Senate Bill No. 212
(By Senators Palumbo and Collins)
[Introduced February 19, 2013; referred to the Committee on the
A BILL to amend and reenact §3-5-17 of the Code of West Virginia,
1931, as amended; and to amend and reenact §3-6-9 of said
code, all relating to primary elections and nominating
procedures; canvassing and certifying election returns;
recount procedures; conduct and administration of elections
and board of canvassers; requiring a quorum of the board of
canvassers to be present; authorizing the chief circuit court
judge to appoint a person to the board of canvassers to make
a quorum; and requiring at least one member of the board of
canvassers be a commissioner of the county commission for that
Be it enacted by the Legislature of West Virginia:
That §3-5-17 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §3-6-9 of said code be amended
and reenacted, all to read as follows:
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-17. Canvassing and certifying returns; recount procedures.
The commissioners of the county commission, sitting as a board
of canvassers, shall convene at the courthouse of the county on the
fifth day following any primary election, which is not a Saturday,
Sunday or legal holiday, and shall proceed to canvass the returns
of the election. 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, or the chief circuit
court judge may appoint a person or persons to the board of
canvassers until such time as a quorum of the county commission is
present: Provided, That at least one member of the board of
canvassers shall be a commissioner of the county commission for
that county. The procedures prescribed in section nine, article
six, of this chapter relating to canvass of general election
returns, shall, where adaptable, be applied in the canvass of the
primary election returns. The board shall proceed to ascertain the
result of the election in the county and district and election
precincts and cause to be prepared and recorded in the primary
election precinct record book a table or tables which show, as to
each candidate of each political party for each office, the number
of votes cast for him or her at each precinct and the total number
cast in the entire county. The board shall then make up and enter
in said record book a certificate for each political party showing, as to each candidate for each political party for each office, the
total number of votes, in words and figures, cast for him or her in
the entire county and the number of votes received by all the
candidates of such party in such district in the following form:
The board of canvassers of the county of ................ of
West Virginia, having carefully and impartially examined the
returns of the primary election held in said county on the .......
day of ...........,
19 20...., do hereby certify that in said
county or district, at said election, on the official ballot of the
.................. party for the office of ..............., A. B.
received ............ (......) votes; C. D. received ..............
And so on for each office for each political party according
to the truth. When the certificates are all entered, the report
shall be signed by the members of the board or by a majority of the
board. Such members shall also sign separate certificates of the
result of the election, within the county, for each of the offices
to be filled by each political party as provided by the following
The provisions of article six of this chapter, relating to the
recount of votes in general elections, shall, to the extent
applicable, be operative in primary and other elections conducted
under provisions of this article.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-9. Canvass of returns; declaration of results; recounts;
(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.
(1) 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 of the county, 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.
(2) 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
to the questions and evidence shall be taken down in writing and
filed and preserved. All orders made shall be entered upon the
(3) They may adjourn, from time to time, but no longer than
(4) 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 or the chief circuit court judge may
appoint a person or persons to the board of canvassers until such
time as a quorum of the county commission is present: Provided,
That at least one member of the board of canvassers shall be a
commissioner of the county commission for that county.
(5) All meetings of the commissioners sitting as a board of
canvassers shall be open to the public.
(6) 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.
(7) The ballots shall then be again sealed 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.
(8) After canvassing the returns of the election, the board
shall publicly declare the results of the election.
(A) For a candidate on the ballot in entirely one county, the
board shall not enter an order certifying the election results for
a period of forty-eight hours after the declaration. At the end of
the forty-eight hour period, an order shall be entered certifying
all election results except for those offices in which a recount
has been demanded.
(B) For a candidate on the ballot in more than one county, the board may not enter an order certifying the election results for a
period of forty-eight hours after the final county's board has
publicly declared the results of the election. In such case, each
relevant board shall notify the Secretary of State immediately
following each relevant board's public declaration of results. For
offices on the ballot in more than one county, the Secretary of
State shall notify the board of each relevant county when the final
county has made a public declaration of the results of the
election. At the end of the forty-eight hour period in this
section, an order shall be entered by each relevant county
certifying all election results except for those offices in which
a recount has been demanded.
(b) Within the forty-eight hour period, a candidate on the
ballot in entirely one county may demand the board to open and
examine any of the sealed packages of ballots and recount them.
(c) If a candidate is on the ballot in more than one county,
then within the forty eight-hour period after the final county's
board has made a public declaration of the results, such candidate
may demand the board to open and examine any of the sealed packages
of ballots and recount them.
(d) After any recount pursuant to either subsection (b) or (c)
of this section the board 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
(e) In computing the forty-eight hour period as used in this
section, Saturdays, Sundays and legal holidays shall be excluded.
A candidate on the ballot in more than one county shall not be
precluded from demanding a recount in any county in which the
candidate is on the ballot until the final county in which the
candidate is on the ballot has certified the election results.
(f) If a recount has been demanded, the board shall have
forty-eight hours 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
subsection (g) 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.
(g) 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 $20. The return shall
be evidence of the manner and time of service.
(h) 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 $300.
(i) 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 clerk of the county commission 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.
(j) If the result of the election is not changed by the
recount, the costs and expenses of the recount shall be paid by the
party at whose instance the recount was made.
NOTE: The purpose of this bill is to require that a quorum of
the board of canvassers be present to canvass the returns of the
election. The bill authorizes the chief circuit court judge to
appoint a person to the board of canvassers to make a quorum. And,
the bill requires that at least one member of the board of
canvassers be a commissioner of the county commission for that
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.