WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2003
FIFTY-NINTH DAY
____________
Charleston, W. Va., Friday, March 7, 2003
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Pauline Gonzales, Alexandria, Virginia, proceeded in the
singing of "Praise You".
Pending the reading of the Journal of Thursday, March 6, 2003,
On motion of Senator Minear, the Journal was approved and the
further reading thereof dispensed with.
Pending announcement of a meeting of the Committees on Rules,
On motion of Senator Chafin, the Senate recessed for fifteen
minutes.
Upon expiration of the recess, the Senate reconvened and
proceeded to the second order of business and the introduction of
guests.
At the request of Senator Chafin, and by unanimous consent,
the provisions of rule number fifty-four of the Rules of the
Senate, relating to persons entitled to the privileges of the
floor, were suspended in order to grant Norma Brewin privileges of
the floor for the day.
The Clerk presented a communication from the Department of Health and Human Resources, submitting its annual Youth Services
report, in accordance with chapter forty-nine, article five-b,
section seven of the code of West Virginia.
Which communication and report were received and filed with
the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the Senate proceeded to the sixth order of business.
By Senators Love, White, Bailey, Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks and Tomblin (Mr. President):
Senate Resolution No. 31--
Recognizing the Historic Fayette
Theatre on its tenth anniversary for preserving Appalachian
heritage through the performing arts.
Whereas, The Historic Fayette Theatre has represented West
Virginia in regional theatrical competitions and has served as an
ambassador for the State of West Virginia to Wales and England with
a touring performance of "Smoke on the Mountain"; and
Whereas, The Historic Fayette Theatre has participated in the
renovation of the Fayetteville Historic District by restoring an
architecturally significant building; and
Whereas, The Historic Fayette Theatre provides a venue for
West Virginia performing artists and serves as a focal point for
cultural activities in the community; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the Historic Fayette Theatre
on its tenth anniversary for preserving Appalachian heritage
through the performing arts; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives of the
Historic Fayette Theatre.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Jenkins, Plymale, Unger, Caldwell, Rowe, Chafin,
Kessler, Helmick, Bowman, Edgell, Snyder, Prezioso, McCabe, White,
Fanning, Minard, Ross, Dempsey, Sharpe, Oliverio, Hunter, Facemyer,
Weeks, Harrison, Smith, Boley, Guills, Bailey and Tomblin (Mr.
President) offered the following resolution:
Senate Resolution No. 32--
Congratulating Barbara Bias on her
selection as the 2003 recipient of the Veterans of Foreign Wars
National Citizenship Education Teacher Award.
Whereas, Barbara Bias, a first grade teacher at Meadows
Elementary School, Huntington, with 38 years of service as an
educator, has been selected as the 2003 recipient of the Veterans
of Foreign Wars National Citizenship Education Teacher Award; and
Whereas, Miss Bias received her bachelor's and master's degrees in elementary education from Marshall University; and
Whereas, Throughout her teaching career, Miss Bias has held
numerous volunteer and leadership positions in her school, church
and community. She has received many awards and recognition for
her outstanding service; and
Whereas, Miss Bias has helped chart the course for quality
education in our state by serving as a writer for the State of West
Virginia first grade social studies curriculum and helping to write
and correlate learning outcomes for language arts, social studies
and safety programs in Cabell County; and
Whereas, Nearly one thousand teachers across the United States
and the District of Columbia were nominated for this award. The
award recognizes teachers who emphasize citizenship education and
promote America's history and traditions; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates Barbara Bias for her
selection as the 2003 recipient of the Veterans of Foreign Wars
National Citizenship Education Teacher Award; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Barbara Bias, 2003 Veterans of Foreign
Wars National Citizenship Education Award winner.
At the request of Senator Jenkins, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the second order of business.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 97--Extending the Committee of
Conference until March 8, 2003, relating to consideration of Com.
Sub. for H. B. 2120, relating to workers' compensation generally.
Resolved by the Legislature of West Virginia:
That pursuant to Rule No. 3 of the Joint Rules of the Senate
and House of Delegates, the Committee of Conference is hereby
extended for a period of three days, until March 8, 2003, for the
express purpose of consideration of matters of disagreement between
the two houses as to Com. Sub. for H. B. 2120.
At the request of Senator Chafin, and by unanimous consent,
the message was taken up for immediate consideration and reference
of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect May
1, 2003, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 105, Increasing tax on cigarettes. On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 17. TOBACCO PRODUCTS EXCISE TAX ACT.
§11-17-3. Levy of tax; ratio; dedication of proceeds.
(a) Tax on cigarettes. -- For the purpose of providing revenue
for the general revenue fund of the state, an excise tax is hereby
continued levied and imposed on sales of cigarettes at the rate of
seventeen fifty-five cents on each twenty cigarettes or in like
ratio on any part thereof. Only one sale of the same article shall
be used in computing the amount of tax due under this subsection.
(b) Tax on tobacco products other than cigarettes. --
Effective the first day of January, two thousand two, an excise tax
is hereby levied and imposed on the sale or use of, other than
cigarettes, tobacco products at a rate equal to seven percent of
the wholesale price of each article or item of tobacco product
other than cigarettes sold by the wholesaler or subjobber dealer,
whether or not sold at wholesale, or if not sold, then at the same
rate upon the use by the wholesaler or dealer. Only one sale of
the same article shall be used in computing the amount of tax due
under this subsection. Revenues received from this tax shall be
deposited into the general revenue fund.
(c) Effective date. -- The changes set forth herein to this section and section four of this article shall become effective the
first day of May, two thousand three.
§11-17-4. Effect of rate changes; tobacco products on hand or in
inventory; report; discount.
(a) Notwithstanding other provisions of this article, it is
hereby declared to be the intent of the Legislature that one rate
of excise tax is applicable to all quantities of cigarettes and
another rate of excise tax is applicable to all tobacco products
other than cigarettes in this state on and after the first day of
July, two thousand one, under the provisions of this article. Any
tobacco products, on hand or in inventory, on the effective date of
any rate change are hereby considered to have been purchased or
received on the effective date of the change in rate.
(b) Every wholesaler, subjobber, subjobber dealer, retail
dealer and vending machine operator who, on the effective date of
any rate change, has, on hand or in inventory, any tobacco products
or cigarette tax stamps, upon which the tax or any portion of the
tax has been previously paid, shall take a physical inventory and
shall file a report of the inventory with the tax commissioner, in
the format required by the tax commissioner, within thirty days
after the inventory, and shall pay to the tax commissioner, at the
time of filing the report, any additional tax due under an
increased rate in accordance with the following schedule:
(1) One-third at the time of filing the report;
(2) One-third not later than sixty days after the effective
date of the rate change; and
(3) One-third not later than ninety days after the effective
date of the rate change.
A discount of four percent shall be allowed on all tax due for
persons who pay additional tax under this section.
(c) Imposition of the tax on tobacco products other than
cigarettes shall be treated as a change in rate on the effective
date of the tax.
Following discussion,
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 105, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bowman, Caldwell,
Edgell, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard,
Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger,
White and Tomblin (Mr. President)--20.
The nays were: Bailey, Boley, Chafin, Deem, Dempsey,
Facemyer, Fanning, Guills, Harrison, McKenzie, Minear, Smith,
Sprouse and Weeks--14.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 105) passed with its title.
Senator Chafin moved that the bill take effect May 1, 2003.
On this question, the yeas were: Caldwell, Deem, Edgell,
Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Sprouse, Unger, White and Tomblin (Mr. President)--23.
The nays were: Bailey, Boley, Bowman, Chafin, Dempsey,
Facemyer, Guills, Harrison, McKenzie, Smith and Weeks--11.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 105) takes effect May 1, 2003.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 287, Authorizing various
agencies within department of tax and revenue to promulgate
legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page four, by striking out everything after the
enacting
section and inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO
PROMULGATE LEGISLATIVE RULES.
§64-7-1. Insurance commissioner.
(a) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fifth day of December, two thousand two,
relating to the insurance commissioner (unfair trade practices, 114
CSR 14), is authorized.
(b) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (examiners' compensation,
qualifications and classification, 114 CSR 15), is authorized with
the following amendment:
"On page one, section two, subsection 2.1 by striking out the
words 'Market Conduct Examiner'."
(c) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the first day of October, two thousand two,
relating to the insurance commissioner (licensing and conduct of agents, agencies and solicitors, 114 CSR 2), is authorized with the
following amendment:
"
On page four, by striking out all of subsection 3.8 and
inserting in lieu thereof the following:
'
3.8. Every business entity transacting insurance as defined
in W. Va. Code §33-1-4 must be licensed as an agency insurance
producer. For purposes of this section, "insurance" means all
products defined or regulated by the State of West Virginia except:
(i) Limited lines insurance as defined in West Virginia Code §33-
12-2(i) and (k); (ii) insurance placed by a lender in connection
with collateral pledged for a loan when the debtor breaches the
contractual obligation to provide this insurance; and (iii) private
mortgage insurance.'
On page four, subsection 4.1 after the word 'with' by striking
out the word 'whom' and inserting in lieu thereof the word 'which';
On page five, by striking out all of subsection 5.1 and
inserting in lieu thereof the following:
'5.1. No person that owns or is affiliated with an insurance
agency or individual insurance producer may require, as a condition
precedent to making a loan, that the borrower cancel insurance and
purchase new insurance with the individual insurance producer or
with an agency insurance producer with which the person is
affiliated.'
And,
On page five, by striking out all of subsection 5.3 and
inserting in lieu thereof the following:
'
5.3. The act of any person, that owns or is affiliated with
an insurance agency or individual insurance producer, in making a
loan in violation of this section, will be considered to be the act
of the individual insurance producer or agency insurance producer
with which the person making the loan is affiliated. The
individual insurance producer or agency insurance producer will be
held strictly accountable for the acts of a person who is
affiliated with the individual insurance producer or agency
insurance producer and who makes a loan in violation of this
section.'"
(d) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the first day of October, two thousand two,
relating to the insurance commissioner (excess line brokers, 114
CSR 20), is authorized with the amendments set forth below:
"On page three, subdivision 4.2.a., at the end of the
subdivision by adding the following: 'The form shall contain an
affidavit that the individual insurance producer complied with the
due diligence requirements of this rule.'
And,
On page six, subdivision 4.6.j., after the word 'producer' by
inserting the words 'required in section 4.2. of this rule'."
(e) The legislative rule filed in the state register on the twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (AIDS, 114 CSR 27), is
authorized with the following amendment:
"On Appendix A to rule, fifth paragraph, by striking out the
entire paragraph and inserting in lieu thereof the following:
'Positive HIV antibody or antigen test results or other significant
abnormalities discovered in the body fluid sample tested for the
presence of HIV will adversely affect your application for
insurance. This means that your application may be declined, that
an increased premium may be charged or that other policy changes
may be necessary.'"
(f) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, relating to the insurance commissioner ("tail" malpractice
insurance covering certain medical and allied health care
providers, 114 CSR 30), is authorized.
(g) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the state register on the fifth day of December, two thousand two,
relating to the insurance commissioner (group accident and sickness
insurance minimum policy coverage standards, 114 CSR 39), is
authorized.
(h) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the first day of October, two thousand two,
relating to the insurance commissioner (continuing education for
individual insurance producers, 114 CSR 42), is authorized.
(i) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, relating to the insurance commissioner (quality assurance,
114 CSR 53), is authorized.
(j) The legislative rule filed in the state register on the
twenty-second day of February, two thousand two, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, relating to the insurance commissioner (medical
malpractice insurance consent to rate and guide "A" rate
agreements, 114 CSR 59), is authorized.
(k) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the third day of January, two thousand three,
relating to the insurance commissioner (credit personal property
insurance, 114 CSR 61), is authorized.
(l) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (standards for safeguarding
consumer information, 114 CSR 62), is authorized.
(m) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (standard motor vehicle
policy provisions, 114 CSR 63), is authorized with the following
amendments:
"On page two, subsection 3.4, lines twenty-two and twenty
three, by striking out the words 'and may not exclude the liability
of the owner with respect to use by a bailee for hire, restricted
driver, or other permissive user';
And,
On page three, subsection 3.13, lines sixteen and seventeen,
by striking out the words ', in exchange for a multi-car
discount,'."
(n) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of November, two thousand two,
relating to the insurance commissioner (mental health parity, 114
CSR 64), is authorized with the following amendments:
"On page one, subsection 1.1.b.1, by striking out the word
'Any' and inserting in lieu thereof the words 'Group health benefit
plans issued by any';
And,
On page one, subsection 1.1.b.3, by striking out the word
'plans' and inserting in lieu thereof the words, 'benefit plans'."
§64-7-2. Tax commissioner.
(a) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand two, authorized under the
authority of section five-t, article ten, chapter eleven of this
code, modified by the tax commissioner to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the twenty-second day of November, two thousand
two, relating to the tax commissioner (payment of taxes by electronic funds transfer, 110 CSR 10F), is authorized with the
following amendments:
On page three, subsection 3.2, by striking out the words "for
all taxable years or reporting periods" and inserting in lieu
thereof the words "in tax liability per tax type per taxable year
or reporting period";
On page four, subsection 4.2, by striking out the entire
subsection;
On page four, subsection 5.2, first sentence, by striking out
the words "Each EFT payment under this rule shall be limited to"
and inserting in lieu thereof the words "The Department will
determine whether a taxpayer meets the $100,000 tax liability
threshold requiring payment of taxes by EFT by considering taxes
paid for";
On page four, subsection 5.2, second sentence, by striking out
the words "amount paid" and inserting in lieu thereof the words
"taxes paid for all tax types";
On page four, subsection 5.3, first sentence, by striking out
the words "Each EFT payment under this rule shall be limited to"
and inserting in lieu thereof the words "The Department will
determine whether a taxpayer meets the $100,000 tax liability
threshold requiring payment of taxes by EFT by considering";
On page five, subsection 7.1, by striking out the words "Form
WV/EFT-005" and inserting in lieu thereof the words "Form WV/EFT-
5";
And,
On page five, subsection 7.2, by striking out the words "Form
WV/EFT-005" and inserting in lieu thereof the words "Form WV/EFT-
5".
