Senate Bill No. 634
(By Senator Kessler)
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[Introduced February 19, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to repeal §3-4A-11 and §3-4A-12 of the Code of West
Virginia, 1931, as amended; to amend and reenact §3-1-20, §3-
1-21 and §3-1-41 of said code; to amend and reenact §3-4A-11a
and §3-4A-15 of said code; to amend and reenact §3-5-7, §3-5-
10, §3-5-13 and §3-5-19 of said code; and to amend and
reenact §3-6-2 and §3-6-3 of said code, all relating to
election ballots; providing for two copies of sample ballots
for each voting place; providing that paper ballots used in
conjunction with electronic voting systems must be prepared
for eighty percent of registered voters eligible to vote;
providing that the number of regular official ballots packaged
for each precinct shall equal at least seventy-five percent of
the number of registered voters in a precinct; providing for
the board of canvassers to protect the privacy of provisional
ballots; clarifying ballot lay out; clarifying voter instructions and models; providing print size of sample
ballots; and changing date upon which a person may challenge
a candidate's eligibility before the State Election
Commission.
Be it enacted by the Legislature of West Virginia:
That §3-4A-11 and §3-4A-12 of the Code of West Virginia, 1931,
as amended, be repealed; that §3-1-20, §3-1-21 and §3-1-41 of said
code be amended and reenacted; that §3-4A-11a and §3-4A-15 of said
code be amended and reenacted; and that §3-5-7, §3-5-10, §3-5-13
and §3-5-19 of said code be amended and reenacted; and that §3-6-2
and §3-6-3 of said code be amended and reenacted, all to read as
follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§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 include:
(1) The date of the election and the hours during which
polling places will be open;
(2) Instruction for mail-in registrants and first-time voters;
and
(3) Voters' rights; and
(4) Prohibitions against fraud and misrepresentation. and
The board of ballot commissioners shall also provide cards of
instruction for voters in preparing their ballots and casting a provisional ballot as prescribed by the Secretary of State. They
The board of ballot commissioners 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 two 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 clerk of
the county commission 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 may 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. When
paper ballots are used in conjunction with or as part of an
electronic voting system, the total number of regular official
ballots printed shall equal at a minimum eighty percent of the number of registered voters eligible to vote that ballot. The
clerk of the county commission shall determine the number of
absentee official ballots.
(d) The number of regular official ballots packaged for each
precinct shall equal at a minimum seventy-five percent of the
number of registered voters of the precinct. The remaining regular
official ballots shall be packaged and delivered to the clerk of
the county commission, 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 clerk of the
county commission of the appropriate county not later than the
forty-second day before the election. All official ballots in
paper ballot systems shall be delivered to the clerk of the county
commission 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.
§3-1-41. Challenged and provisional voter procedures; counting of
provisional voters' ballots; ballots of election
officials.
(a) It shall be is 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.
(1) if the person's registration record is not available at
the time of the election; or
(2) 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;
(3) if the registration record of the person indicates any
other legal disqualification; or
(4) 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 ballots 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, as the board of canvassers, shall
protect the privacy of each provisional ballot cast. 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 only 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 which may include 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 his or her vote
of that individual was counted and, if not, the reason that the
vote was not counted.
ARTICLE 4a. ELECTRONIC VOTING SYSTEMS.
§3-4A-11a. Ballots tabulated electronically; arrangement, quantity
to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using
ballots upon which votes may be recorded by means of marking with
electronically sensible ink or pencil and which marks are tabulated
electronically shall cause the ballots to be printed or displayed
upon the screens of the electronic voting system for use in
elections.
(b) (1) For the primary election, the heading of the ballot,
the type faces, the names and arrangement of offices, in columns,
the spaces for marking votes, and the printing of offices,
instructions and candidates names and arrangement of candidates
within each office are to conform as nearly as possible to that
prescribed in this chapter for paper ballots, except that the
Secretary of State may prescribe necessary modifications to
accommodate the tabulating system. the provisions of sections
thirteen and thirteen-a, article five of this chapter.
(2) For the general election, the heading of the ballot, the
straight ticket positions, the instructions to straight ticket
voters, the type faces, the names and arrangement of offices and
the printing of names and the arrangement of candidates within each
office are to conform as nearly as possible to the provisions of
section two, article six of this chapter, except as otherwise
provided in this article.
