
made by the county commission for holding the election at another
place, the commissioners of election for that precinct may hold the
election at the nearest place which they can secure for the purpose. They shall make known by proclamation to voters present
at the time for opening the polls, and by posting a notice at or
near the entrance of the first named polling place, the location at
which the election will be held. The county commission shall
establish another place of voting for that precinct as soon
thereafter as practicable.
(g) Notwithstanding any provision herein to the contrary, in
the case of an emergency, the county commission may make the
precinct change no later than sixty days prior to an election in
accordance with the requirements herein with the approval of the
secretary of state. A change, if made however, shall not cause any
voter to be moved to a different district.
§3-1-9. Political party committees; how composed; organization.
(a) Every fourth year at the primary election, the voters of
each political party in each senatorial district shall elect four
members consisting of two male members and two female members of
the state executive committee of the party. In senatorial
districts containing two or more counties, not more than two
elected committee members shall be residents of the same county:
Provided, That at each election the votes shall be tallied from
highest to lowest without regard to gender or county of residence.
The two candidates with the highest votes shall be elected first
and the other candidates shall be qualified based on vote tallies,
gender and county of residence. The committee, when convened and organized as herein provided, shall appoint three additional
members of the committee from the state at large which shall
constitute the entire voting membership of the state executive
committee: Provided, however, That if it chooses to do so, the
committee may by motion or resolution, and in accordance with party
rules, may expand the voting membership of the committee. When
senatorial districts are realigned following a decennial census,
members of the state executive committee previously elected or
appointed shall continue in office until the expiration of their
terms. Appointments made to fill vacancies on the committee until
the next election of executive committee members shall be selected
from the previously established districts. At the first election
of executive committee members following the realignment of
senatorial districts, members shall be elected from the newly
established districts.
(b) At the primary election, the voters of each political
party in each county shall elect one male and one female member of
the party's executive committee of the congressional district, of
the senatorial district and of the delegate district in which the
county is situated, if the county is situated in a multicounty
senatorial or delegate district. When districts are realigned
following a decennial census, members of an executive committee
previously elected in a county to represent that county in a
congressional or multicounty senatorial or delegate district executive committee shall continue to represent that county in the
appropriate newly constituted multicounty district until the
expiration of their terms: Provided, That the county executive
committee of the political party shall determine which previously
elected members will represent the county if the number of
multicounty senatorial or delegate districts in the county is
decreased; and shall appoint members to complete the remainder of
the term if the number of districts is increased.
(c) At the same time the voters of the county in each
magisterial district or executive committee district, as the case
may be, shall elect one male and one female member of the party's
county executive committee except that in counties having three
executive committee districts, there shall be elected two male and
two female members of the party's executive committee from each
magisterial or executive committee district.
(d) For the purpose of complying with the provisions of this
section, the county commission shall create the executive committee
districts. The districts shall not be fewer than the number of
magisterial districts in the counties, nor shall they exceed in
number the following: Forty for counties having a population of one
hundred thousand persons or more; thirty for counties having a
population of fifty thousand to one hundred thousand; twenty for
counties having a population of twenty thousand to fifty thousand;
and the districts in counties having a population of less than twenty thousand persons shall be coextensive with the magisterial
districts.
(e) The executive committee districts shall be as nearly equal
in population as practicable and shall each be composed of compact,
contiguous territory. The county commissions shall change the
territorial boundaries of the districts as required by the increase
or decrease in the population of the districts as determined by a
decennial census. The changes must be made within two years
following the census.
(f) All members of executive committees, selected for each
political division as herein provided, shall reside within the
county or district from which chosen. The term of office of all
members of executive committees elected at the primary election in
the year one thousand nine hundred ninety-four will begin on the
first day of July, following the primary and continue for four
years thereafter until their successors are elected and qualified.
Vacancies in the state executive committee shall be filled by the
members of the committee for the unexpired term. Vacancies in the
party's executive committee of a congressional district, senatorial
district, delegate district or county shall be filled by the
party's executive committee of the county in which the vacancy
exists for the unexpired term.
(g) As soon as possible after the certification of the
election of the new executive committees, as herein provided, they shall convene an organizational meeting within their respective
political divisions, on the call of the chairman of corresponding
outgoing executive committees or by any member of the new executive
committee in the event there is no corresponding outgoing executive
committee. During the first meeting the new executive committee
must select a chairman, a treasurer and a secretary and other
officers as they may desire. Each of the officers shall, for their
respective committees, perform the duties that usually appertain to
his or her office. The organizational meeting may be conducted
prior to the beginning of the term, but no official action other
than the election of officers and the appointment to fill vacancies
on the committee may be made before the first day of July. A
current listing of all executive committees' members shall be filed
with the secretary of state by the end of July of each year.
Vacancies in any executive committee shall be filled no later than
four months after the vacancy occurs. The chairman of each
executive committee shall submit an updated committee list as
changes occur. Executive committee membership lists shall include
at least the member's name, full address, employer, telephone
number and term information. If a vacancy on an executive
committee is not filled within the four-month period prescribed by
the provisions of this section, the chair of the executive
committee shall name someone to fill the vacancy within ten days of
the expiration of the four-month period.
(h) Any meeting of any political party executive committee
shall be held only after public notice and notice to each member is
given according to party rules and shall be open to all members
affiliated with the party. Meetings shall be conducted according
to party rules, all official actions shall be made by voice vote
and minutes shall be maintained and shall be open to inspection by
members affiliated with the party.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall
provide cards of general information which will provide the date of
the election and the hours during which polling places will be
open, instruction for mail-in registrants and first-time voters and
voters' rights and prohibitions against fraud and misrepresentation
and cards of instruction for voters in preparing their ballots and
casting a provisional ballot as prescribed by the secretary of
state. They shall furnish a sufficient number of cards to the
commissioners of election at the same time they deliver the ballots
for the precinct.
(b) The commissioners of election shall post one instruction
card in each voting booth giving instructions to the voters on how
to prepare the ballots for deposit in the ballot boxes and how to
obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other
cards of general information at places inside and outside of the voting place where voters pass or wait to vote. The commissioners
shall also post the official write-in candidates in the same
locations inside and outside of the voting place.
(d) The ballot commissioners shall have printed, on a
different color paper than the official ballot, ten or more copies
of sample ballots for each voting place for each election. Sample
ballots shall be furnished and posted with the cards of general
information at each voting place.
(e) During the period of early in-person voting, the official
designated to supervise and conduct absentee voting shall post the
cards of general information, a list of official write-in
candidates and sample ballots within the area where absentee voting
is conducted.
§3-1-21. Printing of official and sample ballots; number;
packaging and delivery, correction of ballots.
(a) The board of ballot commissioners for each county shall
provide the ballots and sample ballots necessary for conducting
every election for public officers in which the voters of the
county participate.
(b) The persons required to provide the ballots necessary for
conducting all other elections are:
(1) The secretary of state, for any statewide special election
ordered by the Legislature;
(2) The board of ballot commissioners, for any countywide special election ordered by the county commission;
(3) The board of education, for any special levy or bond
election ordered by the board of education; or
(4) The municipal board of ballot commissioners, for any
election conducted for or within a municipality except an election
in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those
printed by the proper authorities as specified in this section
shall not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular
official ballots printed shall equal one and one-twentieth times
the number of registered voters eligible to vote that ballot. The
circuit clerk shall determine the number of absentee official
ballots.
(d) The number of regular official ballots packaged for each
precinct shall equal the number of registered voters of the
precinct. The remaining regular official ballots shall be packaged
and delivered to the circuit clerk who shall retain them unopened
until they are required for an emergency. Each package of ballots
shall be wrapped and sealed in a manner which will immediately make
apparent any attempt to open, alter or tamper with the ballots.
Each package of ballots for a precinct shall be clearly labeled in
a manner which cannot be altered, with the county name, the
precinct number and the number of ballots contained in each package. If the packaging material conceals the face of the
ballot, a sample ballot identical to the official ballots contained
therein shall be securely attached to the outside of the package
or, in the case of ballot cards, the type of ballot shall be
included in the label.
(e) All absentee ballots necessary for conducting absentee
voting in all voting systems shall be delivered to the circuit
clerk of the appropriate county not later than the forty-second day
before the election. In counties where the clerk of the county
commission is responsible for conducting absentee voting, the
circuit clerk shall transfer the absentee ballots to the clerk of
the county commission prior to the beginning of absentee voting.
All official ballots in paper ballot systems shall be delivered to
the circuit clerk of the appropriate county not later than
twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that
an official ballot contains an error which, in the opinion of the
board, is of sufficient magnitude as to confuse or mislead the
voters, the board shall cause the error to be corrected either by
the reprinting of the ballots or by the use of stickers printed
with the correction and of suitable size to be placed over the
error without covering any other portion of the ballot.
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the clerk of the county commission to appoint one or more of the commissioners of election or poll
clerks at each precinct of the county to attend at the offices of
the clerks of the circuit court and county commission, as the case
may be, at least one day before each election to receive the
ballots, ballot boxes, poll books, registration records and forms
and all other supplies and materials for conducting the election at
the respective precincts. The clerks shall take a receipt for the
respective materials delivered to the commissioners of election or
poll clerks and shall file the receipt in their respective offices.
It shall be the duty of the commissioners or poll clerks to receive
the supplies and materials from the respective clerks and to
deliver them with the seal of all sealed packages unbroken at the
election precinct in time to open the election.
(b) The commissioners or poll clerks, if they perform the
messenger services, shall receive the per diem and mileage rate
prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals
unbroken. For general and special elections the delivered ballots
shall not be in excess of one and one-twentieth times the number of
registered voters in the precinct. For primary elections the
ballots for each party shall be in a separately sealed package
containing not more than one and one-twentieth times the number of
registered voters of each party in the election precinct.
(d) For primary elections one copy of the poll books, including the written or printed forms for oaths of commissioners
of election and poll clerks, shall be supplied at each voting
precinct for each political party appearing on the primary ballot.
(e) There shall be two ballot boxes for each election precinct
for which a receiving and a counting board of election
commissioners have been appointed.
§3-1-25. Supplies by special messenger.
In case any commissioner of election or poll clerk fails to
appear at the offices of the clerks of the county commission and
circuit courts by the close of the clerk's office on the day prior
to any election, the board of ballot commissioners, the chairman or
the circuit clerk shall forthwith dispatch a special messenger to
the commissioners of election of each respective precinct with the
ballots, registration records, ballot boxes, poll books and other
supplies for the precinct. The messenger, if not a county
employee, shall be allowed five dollars for this service. The
messenger shall also receive mileage up to the rate of
reimbursement authorized by the travel management rule of the
department of administration for each mile necessarily traveled in
the performance of his or her services. The messenger shall
promptly report to the clerks of the circuit court and county
commission, respectively, and file with the clerks the receipts of
the person to whom he or she delivered the ballots and other
supplies and his or her affidavit stating when and to whom he or she delivered them.
§3-1-28. Election officials; eligibility, suspension of
eligibility.
(a) To be eligible to be appointed or serve as an election
official in any state, county or municipal election held in West
Virginia, a person:
(1) Must be a registered voter of the county for elections
held throughout the county and a registered voter of the
municipality for elections held within the municipality: Provided,
That if the required number of persons eligible to serve as
election officials for a municipal election are not available or
are not willing to serve as election officials for a municipal
election, a registered voter of the county in which the
municipality is located may serve as an election official for
elections held within the municipality.
(2) Must be able to read and write the English language;
(3) May not be a candidate on the ballot or an official write-
in candidate in the election;
(4) May not be the parent, child, sibling or spouse of a
candidate on the ballot or an official write-in candidate in the
precinct where the official serves;
(5) May not be a person prohibited from serving as an election
official pursuant to any other federal or state statute; and
(6) May not have been previously convicted of a violation of any election law.
(b) The county commission may, upon majority vote, suspend the
eligibility to serve as an election official in any election for
four years for the following reasons:
(1) Failure to appear at the polling place at the designated
time without proper notice and just cause;
(2) Failure to perform the duties of an election official as
required by law;
(3) Improper interference with a voter casting a ballot or
violating the secrecy of the voter's ballot;
(4) Being under the influence of alcohol or drugs while
serving as an election official; or
(5) Having anything wagered or bet on an election.
(c) The county commission may, upon majority vote, suspend the
eligibility to serve as an election official in any election for
two years upon petition of twenty-five registered voters of the
precinct where the official last served and upon presentation of
evidence of any of the grounds set forth in subsection (b) of this
section: Provided, That the petition requesting the suspension of
the election official is filed with the county commission at least
ninety days prior to an election date. The names of those persons
signing the petition must be kept confidential.
§3-1-29. Boards of election officials; definitions, composition of
boards, determination of number and type.
(a) For the purpose of this article:
(1) The term "standard receiving board" means those election
officials charged with conducting the process of voting within a
precinct and consists of five persons, including one team of poll
clerks, one team of election commissioners for the ballot box and
one additional election commissioner: Provided, That if a municipal
election is held at a time when there is no county or state
election, the standard receiving board is to consist of four
persons, including one team of poll clerks and one team of election
commissioners for the ballot box;
(2) The term "expanded receiving board" means a standard
receiving board as defined in subdivision (1) of this subsection
and one additional team of poll clerks;
(3) The term "counting board" means those election officials
charged with counting the ballots at the precinct in counties using
paper ballots and includes one team of poll clerks, one team of
election commissioners and one additional commissioner;
(4) The term "team of poll clerks" or "team of election
commissioners" means two persons appointed by opposite political
parties to perform the specific functions of the office: Provided,
That no team of poll clerks or team of election commissioners may
consist of two persons with the same registered political party
affiliation or two persons registered with no political party
affiliation; and
(5) The term "election official trainee" means an individual
who is sixteen or seventeen years of age who meets the requirements
of subdivisions (2), (3), (4), (5) and (6), subsection (a), section
twenty-eight of this article who serves as a trainee to the
standard receiving board on a volunteer basis by assisting the
standard receiving board in performing its official duties and who
receives credits for an official community service program as may
be required to obtain a high school diploma.
(b) The composition of boards of election officials shall be
as follows:
(1) In any primary, general or special election other than a
presidential primary or presidential general election, each
election precinct is to have one standard receiving board;
(2) In presidential primary and presidential general
elections, each election precinct is to have one receiving board as
follows:
(A) For precincts of less than five hundred registered voters,
one standard receiving board; and
(B) For precincts of more than five hundred registered voters,
one standard receiving board or, at the discretion of the county
commission, one expanded receiving board.
(3) In any election conducted using paper ballots, counting
boards may be allowed, disallowed or required as follows:
(A) For any state, county or municipal special election, no counting board may be allowed;
(B) In a statewide primary or general election, one counting
board is required for any precinct of more than four hundred
registered voters and one counting board may be allowed, at the
discretion of the county commission, for any precinct of at least
two hundred but no more than four hundred registered voters; and
(C) In a municipal primary or general election, one counting
board may be allowed, at the discretion of the municipal governing
body, for any precinct of more than two hundred registered voters.
(c) For each primary and general election in the county, the
county commission shall designate the number and type of election
boards for the various precincts according to the provisions of
this section. At least eighty-four days before each primary and
general election the county commission shall notify the county
executive committees of the two major political parties in writing
of the number of nominations which may be made for poll clerks and
election commissioners.
(d) For each municipal election, the governing body of the
municipality shall perform the duties of the county commission as
provided in this section.
(e) For each primary, general or special election in the
county, the county commission, and for each municipal election, the
governing body of the municipality, may appoint one or two election
official trainees for each precinct.
§3-1-30. Nomination and appointment of election officials and
alternates; notice of appointment; appointment to fill
vacancies in election boards.
(a) For any primary, general or special election held
throughout a county, poll clerks and election commissioners may be
nominated as follows:
(1) The county executive committee for each of the two major
political parties may, by a majority vote of the committee at a
duly called meeting, nominate one qualified person for each team of
poll clerks and one qualified person for each team of election
commissioners to be appointed for the election;
(2) The appointing body shall select one qualified person as
the additional election commissioner for each board of election
officials;
(3) Each county executive committee shall also nominate
qualified persons as alternates for at least ten percent of the
poll clerks and election commissioners to be appointed in the
county and is authorized to nominate as many qualified persons as
alternates as there are precincts in the county to be called upon
to serve in the event any of the persons originally appointed fail
to accept appointment or fail to appear for the required training
or for the preparation or execution of their duties;
(4) When an executive committee nominates qualified persons as
poll clerks, election commissioners or alternates, the committee, or its chairman or secretary on its behalf, shall file in writing
with the appointing body, no later than the fifty-sixth day before
the election, a list of those persons nominated and the positions
for which they are designated.
(b) For any municipal primary, general or special election,
the poll clerks and election commissioners may be nominated as
follows:
(1) In municipalities which have municipal executive
committees for the two major political parties in the municipality,
each committee may nominate election officials in the manner
provided for the nomination of election officials by county
executive committees in subsection (a) of this section;
(2) In municipalities which do not have executive committees,
the governing body shall provide by ordinance for a method of
nominating election officials or shall nominate as many eligible
persons as are required, giving due consideration to any
recommendations made by voters of the municipality or by candidates
on the ballot.
(c) The governing body responsible for appointing election
officials is:
(1) The county commission for any primary, general or special
election ordered by the county commission and any joint county and
municipal election;
(2) The board of education for any special election ordered by the board of education conducted apart from any other election;
(3) The municipal governing body for any primary, general or
special municipal election ordered by the governing body.
(d) The qualifications for persons nominated to serve as
election officials may be confirmed prior to appointment by the
clerk of the county commission for any election ordered by the
county commission or for any joint county and municipal election
and by the official recorder of the municipality for a municipal
election.
(e) The appropriate governing body shall appoint the election
officials for each designated election board no later than the
forty-ninth day before the election as follows:
(1) Those eligible persons whose nominations for poll clerk
and election commissioner were timely filed by the executive
committees and those additional persons selected to serve as an
election commissioner are to be appointed;
(2) The governing body shall fill any positions for which no
nominations were filed.
