ENROLLED
Senate Bill No. 788
(By Senators Oliverio, Kessler, Dempsey, Fanning, Foster, Hunter,
Jenkins,
Minard, White, Barnes, Caruth and Weeks)
____________
[Passed March 10, 2006; in effect from passage.]
_____________
AN ACT to amend and reenact §3-1-46 of the Code of West Virginia,
1931, as amended; to amend and reenact §3-2-5 and §3-2-10 of
said code; to amend and reenact §3-3-8 of said code; to amend
and reenact §3-5-23 of said code; and to amend and reenact §3-
8-10 of said code, all relating generally to elections;
establishing training requirements for county clerks; making
amendments to conform to requirements of the Help America Vote
Act; clarifying requirements for voter registration drives;
providing penalties for voter registration violations;
clarifying use of excess campaign contribution funds;
clarifying processing of absentee ballots; and making
technical corrections.
Be it enacted by the Legislature of West Virginia:
That §3-1-46 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §3-2-5 and §3-2-10 of said code be
amended and reenacted; that §3-3-8 of said code be amended and
reenacted; that §3-5-23 of said code be amended and reenacted; and that §3-8-10 of said code be amended and reenacted, all to read as
follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-46. Training program for election officials.
(a) The Secretary of State in conjunction with the State
Election Commission shall produce one or more audio-visual programs
which explain and illustrate the procedures for conducting
elections, the duties of the various election officials and the
methods of voting on each voting system in use in the state.
(b) One copy of the appropriate training program shall be
distributed to and kept and preserved by the clerk of the county
commission of each county. The program shall be shown to all
election officials before each election as part of their
instructional program. The clerk of the county commission shall
conduct an adequate number of sessions to train all election
officials shall schedule the regular sessions not less than seven
days before each election and shall notify all election officials
of the exact date, time and place such instructional program will
be conducted.
(c) No person may serve as an election commissioner or poll
clerk in any election unless he or she has attended the
instructional program required by subsection (a) of this section.
If an election official fails to attend the instructional program,
another person shall be appointed in the election official's place
in the same manner as persons are appointed under the provisions of
section thirty of this article to replace election officials refusing to serve and the clerk of the county commission shall
conduct an additional instructional program within seven days prior
to the election for any such person so appointed: Provided, That in
cases of emergency when no person who has attended the
instructional program for that election is available to fill a
vacancy on the election board, the clerk of the county commission
may appoint such person as a commissioner or poll clerk
notwithstanding that such person has not received the instruction.
(d) The requirements of this section apply to all elections
conducted by municipalities, except that the recorder or municipal
clerk responsible for the election shall perform the duties of the
clerk of the county commission defined in this section. The clerk
of the county commission may assist the recorder or municipal clerk
in conducting the instructional program.
(e) When the instructional program is not being used by the
clerk for instructional purposes, it shall be available to any duly
organized civic, religious, educational or charitable group without
charge, except that the clerk shall require a cash deposit on such
use in an amount to be determined by the secretary of state.
(f) The Secretary of State shall cause the instructional
program to be amended, edited or reproduced whenever he or she is
of the opinion such revision is necessary in light of changes in
the election laws of this state.
(g) No elected official may appear in such program either in
person or by visual image or by name.
(h) Every county clerk shall attend a training, to be conducted by the Secretary of State every two years, for the
purpose of reviewing the election official training and receiving
updates on election law matters.
ARTICLE 2. REGISTRATION OF VOTERS.
§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 applicant's driver's license number or if the
applicant does not have a driver's license, then the last four
digits of the applicant's social security 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.
§3-2-10. 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 two hundred 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
shall also require the entity or organization requesting the forms
to provide contact information on a form prescribed by the
Secretary of State. 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 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, 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,
submitted with the ballot.
(h) An individual who desires to vote in person or by mail,
but who does not meet the requirements of subsection (g) of this
section, may cast a provisional ballot.
(i) Subsection (g) of this section does 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) of this subdivision
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 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 may 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.
(k) On and after the first day of July, two thousand six, any
person who agrees to mail or to deliver a signed voter registration
application to the Secretary of State or the clerk of the county
commission and who intentionally interferes with the applicant's
effort to register either by destroying the application or by
failing to mail or to deliver the application in a timely manner is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in a jail for
not more than one year, or both. For purposes of this subsection,
the mailing or delivery of an application is timely if it is mailed
or delivered within fifteen days after the applicant signs the
application or in accordance with the provisions of article two,
chapter three of this code for processing before the closing of the
registration records for the pending election, whichever comes
first.
(l) On or after the first day of July, two thousand six, any
person who intentionally solicits multiple registrations from any
one person or who intentionally falsifies a registration
application is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars, or confined in jail for not more than one year, or both.
ARTICLE 3. VOTING BY ABSENTEES.
§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 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.
(c) In counties using direct recording elections systems, the
absentee ballots shall be counted as follows:
1) On election day, the ballot boxes containing the paper
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) Each absentee ballot shall be recorded on a direct
recording voting terminal designated by the clerk of the county
commission as the terminal for absentee tabulations, after being
read aloud by a separate team of two representatives of opposite
political parties; and
3) The ballot shall be verified by both teams as being
accurately printed on the paper receipt before the ballot is
tabulated; and
4) The appropriate election officials shall follow the
procedures set out in subsections (a), (b), (d) and (e), section
twenty-seven, article four-a of this chapter and subdivisions (3),
(4), (5) and (6), subsection (c) of said section.
(d) The provisional ballots shall be deposited in a
provisional ballot envelope and delivered to the board of
canvassers.