(3) Nonpartisan elections for board of education and any
question to be voted upon are to be separated from the partisan ballot and separately headed in display type with a title clearly
identifying the purpose of the election, and constituting a
separate ballot wherever a separate ballot is required under the
provisions of this chapter.
(2) (4) Both the face and the reverse side of the ballot may
contain the names of candidates only if means to ensure the secrecy
of the ballot are provided and lines for the signatures of the poll
clerks on the ballot are printed on a portion of the ballot which
is deposited in the ballot box and upon which marks do not
interfere with the proper tabulation of the votes.
(3) (5) The arrangement of candidates within each office is to
be determined in the same manner as for other electronic voting
systems, as prescribed in this chapter. On the general election
ballot for all offices, and on the primary election ballot only for
those offices to be filled by election, except delegate to national
convention, lines for entering write-in votes are to be provided
below the names of candidates for each office, and the number of
lines provided for any office shall equal the number of persons to
be elected, or three, whichever is fewer. The words or "WRITE-IN,
IF ANY" are to be printed, where applicable, directly under each
line for write-ins. The lines are to be opposite a position to
mark the vote.
(c) Except for electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means of touch, the primary election ballots are to be printed in the
color of ink specified by the Secretary of State for the various
political parties, and the general election ballot is to be printed
in black ink. For electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary ballots and the general election ballot are
to be printed in black ink. All ballots are to be printed, where
applicable, on white paper suitable for automatic tabulation and
are to contain a perforated stub at the top or bottom of the
ballot, which is to be numbered sequentially in the same manner as
provided in section thirteen, this article for ballots upon which
votes are recorded by means of perforating five of this chapter, or
is are to be displayed on the screens of the electronic voting
system upon which votes are recorded by means of a stylus or touch.
The number of ballots printed and the packaging of ballots for the
precincts are to conform to the requirements for paper ballots as
provided in this chapter.
(d) In addition to the official ballots, the ballot
commissioners shall provide all other materials and equipment
necessary to the proper conduct of the election.
§3-4A-15. Instructions and help to voters; vote recording device
models; facsimile diagrams; sample ballots; legal
ballot advertisements.
(a) For the instruction of the voters on any election day in counties utilizing an electronic voting system where votes are to
be recorded by means of perforating, there is to be provided for
each polling place one instruction model for each vote recording
device: Provided, That for electronic voting systems that utilize
uses a screen upon which votes may be recorded by means of a stylus
or by means of touch, there is to be provided the ballot
commissioners shall provide for each polling place a sample ballot
with each screen as they shall it will appear on the devices,
together with written instructions regarding the operation of the
devices. Each instruction model is to be constructed so as to
provide a replica of a vote recording device, and is to contain the
arrangement of the ballot labels, party columns or rows, office
columns or rows, and questions. Fictitious names are to be inserted
in the ballot labels of the models. The models are to be located on
the election officers' tables or in some other place in which the
voter must pass to reach the vote recording device. Upon request,
the election officers shall offer instruction to each voter, before
voting, in the operation of the vote recording device. by use of
the instruction model, and shall give ample opportunity to operate
the model himself or herself.
(b) The ballot commissioners shall also provide facsimile
ballots or ballot labels, as may be appropriate, at least two of
which, or complete sets of which, are to be posted on the walls of
each polling place. The facsimile diagrams are exact diagrams of the ballots or ballot labels or paper ballots or screens to the end
so that the voter may become familiar with the location of the
parties, offices, candidates and questions as they appear on the
ballot to be used in his or her precinct.
(c) The ballot commissioners may, with the consent of the
county commission, or the county commission may, prepare and mail
to each qualified voter at the address shown on the registration
books a facsimile sample of the ballot or ballot labels or screens
for his or her precinct.
(d) In counties where an electronic voting system has been
adopted, the legal ballot advertisements required by articles five
and six of this chapter, which specify the publication of a
facsimile sample ballot, are to consist of a facsimile of the
ballot or ballot labels or screens with the names of the candidates
and the offices for which they are running shown in their proper
positions.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
(a) Any person who is eligible and seeks to hold an office or
political party position to be filled by election in any primary or
general election held under the provisions of this chapter shall
file a certificate of announcement declaring as a candidate for the
nomination or election to the office.