(f) At the same time as the appointment of election officials
or at a subsequent meeting the governing body shall appoint persons
as alternates: Provided, That no alternate may be eligible for
compensation for election training unless the alternate is
subsequently appointed as an election official or is instructed to
attend and actually attends training as an alternate and is available to serve on election day. Alternates shall be appointed
and serve as follows:
(1) Those alternates nominated by the executive committees
shall be appointed;
(2) The governing body may appoint additional alternates who
may be called upon to fill vacancies after all alternates
designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons who
may be instructed to attend training as alternates.
(g) The clerk of the county commission shall appoint qualified
persons to fill all vacancies existing after all previously
appointed alternates have been assigned, have declined to serve or
have failed to attend training.
(h) Within seven days following appointment, the clerk of the
county commission shall notify, by first-class mail, all election
commissioners, poll clerks and alternates of the fact of their
appointment and include with the notice a response notice form for
the appointed person to return indicating whether or not he or she
agrees to serve in the specified capacity in the election.
(i) The position of any person notified of appointment who
fails to return the response notice or otherwise confirm to the
clerk of the county commission his or her agreement to serve within
fourteen days following the date of appointment is considered vacant and the clerk shall proceed to fill the vacancies according
to the provisions of this section.
(j) If an appointed election official fails to appear at the
polling place by forty-five minutes past five o'clock a.m. on
election day, the election officials present shall contact the
office of the clerk of the county commission for assistance in
filling the vacancy. The clerk shall proceed as follows:
(1) The clerk may attempt to contact the person originally
appointed, may assign an alternate nominated by the same political
party as the person absent if one is available or, if no alternate
is available, may appoint another eligible person;
(2) If the election officials present are unable to contact
the clerk within a reasonable time, they shall diligently attempt
to fill the position with an eligible person of the same political
party as the party that nominated the person absent until a
qualified person has agreed to serve;
(3) If two teams of election officials, as defined in section
twenty-nine of this article, are present at the polling place, the
person appointed to fill a vacancy in the position of the
additional commissioner may be of either political party.
(k) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of the
county commission as provided in this section.
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and
residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall be required to sign his or her name in the space marked
"signature of voter" on the pollbook prescribed and provided for
the precinct. If that person is physically or otherwise unable to
sign his or her name, his or her mark shall be affixed by one of
the poll clerks in the presence of the other and the name of the
poll clerk affixing the voter's mark shall be indicated immediately
under the affixation. No ballot may be given to the person until
he or she so signs his or her name on the pollbook or his or her
signature is so affixed thereon.
(b) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person
for a transfer of registration must be received by the county clerk
no later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of registration at least thirty days prior to the date of the election
may vote a provisional ballot at a handicap accessible polling
place in the county of his or her registration. If during the
canvass the county commission determines that the person had been
registered in a precinct that is not handicap accessible, the voted
ballot, if otherwise valid, shall be counted. The handicapped
person may vote in the precinct to which the registration was
transferred only as long as the disability exists or the precinct
from which the handicapped person was transferred remains
inaccessible to the handicapped. To ensure confidentiality of the
transferred ballot, the county clerk processing the ballot shall
provide the voter with an unmarked envelope and an outer envelope
designated "provisional ballot/handicapped voter". After
validation of the ballot at the canvass, the outer envelope shall
be destroyed and the handicapped voter's ballot shall be placed
with other approved provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) When the voter's signature is properly on the pollbook,
the two poll clerks shall sign their names in the places indicated
on the back of the official ballot and deliver the ballot to the
voter to be voted by him or her without leaving the election room.
If he or she returns the ballot spoiled to the clerks, they shall
immediately mark the ballot "spoiled" and it shall be preserved and
placed in a spoiled ballot envelope together with other spoiled ballots to be delivered to the board of canvassers and deliver to
the voter another official ballot, signed by the clerks on the
reverse side required by this subsection. The voter shall
thereupon retire alone to the booth or compartment prepared within
the election room for voting purposes and there prepare his or her
ballot using a ballpoint pen of not less than five inches in length
or other indelible marking device of not less than five inches in
length. In voting for candidates in general and special elections,
the voter shall comply with the rules and procedures prescribed in
section five, article six of this chapter.
(d) It is the duty of a poll clerk, in the presence of the
other poll clerk, to indicate by a check mark inserted in the
appropriate place on the registration record of each voter the fact
that the voter voted in the election. In primary elections the
clerk shall also insert thereon a distinguishing initial or
initials of the political party for whose candidates the voter
voted. If a person is challenged at the polls, the challenge shall
be indicated by the poll clerks on the registration record,
together with the name of the challenger. The subsequent removal
of the challenge shall be recorded on the registration record by
the clerk of the county commission.
(e) (1) No voter may receive any assistance in voting unless,
by reason of blindness, disability, advanced age or inability to
read and write, that voter is unable to vote without assistance. Any voter qualified to receive assistance in voting under the
provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request,
shall read to the voter the names of the candidates selected on the
ballot;
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner
hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter
is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct in the presence of an
election commissioner of each political party if all of the
following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the polling place.
(2) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(3) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that
the voter thereof received assistance in voting it when in his, her
or their opinion the person who received assistance in voting is
not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the
form and in the manner prescribed or authorized by article three of
this chapter.
(4) An election commissioner or other person who assists a
voter in voting:
(A) May not in any manner request or seek to persuade or
induce the voter to vote any particular ticket or for any
particular candidate or for or against any public question and must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must not, directly or
indirectly, reveal to any person the name of any candidate voted for by the voter or which ticket he or she had voted or how he or
she had voted on any public question or anything occurring within
the voting booth or compartment or voting machine booth except when
required pursuant to law to give testimony as to the matter in a
judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the secretary of state stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation: Provided, That no person providing
assistance to a voter is required to sign an oath or affirmation
where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(5) In accordance with instructions issued by the secretary of
state, the clerk of the county commission shall provide a form
entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the secretary of state. The commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) After preparing the ballot the voter shall fold the ballot
so that the face is not exposed and so that the names of the poll
clerks thereon are seen. The voter shall announce his or her name
and present his or her ballot to one of the commissioners who shall
hand the same to another commissioner, of a different political
party, who shall deposit it in the ballot box if the ballot is the
official one and properly signed. The commissioner of election may
inspect every ballot before it is deposited in the ballot box to
ascertain whether it is single, but without unfolding or unrolling
it so as to disclose its content. When the voter has voted, he or
she shall retire immediately from the election room and beyond the
sixty-foot limit thereof and may not return except by permission of
the commissioners.
(g) Following the election, the oaths or affirmations required
by this section from those assisting voters, together with the
"list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the
election supplies, records and returns. The clerk of the county commission shall make the oaths, affirmations and list available
for public inspection and shall preserve them for a period of
twenty-two months or until disposition is authorized or directed by
the secretary of state, or court of record: Provided, That the
clerk may use these records to update the voter registration
records in accordance with subsection (d), section eighteen,
article two of this chapter.
(h) Any person making an oath or affirmation required under
the provisions of this section who knowingly swears falsely or any
person who counsels, advises, aids or abets another in the
commission of false swearing under this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or confined in the county or regional
jail for a period of not more than one year, or both fined and
confined.
(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when the voter is known
to the election commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in a state correctional facility for a period of not
less than one year nor more than five years, or both fined and
imprisoned.
§3-1-39. Illegal voting; affidavit; procedure.
(a) If at any time during the election any qualified voter
shall appear at the polls for the purpose of stating that any
person who has voted is an illegal voter in the precinct, that
person shall be admitted to the election room and shall appear
before a commissioner of election to make an affidavit explaining
why he or she believes the accused to be an illegal voter.
(b) All affidavits alleging illegal voting shall be placed in
a strong and durable envelope by the commissioners of election.
The envelope shall be securely sealed and each of the commissioners
shall endorse his or her name on the back of the envelope. At the
close of the count the envelope shall be delivered to the clerk of
the circuit court in accordance with section sixteen, article five
of this chapter and section eight, article six of this chapter.
The clerk of the circuit court shall carefully preserve the
envelope containing the affidavits and deliver it, with the seal
unbroken, to the prosecuting attorney in the county. The
prosecuting attorney shall proceed as if it had been made before
him or her.
§3-1-41. Challenged and provisional voter procedures; counting of
provisional voters' ballots; ballots of election officials.
(a) It shall be the duty of the members of the receiving
board, jointly or severally, to challenge the right of any person
requesting a ballot to vote in any election if the person's
registration record is not available at the time of the election or if the signature written by the person in the poll book does not
correspond with the signature purported to be his or hers on the
registration record, if the registration record of the person
indicates any other legal disqualification or if any other valid
challenge exists against the voter pursuant to section ten, article
three of this chapter.
(b) Any person challenged shall nevertheless be permitted to
vote in the election. He or she shall be furnished an official
ballot not endorsed by the poll clerks. In lieu of the
endorsements, the poll clerks shall complete and sign an
appropriate form indicating the challenge, the reason thereof and
the name or names of the challengers. The form shall be securely
attached to the voter's ballot and deposited together with the
ballot in a separate box or envelope marked " provisional ballots".
(c) At the time that an individual casts a provisional ballot,
the poll clerk shall give the individual written information
stating that an individual who casts a provisional ballot will be
able to ascertain under the free access system established in this
section whether the vote was counted and, if the vote was not
counted, the reason that the vote was not counted.
(d) Provisional ballot shall not be counted by the election
officials. The county commission shall, on its own motion, at the
time of canvassing of the election returns, sit in session to
determine the validity of any challenges according to the provisions of this chapter. If the county commission determines
that the challenges are unfounded, each provisional ballot of each
challenged voter, if otherwise valid, shall be counted and tallied
together with the regular ballots cast in the election. The county
commission shall disregard technical errors, omissions or
oversights if it can reasonably be ascertained that the challenged
voter was entitled to vote.
(e) Any person duly appointed as an election commissioner or
clerk under the provisions of section twenty-eight of this article
who serves in that capacity in a precinct other than the precinct
in which the person is legally entitled to vote may cast a
provisional ballot in the precinct in which the person is serving
as a commissioner or clerk. The ballot shall not be invalid for
the sole reason of having been cast in a precinct other than the
precinct in which the person is legally entitled to vote. The
county commission shall record the provisional ballot on the
voter's permanent registration record: Provided, That the county
commission may only count the votes for the offices that the voter
was legally authorized to vote for in his or her own precinct.
(f) The secretary of state shall establish a free access
system such as a toll-free telephone number or an internet website
that may be accessed by any individual who casts a provisional
ballot to discover whether the vote of that individual was counted
and, if not, the reason that the vote was not counted.
§3-1-44. Compensation of election officials; expenses.
(a) Each ballot commissioner is to be paid a sum, to be fixed
by the county commission, not exceeding one hundred twenty-five
dollars for each day he or she serves as ballot commissioner, but
in no case may a ballot commissioner receive allowance for more
than ten days' services for any one primary, general or special
election.
(b) Each commissioner of election and poll clerk is to be paid
a sum, to be fixed by the county commission, not exceeding one
hundred twenty-five dollars for one day's services for attending
the school of instruction for election officials if the
commissioner or poll clerk provides at least one day's service
during an election and a sum not exceeding one hundred seventy-five
dollars for his or her services at any one election: Provided, That
each commissioner of election and poll clerk is to be paid a sum
not exceeding one hundred seventy-five dollars for his or her
services at any of the three special elections described in
subsection (f) of this section.
(c) Each alternate commissioner of election and poll clerk may
be paid a sum, to be fixed by the county commission, not exceeding
fifty dollars for one day's services for attending the school of
instruction for election officials: Provided, That no alternate may
be eligible for compensation for election training unless the
alternate is subsequently appointed as an election official or is instructed to attend and actually attends training as an alternate
and is available to serve on election day.
(d) The commissioners of election or poll clerks obtaining and
delivering the election supplies, as provided in section twenty-
four of this article, and returning them, as provided in articles
five and six of this chapter, are to be paid an additional sum,
fixed by the county commission, not exceeding one hundred twenty-
five dollars for his or her services pursuant to this subsection at
any one election. In addition, he or she is to be paid mileage up
to the rate of reimbursement authorized by the travel management
rule of the department of administration for each mile necessarily
traveled in the performance of his or her services.
(e) The compensation of election officers, cost of printing
ballots and all other expenses incurred in holding and making the
return of elections, other than the three special elections
described in subsection (f) of this section, are to be audited by
the county commission and paid out of the county treasury.
(f) The compensation of election officers, cost of printing
ballots and all other reasonable and necessary expenses in holding
and making the return of a special election for the purpose of
taking the sense of the voters on the question of calling a
constitutional convention, of a special election to elect members
of a constitutional convention and of a special election to ratify
or reject the proposals, acts and ordinances of a constitutional convention are obligations of the state incurred by the ballot
commissioners, clerks of the circuit courts, clerks of the county
commissions and county commissions of the various counties as
agents of the state. All expenses of these special elections are
to be audited by the secretary of state. The secretary of state
shall prepare and transmit to the county commissions forms on which
the county commissions shall certify all expenses of these special
elections to the secretary of state. If satisfied that the
expenses as certified by the county commissions are reasonable and
were necessarily incurred, the secretary of state shall requisition
the necessary warrants from the auditor of the state to be drawn on
the state treasurer and shall mail the warrants directly to the
vendors of the special election services, supplies and facilities.
§3-1-45. Court proceedings to compel performance of duties, etc.
Any officer or person upon whom any duty is imposed by this
chapter may be compelled to perform his or her duty by writ of
mandamus. The circuit courts, or the judges thereof in vacation,
shall have jurisdiction by writ and shall, upon affidavit filed
showing a proper case, issue a writ to be returned, heard and
determined within fifteen days from the commencement of the
proceedings. If a circuit court, or a judge thereof in vacation,
shall proceed against any board of canvassers by mandamus, or
otherwise, to control, in any manner, the action of the board in
the performance of its duties, under the provisions of this article, in any case concerning the election of a member of the
House of Delegates, or a state senator, and shall fail to enter a
final order in the proceedings, settling all questions presented
therein within fifteen days from the commencement of the
proceedings, unless delayed by proceedings in the supreme court of
appeals, or a judge thereof in vacation, the writ shall be
dismissed. The board shall convene within not less than five days
thereafter and proceed forthwith to the performance of its duties
under the provisions of this article. A mandamus shall lie from
the supreme court of appeals, or any one of the judges thereof in
vacation, returnable before court, to compel any officer herein to
do and perform legally any duty required of him or her. In an
election of a member of the House of Delegates and state senator,
a writ of certiorari, mandamus or prohibition shall lie from the
supreme court of appeals, or a judge thereof in vacation,
returnable before the court, to correct any error of law and review
and correct the proceedings of any circuit court, or the judge
thereof in vacation, or any board of canvassers. When any rule to
show cause why a writ of mandamus, prohibition or certiorari is
issued by the court, or a judge thereof in vacation, it shall be
the duty of the court to convene in special session at the state
capital, not later than ten days from the date of the writ, to hear
and determine all matters arising upon the writ. The issues raised
in the petition for a writ of mandamus, prohibition or certiorari shall have precedence over all other business pending before the
court. The issues before the court shall be determined within five
days from the assembling of the court and, in any case, in ample
time for the case to be remanded and final action taken by the
circuit court and the board of canvassers in order that the board
may perform its duty and issue the certificate of election before
the second Wednesday in January, then next following. Mandamus and
prohibition proceedings under this section may be upon affidavit
alone.
§3-1-48. State election fund.
There is hereby created in the state treasury a special
revenue account to be known as the "State Election Fund" account.
Expenditures from the account shall be used by the secretary of
state for the administration of this chapter in accordance with the
provisions of 42 U. S. C. §1530, et seq., the Help America Vote Act
of 2002, Public Law 107-252, in accordance with the provisions of
article eleven, chapter four of this code.
§3-1-49. Voting system standards.
(a) In accordance with 42 U. S. C. §1530, et seq., the Help
America Vote Act of 2002, Public Law 107-252, each voting system
used in an election for federal office shall:
(1) Permit the voter to verify, in a private and independent
manner, the votes selected by the voter on the ballot before the
ballot is cast and counted;
(2) Provide the voter with the opportunity, in a private and
independent manner, to change the ballot or correct any error
before the ballot is cast and counted, including the opportunity to
correct the error through the issuance of a replacement ballot if
the voter was otherwise unable to change the ballot or correct any
error; and
(3) If the voter selects votes for more than one candidate for
a single office: (A) Notify the voter that the voter has selected
more than one candidate for a single office on the ballot; (B)
notify the voter before the ballot is cast and counted of the
effect of casting multiple votes for the office; and (C) provide
the voter with the opportunity to correct the ballot before the
ballot is cast and counted: Provided, That a county that uses a
paper ballot voting system, a punch card voting system or an
optical scan voting system may meet the requirements of this
paragraph by establishing a voter education program specific to
that voting system that notifies each voter of the effect of
casting multiple votes for an office; and providing the voter with
instructions on how to correct the ballot before it is cast and
counted, including instructions on how to correct the error through
the issuance of a replacement ballot if the voter was otherwise
unable to change the ballot or correct any error.
(4) Ensure that any notification required under this section
preserves the privacy of the voter and the confidentiality of the ballot.
(b) Each voting system used in an election for federal office
shall produce a record with an audit capacity for the system which
shall meet the following requirements:
(1) Produce a permanent paper record with a manual audit
capacity for the system; and
(2) Provide the voter with an opportunity to change the ballot
or correct any error before the ballot is cast and counted and
before the permanent paper record is produced.
(c) Each voting system used in an election for federal office
shall be accessible for individuals with disabilities, including
nonvisual accessibility for the blind and visually impaired, in a
manner that provides the same opportunity for access and
participation, including privacy and independence, as for other
voters: Provided, That the provisions of this subsection may be
satisfied through the use of at least one direct recording
electronic voting system or other voting system equipped for
individuals with disabilities at each polling place.