(e) 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.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-23. Certificate nominations; requirements and control;
penalties.
(a) Groups of citizens having no party organization may
nominate candidates for public office otherwise than by conventions
or primary elections. In the case, the candidate or candidates,
jointly or severally, shall file a declaration with the Secretary
of State if the office is to be filled by the voters of more than
one county, or with the clerk of the county commission of the
county if the office is to be filled by the voters of one county or
political subdivision thereof; the
declaration to be filed at least
thirty days prior to the time of filing the certificate provided by
section twenty-four of this article: Provided, That the deadline
for filing the certificate for persons seeking ballot access as a
candidate for the office of President or Vice President shall be
filed not later than the first day of August preceding the general
election. At the time of filing of the
declaration each candidate
shall pay the filing fee required by law, and if the
declaration is
not so filed or the filing fee so paid, the certificate shall not
be received by the Secretary of State, or clerk of the county
commission, as the case may be.
(b) The person or persons soliciting or canvassing signatures
of duly qualified voters on the certificate or certificates, may
solicit or canvass duly registered voters residing within the
county, district or other political division represented by the
office sought, but must first obtain from the clerk of the county
commission credentials which must be exhibited to each voter canvassed or solicited, which credentials may be in the following
form or effect:
State of West Virginia, County of ................., ss:
This certifies that the holder of this credential is hereby
authorized to solicit and canvass duly registered voters residing
in .................... (here place the county, district or other
political division represented by the office sought) to sign a
certificate purporting to nominate ............................
(here place name of candidate heading list on certificate) for the
office of ......................... and others, at the general
election to be held on ..................., 20......
Given under my hand and the seal of my office this
................ day of ........................., 20......
.................................................
Clerk, County Commission of ............. County.
The clerk of each county commission, upon proper application
made as herein provided, shall issue such credentials and shall
keep a record thereof.
(c) The certificate shall be personally signed by duly
registered voters, in their own proper handwriting or by their
marks duly witnessed, who must be residents within the county,
district or other political division represented by the office
sought wherein the canvass or solicitation is made by the person or
persons duly authorized. The signatures need not all be on one
certificate. The number of signatures shall be equal to not less
than two percent of the entire vote cast at the last preceding general election for the office in the state, district, county or
other political division for which the nomination is to be made,
but in no event shall the number be less than twenty-five. The
number of signatures shall be equal to not less than two percent of
the entire vote cast at the last preceding general election for any
statewide, congressional or presidential candidate, but in no event
shall the number be less than twenty-five. Where two or more
nominations may be made for the same office, the total of the votes
cast at the last preceding general election for the candidates
receiving the highest number of votes on each ticket for the
office
shall constitute the entire vote. No signature on a certificate
shall be counted unless it be that of a duly registered voter of
the county, district or other political division represented by the
office sought wherein the certificate was presented.
(d) The certificates shall state the name and residence of
each of the candidates; that he or she is legally qualified to hold
the office; that the subscribers are legally qualified and duly
registered as voters and desire to vote for the candidates; and may
designate, by not more than five words, a brief name of the party
which the
candidates represent and may adopt a device or emblem to
be printed on the official ballot. All candidates nominated by the
signing of the
certificates shall have their names placed on the
official ballot as candidates, as if otherwise nominated under the
provisions of this chapter.
The Secretary of State shall prescribe the form and content of
the nomination certificates to be used for soliciting signatures.
Offices to be filled by the voters of more than one county
shall use separate petition forms for the signatures of qualified
voters for each county.
(e) The Secretary of State, or the clerk of the county
commission, as the case may be, may investigate the validity of the
certificates and the signatures thereon. If, upon investigation,
there is doubt as to the legitimacy and the validity of
certificate, the Secretary of State may ask the Attorney General of
the state, or the clerk of the county commission may ask the
prosecuting attorney of the county, to institute a quo warranto
proceeding against the nominee by certificate to determine his or
her right to the
nomination to public office and upon request being
made, the Attorney General or prosecuting attorney shall institute
the quo warranto proceeding.
The clerk of the county commission
shall, at the request of the Secretary of State or the clerk of the
circuit court, compare the information from any certificate to the
county voter registration records in order to assist in determining
the validity of any certificates.
(f) In addition to penalties prescribed elsewhere for
violation of this chapter, any person violating the provisions of
this section is guilty of a misdemeanor and, upon conviction, shall
be fined not more than one thousand dollars, or confined in jail
for not more than one year, or both, in the discretion of the
court: Provided, That no criminal penalty may be imposed upon
anyone who signs a nomination certificate and votes in the primary election held after the date the certificate was signed.
§3-8-10. Use of certain contributions.
(a) Notwithstanding any provision of this code to the
contrary, amounts received by a candidate as contributions that are
in excess of any amount necessary to defray his or her expenditures
may be:
(1) Used by the candidate to defray any usual and customary
expenses incurred in connection with his or her duties as a holder
of public office; and
(2) Contributed by the candidate, after the general election,
to:
(A) Any charitable organization or subsequent campaign by the
same candidate, without limitation;
(B) Any national committee in accordance with federal
requirements;
(C) Any state party executive committee or state party
legislative caucus committee, in an amount not to exceed fifteen
thousand dollars in a calendar year; or
(D) Any local committee of any political party or any other
candidate for public office, in accordance with the existing
limitations on contributions.
(b) The State Election Commission shall promulgate emergency
and legislative rules, in accordance with the provisions of chapter
twenty-nine-a of this code, to establish guidelines for the
administration of this section.