(a) (b) The certificate of announcement shall be filed as
follows:
(1) With the Secretary of State, if it be an office or
political position to be filled by the voters of more than one
county;
(2) With the clerk of the county commission, if it be for an
office to be filled by the voters of a single county or of a
subdivision less than a county;
(3) With the recorder or city clerk if it be for an office to
be filled by the voters of a municipality.
(c) The certificate of announcement shall be filed with the
proper officer not earlier than the second Monday in January next
preceding the primary election day, and not later than the last
Saturday in January next preceding the primary election day, and
must be received before midnight, eastern standard time, of that
day or, if mailed, shall be postmarked by the United States Postal
Service before that hour.
(b) (d) The certificate of announcement shall be in on 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 date of the election in which the candidate seeks to
appear on the ballot;
(2) The name of the office sought; the district, if any; and the division, if any;
(3) The legal name of the candidate, and the exact name the
candidate desires to appear on the ballot, subject to limitations
prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate
is a legally qualified voter of that county; and the magisterial
district of residence for candidates elected from magisterial
districts or under magisterial district limitations;
(5) 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;
(6) For partisan elections, the name of the candidate's
political party and a statement that the candidate (A) is a member
of and affiliated with that political party as is evidenced by the
candidate's current registration as a voter affiliated with that
party and that the candidate (B) has not been registered as a voter
affiliated with any other political party for a period of sixty
days before the date of filing the announcement;
(7) For candidates for delegate to national convention, the
name of the presidential candidate to be listed on the ballot as
the preference of the candidate on the first convention ballot; or,
a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______
day of _____________, 20____," and a space for the signature of the
officer giving the oath.
(e) The Secretary of State or the board of ballot
commissioners, as the case may be, may refuse to certify the
candidacy or may remove the certification of the candidacy upon
receipt of a certified copy of the voter's registration record of
the candidate evidencing showing that the candidate was registered
as a voter in a party other than the one named in the certificate
of announcement during the sixty days immediately preceding the
filing of the certificate: Provided, That unless a signed formal
complaint of violation of this section and the certified copy of
the voter's registration record of the candidate be are filed with
the officer receiving that candidate's certificate of announcement
no later than ten days following the close of the filing period,
the candidate shall not be refused certification for this reason.
(c) (f) The certificate of announcement shall be subscribed
and sworn to by the candidate before some officer qualified to
administer oaths, who shall certify the same. Any person who
knowingly provides false information on the certificate is guilty
of false swearing and shall be punished as set forth in accordance
with section three, article nine of this chapter.
(d) (g) Any candidate for delegate to a national convention
may change his or her statement of presidential preference by notifying the Secretary of State by letter received by the
Secretary of State no later than the third Tuesday following the
close of candidate filing. When the rules of the political party
allow each presidential candidate to approve or reject candidates
for delegate to convention who may appear on the ballot as
committed to that presidential candidate, the presidential
candidate or the candidate's committee on his or her behalf may
file a list of approved or rejected candidates for delegate, and
the Secretary of State shall list as "uncommitted" any candidate
for delegate who is disapproved by the presidential candidate.
(e) (h) No person shall be a candidate for more than one
office or office division at any election: Provided, That a
candidate for an office may also be a candidate for president of
the United States, for membership on a political party executive
committee committees or for delegate to a political party national
convention. Notwithstanding the provisions of this section, nothing
shall prohibit a candidate from jointly running for or holding the
offices of county clerk and circuit clerk in those counties which
operate a joint clerkship system.
(f) (i) Any candidate who files a certificate of announcement
for more than one office or division and does not withdraw, as
provided by section eleven, article five of this chapter, from all
but one office prior to the close of the filing period shall not be
certified by the Secretary of State or placed on the ballot for any office by the board of ballot commissioners.
(j) The provisions of this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-one shall apply to the primary election held in the year one
thousand nine hundred ninety-two and every primary election held
thereafter. The provisions of this section enacted during the
regular session of the Legislature in the year one thousand nine
hundred ninety-eight shall apply to the primary election held in
the year two thousand and every primary election held thereafter.