§3-1-50. Establishment of state-based administrative complaint
procedures.
The secretary of state shall establish and maintain a state-
based administrative complaint procedure for complaints received
concerning election violations which shall meet the following
requirements:
(1) The procedures shall be uniform and nondiscriminatory.
(2) Under the procedures, any person who believes that there
is a violation of any provision of this chapter, including a
violation which has occurred, is occurring or is about to occur,
may file a complaint.
(3) Any complaint filed under the procedures shall be in
writing, notarized and signed and sworn by the person filing the
complaint.
(4) The secretary of state may consolidate complaints filed
under this section.
(5) At the request of the complainant, there shall be a
hearing on the record.
(6) Violations of any provision of this chapter shall be
punishable in accordance with the provisions of article nine of
this chapter.
(7) If, under the procedures, the secretary of state
determines that there is no violation, the secretary of state shall
dismiss the complaint and publish the results of the procedures.
(8) The secretary of state shall make a final determination
with respect to a complaint prior to the expiration of the ninety-
day period which begins on the date the complaint is filed unless
the complainant consents to a longer period for making a
determination.
(9) If the secretary of state fails to meet the deadline applicable under subdivision (8) of this section, the complaint
shall be resolved within sixty days under alternative dispute
resolution procedures established for purposes of this section.
The record and other materials from any proceedings conducted under
the complaint procedures established under this section shall be
made available for use under the alternative dispute resolution
procedures.
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-2. Eligibility to register to vote.
(a) Any person who possesses the constitutional qualifications
for voting may register to vote. To be qualified, a person must be
a citizen of the United States and a legal resident of West
Virginia and of the county where he or she is applying to register,
shall be at least eighteen years of age, except that a person who
is at least seventeen years of age and who will be eighteen years
of age by the time of the next ensuing general election may also be
permitted to register, and shall not be otherwise legally
disqualified: Provided, That a registered voter who has not reached
eighteen years of age may vote both partisan and nonpartisan
ballots in a state or county primary election, but may only vote in
a municipal primary election if he or she will be eighteen years of
age by the time of the next municipal general election, but is not
eligible to vote in a special election.
(b) Any person who has been convicted of a felony, treason or bribery in an election, under either state or federal law, is
disqualified and is not eligible to register or to continue to be
registered to vote while serving his or her sentence, including any
period of incarceration, probation or parole related thereto. Any
person who has been determined to be mentally incompetent by a
court of competent jurisdiction is disqualified and shall not be
eligible to register or to continue to be registered to vote for as
long as that determination remains in effect.
§3-2-3. State authority relating to voter registration; chief
election official.
(a) The secretary of state, as chief election official of the
state as provided in section six, article one-a of this chapter,
shall have general supervision of the voter registration procedures
and practices and the maintenance of voter registration records in
the state and shall have authority to require reports and
investigate violations to ensure the proper conduct of voter
registration throughout the state and all of its subdivisions.
(b) The secretary of state, as chief election official of the
state, is responsible for implementing, in a uniform and
nondiscriminatory manner, a single, uniform, official, centralized,
interactive computerized statewide voter registration list defined,
maintained and administered at the state level that contains the
name and registration information of every legally registered voter
in the state and assigns a unique identifier to each legally registered voter in the state.
(c) The secretary of state is hereby designated as the chief
election official responsible for the coordination of this state's
responsibilities under 42 U. S. C. §1973gg, et seq., the "National
Voter Registration Act of 1993". The secretary of state shall have
general supervision of voter registration procedures and practices
at agencies and locations providing services as required by the
provisions of this article and shall have the authority to propose
procedural, interpretive and legislative rules for promulgation in
accordance with the provisions of article three, chapter twenty-
nine-a of this code for application for registration, transmission
of applications, reporting and maintenance of records required by
the provisions of this article and for the development,
implementation and application of other provisions of this article.
§3-2-4a. Statewide voter registration list.
(a) The secretary of state shall implement and maintain a
single, official, statewide, centralized, interactive computerized
voter registration list of every legally registered voter in the
state and shall assign a unique voter registration identifier to
each legally registered voter in the state, which shall include the
following:
(1) The computerized list shall serve as the single system for
storing and managing the official list of registered voters
throughout the state.
(2) The computerized list shall contain the name and
registration information of every legally registered voter in the
state.
(3) Under the computerized list, a unique identifier shall be
assigned to each legally registered voter in the state.
(4) The computerized list shall be coordinated with other
agency databases within the state.
(5) The secretary of state and any clerk of the county
commission may obtain immediate electronic access to the
information contained in the computerized list.
(6) Voter registration information obtained by every clerk of
the county commission in the state shall be electronically entered
into the computerized list on an expedited basis at the time the
information is provided to the clerk.
(7) The secretary of state shall provide necessary support to
enable every clerk of the county commission in the state to enter
information as described in subdivision (6) of this subsection.
(8) The computerized list shall serve as the official voter
registration list for conducting all elections in the state.
(b) The secretary of state or any clerk of a county commission
shall perform list maintenance with respect to the computerized
list on a regular basis as follows:
(1) If an individual is to be removed from the computerized
list, he or she shall be removed in accordance with the provisions of 42 U. S. C. §1973gg, et seq., the National Voter Registration
Act of 1993.
(2) The secretary of state shall coordinate the computerized
list with state agency records and remove the names of individuals
who are not qualified to vote because of felony status or death.
(c) The list maintenance performed under subsection (b) of
this section shall be conducted in a manner that ensures that:
(1) The name of each registered voter appears in the
computerized list;
(2) Only voters who are not registered or who are not eligible
to vote are removed from the computerized list; and
(3) Duplicate names are eliminated from the computerized list.
(d) The secretary of state and the clerks of all county
commissions shall provide adequate technological security measures
to prevent the unauthorized access to the computerized list
established under this section.
(e) The secretary of state shall ensure that voter
registration records in the state are accurate and updated
regularly, including the following:
(1) A system of file maintenance that makes a reasonable
effort to remove registrants who are ineligible to vote from the
official list of eligible voters. Under the system, consistent
with 42 U. S. C. §1973gg, et seq., registrants who have not
responded to a notice sent pursuant to section twenty-four, article three of this chapter and who have not voted in two consecutive
general elections for federal office shall be removed from the
official list of eligible voters except that no registrant may be
removed solely by reason of a failure to vote.
(2) Safeguards to ensure that eligible voters are not removed
in error from the official list of eligible voters.
(f) Applications for voter registration may only be accepted
when the following information is provided:
(1) Except as provided in subdivision (2) of this subsection,
notwithstanding any other provision of law to the contrary, an
application for voter registration may not be accepted or processed
unless the application includes either: (A) In the case of an
applicant who has been issued a current and valid driver's license,
the applicant's driver's license number; or (B) in the case of any
other applicant, the last four digits of the applicant's social
security number.
(2) If an applicant for voter registration has not been issued
a current and valid driver's license or a social security number,
the secretary of state shall assign the applicant a number which
will serve to identify the applicant for voter registration
purposes. To the extent that the state has a computerized list in
effect under this section and the list assigns unique identifying
numbers to registrants, the number assigned under this section
shall be the unique identifying number assigned under the list.
(g) The secretary of state and the commissioner of the
division of motor vehicles shall enter into an agreement to match
information in the database of the statewide voter registration
system with information in the database of the division of motor
vehicles to the extent required to enable each official to verify
the accuracy of the information provided on applications for voter
registration.
(h) The commissioner of the division of motor vehicles shall
enter into an agreement with the commissioner of social security
under 42 U. S. C. §301, et seq., the Social Security Act.
§3-2-5. Forms for application for registration; information
required and requested; types of application forms; notices.
(a) (1) All state forms for application for voter registration
shall be prescribed by the secretary of state and shall conform
with the requirements of 42 U. S. C. §1973gg, et seq., the
"National Voter Registration Act of 1993" and the requirements of
the provisions of this article. Separate application forms may be
prescribed for voter registration conducted by the clerk of the
county commission, registration by mail, registration in
conjunction with an application for motor vehicle driver's license
and registration at designated agencies. These forms may consist
of one or more parts, may be combined with other forms for use in
registration by designated agencies or in conjunction with driver
licensing and may be revised and reissued as required by the secretary of state to provide for the efficient administration of
voter registration.(2) Notwithstanding any provisions of
subdivision (1) of this subsection to the contrary, the federal
postcard application for voter registration issued pursuant to 42
U. S. C. §1973, et seq., the "Uniformed and Overseas Citizens
Absentee Voting Act of 1986", and the mail voter registration
application form prescribed by the Federal Election Commission
pursuant to 42 U. S. C. §1973gg, et seq., the "National Voter
Registration Act of 1993", shall be accepted as a valid form of
application for registration pursuant to the provisions of this
article.
(b) Each application form for registration shall include:
(1) A statement specifying the eligibility requirements for
registration and an attestation that the applicant meets each
eligibility requirement;
(2) Any specific notice or notices required for a specific
type or use of application by 42 U. S. C. §1973gg, et seq., the
"National Voter Registration Act of 1993";
(3) A notice that a voter may be permitted to vote the
partisan primary election ballot of a political party only if the
voter has designated that political party on the application for
registration unless the political party has determined otherwise;
(4) The last four digits of the applicant's social security
number or the applicant's driver's license number; and
(5) Any other instructions or information essential to
complete the application process.
(c) Each application form shall require that the following be
provided by the applicant, under oath, and any application which
does not contain each of the following shall be considered
incomplete:
(1) The applicant's legal name, including the first name,
middle or maiden name, if any, and last name;
(2) The month, day and year of the applicant's birth;
(3) The applicant's residence address, including the number
and street or route and city and county of residence except:
(A) In the case of a person eligible to register under the
provisions of 42 U. S. C. §1973ff, et seq., the "Uniformed and
Overseas Citizens Absentee Voting Act", the address at which he or
she last resided before leaving the United States or entering the
uniformed services, or if a dependent child of such a person, the
address at which his or her parent last resided; and
(B) In the case of a homeless person having no fixed residence
address who nevertheless resides and remains regularly within the
county, the address of a shelter, assistance center or family
member with whom he or she has regular contact or other specific
location approved by the clerk of the county commission for the
purposes of establishing a voting residence; and
(4) The applicant's signature, under penalty of perjury, as provided in section thirty-six of this article to the attestation
of eligibility to register to vote and to the truth of the
information given.
(d) The applicant shall be requested to provide the following
information, but no application shall be rejected for lack of this
information:
(1) An indication whether the application is for a new
registration, change of address, change of name or change of party
affiliation;
(2) The applicant's choice of political party affiliation, if
any, or an indication of no affiliation: Provided, That any
applicant who does not enter any choice of political party
affiliation shall be listed as having no party affiliation on the
voting record;
(3) The applicant's residence mailing address if different
than the residence street address;
(4) The last four digits of the applicant's social security
number;
(5) The applicant's telephone number;
(6) The address at which the applicant was last registered to
vote, if any, for the purpose of canceling or transferring the
previous registration; and
(7) The applicant's gender.
(e) The secretary of state shall prescribe the printing specifications of each type of voter registration application and
the voter registration application portion of any form which is
part of a combined agency form.
(f) Application forms prescribed in this section may refer to
various public officials by title or official position, but in no
case may the actual name of any officeholder be printed on the
voter registration application or on any portion of a combined
application form.
(g) No later than the first day of July of each odd-numbered
year the secretary of state shall submit the specifications of the
voter registration application by mail for statewide bidding for a
contract period beginning the first day of September of each odd-
numbered year and continuing for two calendar years. The
successful bidder shall produce and supply the required mail voter
registration forms at the contract price to all purchasers of the
form for the period of the contract.
§3-2-7. Hours and days of registration in the office of the clerk
of the county commission; in-person application for voter
registration; identification required.
(a) The clerk of the county commission shall provide voter
registration services at all times when the office of the clerk is
open for regular business.
(b) Any eligible voter who desires to apply for voter
registration in person at the office of the clerk of the county commission shall complete a voter registration application on the
prescribed form and shall sign the oath required on that
application in the presence of the clerk of the county commission
or his or her deputy. The applicant shall present valid
identification and proof of age, except that the clerk may waive
the proof of age requirement if the applicant is clearly over the
age of eighteen.
(c) The clerk shall attempt to establish whether the residence
address given is within the boundaries of an incorporated
municipality and, if so, make the proper entry required for
municipal residents to be properly identified for municipal voter
registration purposes.
(d) Upon receipt of the completed registration application,
the clerk shall either:
(1) Provide a notice of procedure for verification and notice
of disposition of the application and immediately begin the
verification process prescribed by the provisions of section
sixteen of this article; or
(2) Upon presentation of a current driver's license or
state-issued identification card containing the residence address
as it appears on the voter registration application, issue the
receipt of registration.
§3-2-10. Application for registration by mail.
(a) Any qualified person may apply to register, change, transfer or correct his or her voter registration by mail.
Application shall be made on a prescribed form as provided by
section five of this article.
(b) To the extent possible, with funds allocated annually for
such purpose, the secretary of state shall make state mail
registration forms available for distribution through governmental
and private entities and organized voter registration programs.
The secretary of state shall make a record of all requests by
entities or organizations for ten or more forms with a description
of the dates and locations in which the proposed registration drive
is to be conducted. The secretary of state may limit the
distribution to a reasonable amount per group.
(c) The clerk of the county commission shall provide up to
four mail registration forms to any resident of the county upon
request. To the extent possible with funds allocated annually for
the purpose, the clerk of the county commission shall make state
mail registration forms available for distribution through
organized voter registration programs within the county. The clerk
of the county commission shall make a record of all requests by
entities or organizations for ten or more forms with a description
of the dates and locations in which the proposed registration drive
is to be conducted. The clerk may limit the distribution to a
reasonable amount per group.
(d) The applicant shall provide all required information and, only after completing the information, sign the prescribed
applicant's oath under penalty of perjury as provided in section
thirty-six of this article. No person may alter or add any entry
or make any mark which would alter any material information on the
voter registration application after the applicant has signed the
oath: Provided, That the clerk of the county commission may correct
any entry upon the request of the applicant provided the request is
properly documented and the correction is dated and initialed by
the clerk.
(e) Completed applications shall be mailed or delivered to the
clerk of the county commission of the county in which the voter
resides. If a clerk receives a completed mail application form
from a voter whose residence address is located in another county,
the clerk shall forward that application within three days to the
clerk of the county commission of the county of the applicant's
residence.
(f) Upon receipt of the application for registration by the
appropriate clerk of the county commission, the clerk shall:
(1) Attempt to establish whether the residence address given
is within the boundaries of an incorporated municipality and, if
so, make the proper entry required for municipal residents to be
properly identified for municipal voter registration purposes; and
(2) Immediately begin the verification process required by the
provisions of section sixteen of this article.
(g) Any person who registers by mail pursuant to this section
and who has not previously voted in an election in the state or if
the statewide voter registration has not yet been implemented, the
voter has not previously voted in the county shall be required to
present the following forms of identification to the secretary of
state or clerk of the county commission:
(1) In the case of an individual who votes in person, a
current and valid photo identification; or a copy of a current
utility bill, bank statement, government check, paycheck or other
government document that shows the name and address of the voter;
(2) In the case of an individual who votes by mail, submits
with the ballot a copy of a current and valid photo identification
or a copy of a current utility bill, bank statement, government
check, paycheck or other government document that shows the name
and address of the voter.
(h) An individual who desires to vote in person or by mail,
but who does not meet the requirements of subsection (g), may cast
a provisional ballot.
(i) Subsection (g) shall not apply in the case of a person:
(1) Who registers to vote by mail under 42 U. S. C. §1973gg-4,
et seq., and submits as part of his or her registration either a
copy of a current and valid photo identification or a copy of a
current utility bill, bank statement, government check, paycheck or
government document that shows the name and address of the voter;
(2) (A) Who registers to vote by mail under 42 U. S. C.
§1973gg-4, et seq., and submits with his or her registration either
a driver's license number or at least the last four digits of the
individual's social security number; and (B) with respect to whom
the secretary of state or clerk of the county commission matches
the information submitted under paragraph (A) with an existing
state identification record bearing the same number, name and date
of birth as provided in the registration; or
(3) Who is: (A) Entitled to vote by absentee ballot under 42
U. S. C. §1973ff-1, et seq., the Uniformed and Overseas Citizens
Absentee Voting Act; (B) provided the right to vote otherwise than
in person under 42 24 U. S. C. §1973ee-1(b) (2) (B) (ii); or 25
(iii), section 3(b)(2)(B)(ii) of the Voting Accessibility for the
Elderly and Handicapped Act; (C) entitled to vote otherwise than in
person under any other federal law: Provided, That any person who
has applied for an absentee ballot pursuant to the provisions of
subdivision (1), subsection (b), section one, article three of this
chapter; paragraph (B), subdivision (2) of said subsection;
subdivision (3) of said subsection; or subsection (c) of said
section shall not have his or her ballot in that election
challenged for failure to appear in person or for failure to
present identification.
(j) Any person who submits a state mail voter registration
application to the clerk of the county commission in the county in which he or she is currently registered for the purpose of entering
a change of address within the county, making a change of party
affiliation or recording a change of legal name shall not be
required to make his or her first vote in person or to present
identification or proof of age.
§3-2-13. Agencies to provide voter registration services;
designation of responsible employees; forms; prohibitions;
confidentiality.
(a) For the purposes of this article, "agency" means a
department, division or office of state or local government, or a
program supported by state funds, which is designated under this
section to provide voter registration services, but does not
include departments, divisions or offices required by other
sections of this article to provide voter registration services.
(b) Beginning on the first day of January, one thousand nine
hundred ninety-five, the following agencies shall provide voter
registration services pursuant to the provisions of this article:
(1) Those state agencies which administer or provide services
under the food stamp program, the "Aid to Families with Dependent
Children" (AFDC) program, the "Women, Infants and Children" (WIC)
program and the medicaid program;
(2) Those state-funded agencies primarily engaged in providing
services to persons with disabilities;
(3) County marriage license offices; and
(4) Armed services recruitment offices, as required by federal
law.