(b) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand two, authorized under the
authority of section eight, article thirteen-p, chapter eleven of
this code, modified by the tax commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the first day of October, two thousand two,
relating to the tax commissioner (tax credit for medical
malpractice insurance premiums, 110 CSR 13P), is authorized.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 287, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 287) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 287) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 316, Authorizing various
agencies within bureau of commerce to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page four, by striking out everything after the
enacting
section and inserting in lieu thereof the following:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Development office.
The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand two, authorized under the
authority of section twelve, article two-a, chapter five-b of this
code, modified by the department of environmental protection to
meet the objections of the legislative rule-making review committee
and refiled in the state register on the fourteenth day of January,
two thousand three, relating to the department of environmental
protection (community development assessment and real property
valuation procedures for office of coal field development, 145 CSR
8), is authorized.
§64-10-2. Division of labor.
(a) The legislative rule filed in the state register on the
ninth day of July, two thousand two, authorized under the authority
of section eleven, article three-c, chapter twenty-one of this
code, modified by the division of labor to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the eighth day of November, two thousand two,
relating to the division of labor (elevator safety act, 42 CSR 21),
is authorized with the following amendments:
"On page two, subsection 5.1 following the first word 'No', by
striking out the word 'elevator' and inserting in lieu thereof the
word 'elevators' and following the second words 'certificate of
operation', by striking out the words 'shall be issued by the Division' and after the word 'successfully', by striking out the
word 'pass' and inserting in lieu thereof the word 'passed';
On page three, subsection 6.2 following the word 'Chair-
lifts"', by striking out the word 'is' and inserting in lieu
thereof the word 'are';
And
On page four, subsection 6.4 following the words 'no
inspection fee will' by adding the word 'be'."
(b) The legislative rule filed in the state register on the
nineteenth day of July, two thousand two, authorized under the
authority of section three, article one, chapter forty-seven of
this code, modified by the division of labor to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the eighth day of November, two thousand two,
relating to the division of labor (regulation of trade--weights and
measures, 42 CSR 22), is authorized.
§64-10-3. Manufactured housing construction and safety standards
board.
The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section four, article nine, chapter twenty-one of this
code, relating to the manufactured housing construction and safety
standards board (West Virginia manufactured housing construction
and safety standards board, 42 CSR 19), is authorized.
§64-10-4. Division of natural resources.
(a) The legislative rule filed in the state register on the twenty-sixth day of July, two thousand two, authorized under the
authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the first day of October, two
thousand two, relating to the division of natural resources
(revocation of hunting and fishing licenses, 58 CSR 23), is
authorized.
(b) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section twenty-two, article seven, chapter twenty of
this code, relating to the division of natural resources (special
boating, 58 CSR 26), is authorized.
(c) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the
objections of the legislature rule-making review committee and
refiled in the state register on the twenty-seventh day of
September, two thousand two, relating to the division of natural
resources (prohibitions when hunting and trapping, 58 CSR 47), is
authorized with the following amendment:
"On page two, section three, by striking out all of
subdivision 3.6.1;
And,
On page 3, by striking out all of subdivision 3.15.2 and inserting in lieu thereof a new subdivision 3.15.2, to read as
follows:
'3.15.2. The applicant shall authorize, by written release,
his or her medical provider to disclose to the director of the
Division of Natural Resources and the medical provider shall, upon
receipt of the written release, disclose to the director of the
Division of Natural Resources, that portion of the applicant's
medical records which substantiates the applicant's physical
impairment qualifying the applicant for the issuance of a special
permit for use of a modified bow. The director shall: Restrict
access to medical records submitted to him or her; maintain the
records in a secure locked cabinet; and not share this information
with other federal, state or local agencies or entities, or any
register or data bank.'"
(d) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand two, authorized under the
authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-seventh day of
September, two thousand two, relating to the division of natural
resources (deer hunting, 58 CSR 50), is authorized.
(e) The legislative rule filed in the state register on the
eighteenth day of November, two thousand two, authorized under the
authority of section eleven, article two, chapter twenty of this
code, modified by the division of natural resources to meet the objections of the legislative rule-making review committee and
refiled in the state register on the twenty-third day of December,
two thousand two, relating to the division of natural resources
(commercial sale of wildlife, 58 CSR 63), is authorized with the
following amendment:
"
On page four, section sixty-three, by striking out all of
Subsections 4.7 and 4.8 and inserting in lieu thereof new
Subsections 4.7 and 4.8, to read as follows:
'4.7. In order to protect the public health and the welfare of
native wildlife, a licensee may not import cervids into West
Virginia. When the United States department of agriculture
implements rules and regulations on the interstate transportation
and sale of cervids, the interstate movement of cervids into West
Virginia will be governed by the United State department of
agriculture rules and regulations. The Division of Natural
Resources, however, may import wildlife during the normal course of
its mission.
4.8. A licensee may sell or relocate cervids within West
Virginia until January 15, 2004, or until the United States
department of agriculture establishes rules and regulations
regarding the intrastate transportation and sale of cervids,
whichever comes later. When the United States department of
agriculture implements rules and regulations on the intrastate
transportation and sale of cervids, the intrastate movement within
West Virginia will be governed by the United States department of
agriculture rules and regulations.'
"
§64-10-5. Division of forestry.
The legislative rule filed in the state register on the
twenty-third day of July, two thousand two, under the authority of
section four, article one-b, chapter nineteen of this code,
modified by the division of forestry to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the fifth day of December, two thousand two, relating
to the division of forestry (sediment control during commercial
timber harvesting operations--licensing, 22 CSR 2), is authorized.
(b) The legislative rule filed in the state register on the
twenty-third day of July, two thousand two, under the authority of
section four, article one-b, chapter nineteen of this code,
modified by the division of forestry to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the fifth day of December, two thousand two, relating
to the division of forestry (sediment control during commercial
timber harvesting operations--logger certification, 22 CSR 3), is
authorized.
§64-10-6. Board of miner training, education and certification.
The legislative rule filed in the state register on the
thirteenth day of September, two thousand one, under the authority
of section five, article seven, chapter twenty-two-a of this code,
modified by the board of miner training, education and
certification to meet the objections of the legislative rule-making
review committee and refiled in the state register on the thirty-
first day of May, two thousand two, relating to the board of miner training, education and certification (standards for certification
of coal mine electricians, 48 CSR 7), is authorized.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 316, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 316) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 316) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 648, Relating to election laws generally.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page seven, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section forty, article one, chapter three of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; that section twenty, article two of said chapter be
repealed; that section twenty-one, article four-a of said chapter
be repealed; that section twenty-one, article nine of said chapter
be repealed; that sections seven, nine, twenty, twenty-one, twenty-
four, twenty-five, twenty-eight, twenty-nine, thirty, thirty-four,
thirty-nine, forty-one, forty-four and forty-five, article one of
said chapter be amended and reenacted; that said article be further
amended by adding thereto three new sections, designated sections forty-eight, forty-nine and fifty; that sections two, three, five,
seven, ten, thirteen, nineteen and thirty, article two of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section four-a;
that sections one, two, two-a, three, five, five-c, seven, eight,
ten and eleven, article three of said chapter be amended and
reenacted; that sections ten and twenty-three, article four of said
chapter be amended and reenacted; that sections nine, nineteen,
twenty-two, twenty-four-a and twenty-seven, article four-a of said
chapter be amended and reenacted; that sections ten, thirteen,
fifteen and nineteen, article five of said chapter be amended and
reenacted; that sections three, four-a, five, six, seven and nine,
article six of said chapter be amended and reenacted; that sections
one and four, article seven of said chapter be amended and
reenacted; that sections two, four, five and twelve, article eight
of said chapter be amended and reenacted; that sections seven and
eight, article ten of said chapter be amended and reenacted; and
that section two, article six, chapter eight of said code be
amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-7. Precinct changes; procedure; precinct record.
(a) Subject to the provisions and limitations of section five
of this article, the county commission of any county may change the
boundaries of any precinct within such the county, or divide any
precinct into two or more precincts, or consolidate two or more precincts into one, or change the location of any polling place
whenever the public convenience may require it.
(b) No order effecting such the change, division or
consolidation shall be made by the county commission within ninety
days next preceding prior to an election nor without giving notice
thereof at least one month before such the change, division or
consolidation by publication of such the notice as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code., and the The publication
area for such publication shall be is the county in which such the
precinct or precincts are located. The county commission shall
also, within fifteen days after the date of the order, cause a copy
to be published as aforesaid publish the order in the manner
required for publication of the notice.
(c) The county commission shall also, before the next
succeeding election, cause the voters in the several precincts
affected by the order to be duly registered in the proper precinct
or precincts and shall mail written notification to all registered
voters affected by the change.
(d) The county commission shall keep in a well-bound book,
marked "election precinct record", a complete record of all their
proceedings hereunder and of every order made creating a precinct
or precincts or establishing a place of voting therein. Such The
"election precinct record" shall be kept by the county commission
clerk in his or her office and shall, at all reasonable hours, when
not actually in use by the county commission, be open to inspection by any citizen of the county.
(e) When the county commission establishes a polling place at
a location other than the location used for holding the preceding
primary, general or special election in that precinct, the
commission shall cause a notice to be posted on election day on the
door of the previous polling place describing the location of the
newly established polling place and shall mail written notification
to all registered voters affected by the change.
(f) If for any reason the election cannot be held at the
designated polling place in a precinct and no provision has been
made by the county commission for holding the election at another
place, the commissioners of election for that precinct may hold the
election at the nearest place which they can secure for the
purpose. They shall make known by proclamation to voters present
at the time for opening the polls, and by posting a notice at or
near the entrance of the first named polling place, the location at
which the election will be held. The county commission shall
establish another place of voting for that precinct as soon
thereafter as practicable.
(g) Notwithstanding any provision herein to the contrary, in
the case of an emergency, the county commission may make such the
precinct change no later than sixty days prior to an election in
accordance with the requirements herein with the approval of the
secretary of state. Such A change, if made however, shall not
cause any voter to be moved to a different district.
§3-1-9. Political party committees; how composed; organization.
At the primary election in the year one thousand nine hundred
ninety-four, and in every Every fourth year thereafter at the
primary election, the voters of each political party in each
senatorial district shall elect four members consisting of two male
members and two female members of the state executive committee of
the party. In senatorial districts containing two or more
counties, not more than two such elected committee members shall be
residents of the same county: Provided, That at each election the
votes shall be tallied from highest to lowest without regard to
gender or county of residence. The two candidates with the highest
votes shall be elected first and the other candidates shall be
qualified based on vote tallies, gender and county of residence.
The committee, when convened and organized as herein provided,
shall appoint three additional members of the committee from the
state at large which shall constitute the entire voting membership
of the state executive committee: Provided, however, That if it
chooses to do so, the committee may by motion or resolution, and in
accordance with party rules, may expand the voting membership of
the committee. When senatorial districts are realigned following
a decennial census, members of the state executive committee
previously elected or appointed shall continue in office until the
expiration of their terms., and appointments Appointments made to
fill vacancies on the committee until the next election of
executive committee members shall be selected from the previously
established districts. At the first election of executive
committee members following the realignment of senatorial districts, members shall be elected from the newly established
districts.
(b) At such the primary election, the voters of each political
party in each county shall elect one male and one female member of
the party's executive committee of the congressional district, of
the senatorial district and of the delegate district in which such
the county is situated, if such the county be is situated in a
multicounty senatorial or delegate district. When districts are
realigned following a decennial census, members of an executive
committee previously elected in a county to represent that county
to in a congressional or multicounty senatorial or delegate
district executive committee shall continue to represent that
county in the appropriate newly constituted multicounty district
until the expiration of their terms: Provided, That the county
executive committee of the political party shall determine which
previously elected members shall will represent the county if the
number of multicounty senatorial or delegate districts in the
county is decreased; and shall appoint members to complete the
remainder of the term if the number of such districts is increased.
(c) At the same time such the voters of the county in each
magisterial district or executive committee district, as the case
may be, shall elect one male and one female member of the party's
county executive committee except that in counties having three
executive committee districts, there shall be elected two male and
two female members of the party's executive committee from each
magisterial or executive committee district.
(d) For the purpose of complying with the provisions of this
section, the county commission shall create such the executive
committee districts. as they shall determine, which such The
districts shall not be fewer than the number of magisterial
districts in such the counties, nor shall they exceed in number the
following: Forty for counties having a population of one hundred
thousand persons or more; thirty for counties having a population
of fifty thousand to one hundred thousand; twenty for counties
having a population of twenty thousand to fifty thousand; and such
the districts in counties having a population of less than twenty
thousand persons shall be coextensive with the magisterial
districts.
(e) The executive committee districts shall be as nearly equal
in population as practicable and shall each be composed of compact,
contiguous territory. The county commissions shall change the
territorial boundaries of such the districts as required by the
increase or decrease in the population of such the districts as
determined by a decennial census. Such The changes must be made
within two years following such the census.