§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 sixty-five 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 his or
her residence, and 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 eight 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.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(a) (1) 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) (2) (A) 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) (B) 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) (C) 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: Provided,
That the office title and applicable instructions may span the
width of the ballot so as it is centered among the respective
columns.
(c) (D) 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) (3) (A) 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) (B) 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) (C) The arrangement of names within each office must be
determined as prescribed in section thirteen-a of this article.
(4) (D) 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) (4) 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) (5) 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) (6) 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 and are to conform in size
and weight to ensure ease in tabulation.
(h) (7) 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) (8) 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) (9) 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.
§3-5-19. 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 eighty-four 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 eighty-four 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 eighty-four
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 county commission 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.
§3-6-2. Preparation and form of general election ballots.
(a) All ballots prepared under the provisions of this section are to contain:
(1) The name and ticket of each party which is a political
party under the provisions of section eight, article one of this
chapter;
(2) The name chosen as the party name by each group of
citizens which has secured nomination for two or more candidates by
petition under the provisions of section twenty-three of this
article;
(3) The names of every candidate for any office to be voted
for at the election whose nomination in the primary election,
nomination by petition or nomination by appointment to fill a
vacancy on the ballot has been certified and filed according to law
and no others.
(b) The provisions of subdivision (3), subsection (b);
subsection (c); subdivisions (1) and (2), subsection (d); and
subsections (g), (h), (i), (j) and (k), section thirteen of article
five pertaining to the preparation and form of primary election
ballots shall likewise apply to general election ballots.
(c) (1) For all ballot systems, the ballot heading is to be in
display type and contain the words "Official Ballot, General
Election" and the name of the county and the month, day and year of
the election.
(2) After the heading, each ballot is to contain, laid out in
parallel columns, rows or pages as required by the particular voting system, the party emblem, the position for straight party
voting for each party and the name of each party as prescribed in
subsection (a) of this section. On paper ballots, the position for
straight party voting is to be a heavy circle, three-fourths inch
in diameter, surrounded by the words "For a straight ticket mark
within this circle" printed in bold six-point type. On all other
ballots or ballot labels, the positions for straight party voting
is to be marked "Straight Party Ticket." For ballots tabulated
electronically, the Secretary of State shall prescribe a uniform
number for the straight ticket position for each party.
(3) The party whose candidate for president received the
highest number of votes at the last preceding presidential election
is to be placed in the left, or first column, row or page, as is
appropriate to the voting system. The party which received the
second highest vote is to be next and so on. Any groups or third
parties which did not have a candidate for president on the ballot
in the previous presidential election are to be placed in the
sequence in which the final certificates of nomination by petition
were filed.
(4) (A) Except for lever machine ballot labels, The following
general instructions for straight party voters are to be printed in
no smaller than eight-point bold type: "IF YOU MARKED A STRAIGHT
TICKET: When you mark any individual candidate in a different
party, that vote will override your straight party vote for that office. When you mark any individual candidate in a different
party for an office where more than one will be elected, YOU MUST
MARK EACH OF YOUR CHOICES FOR THAT OFFICE because your straight
ticket vote will not be counted for that office." The last
sentence of the instructions may not be included on any ballot
which does not contain any office or division where more than one
candidate will be elected.
On paper ballots, the general instructions are to be placed
below the party name and across the top of all columns, followed by
a heavy line separating them from the rest of the ballot:
Provided, That the instructions may be centered among the columns
running the full width of the ballot. On ballots marked with
electronically sensible ink and on ballot labels for voting devices
in punch card systems, the general instructions are to be placed
after the position for straight voting and before any office.
(B) Except for lever machine ballot labels, The following
specific instructions are to be printed on the ballot for any
partisan election for an office or division to which more than one
candidate is to be elected: "If you marked a straight ticket and
you mark any candidate in a different party for this office, you
must mark all your choices for this office because your straight
ticket vote will not be counted for this office."
On paper ballots, the specific instructions are to be placed
below the office name of any partisan office where more than one is to be elected and across the top of all columns for that office or
centered among the columns before the names of any candidates. On
all other ballots and ballot labels, the specific instructions are
to be placed above or to the side of the names of the candidates as
the voting system requires.