(c) No later than the first day of October, one thousand nine
hundred ninety-four, the secretary of state shall, in conjunction
with a designated representative of each of the appropriate state
agencies, review those programs and offices established and
operating with state funds which administer or provide public
assistance or services to persons with disabilities and shall
promulgate an emergency rule pursuant to the provisions of chapter
twenty-nine-a of this code designating the specific programs and
offices required to provide voter registration services in order to
comply with the requirements of this section and the requirements
of the "National Voter Registration Act of 1993" (42 U. S. C.
§1973gg, et seq.). The offices and programs so designated shall
begin providing voter registration services on the first day of
January, one thousand nine hundred ninety-five.
(d) No later than the first day of July, one thousand nine
hundred ninety-six, and each even-numbered year thereafter, the
secretary of state shall, in conjunction with the designated
representatives of the appropriate state agencies, perform the
review as required by the provisions of subsection (c) of this
section. The secretary of state shall periodically review and
revise, if necessary, the legislative rule designating the specific
agencies required to provide voter registration services.
(e) Each state agency required to provide services pursuant to
the provisions of this article shall designate a current employee
of that agency to serve as a state supervisor to administer voter
registration services required in all programs under the agency's
jurisdiction. Each state supervisor shall be responsible for
coordination with the secretary of state, overall operation of the
program in conjunction with services within the agency, designation
and supervision of local coordinators and for the review of any
complaints filed against employees relating to voter registration
as provided in this chapter.
(f) The state supervisor shall designate a current employee as
a local coordinator for voter registration services for each office
or program delivery center who shall be responsible for the proper
conduct of voter registration services, timely return of completed
voter registration applications, proper handling of declinations
and reporting requirements. Notice of the designation of these
persons shall be made upon request of the secretary of state and
within five days following any change of designation.
(g) The registration application forms used for agency
registration shall be issued pursuant to the provisions of section
five of this article.
(h) The secretary of state, in conjunction with those agencies
designated to provide voter registration services pursuant to the
provisions of this section, shall prescribe the form or portion of the appropriate agency form required by the provisions of
42 U. S.
C. §1973gg, et seq., section 7(a)(6)(B) of the "National Voter
Registration Act of 1993", containing the required notices and
providing boxes for the applicant to check to indicate whether the
applicant would like to register or decline to register to vote.
The form or portion of the form is designated the "declination
form".
(i) A person who provides voter registration services shall
not:
(1) Seek to influence an applicant's political preference or
party registration;
(2) Display to any applicant any political preference or party
allegiance;
(3) Make any statement to an applicant or take any action the
purpose or effect of which is to discourage the applicant from
registering to vote; or
(4) Make any statement to an applicant or take any action the
purpose or effect of which is to lead the applicant to believe that
a decision to register or not to register has any bearing on the
availability of services or benefits.
(j) No information relating to the identity of a voter
registration agency through which any particular voter is
registered or to a declination to register to vote in connection
with an application made at any designated agency may be used for any purpose other than voter registration.
§3-2-19. Maintenance of active and inactive registration files in
precinct record books and county alphabetical registration
file.
(a) Each county shall continue to maintain a record of each
active and inactive voter registration in precinct registration
books until the statewide voter registration system is adopted
pursuant to the provisions of section four-a of this article, fully
implemented and given final approval by the secretary of state.
The precinct registration books shall be maintained as follows:
(1) Each active voter registration shall be entered in the
precinct book or books for the county precinct in which the voter's
residence is located and shall be filed alphabetically by name,
alphabetically within categories, or by numerical street address,
as determined by the clerk of the county commission for the
effective administration of registration and elections. No active
voter registration record shall be removed from the precinct
registration books unless the registration is lawfully transferred
or canceled pursuant to the provisions of this article.
(2) Each voter registration which is designated "inactive"
pursuant to the procedures prescribed in section twenty-seven of
this article shall be retained in the precinct book for the county
precinct in which the voter's last recorded residence address is
located until the time period expires for which a record must remain on the inactive files. Every inactive registration shall be
clearly identified by a prominent tag or notation or arranged in a
separate section in the precinct book clearly denoting the
registration status. No inactive voter registration record shall
be removed from the precinct registration books unless the
registration is lawfully transferred or canceled pursuant to the
provisions of this article.
(b) For municipal elections, the registration records of
active and inactive voters shall be maintained as follows:
(1) County precinct books shall be used in municipal elections
when the county precinct boundaries and the municipal precinct
boundaries are the same and all registrants of the precinct are
entitled to vote in state, county and municipal elections within
the precinct or when the registration records of municipal voters
within a county precinct are separated and maintained in a separate
municipal section or book for that county precinct and can be used
either alone or in combination with other precinct books to make up
a complete set of registration records for the municipal election
precinct.
(2) Upon request of the municipality, and if the clerk of the
county commission does not object, separate municipal precinct
books shall be maintained in cases where municipal or ward
boundaries divide county precincts and it is impractical to use
county precinct books or separate municipal sections of those precinct books. If the clerk of the county commission objects to
the request of a municipality for separate municipal precinct
books, the state election commission must determine whether the
separate municipal precinct books should be maintained.
(3) No registration record may be removed from a municipal
registration record unless the registration is lawfully transferred
or canceled pursuant to the provisions of this article in both the
county and the municipal registration records.
(c) Within thirty days following the entry of any annexation
order or change in street names or numbers, the governing body of
an incorporated municipality shall file with the clerk of the
county commission a certified current official municipal boundary
map and a list of streets and ranges of street numbers within the
municipality to assist the clerk in determining whether a voter's
address is within the boundaries of the municipality.
(d) Each county, so long as precinct registration books are
maintained, shall maintain a duplicate record of every active and
inactive voter registration in a county alphabetical file. The
alphabetical file may be maintained on individual paper forms or,
upon approval of the secretary of state of a qualified data storage
program, may be maintained in digitized format. A qualified data
storage program shall be required to contain the same information
for each voter registration as the precinct books, shall be subject
to proper security from unauthorized alteration and shall be regularly duplicated to backup data storage to prevent accidental
destruction of the information on file.
§3-2-30. Public inspection of voter registration records in the
office of the clerk of the county commission; providing
voter lists for noncommercial use; prohibition against
resale of voter lists for commercial use or profit.
(a) The active, inactive, rejected and canceled voter
registration records shall be made available for public inspection
during office hours of the clerk of the county commission in
accordance with the provisions of chapter twenty-nine-b of this
code as follows:
(1) When the active and inactive files are maintained on
precinct registration books, any person shall be allowed to examine
these files under the supervision of the clerk and obtain copies of
records except when a precinct book is in temporary use for
updating and preparing lists or during the time the books are
sealed for use in an election. Other original voter registration
records, including canceled voter records, pending applications,
rejected applications, records of change requests, reinstatements
and other documents, shall be available for inspection upon
specific request;
(2) When the active, inactive, rejected and canceled voter
files are maintained in data format, any person shall be allowed to
examine voter record information in printed form or in a read-only data format on a computer terminal set aside for public use, if
available. The data files available shall include all registration
and voting information maintained in the file, except that the
telephone number and social security number of any voter shall not
be available for inspection or copying in any format.
(b) Printed lists of registered voters may be purchased for
noncommercial use from the clerk of the county commission at a cost
of one cent per name.
(1) In counties maintaining active and inactive files on
precinct registration books only, a separate list for each of the
two major political parties and for voters registered independent
or other affiliation shall be prepared for each precinct. The
lists shall be arranged in alphabetical order or street order, as
the books are maintained, and shall include the name, residence
address and party affiliation of the voter, along with a
designation of inactive status where applicable. The lists shall
be prepared prior to the primary election and the clerk shall not
be required to supplement or revise those lists as registrations
are added or canceled.
(2) In counties maintaining active and inactive files in
digitized data format, the clerk of the county commission shall,
upon request, prepare printed copies of the lists of voters for
each precinct. No list prepared under this section may include the
telephone number or social security number of the registrant. The clerk shall establish a written policy, which shall be posted
within public view, listing the options which may be requested for
selection and sorting criteria and available data elements, which
shall include at least the name, residence address, political party
affiliation and status and the format of the lists and the times at
which lists will be prepared. A copy of the policy shall be filed
with the secretary of state no later than the first day of January,
one thousand nine hundred ninety-five, and within thirty days after
any change in policy.
(c) In counties which maintain voter files in a digitized data
format, lists of registered voters may be obtained for
noncommercial purposes in data format on disk provided and prepared
by the clerk of the county commission at a cost of one cent per
name plus ten dollars for each disk required. No data file
prepared under this subsection may include the telephone number or
social security number of the registrant.
(d) The fees received by the clerk of the county commission
shall be kept in a separate fund under the supervision of the clerk
for the purpose of defraying the cost of the preparation of the
voter lists. Any unexpended balance in the fund shall be
transferred to the general fund of the county commission.
(e) After the implementation of the state uniform voter data
system, the secretary of state may make voter lists available for
sale subject to the limitations as provided in this section for counties, except that the cost shall be one and one-half cents per
name plus ten dollars for each disk required. One cent per name
for each voter from a particular county on each list sold shall be
reimbursed to the appropriate county and one-half cent per name
shall be deposited to a special account for purpose of defraying
the cost of the preparation of the lists.
(f) No voter registration lists or data files containing the
names, addresses or other information relating to voters derived
from voter data files obtained pursuant to the provisions of this
article may be used for commercial or charitable solicitations or
advertising, sold or reproduced for resale.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a) All registered and other qualified voters of the county
may vote an absentee ballot during the period of early voting in
person.
(b) 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.
(c) 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 if the
voter has resided in the nursing home for a period of less than
thirty days; 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.
§3-3-2. Authority to conduct absentee voting; absentee voting
application; form.
(a) Absentee voting is to be supervised and conducted by the
proper official for the political division in which the election is
held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a
political subdivision or territory other than a municipality, or
within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county
commission: Provided, That if the clerk of the county commission
and the clerk of the circuit court jointly petition the county
commission setting forth their agreement that the clerk of the
circuit court should continue to supervise and conduct the absentee
voting, the county commission shall designate the clerk of the
circuit court to supervise and conduct the absentee voting; or
(2) The municipal recorder or other officer authorized by
charter or ordinance provisions to conduct absentee voting, for any
election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms "clerk"
or "circuit clerk" or "official designated to supervise and conduct
absentee voting" used elsewhere in this article means municipal
recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote a mail-in
absentee ballot in any primary, general or special election is to
make application in writing in the proper form to the proper
official as follows:
(1) The completed application is to be on a form prescribed by
the secretary of state and is to contain the name, date of birth
and political affiliation of the voter, residence address within
the county, the address to which the ballot is to be mailed, the
authorized reason, if any, for which the absentee ballot is
requested and, if the reason is illness or hospitalization, the
name and telephone number of the attending physician, the signature
of the voter to a declaration made under the penalties for false
swearing as provided in section three, article nine of this chapter
that the statements and declarations contained in the application
are true, any additional information which the voter is required to
supply, any affidavit which may be required and an indication as to
whether it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under
the provisions of 42 U. S. C. §1973, et seq., the Uniformed and
Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee
ballot form issued under authority of that act; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out
by the voter, provided all information required to meet the
provisions of this article is set forth and the application is
signed by the voter requesting the ballot.
§3-3-2a. Voting booths within public view to be provided;
prohibition against display of campaign material.
Throughout the period of early in-person voting, the official
designated to supervise and conduct absentee voting shall make the
following provisions for voting:
(1) The official shall provide a sufficient number of voting
booths or devices appropriate to the voting system at which voters
may prepare their ballots. The booths or devices are to be in an
area separate from but within clear view of the public entrance
area of the official's office or other area designated by the
county commission for absentee voting and are to be arranged to
ensure the voter complete privacy in casting the ballot.
(2) The official shall make the voting area secure from
interference with the voter and shall ensure that voted and unvoted
ballots are at all times secure from tampering. No person, other
than a person lawfully assisting the voter according to the
provisions of this chapter, may be permitted to come within five
feet of the voting booth while the voter is voting. No person,
other than the officials or employees of the official designated to supervise and conduct absentee voting or members of the board of
ballot commissioners assigned to conduct absentee voting, may enter
the area or room set aside for voting.
(3) The official designated to supervise and conduct absentee
voting shall request the county commission designate another area
within the county courthouse or any annex of the courthouse as a
portion of the official's office for the purpose of absentee voting
in the following circumstances:
(A) If the voting area is not accessible to voters with
physical disabilities;
(B) If the voting area is not within clear view of the public
entrance of the office of the official designated to supervise and
conduct absentee voting; or
(C) If there is no suitable area for absentee voting within
the office.
Any designated area is subject to the same requirements as
the regular absentee voting area.
(4) The official designated to supervise and conduct absentee
voting shall have at least two representatives to assist with
absentee voting: Provided, That the two representatives shall not
be registered with the same political party affiliation or two
persons registered with no political party affiliation. The
representatives may be full-time employees, temporary employees
hired for the period of absentee voting in person or volunteers.
(5) No person may do any electioneering nor may any person
display or distribute in any manner, or authorize the display or
distribution of, any literature, posters or material of any kind
which tends to influence the voting for or against any candidate or
any public question on the property of the county courthouse or any
annex facilities during the entire period of regular in-person
absentee voting. The official designated to supervise and conduct
absentee voting is hereby authorized to remove the material and to
direct the sheriff of the county to enforce the prohibition.
§3-3-3. Early voting in person.
(a) The voting period for early in-person voting is to be
conducted during regular business hours beginning on the twentieth
day before the election and continuing through the third day before
the election. For any election held on a Tuesday, the early voting
period for in-person voting is to be available from 9:00 a.m. to
5:00 p.m. on the two Saturdays prior to the election.
(b) Any person desiring to vote during the period of early in-
person voting shall, upon entering the election room, clearly state
his or her name and residence to the official or representative
designated to supervise and conduct absentee voting. If that
person is found to be duly registered as a voter in the precinct of
his or her residence, he or she shall be required to sign his or
her name in the space marked "signature of voter" on the pollbook.
If the voter is unable to sign his or her name due to 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. No ballot may be given to the person until he or she
signs his or her name on the pollbook.
(c) When the voter's signature or mark is properly on the
pollbook, two qualified representatives of the official designated
to supervise and conduct absentee voting shall sign their names in
the places indicated on the back of the official ballot.
(d) If the official designated to supervise and conduct
absentee voting determines that the voter is not properly
registered in the precinct where he or she resides, the clerk or
his or her representative shall challenge the voter's absentee
ballot as provided in this article.
(e) 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) In counties using paper ballots, one of each type of
official absentee ballot the voter is eligible to vote, prepared
according to law;
(2) In counties using punch card systems, one of each type of
official absentee ballot the voter is eligible to vote, prepared
according to law, and a gray secrecy envelope;
(3) In counties using optical scan systems, one of each type of official absentee ballot the voter is eligible to vote, prepared
according to law, and a secrecy sleeve; or
(4) For direct recording election systems, access to the
voting equipment in the voting booth.
(f) 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 absentee voter
shall: Place the ballot or ballots in the gray secrecy envelope and
return the ballot or ballots to the official designated to
supervise and conduct the absentee voting: Provided, however, That
in direct recording election systems, once the voter has cast his
or her ballot, the voter shall exit the polling place.
(g) Upon receipt of the voted ballot, representatives of the
official designated to supervise and conduct the absentee voting
shall:
(1) Remove the ballot stub;
(2) Place punch card ballots and paper ballots into one
envelope which shall not have any marks except the precinct number
and seal the envelope;
(3) Place ballots for all voting systems into a ballot box
that is secured by two locks with a key to one lock kept by the
president of the county commission and a key to the other lock kept
by the county clerk.
(4) Due to the reenactment of this section by the Legislature
in the two thousand three regular session removing authorization
for early in-person 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 two general
election are made aware of this change, the clerk of each county
shall, for the primary election of the year two thousand 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.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of
the county, in person, by mail or by facsimile, if the official has
access to facsimile equipment, the appropriate application for
voting absentee by mail 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.
(b) Completed applications for voting an absentee ballot by
mail is to be accepted when received by the official designated to
supervise and conduct absentee voting in person, by mail or by facsimile, if the official has access to facsimile equipment,
within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year, or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official
designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) 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;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an address outside the county if the voter is applying to vote by mail
under the provisions of paragraph (A) or (B), subdivision (2),
subsection (d), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official
designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of
the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee
ballot will be challenged as provided in this article and shall
enter that challenge.
(e) Within one day after the official designated to supervise and conduct absentee voting has both the completed application and
the ballot, the official shall mail to the voter at the address
given on the application the following items 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) 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) One postage paid envelope, unsealed, designated "Absent
Voter's Ballot Envelope No. 2";
(4) Instructions for voting absentee by mail;
(5) For electronic systems, one punching tool for perforating
or a device for marking by electronically sensible pen or ink, as
may be appropriate;
(6) 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; and
(7) Any other supplies required for voting in the particular
voting system.
(f) The voter shall mark the ballot alone: Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article. After the voter has voted the ballot
or ballots, the 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
absentee voting.
(g) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service are to be accepted if: (1) The ballot is received
by the official designated to supervise and conduct absentee voting
no later than the day after the election; or (2) the ballot bears
a postmark of the United States postal service dated no later than
election day and the ballot is received by the official designated
to supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(i) Ballots received after the proper time which cannot be
accepted are to be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the election, after which time they are to be destroyed without being
opened.
(j) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election: Provided, That no person may hand deliver
more than two absentee ballots in any election, and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(k) Upon receipt of the sealed envelope, the official
designated to supervise and conduct 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 into a ballot box that is
secured by two locks with a key to one lock kept by the president
of the county commission and a key to the other lock kept by the
county clerk.
§3-3-5c. Procedures for voting an emergency absentee ballot by
qualified voters.