(f) All members of executive committees, selected for each
political division as herein provided, shall reside within the
county or district from which chosen. The term of office of all
members of executive committees elected at the primary election in
the year one thousand nine hundred ninety-four shall will begin on
the first day of July, following said the primary and shall
continue for four years thereafter and until their successors are elected and qualified. Vacancies in the state executive committee
shall be filled by the members of the committee for the unexpired
term. Vacancies in the party's executive committee of a
congressional district, senatorial district, delegate district or
county shall be filled by the party's executive committee of the
county in which such the vacancy exists, and shall be for the
unexpired term.
(g) As soon as possible after the certification of the
election of the new executive committees, as herein provided, they
shall convene an organizational meeting within their respective
political divisions, on the call of the chairman of corresponding
outgoing executive committees or by any member of the new executive
committee in the event there is no corresponding outgoing executive
committee. and proceed to During the first meeting the new
executive committee must select a chairman, a treasurer and a
secretary and such other officers as they may desire. , each Each
of which the officers shall, for their respective committees,
perform the duties that usually appertain to such offices his or
her office. The organizational meeting may be conducted prior to
the beginning of the term, but no official action other than the
election of officers and the appointment to fill vacancies on the
committee may be made before the first day of July. A current
listing of all executive committees' members shall be filed with
the secretary of state by the end of July of each year. Vacancies
in any executive committee shall be filled no later than four
months after the vacancy occurs. and the The chairman of each executive committee shall submit an updated committee list as
changes occur. Executive committee membership lists shall include
at least the member's name, full address, employer, telephone
number and term information. If a vacancy on an executive
committee is not filled within the four-month period prescribed by
the provisions of this section, the chair of the executive
committee shall name someone to fill the vacancy within ten days of
the expiration of the four-month period.
(h) Any meeting of any political party executive committee
shall be held only after public notice and notice to each member is
given according to party rules and shall be open to all members
affiliated with such the party. Meetings shall be conducted
according to party rules, all official actions shall be made by
voice vote and minutes shall be maintained and shall be open to
inspection by members affiliated with such the party.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall
provide cards of general information which will provide the date of
the election and the hours during which polling places will be
open, instruction for mail-in registrants and first-time voters and
voters' rights and prohibitions against fraud and misrepresentation
and cards of instruction for voters in preparing their ballots and
casting a provisional ballot as prescribed by the secretary of
state. They shall furnish a sufficient number of cards to the
commissioners of election at the same time they deliver the ballots
for the precinct.
(b) The commissioners of election shall post one instruction
card in each voting booth giving instructions to the voters on how
to prepare the ballots for deposit in the ballot boxes and how to
obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other
cards of general information at places inside and outside of the
voting place where voters pass or wait to vote. The commissioners
shall also post the official write-in candidates in the same
locations inside and outside of the voting place.
_____(d) The ballot commissioners shall also cause to be have
printed, on a different color paper than the official ballot, ten
or more copies of the sample ballots provided for each voting
place, at each election therein, which shall be designated sample
ballots, and for each voting place for each election. Sample
ballots shall be furnished and posted with the cards of general
information at each voting place.
_____(e) During the period of early in-person voting, the official
designated to supervise and conduct absentee voting shall post the
cards of general information, a list of official write-in
candidates and sample ballots within the area where absentee voting
is conducted.
§3-1-21. Printing of official and sample ballots; number;
packaging and delivery, correction of ballots.
(a) The board of ballot commissioners for each county shall
provide the ballots and sample ballots necessary for the conduct of
conducting every election for public officers in which the voters of the county participate.
(b) The persons who shall required to provide the ballots
necessary for the conduct of conducting all other elections shall
be 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; or
(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
caused to be printed by the proper authorities as specified in this
section shall not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular
official ballots printed shall equal one and one-twentieth times
the number of registered voters eligible to vote that ballot. The
circuit clerk shall determine the number of absentee official
ballots.
(d) The number of regular official ballots packaged for each
precinct shall equal the number of registered voters of the
precinct. The remaining regular official ballots shall be packaged
and delivered to the circuit clerk who shall retain them unopened
until they are required for an emergency. Each package of ballots shall be wrapped and sealed in a manner which will immediately make
apparent any attempt to open, alter or tamper with the ballots
contained therein. 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 therein 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 the conduct of
conducting absentee voting in all voting systems shall be delivered
to the circuit clerk of the appropriate county not later than the
forty-second day before the election. In counties where the clerk
of the county commission is responsible for conducting absentee
voting, the circuit clerk shall transfer the absentee ballots to
the clerk of the county commission prior to the beginning of
absentee voting. All official ballots in paper ballot systems shall
be delivered to the circuit clerk of the appropriate county not
later than twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that
an official ballot contains an error which, in the opinion of the
board, is of sufficient magnitude as to confuse or mislead the
voters, the board shall cause the error to be corrected either by
the reprinting of the ballots or by the use of stickers printed
with the correction and of suitable size to be placed over the error without covering any other portion of the ballot.
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the board of ballot commissioners
clerk of the county commission to appoint one or more of the
commissioners of election or poll clerks at each precinct of the
county to attend at the offices of the clerks of the circuit court
and county commission, as the case may be, at least one day before
each election to receive the ballots, ballot boxes, poll books,
registration records and forms and all other supplies and materials
for conducting the election at the respective precincts. The
clerks shall take a receipt for the respective materials delivered
to the above commissioner or commissioners of election or poll
clerks and shall file such the receipt in their respective offices.
It shall be the duty of such the commissioners or poll clerks to
receive such the supplies and materials from the respective clerks
and to deliver the same them with the seal of all sealed packages
unbroken at the election precinct in time to open the election.
(b) Such commissioner or The commissioners or poll clerks, if
they perform such the messenger services, shall receive the per
diem and mileage rate prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals
unbroken. For general and special elections the delivered ballots
so delivered shall not be in excess of one and one-twentieth times
the number of registered voters in the precinct. For primary
elections the ballots for each party shall be in a separately
sealed package containing not more than one and one-twentieth times the number of registered voters of such each party in the election
precinct.
(d) For primary elections one copy of the poll books,
including the written or printed forms for oaths of commissioners
of election and poll clerks written or printed thereon, shall be
supplied at each voting precinct for each political party appearing
on the primary ballot.
(e) There shall be two ballot boxes for each election precinct
for which a receiving and a counting board of election
commissioners have been appointed.
§3-1-25. Supplies by special messenger.
In case any commissioner of election so appointed shall fail
or poll clerk fails to appear at the offices of the clerks of such
the county commission and circuit courts by the close of the
clerk's office on the day prior to any election, the board of
ballot commissioners, the chairman thereof or the circuit clerk
shall forthwith dispatch a special messenger to the commissioners
of election of each respective precinct with the ballots,
registration records, ballot boxes, poll books and other supplies
for such the precinct. Such The messenger, if not a county
employee, shall be allowed five dollars for this service. and, even
if he be The messenger a county employee, twenty cents a mile for
the distance necessary to be traveled by him, and shall also
receive mileage up to the rate of reimbursement authorized by the
travel management rule of the department of administration for each
mile necessarily traveled in the performance of his or her services. The messenger shall promptly report to the clerks of the
circuit court and county commission, respectively, and file with
such the clerks the receipts of the person to whom he or she
delivered such the ballots and other supplies and his or her
affidavit stating when and to whom he or she delivered them.
§3-1-28. Election officials; eligibility, suspension of
eligibility.
(a) To be eligible to be appointed or serve as an election
official in any state, county or municipal election held in West
Virginia, a person:
(1) Must be a registered voter of the county for elections
held throughout the county and a registered voter of the
municipality for elections held within the municipality: Provided,
That if the required number of persons eligible to serve as
election officials for a municipal election are not available or
are not willing to serve as election officials for a municipal
election, a registered voter of the county in which the
municipality is located may serve as an election official for
elections held within the municipality.
(2) Must be able to read and write the English language;
(3) May not be a candidate on the ballot or an official write-
in candidate in the election;
(4) May not be the parent, child, sibling or spouse of a
candidate on the ballot or an official write-in candidate in the
precinct where the official serves;
(5) May not be a person prohibited from serving as an election official pursuant to any other federal or state statute; and
(6) May not have been previously convicted of a violation of
any election law.
(b) The county commission may, upon majority vote, suspend the
eligibility to serve as an election official in any election for
four years for the following reasons:
(1) Failure to appear at the polling place at the designated
time without proper notice and just cause;
(2) Failure to perform the duties of an election official as
required by law;
(3) Improper interference with a voter casting a ballot or
violating the secrecy of the voter's ballot;
(4) Being under the influence of alcohol or drugs while
serving as an election official; or
(5) Having anything wagered or bet on an election.
(c) The county commission may, upon majority vote, suspend the
eligibility to serve as an election official in any election for
two years upon petition of twenty-five registered voters of the
precinct where the official last served and upon presentation of
evidence of any of the grounds set forth in subsection (b) of this
section: Provided, That the petition requesting the suspension of
the election official is filed with the county commission at least
ninety days prior to an election date. The names of those persons
signing the petition must be kept confidential.
§3-1-29. Boards of election officials; definitions, composition of
boards, determination of number and type.
(a) For the purpose of this article:
(1) The term "standard receiving board" means those election
officials charged with conducting the process of voting within a
precinct and consists of five persons, including one team of poll
clerks, one team of election commissioners for the ballot box and
one additional election commissioner: Provided, That if a
municipal election is held at a time when there is no county or
state election, then the standard receiving board is to consist of
four persons, including one team of poll clerks and one team of
election commissioners for the ballot box;
(2) The term "expanded receiving board" means a standard
receiving board as defined in subdivision (1) of this subsection
and one additional team of poll clerks;
(3) The term "counting board" means those election officials
charged with counting the ballots at the precinct in counties using
paper ballots and includes one team of poll clerks, one team of
election commissioners and one additional commissioner;
(4) The term "team of poll clerks" or "team of election
commissioners" means two persons appointed by opposite political
parties to perform the specific functions of the office: Provided,
That no team of poll clerks or team of election commissioners may
consist of two persons with the same registered political party
affiliation or two persons registered with no political party
affiliation; and
(5) The term "election official trainee" means an individual
who is sixteen or seventeen years of age who meets the requirements of subdivisions (2), (3), (4), (5) and (6), subsection (a), section
twenty-eight of this article who serves as a trainee to the
standard receiving board on a volunteer basis by assisting the
standard receiving board in performing its official duties and who
receives credits for an official community service program as may
be required to obtain a high school diploma.
(b) The composition of boards of election officials shall be
as follows:
(1) In any primary, general or special election other than a
presidential primary or presidential general election, each
election precinct is to have one standard receiving board;
(2) In presidential primary and presidential general
elections, each election precinct is to have one receiving board as
follows:
(A) For precincts of less than five hundred registered voters,
one standard receiving board; and
(B) For precincts of more than five hundred to seven hundred
registered voters, one standard receiving board or, at the
discretion of the county commission, one expanded receiving board.
and
(C) For precincts of more than seven hundred registered
voters, one expanded receiving board;
(3) In any election conducted using paper ballots, counting
boards may be allowed, disallowed or required as follows:
(A) For any state, county or municipal special election, no
counting board may be allowed;
(B) In a statewide primary or general election, one counting
board is required for any precinct of more than four hundred
registered voters and one counting board may be allowed, at the
discretion of the county commission, for any precinct of at least
two hundred but no more than four hundred registered voters; and
(C) In a municipal primary or general election, one counting
board may be allowed, at the discretion of the municipal governing
body, for any precinct of more than two hundred registered voters.
(c) For each primary and general election in the county, the
county commission shall designate the number and type of election
boards for the various precincts according to the provisions of
this section. At least eighty-four days before each primary and
general election the county commission shall notify the county
executive committees of the two major political parties in writing
of the number of nominations which may be made for poll clerks and
election commissioners.
(d) For each municipal election, the governing body of the
municipality shall perform the duties of the county commission as
provided in this section.
(e) For each primary, general or special election in the
county, the county commission, and for each municipal election, the
governing body of the municipality, may appoint one or two election
official trainees for each precinct.
§3-1-30. Nomination and appointment of election officials and
alternates; notice of appointment; appointment to fill
vacancies in election boards.
(a) For any primary, general or special election held
throughout a county, poll clerks and election commissioners may be
nominated as follows:
(1) The county executive committee for each of the two major
political parties may, by a majority vote of the committee at a
duly called meeting, nominate one qualified person for each team of
poll clerks and one qualified person for each team of election
commissioners to be appointed for the election;
(2) The appointing body shall select one qualified person as
the additional election commissioner for each board of election
officials;
(3) Each county executive committee shall also nominate
qualified persons as alternates for at least ten percent of the
poll clerks and election commissioners to be appointed in the
county and is authorized to nominate as many qualified persons as
alternates as there are precincts in the county to be called upon
to serve in the event any of the persons originally appointed fail
to accept appointment or fail to appear for the required training
or for the preparation or execution of their duties;
(4) When an executive committee nominates qualified persons as
poll clerks, election commissioners or alternates, the committee,
or its chairman or secretary on its behalf, shall file in writing
with the appointing body, no later than the fifty-sixth day before
the election, a list of those persons nominated and the positions
for which they are designated.
(b) For any municipal primary, general or special election, the poll clerks and election commissioners may be nominated as
follows:
(1) In municipalities which have municipal executive
committees for the two major political parties in the municipality,
each committee may nominate election officials in the manner
provided for the nomination of election officials by county
executive committees in subsection (a) of this section;
(2) In municipalities which do not have executive committees,
the governing body shall provide by ordinance for a method of
nominating election officials or shall nominate as many eligible
persons as are required, giving due consideration to any
recommendations made by voters of the municipality or by candidates
on the ballot.
(c) The governing body responsible for appointing election
officials is:
(1) The county commission for any primary, general or special
election ordered by the county commission and any joint county and
municipal election;
(2) The board of education for any special election ordered by
the board of education conducted apart from any other election;
(3) The municipal governing body for any primary, general or
special municipal election ordered by the governing body.