(5) For all ballots, any columns, rows or sections in which
the ticket of one party appears are to be clearly separated from
the other columns, rows or sections by a heavy line or other clear
division. For each party, the offices are to be arranged in the
order prescribed in section thirteen-a, article five of this
chapter under the appropriate tickets, which are to be headed
"National Ticket," "State Ticket" and "County Ticket." The number
of pages, columns or rows, where applicable, may be modified to
meet the limitations of ballot size and composition requirements,
subject to approval by the Secretary of State.
(d) The arrangement of names within each office for all ballot
systems is to be as follows:
(1) In elections for presidential electors, the names of the
candidates for president and vice president of each party are to be
placed beside a brace with a single voting position, so that a vote
for any presidential candidate is a vote for the electors of the
party for which the candidates were named.
(2) The order of names of candidates for any office or
division for which more than one is to be elected is determined as prescribed in section thirteen-a, article five of this chapter:
Provided, That the drawing by lot is to be conducted on the
seventieth day next preceding the date of the general election,
beginning at 9:00 a.m.
(3) Except in voting machine systems, In any office where more
than one person is to be elected, the names of the candidates for
the office are to be staggered so that no two candidates for that
office appear directly opposite any other candidate, as shown in
the example below: Provided, That if the voting system can not
accurately tabulate any ballot due to this requirement, the ballot
may be adjusted so that it is accurately tabulated. However, each
candidate shall be separated by a thin line to distinguish between
each candidate.
_________________________________________________________________
For House of Delegates For House of Delegates
First Delegate District First Delegate District
(Vote For Not More Than Two) (Vote For Not More Than Two)
_______________________________
_______________________________
SUSAN B. ANTHONY
City (County)
_______________________________
_______________________________
JOHN ADAMS
City (County)
_______________________________
_______________________________
ABRAHAM LINCOLN
City (County)
______________________________
_______________________________
JAMES MONROE
City (County)
______________________________
______________________________
(4) Each voting system is to provide a means for voters to
vote for any person whose name does not appear on the ticket by
writing it with pen or pencil or by using stamps, stickers, tapes,
labels or other means of writing in the name of a candidate which
does not interfere with the tabulation of the ballot.
(A) In paper ballot systems which allow for write-ins to be made directly on the ballot, a blank square and a blank line equal
to the space which would be occupied by the name of the candidate
is to be placed under the proper office for each vacancy in
nomination and for an office for which more than one is to be
elected, any vacancy is to appear after any other candidates for
the office. If no write-in lines are included on the ballot,
specific instructions are to be added to the top of the ballot
notifying the voter that a write-in vote may be cast by writing the
name and office on any location on the front of the ballot.
(B) In machine and electronically tabulated ballot systems in
which write-in votes must be made in a place other than on the
ballot, label if there is a vacancy in nomination leaving fewer
candidates in any party than can be elected to that office, the
words "No Candidate Nominated" is to be printed in the space that
would be occupied by the name of the candidate and for an office
for which more than one is to be elected, any such vacancy is to
appear after any other candidates for the office. Notwithstanding
any other provision of this code, if there are multiple vacant
positions on a ballot for one office, the multiple vacant positions
which would otherwise be filled with the words "No Candidate Filed"
may be replaced with a brief detailed description, approved by the
Secretary of State, indicating that there are no candidates listed
for the vacant positions.
(5) In a general election in any county in which unexpired terms of the board of education are to be filled by election, a
separate section or page of the ballot is to be set off by means
clearly separating the nonpartisan ballot from the ballot for the
political party candidates and is to be headed "Nonpartisan Board
of Education."
(e) Any constitutional amendment is to be placed following all
offices, followed by any other issue upon which the voters are to
cast a vote. The heading for each amendment or issue is to be
printed in large, bold type according to the requirements of the
resolution authorizing the election.
(f) The board of ballot commissioners may not place any issue
on the ballot for election which is not specifically authorized
under the West Virginia Constitution or Statutes or which has not
been properly ordered by the appropriate governmental body charged
with calling the election.
§3-6-3. 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 sixty-five 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 his or her residence, and 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 eight 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.
NOTE: The purpose of this bill is to make adjustments to
ballots, including sample ballots; allow for use of paper ballots
in certain circumstances; require privacy of provisional ballots;
clarify ballot lay out; clarify voter instruction; and shorten the
amount of days a candidate may challenge the eligibility of another
candidate before the State Election Commission.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.