(a) Notwithstanding any other provision of this chapter, a
person qualified to vote an emergency absentee ballot, as provided
in subsection (c), section one of this article may vote an
emergency absentee ballot under the procedures established in this
section. The county commission may adopt a policy extending the
emergency absentee voting procedures to: (1) Hospitals or other
duly licensed health care facilities within an adjacent county or
within thirty-five miles of the county seat; or (2) nursing homes
within the county: Provided, That the policy is to be adopted by
the county commission at least ninety days prior to the election
that will be affected and a copy of the policy is to be filed with
the secretary of state.
(b) On or before the fifty-sixth day preceding the date on
which any election is to be held the official designated to
supervise and conduct absentee voting shall notify the county
commission of the number of sets of emergency absentee ballot
commissioners which he or she determines necessary to perform the
duties and functions pursuant to this section.
(c) A set of emergency absentee ballot commissioners at-large
shall consist of two persons with different political party
affiliations appointed by the county commission in accordance with
the procedure prescribed for the appointment of election
commissioners under the provisions of article one of this chapter.
Emergency absentee ballot commissioners have the same qualifications and rights and take the same oath required under the
provisions of this chapter for commissioners of elections.
Emergency absentee ballot commissioners are to be compensated for
services and expenses in the same manner as commissioners of
election or poll clerks obtaining and delivering election supplies
under the provisions of section forty-four, article one of this
chapter.
(d) Upon request of the voter or a member of the voter's
immediate family or, when the county commission has adopted a
policy to provide emergency absentee voting services to nursing
home residents within the county, upon request of a staff member of
the nursing home, the official designated to supervise and conduct
absentee voting, upon receiving a proper request for voting an
emergency absentee ballot no earlier than the seventh day next
preceding the election and no later than noon of election day shall
supply to the emergency absentee ballot commissioners the
application for voting an emergency absentee ballot and the
balloting materials. The emergency absentee ballot application is
to be prescribed by the secretary of state and is to include the
name, residence address and political party affiliation of the
voter, the date, location and reason for confinement in the case of
an emergency, and the name of the attending physician.
(e) The application for an emergency absentee ballot is to be
signed by the person applying. If the person applying for an emergency absentee ballot is unable to sign his or her application
because of illiteracy or physical disability, he or she is to make
his or her mark on the signature line provided for an illiterate or
disabled applicant, the mark is to be witnessed. The person
assisting the voter and witnessing the mark of the voter shall sign
his or her name in the space provided.
(f) A declaration is to be completed and signed by each of the
emergency absentee ballot commissioners, stating their names, the
date on which they appeared at the place of confinement of the
person applying for an emergency absentee ballot and the
particulars of the confinement.
(g) At least one of the emergency absentee ballot
commissioners receiving the balloting materials shall sign a
receipt which is to be attached to the application form. Each of
the emergency absentee ballot commissioners shall deliver the
materials to the absent voter, await his or her completion of the
application and ballot and return the application and the ballot to
the official designated to supervise and conduct absentee voting.
Upon delivering the application and the voted ballot to the
official, the emergency absentee ballot commissioners shall sign an
oath that no person other than the absent voter voted the ballot.
The application and the voted ballot are to be returned to the
official designated to supervise and conduct absentee voting prior
to the close of the polls on election day. Any ballots received by the official after the time that delivery may reasonably be made
but before the closing of the polls are to be delivered to the
canvassing board along with the absentee ballots challenged in
accordance with the provisions of section ten of this article.
(h) Upon receiving the application and emergency absentee
ballot, the official designated to supervise and conduct absentee
voting shall ascertain whether the application is complete, whether
the voter appears to be eligible to vote an emergency absentee
ballot, and whether the voter is properly registered to vote with
the office of the clerk of the county commission. If the voter is
found to be properly registered in the precinct shown on the
application, the ballot is to be delivered to the precinct election
commissioner pursuant to section seven of this article. If the
voter is found not to be registered or is otherwise ineligible to
vote an emergency ballot, the ballot is to be challenged for the
appropriate reason provided for in section ten of this article.
(i) If either or both of the emergency absentee ballot
commissioners refuse to sign any application for voting an
emergency absentee ballot, the voter may vote as an emergency
absentee and the ballot will be challenged in accordance with the
provisions of section ten of this article, in addition to those
absentee ballots subject to challenge as provided in that section.
(j) Any voter who receives assistance in voting an emergency
absentee ballot shall comply with the provisions of section six of this article. Any other provisions of this chapter relating to
absentee ballots not altered by the provisions of this section are
to govern the treatment of emergency absentee ballots.
§3-3-7. Delivery of absentee ballots to polling places.
(a) Except as otherwise provided in this article, in counties
using paper ballots systems or voting machines, the absentee
ballots of each precinct, together with the applications for the
absentee ballots, the affidavits made in connection with assistance
in voting and any forms, lists and records as may be designated by
the secretary of state, are to be delivered in a sealed carrier
envelope to the election commissioner of the precinct at the time
he or she picks up the official ballots and other election supplies
as provided in section twenty-four, article one of this chapter.
(b) Absentee ballots received after the election commissioner
has picked up the official ballots and other election supplies for
the precinct are to be delivered to the election commissioner of
the precinct who has been designated pursuant to section
twenty-four, article one of this chapter, by the official
designated to supervise and conduct absentee voting in person or by
messenger before the closing of the polls, provided the ballots are
received by the official in time to make the delivery. Any ballots
received by the official after the time that delivery may
reasonably be made but within the time required as provided in
subsection (g), section five of this article are to be delivered to the board of canvassers along with the provisional ballots.
§3-3-8. Disposition and counting of absent voters' ballots.
(a) In counties using paper ballots, all absentee ballots
shall be processed as follows:
(1) The ballot boxes containing the absentee ballots shall be
opened in the presence of the clerk of the county commission and
two representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on
the sealed envelopes containing the ballots; and
(3) Absentee ballots shall be delivered to the polls to be
opened and counted in accordance with section thirty-three, article
one of this chapter, section fifteen, article five of this chapter;
and section six, article six of this chapter. Disclosure of any
results before the voting has been closed and the precinct returns
posted on the door of the polling place shall be a per se violation
of the oath taken by the counting board. In all other counties,
counting is to begin immediately after closing of the polls.
(b) In the counties using punch card systems, the absentee
ballots shall be processed as follows:
(1) On election day, the ballot boxes containing the absentee
ballots shall be delivered to the central counting center and
opened in the presence of the clerk of the county commission and
two representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on the sealed envelopes containing the ballots; and
(3) The absentee ballots shall be counted in accordance with
section twenty-seven, article four-a of this chapter.
(c) In counties using optical scan systems, the absentee
ballots shall be processed as follows:
(1) On election day, the ballot boxes containing the absentee
ballots shall be delivered to the central counting center and
opened in the presence of the clerk of the county commission and
two representatives of opposite political parties; and
(2) The absentee ballots shall be counted in accordance with
section twenty-seven, article four-a of this chapter.
(d) In counties using direct recording elections systems, the
absentee ballots shall be counted in accordance with section
twenty-seven, article four-a of this chapter.
(e) The provisional ballots shall be deposited in a
provisional ballot envelope and delivered to the board of
canvassers.
(f) 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.
§3-3-10. Challenging of absent voters' ballots.
(a) The official designated to supervise and conduct absentee
voting may challenge an absent voter's ballot on any of the following grounds:
(1) That the application for an absent voter's ballot has not
been completed as required by law;
(2) That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) That the applicant for an absent voter's ballot is not
registered to vote in the precinct of his or her residence as
provided by law;
(4) That the person voting an absent voter's ballot by
personal appearance in his or her office had assistance in voting
the ballot when the person was not qualified for voting assistance
because: (A) The affidavit of the person who received assistance
does not indicate a legally sufficient reason for assistance; or
(B) the person who received assistance did not make an affidavit as
required by this article; or (C) the person who received assistance
is not so illiterate as to have been unable to read the names on
the ballot or that he or she is not so physically disabled as to
have been unable to see or mark the absent voter's ballot;
(5) That the person who voted an absent voter's ballot by mail
and received assistance in voting the ballot was not qualified
under the provisions of this article for assistance; and
(6) That the person has voted absentee by mail as a result of
being out of the county more than four consecutive times: Provided,
That the determination as to whether the person has voted more than four consecutive times does not apply if the person is a citizen
residing out of the United States; or a member, spouse or dependent
of a member serving in the uniformed services; or a college student
living outside of his or her home county.
(b) Any one or more of the election commissioners or poll
clerks in a precinct may challenge an absent voter's ballot on any
of the following grounds:
(1) That the application for an absent voter's ballot was not
completed as required by law;
(2) That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) That the person voting an absent voter's ballot is not
registered to vote in the precinct of his or her residence as
provided by law;
(4) That the signatures of the person voting an absent voter's
ballot as they appear on his or her registration record, his or her
application for an absent voter's ballot and the absent voter's
ballot envelope are not in the same handwriting;
(5) That the person voting an absent voter's ballot by
personal appearance had assistance in voting the ballot when the
person was not qualified for assistance because: (A) The affidavit
of the person who received assistance does not indicate a legally
sufficient reason for assistance; or (B) the person who received
assistance did not make an affidavit as required by this article; or (C) the person who received assistance is not so illiterate as
to have been unable to read the names on the ballot or that he or
she was not so physically disabled as to have been unable to see or
mark the absent voter's ballot;
(6) That the person voted an absent voter's ballot by mail and
received assistance in voting the ballot when not qualified under
the provisions of this article for assistance;
(7) That the person who voted the absent voter's ballot voted
in person at the polls on election day;
(8) That the person voted an absent voter's ballot under
authority of subdivision (3), subsection (b), section one of this
article and is or was present in the county in which he or she is
registered to vote between the opening and closing of the polls on
election day; and
(9) On any other ground or for any reason on which or for
which the ballot of a voter voting in person at the polls on
election day may be challenged.
No challenge may be made to any absent voter ballot if the
voter was registered and qualified to vote pursuant to the
provisions of subsection (a), section one of this article.
(c) Forms for, and the manner of, challenging an absent
voter's ballot under the provisions of this article are to be
prescribed by the secretary of state.
(d) Absent voters' ballots challenged by the official designated to supervise and conduct absentee voting under the
provisions of this article are to be transmitted by the official
directly to the county commission sitting as a board of canvassers.
The absent voters' ballots challenged by the election commissioners
and poll clerks under the provisions of this article may not be
counted by the election officials but are to be transmitted by them
to the county commission sitting as a board of canvassers. Action
by the board of canvassers on challenged absent voters' ballots is
to be governed by the provisions of section forty-one, article one
of this chapter.
§3-3-11. Preparation, number and handling of absent voters'
ballots.
(a) Absent voters' ballots are to be in all respects like
other ballots. Not less than seventy days before the date on which
any primary, general or special election is to be held, unless a
lesser number of days is provided for in any specific election law
in which case the lesser number of days applies, the clerks of the
circuit courts of the several counties shall estimate and determine
the number of absent voters' ballots of all kinds which will be
required in their respective counties for that election. The
ballots for the election of all officers, or the ratification,
acceptance or rejection of any measure, proposition or other public
question to be voted on by the voters, are to be prepared and
printed under the direction of the board of ballot commissioners constituted as provided in article one of this chapter. The
several county boards of ballot commissioners shall prepare and
have printed, in the number they may determine, absent voters'
ballots that are to be printed under their directions as provided
in this chapter and those ballots are to be delivered to the clerk
of the circuit court of the county not less than forty-two days
before the day of the election at which they are to be used. In
counties where the clerk of the county commission is responsible
for conducting absentee voting, the circuit clerk shall transfer
the absentee ballots to the clerk of the county commission prior to
the beginning of absentee voting.
(b) The official designated to supervise and conduct absentee
voting shall be primarily responsible for the mailing, receiving,
delivering and otherwise handling of all absent voters' ballots.
He or she shall keep a record, as may be prescribed by the
secretary of state, of all ballots so delivered for the purpose of
absentee voting, as well as all ballots, if any, marked before him
or her and shall deliver to the commissioner of election a
certificate stating the number of ballots delivered or mailed to
absent voters and those marked before him or her, if any, and the
names of the voters to whom those ballots have been delivered or
mailed or by whom they have been marked, if marked before him or
her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy
changes; procedure and requirements.
(a) The ballot commissioners of any county in which voting
machines are to be used in any election shall cause to be printed
for use in the election the ballot labels for the voting machines
and paper ballots for absentee voting, voting by persons unable to
use the voting machine and provisional ballots or if an electronic
voting system or direct recording election equipment is to be used
in an election, the ballot commissioners shall comply with
requirements of section eleven, article four-a of this chapter.
The labels shall be clearly printed in black ink on clear white
material in a size that will fit the ballot frames. The paper
ballots shall be printed in compliance with the provisions of this
chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the
printing and arrangement of names of the candidates for each office
indicated must be placed on the ballot for the primary election as
nearly as possible according to the provisions of sections thirteen
and thirteen-a, article five of this chapter and for the general
election according to the provisions of section two, article six of
this chapter: Provided, That the staggering of the names of
candidates in multicandidate races and the instructions to straight
ticket voters prescribed by section two, article six of this
chapter shall appear on paper ballots but shall not appear on ballot labels for voting machines which mechanically control
crossover voting.
(c) Each question to be voted on must be placed at the end of
the ballot and must be printed according to the provisions of the
laws and regulations governing the question.
(d) The ballot labels printed must total in number one and
one-half times the total number of corresponding voting machines to
be used in the several precincts of the county in the election.
All the labels must be delivered to the clerk of the circuit court
at least twenty-eight days prior to the day of the election. The
clerk of the circuit court shall determine the number of paper
ballots needed for absentee voting and to supply the precincts for
provisional ballots and ballots to be cast by persons unable to use
the voting machine. All required paper ballots shall be delivered
to the clerk of the circuit court at least forty-two days prior to
the day of the election.
(e) When the ballot labels and absentee ballots are delivered,
the clerk of the circuit court shall examine them for accuracy,
assure that the appropriate ballots and ballot labels are
designated for each voting precinct and deliver the ballot labels
to the clerk of the county commission who shall insert one set in
each machine prior to the inspection of the machines as prescribed
in section twelve of this article. The remainder of the ballot
labels for each machine shall be retained by the clerk of the county commission for use in an emergency.
(f) 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
and facsimile diagrams of the voting machine ballot adequate for
the orderly conduct of the election in each precinct in their
county. In addition, they shall provide appropriate facilities for
the reception and safekeeping of the ballots of absent voters and
of challenged voters and of the "independent" voters who shall, in
primary elections, cast their votes on nonpartisan candidates and
public questions submitted to the voters.
§3-4-23. Voting by challenged voters.
If the right of any person to vote is challenged in accordance
with provisions of article one of this chapter relating to the
challenging of voters, the person shall not be permitted to cast
his or her vote by use of the voting machine but he or she shall be
supplied by the election officer at the polling place with an
official printed ballot of the election. The provisional ballot
shall not be endorsed on the back by the poll clerks but, when
voted by the challenged voter, shall have affixed thereto by the
poll clerks their statement of information as to the challenge on
the form prescribed therefor. The provisional ballots shall be
secured, handled and disposed of as provisional ballots in other
elections, as provided in article one of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may
not be approved by the state election commission or be purchased,
leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the
act of voting or, at the voter's election, provides for open
voting;
(2) It is constructed to ensure that no person, except in
instances of open voting as provided for in this section, can see
or know for whom any voter has voted or is voting;
(3) It permits 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 person appears on
a ballot or ballot label as a candidate; and it permits 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 electronic voting systems is to reject
choices recorded on any ballot if the number of choices exceeds the
number to which a voter is entitled;
(4) It permits each voter to deposit, write in, affix upon a
ballot, card, 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 permits 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 contains 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 contains two standard validation test decks approved as
to form and testing capabilities by the state election commission;
(8) It correctly records and counts accurately all votes cast
for each candidate and for and against each question appearing upon
the ballots or ballot labels;
(9) It permits 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 permits 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 precludes him or her from voting for any
candidate seeking nomination by any other political party, permits
him or her to vote for the candidates, if any, for nonpartisan
nomination or election and permits him or her to vote on public
questions;
(11) It, where applicable, is 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 has the capacity to contain the names of candidates
constituting the tickets of at least nine political parties and
accommodates the wording of at least fifteen questions;
(13) Where vote recording devices are used, they:
(A) Are durably constructed of material of good quality and in
a workmanlike manner and in a form which makes it safely
transportable;
(B) Are so constructed with frames for the placing of ballot
labels that the labels upon which are printed the names of
candidates and their respective parties, titles of offices and
wording of questions are reasonably protected from mutilation,
disfigurement or disarrangement or are constructed to ensure that the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are
reasonably protected from any modification;
(C) Bear a number that will identify it or distinguish it from
any other machine;
(D) Are constructed to ensure 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;
(E) Are accompanied by a mechanically or electronically
operated instruction model which shows the arrangement of ballot
labels, party columns or rows, and questions;
(F) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;
(G) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, 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 are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of
the ballot;
(H) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to present the entire ballot to the voter,
in a series of sequential pages, and to 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) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed 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) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to allow election commissioners, poll
clerks, or both, to designate, mark or otherwise record provisional
ballots;
(K) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, consist of devices which are independent, nonnetworked voting systems in which each vote is recorded and retained within
each device's internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;
(L) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;
(M) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;
(N) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to record all preelection, election and
post-election activities, including all ballot images and system
anomalies, in each device's internal electronic memory and are to
be accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed with a battery backup system in each device to, at a minimum, prevent the loss of any votes, as well as all
preelection, election and post-election activities, including all
ballot images and system anomalies, stored in the device's internal
electronic memory and to allow voting to continue for two hours of
uninterrupted operation in case of an electrical power failure; and
(P) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to prevent the loss of any votes, as well as
all preelection, election and post-election activities, including
all ballot images and system anomalies, stored in each device's
internal electronic memory even in case of an electrical and
battery power failure.
§3-4A-19. Conducting electronic voting system elections generally;
duties of election officers; penalties.
(a) 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.