(d) The qualifications for persons nominated to serve as
election officials may be confirmed prior to appointment by the
clerk of the county commission for any election ordered by the
county commission or for any joint county and municipal election and by the official recorder of the municipality for a municipal
election.
(e) The appropriate governing body shall appoint the election
officials for each designated election board no later than the
forty-ninth day before the election as follows:
(1) Those eligible persons whose nominations for poll clerk
and election commissioner were timely filed by the executive
committees and those additional persons selected to serve as an
election commissioner are to be appointed;
(2) The governing body shall fill any positions for which no
nominations were filed.
(f) At the same time as the appointment of election officials
or at a subsequent meeting the governing body shall appoint persons
as alternates: Provided, That no alternate may be eligible for
compensation for election training unless the alternate is
subsequently appointed as an election official or is instructed to
attend and actually attends training as an alternate and if called
to do so, also serves at the polls on election day is available to
serve on election day. Alternates shall be appointed and serve as
follows:
(1) Those alternates nominated by the executive committees
shall be appointed;
(2) The governing body may appoint additional alternates who
may be called upon to fill vacancies after all alternates
designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons who
may be instructed to attend training as alternates.
(g) The clerk of the county commission shall appoint qualified
persons to fill all vacancies existing after all previously
appointed alternates have been assigned, have declined to serve or
have failed to attend training.
(h) Within seven days following appointment, the clerk of the
county commission shall notify, by first-class mail, all election
commissioners, poll clerks and alternates of the fact of their
appointment and include with the notice a response notice form for
the appointed person to return indicating whether or not he or she
agrees to serve in the specified capacity in the election.
(i) The position of any person notified of appointment who
fails to return the response notice or otherwise confirm to the
clerk of the county commission his or her agreement to serve within
fourteen days following the date of appointment is considered
vacant and the clerk shall proceed to fill the vacancies according
to the provisions of this section.
(j) If an appointed election official fails to appear at the
polling place by forty-five minutes past five o'clock a.m. on
election day, the election officials present shall contact the
office of the clerk of the county commission for assistance in
filling the vacancy. and the The clerk shall proceed as follows:
(1) The clerk may attempt to contact the person originally
appointed, may assign an alternate nominated by the same political
party as the person absent if one is available or, if no alternate is available, may appoint another eligible person;
(2) If the election officials present are unable to contact
the clerk within a reasonable time, they shall diligently attempt
to fill the position with an eligible person of the same political
party as the party that nominated the person absent until a
qualified person has agreed to serve;
(3) If two teams of election officials, as defined in section
twenty-nine of this article, are present at the polling place, the
person appointed to fill a vacancy in the position of the
additional commissioner may be of either political party.
(k) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of the
county commission as provided in this section.
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and
residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall be required to sign his or her name in the space marked
"signature of voter" on the pollbook prescribed and provided for
the precinct. If that person is physically or otherwise unable to
sign his or her name, his or her mark shall be affixed by one of
the poll clerks in the presence of the other and the name of the poll clerk affixing the voter's mark shall be indicated immediately
under the affixation. No ballot may be given to the person until
he or she so signs his or her name on the pollbook or his or her
signature is so affixed thereon.
(b) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. Requests A request by these persons
a handicapped person for a transfer of registration shall must be
received by the county clerk no later than thirty days prior to the
date of the election. Any handicapped person who has not made a
request for a transfer of registration at least thirty days prior
to the date of the election may vote a challenged provisional
ballot at a handicap accessible polling place in the county of his
or her registration. and, if If during the canvass the county
commission determines that the person had been registered in a
precinct that is not handicap accessible, the voted ballot, if
otherwise valid, shall be counted. The handicapped person may vote
in the precinct to which the registration was transferred only as
long as the disability exists or the precinct from which the
handicapped person was transferred remains inaccessible to the
handicapped. To ensure confidentiality of the transferred ballot,
the county clerk processing the ballot shall provide the voter with
an unmarked envelope and an outer envelope designated "challenged
provisional ballot/handicapped voter". After validation of the ballot at the canvass, the outer envelope shall be destroyed and
the handicapped voter's ballot shall be placed with other approved
challenged provisional ballots prior to removal of the ballot from
the unmarked envelope.
(c) When the voter's signature is properly on the pollbook,
the two poll clerks shall sign their names in the places indicated
on the back of the official ballot and shall deliver the ballot to
the voter to be voted by him or her then without leaving the
election room. If he or she returns the ballot spoiled to the
clerks, they shall immediately mark the ballot "spoiled" and it
shall be preserved and placed in a spoiled ballot envelope together
with other spoiled ballots to be delivered to the board of
canvassers and deliver to the voter another official ballot, signed
by the clerks on the reverse side as before done required by this
subsection. The voter shall thereupon retire alone to the booth or
compartment prepared within the election room for voting purposes
and there prepare his or her ballot using a ballpoint pen of not
less than five inches in length or other indelible marking device
of not less than five inches in length. In voting for candidates
in general and special elections, the voter shall comply with the
rules and procedures prescribed in section five, article six of
this chapter.
(d) It is the duty of a poll clerk, in the presence of the
other poll clerk, to indicate by a check mark inserted in the
appropriate place on the registration record of each voter the fact
that the voter voted in the election. In primary elections the clerk shall also insert thereon a distinguishing initial or
initials of the political party for whose candidates the voter
voted. If a person is challenged at the polls, the challenge shall
be indicated by the poll clerks on the registration record,
together with the name of the challenger. The subsequent removal
of the challenge shall be recorded on the registration record by
the clerk of the county commission.
(e)(1) No voter may receive any assistance in voting unless,
by reason of blindness, disability, advanced age or inability to
read and write, that voter is unable to vote without assistance.
Any voter qualified to receive assistance in voting under the
provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request,
shall read over to the voter the names of the candidates selected
on the ballot as so prepared;
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner
hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct in the presence of an
election commissioner of each political party if all of the
following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
(2) Any voter who requests assistance in voting but who is
believed not to be qualified for such assistance under the
provisions of this section shall nevertheless be permitted to vote
a challenged provisional ballot with the assistance of any person
herein authorized to render assistance.
(3) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that
the voter thereof received assistance in voting it when in his, her
or their opinion that the person who received assistance in voting
is not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the
form and in the manner prescribed or authorized by article three of
this chapter.
(4) An election commissioner or other person who assists a
voter in voting:
(A) May not in any manner request or seek to persuade or
induce the voter to vote any particular ticket or for any
particular candidate or for or against any public question and must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must not, directly or
indirectly, reveal to any person the name of any candidate voted
for by the voter or which ticket he or she had voted or how he or
she had voted on any public question or anything occurring within
the voting booth or compartment or voting machine booth except when
required pursuant to law to give testimony as to the matter in a
judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the secretary of state stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation: Provided, That no person providing
assistance to a voter is required to sign an oath or affirmation
where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(5) In accordance with instructions issued by the secretary of
state, the clerk of the county commission shall provide a form
entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the secretary of state. The
commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting the ballot as herein provided, the commissioners
shall likewise make and subscribe to an oath of that fact on the
list.
(f) After preparing the ballot the voter shall fold the same
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall then announce his or
her name and present his or her ballot to one of the commissioners
who shall hand the same to another commissioner, of a different
political party, who shall deposit it in the ballot box if the
ballot is the official one and properly signed. The commissioner
of election may inspect every ballot before it is deposited in the
ballot box to ascertain whether it is single, but without unfolding
or unrolling it so as to disclose its content. When the voter has
voted, he or she shall retire immediately from the election room
and beyond the sixty-foot limit thereof and may not return except
by permission of the commissioners.
(g) Following the election, the oaths or affirmations required
by this section from those assisting voters, together with the "list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the
election supplies, records and returns., who The clerk of the
county commission shall make the oaths, affirmations and list
available for public inspection and who shall preserve these them
for a period of twenty-two months or until disposition is
authorized or directed by the secretary of state, or court of
record: Provided, That the clerk may use these records to update
the voter registration records in accordance with subsection (d),
section eighteen, article two of this chapter.
(h) Any person making an oath or affirmation required under
the provisions of this section who knowingly swears falsely or any
person who counsels, advises, aids or abets another in the
commission of false swearing under this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or imprisoned confined in the county or
regional jail for a period of not more than one year, or both fined
and imprisoned confined.
(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when the voter is known
to the election commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in a state correctional facility for a period of not
less than one year nor more than five years, or both fined and
imprisoned.
§3-1-39. Illegal voting; affidavit; procedure.
(a) If at any time during the election any qualified voter
shall make affidavit, before a commission or election, appear at
the polls for the purpose of stating that any person who has voted
is an illegal voter in such the precinct, the person accused shall
at once be arrested by any deputy sheriff or other person
designated by the election commissioners to make the arrest, and by
him delivered to the civil authorities. Any person desiring to
make such affidavit that person shall be admitted to the election
room for that purpose and shall appear before a commissioner of
election to make an affidavit explaining why he or she believes the
accused to be an illegal voter.
(b) All affidavits alleging illegal voting shall be placed in
a strong and durable envelope by the commissioners of election.
The envelope shall be securely sealed and each of the commissioners
shall endorse his or her name on the back of the envelope. At the
close of the count the envelope shall be delivered to the clerk of
the circuit court in accordance with section sixteen, article five
of this chapter and section eight, article six of this chapter.
The clerk of the circuit court shall carefully preserve the
envelope containing the affidavits and deliver it, with the seal
unbroken, to the prosecuting attorney Immediately after the close
of the election, the commissioners of election shall deliver such
affidavit to some justice of the peace in the magisterial district,
or magistrate in the county. , who The prosecuting attorney shall
proceed thereon as if the affidavit it had been made before him or her.
§3-1-41. Challenged and provisional voter procedures; counting of
provisional voters' ballots; ballots of election officials.
(a) It shall be the duty of the members of the receiving
board, jointly or severally, to challenge the right of any person
requesting a ballot to vote in any election if such the person's
registration record is not available at the time of the election or
if the signature written by the person in the poll book does not
correspond with the signature purported to be his or hers on the
registration record, or if the registration record of such the
person indicates any other legal disqualification or if any other
valid challenge exists against the voter pursuant to section ten,
article three of this chapter.
(b) Any person so challenged shall nevertheless be permitted
to vote in the election., but for that purpose he He or she shall
be furnished an official ballot not endorsed by the poll clerks.
In lieu of such the endorsements, the poll clerks shall fill
complete and sign an appropriate form indicating the challenge, and
the reason thereof and the name or names of the challengers. Such
The form shall be securely attached to the voter's ballot and
deposited together with the ballot in a separate box or envelope
marked "challenged 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) The Provisional ballot of any voter so challenged shall
not be counted by the election officials. The county court
commission shall, on its own motion, at the time of canvassing of
the election returns, sit in session to determine the validity of
such any challenges according to the provisions of this chapter.
If the county court commission shall determine determines that the
challenges are unfounded, the each provisional ballot of each
challenged voter, if otherwise valid, shall be counted and tallied
together with the regular ballots cast in the election. In such
determinations the The county court 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
and who serves in such that capacity in a precinct other than the
precinct in which such the person is legally entitled to vote may
cast a challenged provisional ballot in the precinct in which such
the person is serving as a commissioner or clerk., and such The
ballot shall not be deemed invalid for the sole reason of having
been cast in a precinct other than the precinct in which such the
person is legally entitled to vote. and the The county court
commission shall record the challenged provisional ballot on the
voter's permanent registration record: Provided, That the county
commission may only count the votes for the offices that the voter was legally authorized to vote for in his or her own precinct.
(f) The secretary of state shall establish a free access
system such as a toll-free telephone number or an internet website
that may be accessed by any individual who casts a provisional
ballot to discover whether the vote of that individual was counted
and, if not, the reason that the vote was not counted.
§3-1-44. Compensation of election officials; expenses.
(a) Each ballot commissioner is to be paid a sum, to be fixed
by the county commission, not exceeding one hundred twenty-five
dollars for each day he or she serves as ballot commissioner, but
in no case may a ballot commissioner receive allowance for more
than ten days' services for any one primary, general or special
election.
(b) Each commissioner of election and poll clerk is to be paid
a sum, to be fixed by the county commission, not exceeding one
hundred twenty-five dollars for one day's services for attending
the school of instruction for election officials if the
commissioner or poll clerk provides at least one day's service
during an election and a sum not exceeding one hundred seventy-five
dollars for his or her services at any one election: Provided,
That each commissioner of election and poll clerk is to be paid a
sum not exceeding one hundred seventy-five dollars for his or her
services at any of the three special elections described in
subsection (e) (f) of this section.
(c) Each alternate commissioner of election and poll clerk may
be paid a sum, to be fixed by the county commission, not exceeding fifty dollars for one day's services for attending the school of
instruction for election officials: Provided, That no alternate
may be eligible for compensation for election training unless the
alternate is subsequently appointed as an election official or is
instructed to attend and actually attends training as an alternate
and is available to serve on election day.
_____(c) (d) The commissioners of election or poll clerks obtaining
and delivering the election supplies, as provided in section
twenty-four of this article, and returning them, as provided in
articles five and six of this chapter, is are to be paid an
additional sum, fixed by the county commission, not exceeding one
hundred twenty-five dollars for his or her services pursuant to
this subsection at any one election. and, in In addition, he or she
is to be paid mileage up to the rate of reimbursement authorized
per mile as set by the travel management office rule of the
department of administration per for each mile necessarily traveled
in the performance of his or her services. The rate paid for
mileage pursuant to this section may change from time to time in
accordance with changes in the reimbursement rates established by
the travel management office, or its successor agency.