(b) 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 or for unaffiliated voters in
accordance with section thirty-one, article two of this chapter.
(c) 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 the voter and in the case of a primary
election, indicating the party affiliation of the voter, which
numbered card or ticket is to be presented to the election
commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set up
the voting booths 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 certify their findings in writing upon forms
provided and collected by the clerk of the county commission over
their signatures to the clerk of the county commission. Any
discrepancies are to be 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 the
ballots in sequential order to each voter.
(e) Where applicable, each voter shall be instructed how to
operate the vote recording device before he or she enters the
voting booth.
(f) Where applicable, any voter who spoils, defaces or
mutilates the ballot delivered to him or her, on returning the
ballot to the poll clerks, shall receive another in its place.
Every person who does not vote any ballot delivered to him or her
shall, before leaving the election room, return the 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, write the word "spoiled" across the face of the ballot
and place it 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 are to be returned at the same time to the clerk of
the county commission who shall count them and record the number.
All unused ballots shall be stored with the other election
materials and destroyed at the expiration of twenty-two months.
(g) Each commissioner who is a member of an election board
which fails to account for every ballot delivered to it is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or confined in the county or
regional jail for not more than one year, or both.
(h) The board of ballot commissioners of each county, or the
chair of the board, 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 shall deliver
them to the clerk of the county commission who shall store them
with the other election materials and destroy them at the
expiration of twenty-two months.
(i) 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 the 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 may be accepted by the officer in
charge of the ballot box, but the ballot shall be marked "spoiled" and placed with the spoiled ballots. If an electronic voting
system is used that utilizes a screen on which votes may be
recorded by means of a stylus or by means of touch and the signal
warning that a voter has attempted to cast his or her ballot has
failed to do so properly has been activated and the voter 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, then two election commissioners of
different registered party affiliations, two poll clerks of
different registered party affiliations or an election commissioner
and a poll clerk of different registered party affiliations shall
spoil the ballot.
(j) 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 utilize 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 is to be sealed with a paper
seal signed by the election commissioners to ensure that no additional ballots may be deposited or removed from the ballot box.
Two election commissioners of different registered party
affiliations 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. The receipt must
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 is to be prepared in duplicate, a copy of which
remains with the clerk of the county commission who shall have any
and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the
report, which are to be immediately mailed to the clerk of the
county commission.
(k) The pollbooks, register of voters, unused ballots, spoiled
ballots and other records and supplies are to be delivered to the
clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-22. Assistance to illiterate and disabled voters.
(a) Any duly registered voter who requires assistance to vote
by reason of blindness, disability, advanced age or inability to
read and write may be given assistance by one of the following
means:
(1) By a person of the voter's choice: Provided, That the assistance may not be given by the voter's present or former
employer or agent of that employer or by an officer or agent of a
labor union of which the voter is a past or present member or a
candidate on the ballot or official write-in candidate; or
(2) If no person of the voter's choice be present at the
polling place, the voter may request assistance from the poll
clerks or ballot commissioners present at the polling place,
whereupon assistance may be given by any two of the election
officers of opposite political party affiliation to whom the voter
shall thereupon declare his or her choice of candidates and his or
her position on public questions appearing on the ballot. The
election officers, in the presence of the voter and in the presence
of each other, shall thereupon cause the voter's declared choices
to be recorded on the ballot or a vote recording device, as may be
appropriate, as votes.
(b) A person other than an election officer who assists a
voter in voting under the provisions of this section shall sign a
written oath or affirmation before assisting the voter, stating
that he or she will not override the actual preference of the voter
being assisted or mislead the voter into voting for someone other
than the candidate of the voter's choice. The person assisting the
voter shall also swear or affirm that he or she believes that the
voter is voting free of intimidation or manipulation.
§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, the person is
to 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 provisional ballot. The
devices are to retain provisional ballots in electronic memory and
are not to be tabulated in accordance with the provisions of this
code, but are to be reviewed in accordance with the provisions of
this code.
After the county commission, as prescribed in article one of
this chapter, has determined that the challenges are unfounded, the
commissioners shall ensure that the ballots are included in the
tabulation.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center are to be
under the supervision of the clerk of the county commission and are
to 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 observation. Those persons entitled to be present include all candidates whose names appear on
the ballots being counted or if a candidate is absent, a
representative of the candidate who presents a written
authorization signed by the candidate for the purpose and two
representatives of each political party on the ballot who are
chosen by the county executive committee chairperson. A reasonable
number of the general public is also 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, during the proceedings at the
central counting center, is to be granted admission for reasonable
periods of time for observation: Provided, That no person except
those authorized for the purpose may touch any ballot or ballot
card or other official records and papers utilized in the election
during observation.
(b) All persons who are engaged in processing and counting the
ballots are to work in teams consisting of two persons of opposite
political parties, and are to be deputized in writing and take an
oath that they will faithfully perform their assigned duties.
These deputies are to be issued an official badge or identification
card which is assigned an identity control number and the deputies
are to 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 are to be returned to
the county clerk.
(c) Ballots are to 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 are to 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 are to be delivered to the tabulator.
No write-in vote may be counted for an office unless the voter has
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 are to be removed from the boxes and stacked
for the tabulator which separates ballots containing marks for a
write-in position. Immediately after tabulation, the valid
write-in votes are to be tallied. No write-in vote may be counted
for an office unless the voter has 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 are to 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 are to
tally write-in ballots simultaneously with the other ballots;
(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 is 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 is to be duplicated or hand counted, with all
votes for that office rejected;
(5) Write-in votes for nomination for any office and write-in
votes for any person other than an official write-in candidate are
to be disregarded;
(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 is to be rejected, whether or
not a vote can be counted for a write-in candidate; and
(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 is to 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 are to be clearly labeled "duplicate" and are to bear
a serial number which is 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, are, when certified by the clerk of the
county commission, to constitute the official preliminary returns
of each precinct or election district. Further, all the returns
are to be printed on a precinct basis. Periodically throughout and
upon completion of the count, the returns are to be open to the
public by posting the returns as have been tabulated precinct by
precinct at the central counting center. Upon completion of the
canvass, the returns are to 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.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-10. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official primary ballot for each party and, as the case may
be, for the nonpartisan candidates to be voted for at the primary
election, according to the provisions of this article and articles
four and four-a of this chapter, as appropriate to the voting
system. If any ballot issue is to be voted on in the primary
election, the ballot commissioners shall likewise prepare a sample
official ballot for that issue according to the provisions of law
authorizing the election.
(b) The facsimile sample ballot for each political party and
for nonpartisan candidates or ballot issues shall be published as
follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, not more than twenty-six nor less than
twenty days preceding the primary election, the ballot commissioners shall publish each sample official primary election
ballot as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish weekly,
not more than twenty-six nor less than twenty days preceding the
primary election, the ballot commissioners shall publish the sample
official primary election ballot as a Class I legal advertisement
in the qualified newspaper within the county having the largest
circulation in compliance with the provisions of article three,
chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages and
shall be printed in a size no less than eighty percent of the
actual size of the ballot, at the discretion of the ballot
commissioners: Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts
in the appropriate order. If, in order to accommodate the size of
each ballot, the ballot or ballot pages must be divided onto more than one page, the arrangement and order shall be made to conform
as nearly as possible to the arrangement of the ballot. The
publisher of the newspaper shall submit a proof of the ballot and
the arrangement to the ballot commissioners for approval prior to
publication.
(c) The ballot commissioners of each county shall prepare, in
the form and manner prescribed by the secretary of state, an
official list of offices and candidates for each office which will
appear on the primary election ballot for each party and, as the
case may be, for the nonpartisan candidates to be voted for at the
primary election. All information which appears on the ballot,
including instructions as to the number of candidates for whom
votes may be cast for the office, any additional language which
will appear on the ballot below the name of the office, any
identifying information relating to the candidates, such as
residence, magisterial district or presidential preference, and the
ballot numbers of the candidates for punch card systems shall be
included in the list in the same order in which it appears on the
ballot. Following the names of all candidates, the list shall
include the full title, text and voting positions of any issue to
appear on the ballot.
(d) The official list of candidates and issues as provided in
subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers publish a daily newspaper, on the last day on which a newspaper is
published immediately preceding the primary election, the ballot
commissioners shall publish the official list of candidates and
issues as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish weekly,
on the last day on which a newspaper is published immediately
preceding the primary election, the ballot commissioners shall
publish the sample official list of nominees and issues as a Class
I legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(3) The publication of the official list of candidates for
each party and for nonpartisan candidates shall be in single or
double columns, as required to accommodate the type size
requirements as follows: (A) The words "official list of
candidates", the name of the county, the words "primary election",
the date of the election, the name of the political party or the
designation of nonpartisan candidates shall be printed in all
capital letters and in bold type no smaller than fourteen point.
The designation of the national, state, district or other tickets shall be printed in all capital letters in type no smaller than
fourteen point; (B) the title of the office shall be printed in
bold type no smaller than twelve point and any voting instructions
or other language printed below the title shall be printed in bold
type no smaller than ten point; and (C) the names of the candidates
shall be printed in all capital letters in bold type no smaller
than ten point and the residence information shall be printed in
type no smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than fourteen point. The text of the ballot
issue shall appear in no smaller than ten point type. The ballot
commissioners may require the publication of the ballot issue under
this subsection in the facsimile sample ballot format in lieu of
the alternate format.
(e) Notwithstanding the provisions of subsections (c) and (d)
of this section, beginning with the primary election to be held in
the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample ballot for each political
party and for nonpartisan candidates or ballot issues instead of
the official list of offices and candidates for each office for
purposes of the last publication required before any primary
election.
§3-5-13. Form and contents of ballots and ballot labels.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(a) The heading of every ballot is to be printed in display
type. The heading is to contain a ballot title, the name of the
county, the state, the words "Primary Election" and the month, day
and year of the election. The ballot title of the political party
ballots is to contain the words "Official Ballot of the (Name)
Party" and the official symbol of the political party may be
included in the heading. The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for
the board of education is to contain the words "Nonpartisan Ballot
of Election of Members of the ______________ County Board of
Education". The districts for which less than two candidates may
be elected and the number of available seats are to be specified
and the names of the candidates are to be printed without reference
to political party affiliation and without designation as to a
particular term of office. Any other ballot or portion of a ballot
on a question is to have a heading which clearly states the purpose
of the election according to the statutory requirements for that
question.
(b) (1) For paper ballots, the heading of the ballot is to be
separated from the rest of the ballot by heavy lines and the
offices shall be arranged in columns with the following headings,
from left to right across the ballot: "National Ticket", "State Ticket", "County Ticket" and, in a presidential election year,
"National Convention" or, in a nonpresidential election year,
"District Ticket". The columns are to be separated by heavy lines.
Within the columns, the offices are to be arranged in the order
prescribed in section thirteen-a of this article.
(2) For voting machines, electronic voting devices and any
ballot tabulated by electronic means, the offices are to appear in
the same sequence as prescribed in section thirteen-a of this
article and under the same headings as prescribed in subsection (a)
of this section. 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.
(3) The title of each office is to be separated from preceding
offices or candidates by a line and is to be printed in bold type
no smaller than eight point. Below the office is to be printed the
number of the district, if any, the number of the division, if any,
and the words "Vote for ________" with the number to be nominated
or elected or "Vote For Not More Than ________" in multicandidate
elections. For offices in which there are limitations relating to
the number of candidates which may be nominated, elected or
appointed to or hold office at one time from a political
subdivision within the district or county in which they are
elected, there is to be a clear explanation of the limitation, as prescribed by the secretary of state, printed in bold type
immediately preceding the names of the candidates for those offices
on the ballot in every voting system. For counties in which the
number of county commissioners exceeds three and the total number
of members of the county commission is equal to the number of
magisterial districts within the county, the office of county
commission is to be listed separately for each district to be
filled with the name of the magisterial district and the words
"Vote for One" printed below the name of the office.
(c) The location for indicating the voter's choices on the
ballot is to be clearly shown. For paper ballots, other than those
tabulated electronically, the official primary ballot is to contain
a square formed in dark lines at the left of each name on the
ballot, arranged in a perpendicular column of squares before each
column of names.
(d) (1) The name of every candidate certified by the secretary
of state or the board of ballot commissioners is to be printed in
capital letters in no smaller than eight-point type on the ballot
for the appropriate precincts. Subject to the rules promulgated by
the secretary of state, the name of each candidate is to appear in
the form set out by the candidate on the certificate of
announcement, but in no case may the name misrepresent the identity
of the candidate nor may the name include any title, position,
rank, degree or nickname implying or inferring any status as a member of a class or group or affiliation with any system of
belief.
(2) The city of residence of every candidate, the state of
residence of every candidate residing outside the state, the county
of residence of every candidate for an office on the ballot in more
than one county and the magisterial district of residence of every
candidate for an office subject to magisterial district limitations
are to be printed in lower case letters beneath the names of the
candidates.
(3) The arrangement of names within each office must be
determined as prescribed in section thirteen-a of this article.
(4) If the number of candidates for an office exceeds the
space available on a column or ballot label page and requires that
candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate
columns or pages are to be nearly equal and clear instructions
given the voter that the candidates for the office are continued on
the following column or page.
(e) When an insufficient number of candidates has filed for a
party to make the number of nominations allowed for the office or
for the voters to elect sufficient members to the board of
education or to executive committees, the vacant positions on the
ballot shall be filled with the words "No Candidate Filed":
Provided, That in paper ballot systems which allow for write-ins to be made directly on the ballot, a blank line shall be placed in any
vacant position in the office of board of education or for election
to any party executive committee. A line shall separate each
candidate from every other candidate for the same 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.
(f) In presidential election years, the words "For election in
accordance with the plan adopted by the party and filed with the
secretary of state" is to be printed following the names of all
candidates for delegate to national convention.
(g) All paper ballots are to be printed in black ink on paper
sufficiently thick so that the printing or marking cannot be
discernible from the back. Ballot cards and paper for printing
ballots using electronically sensible ink are to meet minimum
requirements of the tabulating systems.
(h) Ballots and ballot cards are to contain perforated tabs at
the top of the ballots and are to be printed with unique sequential
numbers from one to the highest number representing the total
number of ballots or ballot cards printed. On paper ballots, the
ballot is to be bordered by a solid line at least one sixteenth of an inch wide and the ballot is to be trimmed to within one-half
inch of that border.
(i) On the back of every official ballot or ballot card the
words "Official Ballot" with the name of the county and the date of
the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words "Poll
Clerks".
(j) Absent voters' ballots are to be in all respects like
other official ballots except that three blank lines are to be
printed on the back of the ballot or ballot card in the lower left
corner with the words "Ballot Commissioners" printed underneath.
(k) The face of sample paper ballots and sample ballot labels
are to be like other official ballots or ballot labels except that
the word "sample" is to be prominently printed across the front of
the ballot in a manner that ensures the names of candidates are not
obscured and the word "sample" may be printed in red ink. No
printing may be placed on the back of the sample.
§3-5-15. Ascertaining and certifying primary election results.
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 first process
the absentee ballots according to the provisions of section eight,
article three of this chapter. After the absentee ballots to be
counted have been deposited in the ballot box, the election
officers shall proceed to ascertain the result of the election in
the following manner:
(a) The receiving board shall ascertain from the poll books
and record separately on the proper form the total number of voters
of each party and nonpartisan voters who have voted.
(1) The number of provisional ballots of each party shall be
counted and subtracted from the number of voters of the same party,
which result should equal the number of ballots of that party
deposited in the ballot box.
(2) The total of all voters, including both partisan and
nonpartisan voters, minus the total of all provisional ballots,
should equal the number of nonpartisan ballots deposited in the
ballot box.
(3) The commissioners and clerks shall also report, over their
signatures, the number of each type of ballots spoiled and the number of each type of ballots not voted.
(b) 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 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. If properly signed, the commissioner shall
announce which type of ballot it is, and 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
nomination for any office and write-in votes for election for any
person other than an official write-in candidate shall be
disregarded;
(3) The commissioner responsible for removing the ballots from
the box shall keep a tally of the number of ballots of each party
and any nonpartisan ballot as they are removed, and whenever the
number of ballots of a particular party shall equal the number of
voters entered on the poll book for that party minus the number of provisional ballots of that party, 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 of each party 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;
(5) When the votes have been read from a ballot, the ballot
shall be immediately strung on a thread, with separate threads for
each party's ballots and for nonpartisan ballots.
(c) As soon as the results at the precinct are ascertained,
the commissioners and clerks shall make out and sign four
certificates of result, for each party represented, of the vote for
all candidates of each party represented, on a form prescribed by
the secretary of state, giving the complete returns of the election
at the polling place, which form shall include the following oath:
"We, the undersigned commissioners and poll clerks of the
primary election held at precinct No. ....................... of
........... district of ................... County, W.Va., on the
.......... day of ..............., 20...., do hereby certify that
having been first duly sworn, we have carefully and impartially ascertained the result of said election at said precinct for the
candidates on the official ballot of the .......................
party, and the same is as follows:
The election officers shall enter the name of each office and
the full name of each candidate on the ballot, and the number of
votes, in words and numbers, received by each. The election
officers shall also enter the full name of every official write-in
candidate for election to offices to be filled in the primary,
except delegate to national convention, and the number of votes for
each. Three of the certificates of result of election, for each
party, shall be sealed in separately addressed envelopes, furnished
for the purpose, and shall be disposed of by the precinct
commissioners as follows: One of the sealed envelopes containing
the returns of each party shall be delivered to the clerk of the
circuit court and two shall be delivered to the clerk of the county
commission who shall, within forty-eight hours, mail one of the
sealed returns for each precinct by certified mail to the secretary
of state. The one not sealed up shall be posted on the outside of
the front door of the polling place.
(d) All ballots voted for candidates of each party shall be
sealed up in separate envelopes and the commissioners and clerks
shall each sign across the seal.
§3-5-19. Vacancies in nominations; how filled; fees.
(a) If any vacancy shall occur in the party nomination of candidates for office nominated at the primary election or by
appointment under the provisions of section eleven of this article,
the vacancies may be filled, subject to the following requirements
and limitations:
(1) Each appointment made under this section shall be made by
the executive committee of the political party for the political
division in which the vacancy occurs: Provided, That if the
executive committee holds a duly called meeting in accordance with
section nine, article one of this chapter but fails to make an
appointment or fails to certify the appointment of the candidate to
the proper filing officer within the time required, the chairperson
of the executive committee may make the appointment not later than
two days following the deadline for the executive committee.
(2) Each appointment made under this section is complete only
upon the receipt by the proper filing officer of the certificate of
appointment by the executive committee, or its chairperson, as the
case may be, the certificate of announcement of the candidate as
prescribed in section seven of this article and, except for
appointments made under subdivision (4), (5), (6) or (7) of this
subsection, the filing fee or waiver of fee as prescribed in
section eight or eight-a of this article. The proper filing
officer is the officer with whom the original certificate of
nomination is regularly filed for that office.
(3) If a vacancy in nomination is caused by the failure of a candidate to file for an office, or by withdrawal of a candidate no
later than the third Tuesday following the close of candidate
filing pursuant to the provisions of section eleven of this
article, a nominee may be appointed by the executive committee and
certified to the proper filing officer no later than the Thursday
preceding the primary election.
(4) If a vacancy in nomination is caused by the
disqualification of a candidate and the vacancy occurs not later
than eighty-four days before the general election, a nominee may be
appointed by the executive committee and certified to the proper
filing officer not later than seventy-eight days before the general
election. A candidate may be determined ineligible if a written
request is made by an individual with information to show a
candidate's ineligibility to the state election commission no later
than ninety-five days before the general election explaining
grounds why a candidate is not eligible to be placed on the general
election ballot or not eligible to hold the office, if elected.
The state election commission shall review the reasons for the
request. If the commission finds the circumstances warrant the
disqualification of the candidate, the commission may authorize
appointment by the executive committee to fill the vacancy. Upon
receipt of the authorization a nominee may be appointed by the
executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
(5) If a vacancy in nomination is caused by the incapacity of
the candidate and if the vacancy occurs not later than eighty-four
days before the general election, a nominee may be appointed by the
executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
(6) If a vacancy in nomination is caused by the withdrawal of
the candidate no later than ninety-eight days before the general
election due to extenuating personal circumstances which will
prevent the candidate from serving in the office if elected and if
the candidate or the chairperson of the executive committee for the
political division applies in writing to the state election
commission no later than ninety-five days before the general
election for permission to remove the candidate's name from the
general election ballot, the state election commission shall review
the reasons for the request. If the commission finds the
circumstances warrant the withdrawal of the candidate, the
commission shall authorize appointment by the executive committee
to fill the vacancy. Upon receipt of the authorization, a nominee
may be appointed by the executive committee and certified to the
proper filing officer no later than seventy-eight days before the
general election.
(7) If a vacancy in nomination is caused by the death of the
candidate occurring no later than twenty-five days before the
general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than
twenty-one days following the date of death or no later than
twenty-two days before the general election, whichever date occurs
first.
(b) Except as otherwise provided in article ten of this
chapter, if any vacancy occurs in a partisan office or position
other than political party executive committee, which creates an
unexpired term for a position which would not otherwise appear on
the ballot in the general election, and the vacancy occurs after
the close of candidate filing for the primary election but not
later than eighty-four days before the general election, a nominee
of each political party may be appointed by the executive committee
and certified to the proper filing officer no later than
seventy-eight days before the general election. Appointments shall
be filed in the same manner as provided in subsection (a) of this
section, except that the filing fee shall be paid before the
appointment is complete.
(c) When a vacancy occurs in the board of education after the
close of candidate filing for the primary election but not later
than eighty-four days before the general election, a special
candidate filing period shall be established. Candidates seeking
election to any unexpired term for board of education shall file a
certificate of announcement and pay the filing fee to the clerk of
the circuit court no earlier than the first Monday in August and no later than seventy-seven days before the general election.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-3. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official general election ballot for all political party or
independent nominees, nonpartisan candidates for election, if any,
and all ballot issues to be voted for at the general election,
according to the provisions of this article and articles four and
four-a of this chapter, as appropriate to the voting system, and
for any ballot issue, according to the provisions of law
authorizing the election.
(b) The facsimile sample general election ballot shall be
published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, not more than twenty-six nor less than
twenty days preceding the general election, the ballot
commissioners shall publish the sample official general election
ballot as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish weekly,
not more than twenty-six nor less than twenty days preceding the primary election, the ballot commissioners shall publish the sample
official general election ballot as a Class I legal advertisement
in the qualified newspaper within the county having the largest
circulation in compliance with the provisions of article three,
chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages and
shall be printed in a size no less than eighty percent of the
actual size of the ballot, at the discretion of the ballot
commissioners: Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts
in the appropriate order. If, in order to accommodate the size of
each ballot, the ballot or ballot pages must be divided onto more
than one page, the arrangement and order shall be made to conform
as nearly as possible to the arrangement of the ballot. The
publisher of the newspaper shall submit a proof of the ballot and
the arrangement to the ballot commissioners for approval prior to
publication.
(c) The ballot commissioners of each county shall prepare, in
the form and manner prescribed by the secretary of state, an
official list of offices and nominees for each office which will appear on the general election ballot for each political party or
as independent nominees and, as the case may be, for the
nonpartisan candidates to be voted for at the general election:
(1) All information which appears on the ballot, including the
names of parties for which a straight ticket may be cast,
instructions relating to straight ticket voting, instructions as to
the number of candidates for whom votes may be cast for the office,
any additional language which will appear on the ballot below the
name of the office, any identifying information relating to the
candidates, such as residence, magisterial district or presidential
preference, and the ballot numbers of the candidates for punch card
systems shall be included in the list in the order specified in
subdivision (2) of this subsection. Following the names of all
candidates, the list shall include the full title, text and voting
positions of any issue to appear on the ballot.
(2) The order of the straight ticket positions, offices and
candidates for each office and the manner of designating the
parties shall be as follows: (A) The straight ticket positions
shall be designated "straight (party name) ticket", with the
parties listed in the order in which they appear on the ballot,
from left to right or from top to bottom, as the case may be; (B)
the offices shall be listed in the same order in which they appear
on the ballot; (C) the candidates within each office for which one
is to be elected shall be listed in the order they appear on the ballot, from left to right or from top to bottom, as the case may
be, and the candidate's political party affiliation or independent
status shall be indicated by the one or two letter initial
specifying the affiliation, placed in parenthesis to the right of
the candidate's name; and (D) the candidates within each office for
which more than one is to be elected shall be arranged by political
party groups in the order they appear on the ballot and the
candidate's affiliation shall be indicated as provided in part (C)
of this subdivision.
(d) The official list of candidates and issues as provided in
subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper is
published immediately preceding the general election, the ballot
commissioners shall publish the official list of nominees and
issues as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily paper, or
having only one or more qualified newspapers which publish weekly,
on the last day on which a newspaper is published immediately
preceding the general election, the ballot commissioners shall
publish the sample official list of nominees and issues as a Class I legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(3) The publication of the official list of nominees for each
party and for nonpartisan candidates shall be in single or double
columns, as required to accommodate the type size requirements as
follows: (A) The words "official list of nominees and issues", the
name of the county, the words "General Election" and the date of
the election shall be printed in all capital letters and in bold
type no smaller than fourteen point; (B) the designation of the
straight ticket party positions shall be printed in all capital
letters in bold type no smaller than twelve point and the title of
the office shall be printed in bold type no smaller than twelve
point and any voting instructions or other language printed below
the title shall be printed in bold type no smaller than ten point;
and (C) the names of the candidates and the initial within
parenthesis designating the candidate's affiliation shall be
printed in all capital letters in bold type no smaller than ten
point and the residence information shall be printed in type no
smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than twelve point. The text of the ballot
issue shall appear in no smaller than ten point type. The ballot commissioners may require the publication of the ballot issue under
this subsection in the facsimile sample ballot format in lieu of
the alternate format.
(e) Notwithstanding the provisions of subsections (c) and (d)
of this section, beginning with the general election to be held in
the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample general election ballot,
instead of the official list of candidates and issues, for purposes
of the last publication required before any general election.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in votes
to an office, except delegate to national convention, which is to
be filled in a primary, general or special election held under the
provisions of this chapter shall file a write-in candidate's
certificate of announcement as provided in this section. No
certificate of announcement may be accepted and no person may be
certified as a write-in candidate for a political party nomination
for any office or for election as delegate to national convention.
(a) The write-in candidate's certificate of announcement shall
be in a form prescribed by the secretary of state on which the
candidate shall make a sworn statement before a notary public or
other officer authorized to give oaths containing the following
information:
(1) The name of the office sought and the district and division, if any;
(2) The legal name of the candidate and the first and last
name by which the candidate may be identified in seeking the
office;
(3) The specific address designating the location at which the
candidate resides at the time of filing, including number and
street or rural route and box number and city, state and zip code;
(4) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith; and
(5) The words "subscribed and sworn to before me this ______
day of _____________, ____" and a space for the signature of the
officer giving the oath.
(b) The certificate of announcement shall be filed with the
filing officer for the political division of the office as
prescribed in section seven, article five of this chapter.
(c) The certificate of announcement shall be filed with and
received by the proper filing officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this
subsection, the certificate of announcement for any office shall be
received no later than the close of business on the twenty-first
day before the election at which the office is to be filled;
(2) When a vacancy occurs in the nomination of candidates for
an office on the ballot resulting from the death of the nominee or
from the disqualification or removal of a nominee from the ballot by a court of competent jurisdiction not earlier than the
twenty-first day nor later than the fifth day before the general
election, the certificate shall be received no later than the close
of business on the fifth day before the election or the close of
business on the day following the occurrence of the vacancy,
whichever is later;
(3) When a vacancy occurs in an elective office which would
not otherwise appear on the ballot in the election, but which
creates an unexpired term of one or more years which, according to
the provisions of this chapter, is to be filled by election in the
next ensuing election and the vacancy occurs no earlier than the
twenty-first day and no later than the fifth day before the general
election, the certificate shall be received no later than the close
of business on the fifth day before the election or the close of
business on the day following the occurrence of the vacancy,
whichever is later.
(d) Any eligible person who files a completed write-in
candidate's certificate of announcement with the proper filing
officer within the required time shall be certified by that filing
officer as an official write-in candidate:
(1) The secretary of state shall, immediately following the
filing deadline, post the names of all official write-in candidates
for offices on the ballot in more than one county and certify the
name of each official write-in candidate to the clerks of the circuit court of the appropriate counties.
(2) The clerk of the circuit court shall, immediately
following the filing deadline, post the names of all official
write-in candidates for offices on the ballot in one county and
certify and deliver to the clerk of the county commission and the
election officials of the appropriate precincts the names of all
official write-in candidates and the office sought by each for
statewide, district and county offices on the ballot in the
precinct for which valid write-in votes will be counted and the
names shall be posted at the office where absentee voting is
conducted and at the precincts in accordance with section twenty,
article one of this chapter.
§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 the
party except for offices for which candidates are marked on other
party tickets and the marks for the 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 or 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, the 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, 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) 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 the 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) 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.
§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, the 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 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 provisional 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.
§3-6-7. Ballot irregularities; procedures.
If two or more ballots are found folded or rolled together and
the names voted for thereon be the same, one of them only shall be
counted; but if the names voted for thereon be different, in any
particular, neither of them shall be counted except as hereinbefore
provided; and in either case, the commissioners of election shall,
in writing in ink, place a common number on the ballots and state
thereon that they were folded or rolled together when voted. If
any ballot be found to contain more than the proper number of names
for any office, the ballot shall not be counted as to the office.
In any election for state senator, if a person is voted for on any
ballot who is not a resident of the proper county, as required by
section four, article VI of the constitution, the ballot shall not
be counted for the office. Any ballot or part of a ballot from
which it is impossible to determine the elector's choice of
candidates shall not be counted as to the candidates affected
thereby.
§3-6-9. Canvass of returns; declaration of results; recounts;
recordkeeping.
(a) The commissioners of the county commission shall be ex officio a board of canvassers and, as such, shall keep in a well-
bound book, marked "election record", a complete record of all
their proceedings in ascertaining and declaring the results of
every election in their respective counties. They shall convene as
the canvassing board at the courthouse on the fifth day (Sundays
excepted) after every election held in their county, or in any
district thereof, and the officers in whose custody the ballots,
pollbooks, registration records, tally sheets and certificates have
been placed shall lay them before the board for examination. They
may, if considered necessary, require the attendance of any of the
commissioners, poll clerks or other persons present at the election
to appear and testify respecting the election and make other orders
as shall seem proper to procure correct returns and ascertain the
true results of the election in their county; but in this case all
the questions to the witnesses and all the answers thereto and
evidence shall be taken down in writing and filed and preserved.
All orders made shall be entered upon the record. They may
adjourn, from time to time, but no longer than absolutely
necessary. When a majority of the commissioners are not present,
the meeting shall stand adjourned until the next day and so from
day to day, until a quorum is present. All meetings of the
commissioners sitting as a board of canvassers shall be open to the
public. The board shall proceed to open each sealed package of
ballots laid before them and, without unfolding them, count the number in each package and enter the number upon their record. The
ballots shall then be again sealed up carefully in a new envelope
and each member of the board shall write his or her name across the
place where the envelope is sealed. After canvassing the returns
of the election, the board shall publicly declare the results of
the election; however, they shall not enter an order certifying the
election results for a period of forty-eight hours after the
declaration.
(b) Within the 48-hour period a candidate voted for at the
election may demand the board to open and examine any of the sealed
packages of ballots and recount them; but they shall seal the
ballots again, along with the envelope above named, and the clerk
of the county commission and each member of the board shall write
his or her name across the places where it is sealed and endorse in
ink, on the outside: "Ballots of the election held at precinct
No.____, in the district of _______________, and county of
_______________, on the ____________ day of _____________." In
computing the 48-hour period as used in this section, Saturdays,
Sundays and legal holidays shall be excluded: Provided, That at the
end of the 48-hour period, an order shall be entered certifying all
election results except for those offices in which a recount has
been demanded.
(c) If a recount has been demanded, the board shall have an
additional twenty-four hours after the end of the 48-hour period in which to send notice to all candidates who filed for the office in
which a recount has been demanded of the date, time and place where
the board will convene to commence the recount. The notice shall
be served under the provisions of subdivision (d) of this section.
The recount shall be set for no sooner than three days after the
serving of the notice: Provided, That after the notice is served,
candidates so served shall have an additional twenty-four hours in
which to notify the board, in writing, of their intention to
preserve their right to demand a recount of precincts not requested
to be recounted by the candidate originally requesting a recount of
ballots cast: Provided, however, That there shall be only one
recount of each precinct, regardless of the number of requests for
a recount of any precinct. A demand for the recount of ballots
cast at any precinct may be made during the recount proceedings
only by the candidate originally requesting the recount and those
candidates who notify the board, pursuant to this subdivision, of
their intention to preserve their right to demand a recount of
additional precincts.
(d) Any sheriff of the county in which the recount is to occur
shall deliver a copy thereof in writing to the candidate in person;
or if the candidate is not found, by delivering the copy at the
usual place of abode of the candidate and giving information of its
purport, to the spouse of the candidate or any other person found
there who is a member of his or her family and above the age of sixteen years; or if neither the spouse of the candidate nor any
other person be found there and the candidate is not found, by
leaving the copy posted at the front door of the place of abode.
Any sheriff, thereto required, shall serve a notice within his or
her county and make return of the manner and time of service; for
a failure so to do, he or she shall forfeit twenty dollars. The
return shall be evidence of the manner and time of service.
(e) Every candidate who demands a recount shall be required to
furnish bond in a reasonable amount with good sufficient surety to
guarantee payment of the costs and the expenses of the recount in
the event the result of the election is not changed by the recount;
but the amount of the bond shall in no case exceed three hundred
dollars.
(f) After the board of canvassers has made their certificates
and declared the results as hereinafter provided, they shall
deposit the sealed packages of ballots, absent voter ballots,
registration records, pollbooks, tally sheets and precinct
certificates with the clerks of the county commissions and circuit
courts from whom they were received, who shall carefully preserve
them for twenty-two months: Provided, That the clerk may use these
records to update the voter registration records in accordance with
subsection (d), section eighteen, article two of this chapter. If
there is no contest pending as to any election and their further
preservation is not required by any order of a court, the ballots, pollbooks, tally sheets and certificates shall be destroyed by fire
or otherwise, without opening the sealed packages of ballots. If
there is a contest pending, they shall be destroyed as soon as the
contest is ended.
(g) If the result of the election is not changed by the
recount, the costs and expenses thereof shall be paid by the party
at whose instance the recount was made.
ARTICLE 7. CONTESTED ELECTIONS.
§3-7-1. Contests for state offices and judgeships; procedure.
If the election of governor, secretary of state, treasurer,
auditor, attorney general, commissioner of agriculture, a judge of
the supreme court of appeals or a judge of a circuit court, is
contested, the contestant shall give notice, with specifications
and affidavit, to the person whose election is contested within ten
days after the election is certified and within ten days thereafter
the return notice shall be given to the contestant. The parties
shall finish taking depositions within forty days after the notice
is delivered. The depositions shall be transmitted to the clerk of
the House of Delegates, to be delivered by him or her to the joint
committee or special court hereinafter provided for. In other
respects the regulations contained in this article respecting
contests for a seat in the Legislature shall be observed, so far as
they are applicable.
§3-7-4. Contests of seats in Legislature; notices and procedure.