(d) (e) The compensation of election officers, cost of
printing ballots and all other expenses incurred in holding and
making the return of elections, other than the three special
elections described in subsection (e) (f) of this section, is are
to be audited by the county commission and paid out of the county
treasury.
(e) (f) The compensation of election officers, cost of
printing ballots and all other reasonable and necessary expenses in
holding and making the return of a special election for the purpose
of taking the sense of the voters on the question of calling a
constitutional convention, of a special election to elect members
of a constitutional convention and of a special election to ratify
or reject the proposals, acts and ordinances of a constitutional
convention are obligations of the state incurred by the ballot
commissioners, clerks of the circuit courts, clerks of the county
commissions and county commissions of the various counties as
agents of the state., and all All expenses of these special
elections are to be audited by the secretary of state. The
secretary of state shall prepare and transmit to the county
commissions forms on which the county commissions shall certify all
expenses of these special elections to the secretary of state. If
satisfied that the expenses as certified by the county commissions
are reasonable and were necessarily incurred, the secretary of
state shall requisition the necessary warrants from the auditor of
the state to be drawn on the state treasurer and shall mail the
warrants directly to the vendors of the special election services,
supplies and facilities.
§3-1-45. Court proceedings to compel performance of duties, etc.
Any officer or person upon whom any duty is devolved imposed
by this chapter may be compelled to perform the same his or her
duty by writ of mandamus. The circuit courts, or the judges
thereof in vacation, shall have jurisdiction by such writ and shall, upon affidavit filed showing a proper case, issue such a
writ to be returned, heard and determined without unnecessary delay
within fifteen days from the commencement of the proceedings. If
a circuit court, or a judge thereof in vacation, shall proceed
against any board of canvassers by mandamus, or otherwise, to
control, in any manner, the action of such the board in the
performance of its duties, under the provisions of this article, in
any case concerning the election of a member of the House of
Delegates, or a state senator, and shall fail to enter a final
order in such the proceedings, settling all questions presented
therein within fifteen days from the commencement of such the
proceedings, unless delayed by proceedings in the supreme court of
appeals, or a judge thereof in vacation, the same writ shall
thereupon be dismissed. and such The board shall convene within
not less than five days thereafter and proceed forthwith to the
performance of its duties under the provisions of this article. A
mandamus shall lie from the supreme court of appeals, or any one of
the judges thereof in vacation, returnable before said court, to
compel any officer herein to do and perform legally any duty herein
required of him or her. And respecting the In an election of a
member of the House of Delegates and state senator, a writ of
certiorari, mandamus or prohibition shall lie from the supreme
court of appeals, or a judge thereof in vacation, returnable before
said the court, to correct any error of law and review and correct
the proceedings of any circuit court, or the judge thereof in
vacation, or any board of canvassers. When any such writ rule to show cause why a writ of mandamus, prohibition or certiorari is
issued by the court, or a judge thereof in vacation, shall be
issued by said court, or a judge thereof in vacation, it shall be
the duty of said the court to convene in special session at the
state capital, not later than ten days from the date of the writ,
to hear and determine all matters arising upon such the writ. ,
which matters The issues raised in the petition for a writ of
mandamus, prohibition or certiorari shall have precedence over all
other business pending in said before the court., and The issues
before the court shall be determined within five days from the
assembling thereof, of the court and, in any case, in ample time
for the case to be remanded and final action taken by the circuit
court and the board of canvassers in order that such the board may
perform its duty and issue the certificate of election before the
second Wednesday in January, then next following. In mandamus
Mandamus and prohibition proceedings under this section the same
may be upon affidavit alone.
§3-1-48. State election fund.
There is hereby created in the state treasury a special
revenue account to be known as the "State Election Fund" account.
Expenditures from the account shall be used by the secretary of
state for the administration of this chapter in accordance with the
provisions of 42 U. S. C. §1530, et seq., the Help America Vote Act
of 2002, Public Law 107-252, in accordance with the provisions of
article eleven, chapter four of this code.
§3-1-49. Voting system standards.
(a) In accordance with 42 U. S. C. §1530, et seq., the Help
America Vote Act of 2002, Public Law 107-252, each voting system
used in an election for federal office shall:
(1) Permit the voter to verify, in a private and independent
manner, the votes selected by the voter on the ballot before the
ballot is cast and counted;
(2) Provide the voter with the opportunity, in a private and
independent manner, to change the ballot or correct any error
before the ballot is cast and counted, including the opportunity to
correct the error through the issuance of a replacement ballot if
the voter was otherwise unable to change the ballot or correct any
error; and
(3) If the voter selects votes for more than one candidate for
a single office: (A) Notify the voter that the voter has selected
more than one candidate for a single office on the ballot; (B)
notify the voter before the ballot is cast and counted of the
effect of casting multiple votes for the office; and (C) provide
the voter with the opportunity to correct the ballot before the
ballot is cast and counted: Provided, That a county that uses a
paper ballot voting system, a punch card voting system or an
optical scan voting system may meet the requirements of this
paragraph by establishing a voter education program specific to
that voting system that notifies each voter of the effect of
casting multiple votes for an office; and providing the voter with
instructions on how to correct the ballot before it is cast and
counted, including instructions on how to correct the error through the issuance of a replacement ballot if the voter was otherwise
unable to change the ballot or correct any error.
(4) Ensure that any notification required under this section
preserves the privacy of the voter and the confidentiality of the
ballot.
(b) Each voting system used in an election for federal office
shall produce a record with an audit capacity for the system which
shall meet the following requirements:
(1) Produce a permanent paper record with a manual audit
capacity for the system; and
(2) Provide the voter with an opportunity to change the ballot
or correct any error before the ballot is cast and counted and
before the permanent paper record is produced.
(c) Each voting system used in an election for federal office
shall be accessible for individuals with disabilities, including
nonvisual accessibility for the blind and visually impaired, in a
manner that provides the same opportunity for access and
participation, including privacy and independence, as for other
voters: Provided, That the provisions of this subsection may be
satisfied through the use of at least one direct recording
electronic voting system or other voting system equipped for
individuals with disabilities at each polling place.
§3-1-50. Establishment of state-based administrative complaint
procedures.
The secretary of state shall establish and maintain a state-
based administrative complaint procedure for complaints received concerning election violations which shall meet the following
requirements:
(1) The procedures shall be uniform and nondiscriminatory.
(2) Under the procedures, any person who believes that there
is a violation of any provision of this chapter, including a
violation which has occurred, is occurring or is about to occur,
may file a complaint.
(3) Any complaint filed under the procedures shall be in
writing, notarized and signed and sworn by the person filing the
complaint.
(4) The secretary of state may consolidate complaints filed
under this section.
(5) At the request of the complainant, there shall be a
hearing on the record.
(6) Violations of any provision of this chapter shall be
punishable in accordance with the provisions of article nine of
this chapter.
(7) If, under the procedures, the secretary of state
determines that there is no violation, the secretary of state shall
dismiss the complaint and publish the results of the procedures.
(8) The secretary of state shall make a final determination
with respect to a complaint prior to the expiration of the ninety-
day period which begins on the date the complaint is filed unless
the complainant consents to a longer period for making a
determination.
(9) If the secretary of state fails to meet the deadline applicable under subdivision (8)of this section, the complaint
shall be resolved within sixty days under alternative dispute
resolution procedures established for purposes of this section.
The record and other materials from any proceedings conducted under
the complaint procedures established under this section shall be
made available for use under the alternative dispute resolution
procedures.
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-2. Eligibility to register to vote.
(a) Any person who possesses the constitutional qualifications
for voting may register to vote. Such To be qualified, a person
shall must be a citizen of the United States and a legal resident
of West Virginia and of the county where he or she is applying to
register, shall be at least eighteen years of age, except that a
person who is at least seventeen years of age and who will be
eighteen years of age by the time of the next ensuing general
election may also be permitted to register, and shall not be
otherwise legally disqualified: Provided, That a registered voter
who has not reached eighteen years of age may vote both partisan
and nonpartisan ballots in a state or county or primary election,
but may only vote in a municipal primary election if he or she will
be eighteen years of age by the time of the next municipal general
election, but is not eligible to vote in a municipal general
election or special election.
(b) Any person who has been convicted of a felony, treason or
bribery in an election, under either state or federal law, is disqualified and shall is not be eligible to register or to
continue to be registered to vote during the term of any while
serving his or her sentence for such conviction, including any
period of incarceration, probation or parole related thereto. Any
person who has been determined to be mentally incompetent by a
court of competent jurisdiction is disqualified and shall not be
eligible to register or to continue to be registered to vote for as
long as that determination remains in effect.
§3-2-3. State authority relating to voter registration; chief
election official.
(a) The secretary of state, as chief election official of the
state as provided in section six, article one-a of this chapter,
shall have general supervision of the voter registration procedures
and practices and the maintenance of voter registration records in
the state and shall have authority to require reports and
investigate violations to ensure the proper conduct of voter
registration throughout the state and all of its subdivisions.
(b) The secretary of state, as chief election official of the
state, is responsible for implementing, in a uniform and
nondiscriminatory manner, a single, uniform, official, centralized,
interactive computerized statewide voter registration list defined,
maintained and administered at the state level that contains the
name and registration information of every legally registered voter
in the state and assigns a unique identifier to each legally
registered voter in the state.
_____(b) (c) The secretary of state is hereby designated as the chief election official responsible for the coordination of this
state's responsibilities under 42 U. S. C. §1973gg, et seq., the
"National Voter Registration Act of 1993" (42 U.S.C. 1973gg). The
secretary of state shall have general supervision of voter
registration procedures and practices at agencies and locations
providing services as required by the provisions of this article
and shall have the authority to propose procedural, interpretive
and legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code for
application for registration, transmission of applications,
reporting and maintenance of records required by the provisions of
this article and for the development, implementation and
application of other provisions of this article.
§3-2-4a. Statewide voter registration list.
(a) The secretary of state shall implement and maintain a
single, official, statewide, centralized, interactive computerized
voter registration list of every legally registered voter in the
state and shall assign a unique voter registration identifier to
each legally registered voter in the state, which shall include the
following:
(1) The computerized list shall serve as the single system for
storing and managing the official list of registered voters
throughout the state.
(2) The computerized list shall contain the name and
registration information of every legally registered voter in the
state.
(3) Under the computerized list, a unique identifier shall be
assigned to each legally registered voter in the state.
(4) The computerized list shall be coordinated with other
agency databases within the state.
(5) The secretary of state and any clerk of the county
commission may obtain immediate electronic access to the
information contained in the computerized list.
(6) Voter registration information obtained by every clerk of
the county commission in the state shall be electronically entered
into the computerized list on an expedited basis at the time the
information is provided to the clerk.
(7) The secretary of state shall provide necessary support to
enable every clerk of the county commission in the state to enter
information as described in subdivision (6) of this subsection.
(8) The computerized list shall serve as the official voter
registration list for conducting all elections in the state.
(b) The secretary of state or any clerk of a county commission
shall perform list maintenance with respect to the computerized
list on a regular basis as follows:
(1) If an individual is to be removed from the computerized
list, he or she shall be removed in accordance with the provisions
of 42 U. S. C. §1973gg, et seq., the National Voter Registration
Act of 1993.
(2) The secretary of state shall coordinate the computerized
list with state agency records and remove the names of individuals
who are not qualified to vote because of felony status or death.
(c) The list maintenance performed under subsection (b) of
this section shall be conducted in a manner that ensures that:
(1) The name of each registered voter appears in the
computerized list;
(2) Only voters who are not registered or who are not eligible
to vote are removed from the computerized list; and
(3) Duplicate names are eliminated from the computerized list.
(d) The secretary of state and the clerks of all county
commissions shall provide adequate technological security measures
to prevent the unauthorized access to the computerized list
established under this section.
(e) The secretary of state shall ensure that voter
registration records in the state are accurate and updated
regularly, including the following:
(1) A system of file maintenance that makes a reasonable
effort to remove registrants who are ineligible to vote from the
official list of eligible voters. Under the system, consistent
with 42 U. S. C. §1973gg, et seq., registrants who have not
responded to a notice sent pursuant to section twenty-four, article
three of this chapter and who have not voted in two consecutive
general elections for federal office shall be removed from the
official list of eligible voters except that no registrant may be
removed solely by reason of a failure to vote.
(2) Safeguards to ensure that eligible voters are not removed
in error from the official list of eligible voters.
(f) Applications for voter registration may only be accepted when the following information is provided:
(1) Except as provided in subdivision (2) of this subsection,
notwithstanding any other provision of law to the contrary, an
application for voter registration may not be accepted or processed
unless the application includes either: (A) In the case of an
applicant who has been issued a current and valid driver's license,
the applicant's driver's license number; or (B) in the case of any
other applicant, the last four digits of the applicant's social
security number.
(2) If an applicant for voter registration has not been issued
a current and valid driver's license or a social security number,
the secretary of state shall assign the applicant a number which
will serve to identify the applicant for voter registration
purposes. To the extent that the state has a computerized list in
effect under this section and the list assigns unique identifying
numbers to registrants, the number assigned under this section
shall be the unique identifying number assigned under the list.
(g) The secretary of state and the commissioner of the
division of motor vehicles shall enter into an agreement to match
information in the database of the statewide voter registration
system with information in the database of the division of motor
vehicles to the extent required to enable each official to verify
the accuracy of the information provided on applications for voter
registration.
(h) The commissioner of the division of motor vehicles shall
enter into an agreement with the commissioner of social security under 42 U. S. C. §301, et seq., the Social Security Act.
§3-2-5. Forms for application for registration; information
required and requested; types of application forms; notices.