Any person intending to contest the election of another as
senator or delegate shall, within ten days after the election is
certified, give him or her notice thereof in writing and a list of
the votes he or she will dispute, with the objections to each, and
of the votes rejected for which he or she will contend. If the
contestant objects to the legality of the election or the
qualification of the person returned, the notice shall set forth
the facts on which the objection is founded. The person whose
election is contested shall, within ten days after receiving the
notice, deliver to the contestant a like list of the votes he or
she will dispute and of the objection to each, and of the rejected
votes he or she will claim; and, if he or she has any objection to
the qualification of the contestant, shall specify in the notice
the facts on which the objection is founded. Each party shall
append to the notice an affidavit that the matters therein set
forth, so far as they are stated of his or her knowledge, are true
and that, so far as they are stated on the information of others,
he or she believes them to be true. If new facts are discovered by
either party after he or she has given notice, he or she may give
an additional notice or notices to his or her adversary, with
specifications and affidavit as above prescribed.
The notice of contest shall be presented to the proper branch
of the Legislature, within ten days after its meeting.
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-2. Accounts for receipts and expenditures in elections;
requirements for reporting independent expenditures.
(a) Except candidates for party committeemen and
committeewomen, in primary and other elections and federal
committees required to file under the provisions 2 U. S. C. §434,
all candidates for nomination or election and all persons or
organizations of any kind advocating or opposing a nomination,
election or defeat of any candidate shall keep records of receipts
and expenditures which are made for political purposes. All of the
receipts and expenditures are subject to regulation by the
provisions of this article. Verified financial statements of the
records and expenditures shall be made and filed as public records
by all candidates and by their financial agents, representatives or
any person acting for and on behalf of any candidate and by the
treasurers of all political party committees.
(b) In addition to any other reporting required by the
provisions of this chapter, any independent expenditure in the
amount of one thousand dollars or more for any statewide,
legislative or multicounty judicial candidate or in the amount of
five hundred dollars or more for any county office, single-county
judicial candidate, committee supporting or opposing a candidate on
the ballot in more than one county, any municipal candidate on a
municipal election ballot, which is made after the eleventh day but
more than twelve hours before the day of any election shall be reported, on a form prescribed by the secretary of state, within
twenty-four hours after the expenditure is made or debt is incurred
for a communication, to the secretary of state by hand-delivery,
facsimile or other means to assure receipt by the secretary of
state within the 24-hour period.
(c) For purposes of this section, "independent expenditure"
means an expenditure made by a person other than a candidate or
committee for a communication which expressly advocates the
election or defeat of a clearly identified candidate but which is
made independently of a candidate's campaign and which has not been
made with the cooperation or consent of, or in consultation with,
or at the request or suggestion of, any candidate or any of his or
her agents or authorized committees. An expenditure which does not
meet the criteria for independence established in this subsection
is considered a contribution.
(d) Any independent expenditure must include a clear and
conspicuous public notice which identifies the name of the person
who paid for the expenditure and states that the communication is
not authorized by the candidate or his or her committee.
§3-8-4. Treasurers and financial agents; written designation
requirements; "person" and "financial agent" defined.
(a) No person shall act as the treasurer of any political
committee, or as financial agent for any candidate for nomination
or election to any office to be filled by the voters of the entire state, or candidates for nomination or election for any office,
encompassing an election district larger than a county, or
candidates for nomination for legislative office, or any person or
organization advocating or opposing the nomination, election or
defeat of any candidate, encompassing an election district larger
than a county, unless a written statement designating him or her as
the treasurer or financial agent is filed with the secretary of
state at least twenty-eight days before the election at which he or
she is to act and must be received before midnight, eastern
standard time, of that day or if mailed, shall be postmarked before
that hour: Provided, That a change of treasurer may be made at any
time by filing a written statement with the secretary of state.
(b) No person shall act as treasurer of any committee or as
financial agent for any candidate to be nominated or elected by the
voters of a county or a district therein, except legislative
candidates, or as the treasurer or financial agent for a candidate
for the nomination or election to any other office, unless a
written statement designating him or her as the treasurer or
financial agent is filed with the clerk of the county commission at
least twenty-eight days before the election at which he or she is
to act and must be received before midnight, eastern standard time,
of that day or if mailed, shall be postmarked before that hour:
Provided, That a change of treasurer may be made at any time by
filing a written statement with the clerk of the county commission.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, a filing designating a treasurer or financial
agent for a state or county political executive committee may be
made anytime before the committee either accepts or spends funds on
behalf of the committee. Once a designation is made by a state or
county political executive committee, no additional designations
are required under this section until a successor treasurer or
financial agent is designated. A state or county political
executive committee may terminate a designation made pursuant to
this section by making a written request to terminate the
designation and by stating in the request that the committee has no
funds remaining in the committee's account. This written request
shall be made with either the secretary of state or the clerk of
the county commission as provided by subsections (a) and (b) of
this section.
(d) As used in this article:
The term "person" means an individual, partnership, committee,
association, corporation, and any other organization or group of
persons; and
The term "financial agent" means any person acting for and by
himself or herself, or any two or more natural persons acting
together or cooperating in a financial way to aid or take part in
the nomination or election of any candidate for public office, or
to aid or promote the success or defeat of any political party or principle at any election, or any proposition submitted to a vote
at a public election.
§3-8-5. Detailed accounts and verified financial statements
required.
(a) Every candidate, financial agent, person and association
of persons, organization of any kind, including every corporation,
directly or indirectly, supporting a political committee
established pursuant to paragraph (C), subdivision (1), subsection
(b), section eight of this article or engaging in other activities
permitted by this section and also including the treasurer or
equivalent officer of the association or organization, advocating
or opposing the nomination, election or defeat of any candidate,
and the treasurer of every political party committee shall keep
detailed accounts of every sum of money or other thing of value
received by him or her, including all loans of money or things of
value, and of all expenditures and disbursements made, liabilities
incurred, by the candidate, financial agent, person, association or
organization or committee, for political purposes, or by any of the
officers or members of the committee, or any person acting under
its authority or on its behalf.
(b) Every person or association of persons required to keep
detailed accounts under this section shall file with the officers
hereinafter prescribed a detailed itemized sworn statement,
according to the following provisions and times:
(1) On the last Saturday in March or within six days
thereafter, and annually whenever the total of all financial
transactions relating to an election exceed five hundred dollars a
statement which shall include all financial transactions which have
taken place by the date of that statement, subsequent to any
previous statement filed within the previous five years under this
section;
(2) Not less than ten nor more than seventeen days preceding
each primary or other election, a statement which shall include all
financial transactions which have taken place by the date of the
statement, subsequent to the previous statement, if any;
(3) Not less than twenty-five nor more than thirty-one days
after each primary or other election, a statement which shall
include all financial transactions which have taken place by the
date of the statement, subsequent to the previous statement; and
(4) On the first Saturday in September or within six days
thereafter, preceding the general election day whenever the total
of all financial transactions relating to an election exceed five
hundred dollars or whenever any loans are outstanding, a statement
which shall include all financial transactions which have taken
place by the date of the statement, subsequent to the previous
statement.
(c) Every person who shall announce as a write-in candidate
for any elective office and his or her financial agent or election organization of any kind shall comply with all of the requirements
of this section after public announcement of the person's candidacy
has been made.
(d) For purposes of this section, the term "financial
transactions" includes all contributions or loans received and all
repayments of loans or expenditures made to promote the candidacy
of any person by any candidate or any organization advocating or
opposing the nomination, election or defeat of any candidate to be
voted on.
§3-8-12. Additional acts forbidden; circulation of written matter;
newspaper advertising; solicitation of contributions;
intimidation and coercion of employees; promise of employment
or other benefits; limitations on contributions; public
contractors; penalty.
(a) No person may publish, issue or circulate, or cause to be
published, issued or circulated, any anonymous letter, circular,
placard, radio or television advertisement or other publication
expressly advocating the election or defeat of a clearly identified
candidate.
(b) No owner, publisher, editor or employee of a newspaper or
other periodical may insert, either in its advertising or reading
columns, any matter, paid for or to be paid for, which tends to
influence the voting at any election, unless directly designating
it as a paid advertisement and stating the name of the person authorizing its publication and the candidate in whose behalf it is
published.
(c) No person may, in any room or building occupied for the
discharge of official duties by any officer or employee of the
state or a political subdivision of the state, solicit orally or by
written communication delivered within the room or building, or in
any other manner, any contribution of money or other thing of value
for any party or political purpose, from any postmaster or any
other officer or employee of the federal government, or officer or
employee of the state, or a political subdivision of the state. No
officer, agent, clerk or employee of the federal government, or of
this state, or any political subdivision of the state, who may have
charge or control of any building, office or room, occupied for any
official purpose, may knowingly permit any person to enter any
building, office or room, occupied for any official purpose for the
purpose of soliciting or receiving any political assessments from,
or delivering or giving written solicitations for, or any notice
of, any political assessments to, any officer or employee of the
state, or a political subdivision of the state.
(d) Except as provided in section eight of this article, no
person entering into any contract with the state or its
subdivisions, or any department or agency of the state, either for
rendition of personal services or furnishing any material, supplies
or equipment or selling any land or building to the state, or its subdivisions, or any department or agency of the state, if payment
for the performance of the contract or payment for the material,
supplies, equipment, land or building is to be made, in whole or in
part, from public funds may, during the period of negotiation for
or performance under the contract or furnishing of materials,
supplies, equipment, land or buildings, directly or indirectly,
make any contribution to any political party, committee or
candidate for public office or to any person for political purposes
or use; nor may any person or firm solicit any contributions for
any purpose during any period.
(e) No person may, directly or indirectly, promise any
employment, position, work, compensation or other benefit provided
for, or made possible, in whole or in part, by act of the
Legislature, to any person as consideration, favor or reward for
any political activity for the support of or opposition to any
candidate, or any political party in any election.
(f) No person may, directly or indirectly, make any
contribution in excess of the value of one thousand dollars in
connection with any campaign for nomination or election to or on
behalf of any statewide or national elective office, or in excess
of the value of one thousand dollars, in connection with any other
campaign for nomination or election to or on behalf of any other
elective office in the state or any of its subdivisions, or in
connection with or on behalf of any committee or other organization or person engaged in furthering, advancing or advocating the
nomination or election of any candidate for any of the offices.
(g) (1) Notwithstanding the provisions of subsection (f) of
this section to the contrary, the aggregate contributions made to
a state party executive committee or state party legislative caucus
committee are to be permitted only pursuant to the limitations
imposed by the provisions of this subsection.
(2) No person may, directly or indirectly, make contributions
to a state party executive committee or state party legislative
caucus committee which, in the aggregate, exceed the value of one
thousand dollars in any calendar year.
(h) The limitations on contributions contained in this section
do not apply to transfers between and among a state party executive
committee or a state party's legislative caucus political committee
from national committees of the same political party: Provided,
That transfers permitted by this subsection may not exceed fifty
thousand dollars in the aggregate in any calendar year to any state
party executive committee or state party legislative caucus
political committee: Provided, however, That the moneys transferred
may only be used for voter registration and get-out-the-vote
activities of the state committees.
(i) No person may solicit any contribution from any
nonelective salaried employee of the state government or of any of
its subdivisions or coerce or intimidate any nonelective salaried employee into making a contribution. No person may coerce or
intimidate any nonsalaried employee of the state government or any
of its subdivisions into engaging in any form of political
activity. The provisions of this subsection may not be construed
to prevent any employee from making a contribution or from engaging
in political activity voluntarily, without coercion, intimidation
or solicitation.
(j) No person may solicit a contribution from any other person
without informing the other person at the time of the solicitation
of the amount of any commission, remuneration or other compensation
that the solicitor or any other person will receive or expect to
receive as a direct result of the contribution being successfully
collected. Nothing in this subsection may be construed to apply to
solicitations of contributions made by any person serving as an
unpaid volunteer.
(k) No person may place any letter, circular, flyer,
advertisement, election paraphernalia, solicitation material or
other printed or published item tending to influence voting at any
election in a roadside receptacle unless it is: (1) Approved for
placement into a roadside receptacle by the business or entity
owning the receptacle; and (2) contains a written acknowledgment of
the approval. This subdivision does not apply to any printed
material contained in a newspaper or periodical published or
distributed by the owner of the receptacle. The term "roadside receptacle" means any container placed by a newspaper or periodical
business or entity to facilitate home or personal delivery of a
designated newspaper or periodical to its customers.
(l) Any person violating any provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in a regional
or county jail for not more than one year, or, in the discretion of
the court, be subject to both fine and confinement.
ARTICLE 10. FILLING VACANCIES.
§3-10-7. Vacancies in offices of county commissioner and clerk of
county commission.
Any vacancy in the office of county commissioner or clerk of
county commission shall be filled by the county commission of the
county, unless the number of vacancies in a county commission
deprive that body of a quorum, in which case the governor of the
state shall fill any vacancy in the county commission necessary to
create a quorum thereof. Persons appointed shall be of the same
political party as the officeholder vacating the office and shall
continue in office until the next general election is certified, or
until the completion of the term if the term ends on the
thirty-first day of December following the next general election :
Provided, That in the event a quorum of the county commission
cannot agree upon a person to fill a vacancy in the office of
county commissioner it shall be the mandatory, nondiscretionary duty of each county commissioner, within sixty days from the date
the vacancy occurs, to submit in person to the chief judge of the
circuit court of the county, the name of one person who is a member
of the same political party as was the person whose vacancy is
being filled and was such member for at least one year next
preceding the filling of the vacancy and who is legally qualified
and willing to fill the vacancy. The judge shall thereupon, in the
presence of the quorum of the county commission, cause each name to
be written on a separate piece of paper, shall fold or roll up the
pieces of paper so as to resemble each other and so that the name
written thereon shall not be visible on the outside, and shall
deposit the pieces of paper in a box from which one of the county
commissioners, selected by lot under the supervision of the judge,
shall, in the presence of each other and the judge, draw one of the
names. The person whose name is so drawn shall be the county
commission's choice to fill the vacancy. The circuit court shall
have jurisdiction to compel compliance with the provisions of this
proviso.
Notice of the election shall be given by order of the county
commission and published as prescribed in section six of this
article. Nomination of candidates to fill the office for an
unexpired term in the office of county commissioner or clerk of the
county commission shall be made in the manner prescribed for making
nominations to fill a vacancy in the office of the clerk of the circuit court.
In the event that the election for an unexpired term is held
at the same time as the election for a full term for county
commissioner, the full term shall be counted first and the
unexpired term shall be counted second. If the candidate with the
highest number of votes for the unexpired term resides in the same
magisterial district as the candidate with the highest number of
votes for the full term, the candidate for the full term shall be
seated. The candidate with the next highest number of votes for
the unexpired term residing in a different magisterial district
shall be seated for the unexpired term.
§3-10-8. Vacancies in offices of prosecuting attorney, sheriff,
assessor and surveyor.
Any vacancy occurring in the office of prosecuting attorney,
sheriff, assessor or county surveyor shall be filled by the county
commission by appointment of a person of the same political party
as the officeholder vacating the office. The appointed person
shall hold the office until the next general election is certified,
or until the completion of the term if the term ends on the
thirty-first day of December following the next general election.
Notice of an election to fill a vacancy in any of the offices named
in this section shall be given by the county commission, or by the
president thereof in vacation, and published or posted in the
manner prescribed in section six of this article. Nomination of candidates to fill any vacancy shall be made in the manner
prescribed in section six of this article for nominating candidates
to fill a vacancy in the office of the clerk of the circuit court.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality
desiring to have territory annexed thereto may file a petition in
writing with the governing body thereof setting forth the change
proposed in the metes and bounds of the municipality and asking
that a vote be taken upon the proposed change. The petition shall
be verified and shall be accompanied by an accurate survey map
showing the territory to be annexed to the corporate limits by the
proposed change.
(b) The petitioners shall obtain a surety bond in an amount
set by the governing body sufficient to cover the cost of the
election. The bond shall be forfeited if a majority of the votes
cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, order
a vote of the qualified voters of the municipality to be taken upon
the proposed annexation on a date and at a time and place to be
named in the order.
(d) The governing body shall, at the same time, order a vote of all of the qualified voters of the additional territory and of
all of the freeholders of the additional territory whether they
reside or have a place of business therein or not, to be taken upon
the question on the same day at some convenient place in or near
the additional territory.
(e) The governing body shall cause the order for the election
to be published, at the cost of the municipality, as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is
the municipality and the additional territory. The first
publication must be at least fourteen days prior to the date upon
which the vote is to be taken. The order for the election shall
contain an accurate description by metes and bounds of the
additional territory proposed to be annexed to the corporate limits
by the proposed change, a summary of the municipality's plan for
providing services to the additional territory and, if practicable,
shall also contain a popular description of the additional
territory.
(f) The election shall be held, superintended and conducted
and the results thereof ascertained, certified, returned and
canvassed in the same manner by the same individuals as elections
for municipal officers. The election is reviewable by the circuit
court of the county in which the municipality or the major portion
thereof, including the area proposed to be annexed, is located. The order may be reviewed by the circuit court as an order of a
county commission ordering an election may be reviewed under
section sixteen, article five of this chapter.
(g) The ballots, or ballot labels where voting machines are
used, shall have written or printed on them the words:
/ / For Annexation
/ / Against Annexation
(h) Any freeholder which is a firm or corporation may vote by
its manager, president or executive officer duly designated in
writing by the firm or corporation.
(i) An individual who is a qualified voter and freeholder of
the municipality or the additional territory shall be entitled to
vote only once.
(j) For purposes of this section, the term "qualified voter of
the additional territory" includes a firm or corporation in the
additional territory regardless of whether the firm or corporation
is a freeholder. A firm or corporation may vote by its manager,
president, or executive officer duly designated in writing by the
firm or corporation. In any instance where a freeholder leases or
rents real property to a firm or corporation the freeholder and the
firm or corporation shall determine which entity will be entitled to vote in the annexation election.
(k) When an election is held in any municipality in accordance
with the provisions of this section, another election relating to
the same proposed change or any part thereof shall not be held for
a period of one year.
(l) If a majority of all of the legal votes cast in the
municipality and a majority of all the legal votes cast in the
territory are in favor of the proposed annexation, then the
governing body shall proceed as specified in the immediately
succeeding section of this article.