(a) (1) All state forms for application for voter registration
shall be prescribed by the secretary of state and shall conform
with the requirements of 42 U. S. C. §1973gg, et seq., the
"National Voter Registration Act of 1993" (42 U.S.C. 1973gg) 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. After the first day of
January, one thousand nine hundred ninety-five, all state forms
issued for the purpose of voter registration shall be those
prescribed pursuant to the provisions of this article, and no form
used or issued for voter registration pursuant to laws in effect
before that date shall be provided to any person for the purpose of
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"
(42 U.S.C. 1973 et seq.), 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", (42 U.S.C. 1973gg) 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" (42 U.S.C. 1973gg);
(3) A notice that a voter may be permitted to vote the
partisan primary election ballot of a political party only if the
voter has designated that political party on the application for
registration unless the political party has determined otherwise;
(4) The last four digits of the applicant's social security
number or the applicant's driver's license number; and
(4)(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" (42 U.S.C. 1973ff), 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 home 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; and
(8) The date the application is signed.
(e) The secretary of state shall prescribe the printing
specifications of each type of voter registration application and
the voter registration application portion of any form which is
part of a combined agency form.
(f) Application forms prescribed in this section may refer to
various public officials by title or official position, but in no
case may the actual name of any officeholder be printed on the
voter registration application or on any portion of a combined
application form.
(g) No later than the first day of July of each odd-numbered
year the secretary of state shall submit the specifications of the
voter registration application by mail for statewide bidding for a
contract period beginning the first day of September of each odd-
numbered year and continuing for two calendar years. The successful
bidder shall produce and supply the required mail voter
registration forms at the contract price to all purchasers of the
form for the period of the contract.
§3-2-7. Hours and days of registration in the office of the clerk
of the county commission; in-person application for voter
registration; identification required.
(a) The clerk of the county commission shall provide voter
registration services at all times when the office of the clerk is
open for regular business. In addition, the office of the clerk
shall remain open for voter registration from 9:00 a.m. until 8:00
p.m. on the two weekdays immediately preceding the close of
registration for statewide primary and general elections, other
than legal holidays, and from 9:00 a.m. until 5:00 p.m. on the
Saturday prior to the close of registration for statewide primary
and general elections.
(b) Any eligible voter who desires to apply for voter
registration in person at the office of the clerk of the county
commission shall complete a voter registration application on the
prescribed form and shall sign the oath required on that
application in the presence of the clerk of the county commission
or his or her deputy. The applicant shall then present valid identification and proof of age, except that the clerk may waive
the proof of age requirement if the applicant is clearly over the
age of eighteen.
(c) The clerk shall attempt to establish whether the residence
address given is within the boundaries of an incorporated
municipality and, if so, make the proper entry required for
municipal residents to be properly identified for municipal voter
registration purposes.
(d) Upon receipt of the completed registration application,
the clerk shall either:
(1) Provide a notice of procedure for verification and notice
of disposition of the application and immediately begin the
verification process prescribed by the provisions of section
sixteen of this article; or
(2) Upon presentation of a current driver's license or
state-issued identification card containing the residence address
as it appears on the voter registration application, issue the
receipt of registration.
§3-2-10. Application for registration by mail.
(a) Any qualified person may apply to register, change,
transfer or correct his or her voter registration by mail.
Application shall be made on a prescribed form as provided by
section five of this article.
(b) To the extent possible, with funds allocated annually for
such purpose, the secretary of state shall make state mail
registration forms available for distribution through governmental and private entities and organized voter registration programs. The
secretary of state shall make a record of all requests by entities
or organizations for ten or more forms with a description of the
dates and locations in which the proposed registration drive is to
be conducted. The secretary of state may limit the distribution to
a reasonable amount per group.
(c) The clerk of the county commission shall provide up to
four mail registration forms to any resident of the county upon
request. To the extent possible with funds allocated annually for
the purpose, the clerk of the county commission shall make state
mail registration forms available for distribution through
organized voter registration programs within the county. The clerk
of the county commission shall make a record of all requests by
entities or organizations for ten or more forms with a description
of the dates and locations in which the proposed registration drive
is to be conducted. The clerk may limit the distribution to a
reasonable amount per group.
(d) The applicant shall provide all required information and,
only after completing the information, sign the prescribed
applicant's oath under penalty of perjury as provided in section
thirty-six of this article. No person may alter or add any entry or
make any mark which would alter any material information on the
voter registration application after the applicant has signed the
oath: Provided, That the clerk of the county commission may
correct any entry upon the request of the applicant provided the
request is properly documented and the correction is dated and initialed by the clerk.
(e) Completed applications shall be mailed or delivered to the
clerk of the county commission of the county in which the voter
resides. If a clerk receives a completed mail application form
from a voter whose residence address is located in another county,
the clerk shall forward that application within three days to the
clerk of the county commission of the county of the applicant's
residence.
(f) Upon receipt of the application for registration by the
appropriate clerk of the county commission, the clerk shall:
(1) Attempt to establish whether the residence address given
is within the boundaries of an incorporated municipality and, if
so, make the proper entry required for municipal residents to be
properly identified for municipal voter registration purposes; and
(2) Immediately begin the verification process required by the
provisions of section sixteen of this article.
(g) Any person who registers by mail pursuant to this section
shall be required to make his or her first vote in person at the
polls or in person at the office of the clerk of the circuit court
to vote an absentee ballot in order to make the registration valid:
Provided, That any person who has applied for an absentee ballot
pursuant to the provisions of subdivision (1), subsection (d),
section one, article three of this chapter, or paragraph (B),
subdivision (2) of said subsection, or subdivision (3) of said
subsection or of subsection (e) of said section shall not have his
or her ballot in that election challenged for failure to appear in person or for failure to present identification. and who has not
previously voted in an election in the state or if the statewide
voter registration has not yet been implemented, the voter has not
previously voted in the county shall be required to present the
following forms of identification to the secretary of state or
clerk of the county commission:
_____(1) In the case of an individual who votes in person, a
current and valid photo identification; or a copy of a current
utility bill, bank statement, government check, paycheck or other
government document that shows the name and address of the voter;
_____(2) In the case of an individual who votes by mail, submits
with the ballot a copy of a current and valid photo identification
or a copy of a current utility bill, bank statement, government
check, paycheck or other government document that shows the name
and address of the voter.
_____(h) An individual who desires to vote in person or by mail,
but who does not meet the requirements of subsection (g), may cast
a provisional ballot.
_____(i) Subsection (g) shall not apply in the case of a person:
_____(1) Who registers to vote by mail under 42 U. S. C. §1973gg-4,
et seq., and submits as part of his or her registration either a
copy of a current and valid photo identification or a copy of a
current utility bill, bank statement, government check, paycheck or
government document that shows the name and address of the voter;
_____(2)(A) Who registers to vote by mail under 42 U. S. C.
§1973gg-4, et seq., and submits with his or her registration either a driver's license number or at least the last four digits of the
individual's social security number; and (B) with respect to whom
the secretary of state or clerk of the county commission matches
the information submitted under paragraph (A) with an existing
state identification record bearing the same number, name and date
of birth as provided in the registration; or
_____(3) Who is: (A) Entitled to vote by absentee ballot under 42
U. S. C. §1973ff-1, et seq., the Uniformed and Overseas Citizens
Absentee Voting Act; (B) provided the right to vote otherwise than
in person under 42 24 U. S. C. §1973ee-1(b) (2) (B) (ii); or 25
(iii), section 3(b)(2)(B)(ii) of the Voting Accessibility for the
Elderly and Handicapped Act; (C) entitled to vote otherwise than in
person under any other federal law: Provided, That any person who
has applied for an absentee ballot pursuant to the provisions of
subdivision (1), subsection (b), section one, article three of this
chapter; paragraph (B), subdivision (2) of said subsection;
subdivision (3) of said subsection; or subsection (c) of said
section shall not have his or her ballot in that election
challenged for failure to appear in person or for failure to
present identification.
_____(h) Any person required by this section to make his or her
first vote in person shall present valid identification and proof
of age to the clerks at the poll or at the office of the clerk of
the circuit court or the clerk of the county commission of the
county in which he or she is registered before casting the first
ballot.
(i) (j) Any person who submits a state mail voter registration
application to the clerk of the county commission in the county in
which he or she is currently registered for the purpose of entering
a change of address within the county, making a change of party
affiliation or recording a change of legal name shall not be
required to make his or her first vote in person or to present
identification or proof of age.
§3-2-13. Agencies to provide voter registration services;
designation of responsible employees; forms; prohibitions;
confidentiality.
(a) For the purposes of this article, "agency" means a
department, division or office of state or local government, or a
program supported by state funds, which is designated under this
section to provide voter registration services, but does not
include departments, divisions or offices required by other
sections of this article to provide voter registration services.
(b) Beginning on the first day of January, one thousand nine
hundred ninety-five, the following agencies shall provide voter
registration services pursuant to the provisions of this article:
(1) Those state agencies which administer or provide services
under the food stamp program, the "Aid to Families with Dependent
Children" (AFDC) program, the "Women, Infants and Children" (WIC)
program and the medicaid program;
(2) Those state-funded agencies primarily engaged in providing
services to persons with disabilities;
(3) County marriage license offices; and
(4) Armed services recruitment offices, as required by federal
law.
(c) No later than the first day of October, one thousand nine
hundred ninety-four, the secretary of state shall, in conjunction
with a designated representative of each of the appropriate state
agencies, review those programs and offices established and
operating with state funds which administer or provide public
assistance or services to persons with disabilities and shall
promulgate an emergency rule pursuant to the provisions of chapter
twenty-nine-a of this code designating the specific programs and
offices required to provide voter registration services in order to
comply with the requirements of this section and the requirements
of the "National Voter Registration Act of 1993" (42 U. S. C.
§1973gg, et seq.). The offices and programs so designated shall
begin providing voter registration services on the first day of
January, one thousand nine hundred ninety-five.
(d) No later than the first day of July, one thousand nine
hundred ninety-six, and each even-numbered year thereafter, the
secretary of state shall, in conjunction with the designated
representatives of the appropriate state agencies, perform the
review as required by the provisions of subsection (c) of this
section. and the The secretary of state shall promulgate a
periodically review and revise, if necessary, the legislative rule
pursuant to the provisions of chapter twenty-nine-a of this code
designating the specific agencies required to provide voter
registration services beginning on the first day of July of the following year.
(e) Each state agency required to provide services pursuant to
the provisions of this article shall designate a current employee
of that agency to serve as a state supervisor to administer voter
registration services required in all programs under their the
agency's jurisdiction. Each state supervisor shall be responsible
for coordination with the secretary of state, overall operation of
the program in conjunction with services within the agency,
designation and supervision of local coordinators and for the
review of any complaints filed against employees relating to voter
registration as provided in this chapter.
(f) The state supervisor shall designate a current employee as
a local coordinator for voter registration services for each office
or program delivery center who shall be responsible for the proper
conduct of voter registration services, timely return of completed
voter registration applications, proper handling of declinations
and reporting requirements. Notice of the designation of these
persons shall be made upon request of the secretary of state and
within five days following any change of such designation.
(g) The registration application forms used for agency
registration shall be issued pursuant to the provisions of section
five of this article.
(h) The secretary of state, in conjunction with those agencies
designated to provide voter registration services pursuant to the
provisions of this section, shall prescribe the form or portion of
the appropriate agency form required by the provisions of Section 42 U. S. C. §1973gg, et seq., section 7(a)(6)(B) of the "National
Voter Registration Act of 1993" (42 U.S.C. 1973gg), containing the
required notices and providing boxes for the applicant to check to
indicate whether the applicant would like to register or decline to
register to vote. Such The form or portion of the form is
designated the "declination form".
(i) A person who provides voter registration services shall
not:
(1) Seek to influence an applicant's political preference or
party registration;
(2) Display to any applicant any political preference or party
allegiance;
(3) Make any statement to an applicant or take any action the
purpose or effect of which is to discourage the applicant from
registering to vote; or
(4) Make any statement to an applicant or take any action the
purpose or effect of which is to lead the applicant to believe that
a decision to register or not to register has any bearing on the
availability of services or benefits.
(j) No information relating to the identity of a voter
registration agency through which any particular voter is
registered or to a declination to register to vote in connection
with an application made at any designated agency may be used for
any purpose other than voter registration.
§3-2-19. Maintenance of active and inactive registration files in
precinct record books and county alphabetical registration file.
(a) Each county shall continue to maintain a record of each
active and inactive voter registration in precinct registration
books until the statewide voter registration state uniform data
system is adopted pursuant to the provisions of section twenty
four-a of this article, fully implemented and given final approval
by the secretary of state. The precinct registration books shall be
maintained as follows:
(1) Each active voter registration shall be entered in the
precinct book or books for the county precinct in which the voter's
residence is located and shall be filed alphabetically by name,
alphabetically within categories, or by numerical street address,
as determined by the clerk of the county commission for the
effective administration of registration and elections. No active
voter registration record shall be removed from the precinct
registration books unless the registration is lawfully transferred
or canceled pursuant to the provisions of this article.
(2) Each voter registration which is designated "inactive"
pursuant to the procedures prescribed in section twenty-seven of
this article shall be retained in the precinct book for the county
precinct in which the voter's last recorded residence address is
located until the time period expires for which a record must
remain on the inactive files. Every inactive registration shall be
clearly identified by a prominent tag or notation or arranged in a
separate section in the precinct book clearly denoting the
registration status. No inactive voter registration record shall be removed from the precinct registration books unless the
registration is lawfully transferred or canceled pursuant to the
provisions of this article.
(b) For municipal elections, the registration records of
active and inactive voters shall be maintained as follows:
(1) County precinct books shall be used in municipal elections
when the county precinct boundaries and the municipal precinct
boundaries are the same and all registrants of the precinct are
entitled to vote in state, county and municipal elections within
the precinct or when the registration records of municipal voters
within a county precinct are separated and maintained in a separate
municipal section or book for that county precinct and can be used
either alone or in combination with other precinct books to make up
a complete set of registration records for the municipal election
precinct.
(2) Upon request of the municipality, and if the clerk of the
county commission does not object, separate municipal precinct
books shall be maintained in cases where municipal or ward
boundaries divide county precincts and it is impractical to use
county precinct books or separate municipal sections of those
precinct books. If the clerk of the county commission objects to
the request of a municipality for separate municipal precinct
books, the state election commission must determine whether the
separate municipal precinct books should be maintained.
(3) No registration record may be removed from a municipal
registration record unless the registration is lawfully transferred or canceled pursuant to the provisions of this article in both the
county and the municipal registration records.
(c) No later than the first day of January, one thousand nine
hundred ninety-five, and within Within thirty days following the
entry of any annexation order or change in street names or numbers,
the governing body of an incorporated municipality shall file with
the clerk of the county commission a certified current official
municipal boundary map and a list of streets and ranges of street
numbers within the municipality to assist the clerk in determining
whether a voter's address is within the boundaries of the
municipality.
(d) Each county, so long as precinct registration books are
maintained, shall maintain a duplicate record of every active and
inactive voter registration in a county alphabetical file. The
alphabetical file may be maintained on individual paper forms or,
upon approval of the secretary of state of a qualified data storage
program, may be maintained in digitized format. A qualified data
storage program shall be required to contain the same information
for each voter registration as the precinct books, shall be subject
to proper security from unauthorized alteration and shall be
regularly duplicated to backup data storage to prevent accidental
destruction of the information on file.
§3-2-30. Public inspection of voter registration records in the
office of the clerk of the county commission; providing
voter lists for noncommercial use; prohibition against
resale of voter lists for commercial use or profit.
(a) The active, inactive, rejected and canceled voter
registration records shall be made available for public inspection
during office hours of the clerk of the county commission in
accordance with the provisions of chapter twenty-nine-b of this
code as follows:
(1) When the active and inactive files are maintained on
precinct registration books, any person shall be allowed to examine
these files under the supervision of the clerk and obtain copies of
records except when a precinct book is in temporary use for
updating and preparing lists or during the time the books are
sealed for use in an election. Other original voter registration
records, including canceled voter records, pending applications,
rejected applications, records of change requests, reinstatements
and other documents, shall be available for inspection upon
specific request;
(2) When the active, inactive, rejected and canceled voter
files are maintained in data format, any person shall be allowed to
examine voter record information in printed form or in a read-only
data format on a computer terminal set aside for public use, if
available. The data files available shall include all registration
and voting information maintained in the file, except that the
telephone number and social security number of any voter shall not
be available for inspection or copying in any format.
(b) Printed lists of registered voters may be purchased for
noncommercial use from the clerk of the county commission at a cost
of one cent per name.
(1) In counties maintaining active and inactive files on
precinct registration books only, a separate list for each of the
two major political parties and for voters registered independent
or other affiliation shall be prepared for each precinct. The
lists shall be arranged in alphabetical order or street order, as
the books are maintained, and shall include the name, residence
address and party affiliation of the voter, along with a
designation of inactive status where applicable. The lists shall
be prepared prior to the primary election and the clerk shall not
be required to supplement or revise those lists as registrations
are added or canceled.
(2) In counties maintaining active and inactive files in
digitized data format, the clerk of the county commission shall,
upon request, prepare printed copies of the lists of voters for
each precinct. No list prepared under this section may include the
telephone number or social security number of the registrant. The
clerk shall establish a written policy, which shall be posted
within public view, listing the options which may be requested for
selection and sorting criteria and available data elements, which
shall include at least the name, residence address, political party
affiliation and status and the format of the lists and the times at
which lists will be prepared. A copy of the policy shall be filed
with the secretary of state no later than the first day of January,
one thousand nine hundred ninety-five, and within thirty days after
any change in policy.
(c) In counties which maintain voter files in a digitized data format, lists of registered voters may be obtained for
noncommercial purposes in data format on disk provided and prepared
by the clerk of the county commission at a cost of one cent per
name plus ten dollars for each disk required. No data file
prepared under this subsection may include the telephone number or
social security number of the registrant.
(d) The fees received by the clerk of the county commission
shall be kept in a separate fund under the supervision of the clerk
for the purpose of defraying the cost of the preparation of the
voter lists. Any unexpended balance in the fund shall be
transferred to the general fund of the county commission.
(e) After the implementation of the state uniform voter data
system, the secretary of state may make voter lists available for
sale subject to the limitations as provided in this section for
counties, except that the cost shall be one and one-half cents per
name plus ten dollars for each disk required. One cent per name
for each voter from a particular county on each list sold shall be
reimbursed to the appropriate county and one-half cent per name
shall be deposited to a special account for purpose of defraying
the cost of the preparation of the lists.
(f) No voter registration lists or data files containing the
names, addresses or other information relating to voters derived
from voter data files obtained pursuant to the provisions of this
article may be used for commercial or charitable solicitations or
advertising, sold or reproduced for resale, or provided to any
person at less than the prescribed cost for any purpose other than official use.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a) Registered and other qualified voters of the county may
vote an absentee ballot pursuant to the provisions of this article.
(b)(a) All registered and other qualified voters of the county
may vote an absentee ballot during the period of regular absentee
early voting in person.
(c) Any registered voter or other qualified voter of the
county who will be absent from the county throughout the regular
period and available hours for voting in person because of personal
or business travel or employment and who will be unable to receive
an absentee ballot by mail at an address outside the county during
that absence may vote an absentee ballot under special affidavit in
person during the period of special absentee voting in person.
(d) (b) Registered voters and other qualified voters in the
county are authorized to vote an absentee ballot by mail in the
following circumstances:
(1) Any voter who is confined to a specific location and
prevented from voting in person throughout the period of voting in
person because of:
(A) Illness, injury or other medical reason;
(B) Physical disability or immobility due to extreme advanced
age; or
(C) Incarceration or home detention: Provided, That the
underlying conviction is not for a crime which is a felony or a violation of section twelve, thirteen or sixteen, article nine of
this chapter involving bribery in an election;
(2) Any voter who is absent from the county throughout the
period and available hours for voting in person because of:
(A) Personal or business travel;
(B) Attendance at a college, university or other place of
education or training; or
(C) Employment which because of hours worked and distance from
the county seat make voting in person impossible;
(3) Any voter absent from the county throughout the period and
available hours for voting in person and who is an absent uniformed
services voter or overseas voter, as defined by 42 U. S. C. §1973,
et seq., the Uniformed and Overseas Citizens Absentee Voting Act of
1986, including members of the uniformed services on active duty,
members of the merchant marine, spouses and dependents of those
members on active duty and persons who reside outside the United
States and are qualified to vote in the last place in which the
person was domiciled before leaving the United States;
(4) Any voter who is required to dwell temporarily outside the
county and is absent from the county throughout the time for voting
in person because of:
(A) Serving as an elected or appointed federal or state
officer; or
(B) Serving in any other documented employment assignment of
specific duration of four years or less; and
(5) Any voter for whom the designated area for absentee voting within the county courthouse or annex of the courthouse and the
voter's assigned polling place are inaccessible because of his or
her physical disability.
(e) (c) Registered voters and other qualified voters in the
county may, in the following circumstances, vote an emergency
absentee ballot, subject to the availability of the services as
provided in this article:
(1) Any voter who is confined or expects to be confined in a
hospital or other duly licensed health care facility within the
county of residence or other authorized area, as provided in this
article, on the day of the election;
(2) Any voter who resides in a nursing home within the county
of residence and would be otherwise unable to vote in person,
providing the county commission has authorized the services if the
voter has resided in the nursing home for a period of less than
thirty days; and
(3) Any voter who is working as a replacement poll worker and
is assigned to a precinct out of his or her voting district, if the
assignment was made after the period for voting an absentee ballot
in person has expired.
§3-3-2. Authority to conduct absentee voting; absentee voting
application; form.
(a) Absentee voting is to be supervised and conducted by the
proper official for the political division in which the election is
held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a
political subdivision or territory other than a municipality, or
within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county
commission: Provided, That if the clerk of the county commission
and the clerk of the circuit court jointly petition the county
commission setting forth their agreement that the clerk of the
circuit court should continue to supervise and conduct the absentee
voting, the county commission shall designate the clerk of the
circuit court to supervise and conduct the absentee voting; or
(2) The municipal recorder or other officer authorized by
charter or ordinance provisions to conduct absentee voting, for any
election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms "clerk"
or "circuit clerk" or "official designated to supervise and conduct
absentee voting" used elsewhere in this article means municipal
recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote an a mail-in
absentee ballot in any primary, general or special election is to
make application in writing in the proper form to the proper
official as follows:
(1) The completed application is to be on a form prescribed by
the secretary of state and is to contain the name, date of birth
and political affiliation of the voter, residence address within
the county, the address to which the ballot is to be mailed, the
authorized reason, if any, for which the absentee ballot is requested and, if the reason is illness or hospitalization, the
name and telephone number of the attending physician, the signature
of the voter to a declaration made under the penalties for false
swearing as provided in section three, article nine of this chapter
that the statements and declarations contained in the application
are true, any additional information which the voter is required to
supply, any affidavit which may be required and an indication as to
whether it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under
the provisions of 42 U. S. C. §1973, et seq., the Uniformed and
Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee
ballot form issued under authority of that act; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for an
application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out
by the voter, provided all information required to meet the
provisions of this article is set forth and the application is
signed by the voter requesting the ballot.
§3-3-2a. Voting booths within public view to be provided;
prohibition against display of campaign material.
Throughout the period of absentee voting early in-person
voting, the official designated to supervise and conduct absentee
voting shall make the following provisions for voting:
(1) The official shall provide a sufficient number of voting booths or devices appropriate to the voting system at which voters
may prepare their ballots. The booths or devices are to be in an
area separate from but within clear view of the public entrance
area of the official's office or other area designated by the
county commission for absentee voting and are to be arranged to
ensure the voter complete privacy in casting the ballot.
(2) The official shall make the voting area secure from
interference with the voter and shall ensure that voted and unvoted
ballots are at all times secure from tampering. No person, other
than a person lawfully assisting the voter according to the
provisions of this chapter, may be permitted to come within five
feet of the voting booth while the voter is voting. No person,
other than the officials or employees of the official designated to
supervise and conduct absentee voting or members of the board of
ballot commissioners assigned to conduct absentee voting, may enter
the area or room set aside for voting.
(3) The official designated to supervise and conduct absentee
voting shall request the county commission designate another area
within the county courthouse or any annex of the courthouse as a
portion of the official's office for the purpose of absentee voting
in the following circumstances:
(A) If the voting area is not accessible to voters with
physical disabilities;
(B) If the voting area is not within clear view of the public
entrance of the office of the official designated to supervise and
conduct absentee voting; or
(C) If there is no suitable area for absentee voting within
the office.
Any designated area is subject to the same requirements as
the regular absentee voting area.
(4) The official designated to supervise and conduct absentee
voting shall have at least two representatives to assist with
absentee voting: Provided, That the two representatives shall not
be registered with the same political party affiliation or two
persons registered with no political party affiliation. The
representatives may be full-time employees, temporary employees
hired for the period of absentee voting in person or volunteers.
_____(4) (5) No person may do any electioneering nor may any person
display or distribute in any manner, or authorize the display or
distribution of, any literature, posters or material of any kind
which tends to influence the voting for or against any candidate or
any public question on the property of the county courthouse or any
annex facilities during the entire period of regular in-person
absentee voting. The official designated to supervise and conduct
absentee voting is hereby authorized to remove the material and to
direct the sheriff of the county to enforce the prohibition.
§3-3-3. Early voting in person.
(a) Regular absentee The voting period for early in person
voting is to be conducted during regular business hours beginning
on the fifteenth twentieth day before the election and continuing
through the third day before the election. 1:00 p.m. the Monday
before the election for any election held on a Tuesday, or continuing through 1:00 p.m. the day before the election for any
election held on another day. For any election held on a Tuesday,
regular absentee the early voting period for in-person voting is to
be available from 9:00 a.m. to 5:00 p.m. on the two Saturdays
Saturday before prior to the election.
(b) Special absentee voting in person for persons eligible to
vote an absentee ballot under the provisions of subsection (c),
section one of this article is to be conducted during regular
business hours in the office of the official designated to
supervise and conduct absentee voting beginning on the forty-second
day before the election and continuing until the first day when
regular absentee voting in person begins. Any person seeking to
vote absentee under this subsection is to first give an affidavit,
on a form prescribed by the secretary of state, stating under oath
the specific circumstances which prevent voting absentee during the
period for regular absentee voting in person or by mail.
(c) Upon oral request, the official designated to supervise
and conduct absentee voting shall provide the voter with the
appropriate application for voting absentee in person, as provided
in this article. The voter shall complete and sign the application
in his or her own handwriting or, if the voter is unable to
complete the application because of illiteracy or physical
disability, the person assisting the voter and witnessing the mark
of the voter shall sign his or her name in the space provided.
(d) Upon completion, the application is to be immediately
returned to the official designated to supervise and conduct absentee voting who shall determine:
(1) Whether the application has been completed as required by
law;
(2) Whether the applicant is duly registered to vote in the
precinct of his or her residence and, in a primary election, is
qualified to vote the ballot of the political party requested; and
(3) Whether the applicant is authorized for the reasons given
in the application to vote an absentee ballot by personal
appearance during the special absentee voting period at the time of
the application.
(b) Any person desiring to vote during the period of early in-
person voting shall, upon entering the election room, clearly state
his or her name and residence to the official or representative
designated to supervise and conduct absentee voting. If that
person is found to be duly registered as a voter in the precinct of
his or her residence, he or she shall be required to sign his or
her name in the space marked "signature of voter" on the pollbook.
If the voter is unable to sign his or her name due to illiteracy or
physical disability, the person assisting the voter and witnessing
the mark of the voter shall sign his or her name in the space
provided. No ballot may be given to the person until he or she
signs his or her name on the pollbook.
_____(c) When the voter's signature or mark is properly on the
pollbook, two qualified representatives of the official designated
to supervise and conduct absentee voting shall sign their names in
the places indicated on the back of the official ballot.
_____(e) (d) If the official designated to supervise and conduct
absentee voting determines the conditions provided in subsection
(d) of this section have not been met, or has evidence that any of
the information contained in the application is not true that the
voter is not properly registered in the precinct where he or she
resides, the clerk or his or her representative shall challenge the
voter's absentee ballot as provided in this article.
(f) (e) The official designated to supervise and conduct
absentee voting shall provide each person voting an absentee ballot
in person the following items to be printed as prescribed by the
secretary of state:
(1) One In counties using paper ballots, one of each type of
official absentee ballot the voter is eligible to vote, prepared
according to law;
(2) For all punch card and paper ballot voting and for optical
scan ballots voted after election supplies are delivered to the
election supply commissioner, one envelope, unsealed, which may
have no marks except the designation "Absent Voter's Ballot
Envelope No. 1" and printed instructions to the voter;
(3) For all punch card and paper ballot voting and for optical
scan ballots voted after election supplies are delivered to the
election supply commissioner, one envelope, unsealed, designated
"Absent Voter's Ballot Envelope No. 2"; and
(4) For optical scan voting systems, ballots, a secrecy sleeve
and access to a ballot box secured by two locks with keys kept by
the president of the county commission and the county clerk.
(2) In counties using punch card systems, one of each type of
official absentee ballot the voter is eligible to vote, prepared
according to law, and a gray secrecy envelope;
_____(3) In counties using optical scan systems, one of each type
of official absentee ballot the voter is eligible to vote, prepared
according to law, and a secrecy sleeve; or
_____(4) For direct recording election systems, access to the
voting equipment in the voting booth.
_____(g) (f) The voter shall enter the voting booth alone and there
mark the ballot: Provided, That the voter may have assistance in
voting according to the provisions of section four of this article.
After the voter has voted the ballot or ballots, the punch card and
paper absentee voter shall: (1) Place the ballot or ballots in the
gray secrecy envelope no. 1 and seal that envelope; (2) place the
sealed envelope no. 1 in envelope no. 2 and seal that envelope; (3)
complete and sign the forms on envelope no. 2; and (4) return that
envelope the ballot or ballots to the official designated to
supervise and conduct the absentee voting: Provided, however, That
in direct recording election systems, once the voter has cast his
or her ballot, the voter shall exit the polling place.
(h) (g) Upon receipt of the sealed envelope voted ballot,
representatives of the official designated to supervise and conduct
the absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope in a secure location in the
official's office, to remain until delivered to the polling place
or, in the case of a challenged ballot, to the board of canvassers.
(1) Remove the ballot stub;
_____(2) Place punch card ballots and paper ballots into one
envelope which shall not have any marks except the precinct number
and seal the envelope;
_____(3) Place ballots for all voting systems into a ballot box
that is secured by two locks with a key to one lock kept by the
president of the county commission and a key to the other lock kept
by the county clerk.
_____(4) Due to the reenactment of this section by the Legislature
in the two thousand three regular session removing authorization
for early in-person voting on the Monday prior to a Tuesday
election, to assure notice to all persons that voted on the Monday
before the Tuesday election day of the two thousand two general
election are made aware of this change, the clerk of each county
shall, for the primary election of the year two thousand four,
include along with the sample ballots published in local newspapers
as required by this chapter a notice to voters that Monday in-
person voting will no longer be available.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of the county, in person, by mail or by facsimile, if the official has
access to facsimile equipment, the appropriate application for
voting absentee by mail as provided in this article. The voter
shall complete and sign the application in his or her own
handwriting or, if the voter is unable to complete the application
because of illiteracy or physical disability, the person assisting
the voter and witnessing the mark of the voter shall sign his or
her name in the space provided.
(b) Completed applications for voting an absentee ballot by
mail is to be accepted when received by the official designated to
supervise and conduct absentee voting in person, by mail or by
facsimile, if the official has access to facsimile equipment,
within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year, or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail
under the provisions of paragraph (A) or (B), subdivision (2),
subsection (d), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of
the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee
ballot will be challenged as provided in this article and shall
enter that challenge.
(e) Within one day after the official designated to supervise
and conduct absentee voting has both the completed application and
the ballot, the official shall mail to the voter at the address
given on the application the following items as prescribed by the
secretary of state:
(1) One of each type of official absentee ballot the voter is
eligible to vote, prepared according to law;
(2) One envelope, unsealed, which may have no marks except the
designation "Absent Voter's Ballot Envelope No. 1" and printed
instructions to the voter;
(3) One postage paid envelope, unsealed, designated "Absent
Voter's Ballot Envelope No. 2";
(4) Instructions for voting absentee by mail; and
(5) For electronic systems, one punching tool for perforating
or a device for marking by electronically sensible pen or ink, as
may be appropriate;
_____(6) If a punching tool is to be utilized, one disposable
styrofoam block to be placed behind the ballot card for voting
purposes and to be discarded after use by the voter; and
_____(5) (7) Any other supplies required for voting in the particular voting system.
(f) The voter shall mark the ballot alone: Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article. After the voter has voted the ballot
or ballots, the voter shall: (1) Place the ballot or ballots in
envelope no. 1 and seal that envelope; (2) place the sealed
envelope no. 1 in envelope no. 2 and seal that envelope; (3)
complete and sign the forms on envelope no. 2; and (4) return that
envelope to the official designated to supervise and conduct
absentee voting.
(g) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service are to be accepted if: (1) The ballot is received
by the official designated to supervise and conduct absentee voting
no later than the day after the election; or (2) the ballot bears
a postmark of the United States postal service dated no later than
election day and the ballot is received by the official designated
to supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(i) Ballots received after the proper time which cannot be
accepted are to be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they are to be destroyed without being
opened.
(j) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election: Provided, That no person may hand deliver
more than two absentee ballots in any election, and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(k) Upon receipt of the sealed envelope, the official
designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record
of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope in a secure location in the
official's office, to remain until delivered to the polling place
or, in the case of a challenged ballot, to the board of canvassers
into a ballot box that is secured by two locks with a key to one
lock kept by the president of the county commission and a key to the other lock kept by the county clerk.
§3-3-5c. Procedures for voting an emergency absentee ballot by
qualified voters.
(a) Notwithstanding any other provision of this chapter, a
person qualified to vote an emergency absentee ballot, as provided
in subsection (c), section one of this article may vote an
emergency absentee ballot under the procedures established in this
section. The county commission may adopt a policy extending the
emergency absentee voting procedures to: (1) Hospitals or other
duly licensed health care facilities within an adjacent county or
within thirty-five miles of the county seat; or (2) nursing homes
within the county: Provided, That the policy is to be adopted by
the county commission at least ninety days prior to the election
that will be affected and a copy of the policy is to be filed with
the secretary of state.
(b) On or before the fifty-sixth day preceding the date on
which any election is to be held the official designated to
supervise and conduct absentee voting shall notify the county
commission of the number of sets of emergency absentee ballot
commissioners which he or she determines necessary to perform the
duties and functions pursuant to this section.
(c) A set of emergency absentee ballot commissioners at-large
shall consist of two persons with different political party
affiliations appointed by the county commission in accordance with
the procedure prescribed for the appointment of election
commissioners under the provisions of article one of this chapter. Emergency absentee ballot commissioners have the same
qualifications and rights and take the same oath required under the
provisions of this chapter for commissioners of elections.
Emergency absentee ballot commissioners are to be compensated for
services and expenses in the same manner as commissioners of
election or poll clerks obtaining and delivering election supplies
under the provisions of section forty-four, article one of this
chapter.
(d) Upon request of the voter or a member of the voter's
immediate family or, when the county commission has adopted a
policy to provide emergency absentee voting services to nursing
home residents within the county, upon request of a staff member of
the nursing home, the official designated to supervise and conduct
absentee voting, upon receiving a proper request for voting an
emergency absentee ballot no earlier than the seventh day next
preceding the election and no later than noon of election day shall
supply to the emergency absentee ballot commissioners the
application for voting an emergency absentee ballot and the
balloting materials. The emergency absentee ballot application is
to be prescribed by the secretary of state and is to include the
name, residence address and political party affiliation of the
voter, the date, location and reason for confinement in the case of
an emergency, and the name of the attending physician.
(e) The application for an emergency absentee ballot is to be
signed by the person applying. If the person applying for an
emergency absentee ballot is unable to sign his or her application because of illiteracy or physical disability, he or she is to make
his or her mark on the signature line provided for an illiterate or
disabled applicant, which the mark is to be witnessed. The person
assisting the voter and witnessing the mark of the voter shall sign
his or her name in the space provided.
(f) A declaration is to be completed and signed by each of the
emergency absentee ballot commissioners, stating their names, the
date on which they appeared at the place of confinement of the
person applying for an emergency absentee ballot and the
particulars of the confinement.
(g) At least one of the emergency absentee ballot
commissioners receiving the balloting materials shall sign a
receipt which is to be attached to the application form. Each of
the emergency absentee ballot commissioners shall deliver the
materials to the absent voter, await his or her completion of the
application and ballot and return the application and the ballot to
the official designated to supervise and conduct absentee voting.
and, upon Upon delivering the application and the voted ballot to
the official, the emergency absentee ballot commissioners shall
sign an oath that no person other than the absent voter voted the
ballot. The application and the voted ballot are to be returned to
the official designated to supervise and conduct absentee voting
prior to the close of the polls on election day. Any ballots
received by the official after the time that delivery may
reasonably be made but before the closing of the polls are to be
delivered to the canvassing board along with the absentee ballots challenged in accordance with the provisions of section ten of this
article.
(h) Upon receiving the application and emergency absentee
ballot, the official designated to supervise and conduct absentee
voting shall ascertain whether the application is complete, whether
the voter appears to be eligible to vote an emergency absentee
ballot, and whether the voter is properly registered to vote with
the office of the clerk of the county commission. If the voter is
found to be properly registered in the precinct shown on the
application, the ballot is to be delivered to the precinct election
commissioner pursuant to section seven of this article. If the
voter is found not to be registered or is otherwise ineligible to
vote an emergency ballot, then the ballot is to be challenged for
the appropriate reason provided for in section ten of this article.
(i) If either or both of the emergency absentee ballot
commissioners should refuse to sign any application for voting an
emergency absentee ballot, then the voter may vote as an emergency
absentee and the ballot is to will be challenged in accordance with
the provisions of section ten of this article, in addition to those
absentee ballots subject to challenge as provided in that section.
(j) Any voter who receives assistance in voting an emergency
absentee ballot shall comply with the provisions of section six of
this article. Any other provisions of this chapter relating to
absentee ballots not altered by the provisions of this section are
to govern the treatment of emergency absentee ballots.
§3-3-7. Delivery of absentee ballots to polling places.
(a) Except as otherwise provided in this article, in counties
in which the clerk of the county commission has determined that the
absentee ballots should be counted at the precincts in which the
absent voters are registered, using paper ballots systems or voting
machines, the absentee ballots of each precinct, together with the
applications for the absentee ballots, the affidavits made in
connection with assistance in voting and any forms, lists and
records as may be designated by the secretary of state, are to be
delivered in a sealed carrier envelope to the election commissioner
of the precinct at the time he or she picks up the official ballots
and other election supplies as provided in section twenty-four,
article one of this chapter.
(b) For optical scan voting systems, all ballots voted before
the precinct supplies are delivered to the precinct supply
commissioner are to be deposited in the ballot box. The ballots
deposited in the ballot box shall be counted and merged with the
election day ballots at the counting center on election night.
(c) (b) Absentee ballots received after the election
commissioner has picked up the official ballots and other election
supplies for the precinct are to be delivered to the election
commissioner of the precinct who has been designated pursuant to
section twenty-four, article one of this chapter, by the official
designated to supervise and conduct absentee voting in person or by
messenger before the closing of the polls, provided the ballots are
received by the official in time to make the delivery. Any ballots
received by the official after the time that delivery may reasonably be made but within the time required as provided in
subsection (g), section five of this article are to be delivered to
the board of canvassers along with the challenged provisional
ballots.
§3-3-8. Disposition and counting of absent voters' ballots.
(a) All absentee ballots voted must be deposited in the
absentee ballot box. The ballots deposited in the ballot box must
be counted and merged with the election day ballots at the counting
center on election night or, at the option of the clerk of the
county commission, be delivered for counting at the precinct in
which the absent voter is registered to vote, as provided in
section seven of this article.
(b) The county clerk shall appoint at least one team of five
absentee ballot counting commissioners. The composition of each
team shall consist of the same combination of election officials as
provided for a counting board in subdivision (3), subsection (a),
section twenty-nine, article one of this chapter. The absentee
ballot counting commissioners must count the absentee ballots at
the counting center as follows:
(1) Immediately after the closing of the polls on election day
the absentee ballot counting commissioners, in the presence of each
other, shall open the ballot box in which are enclosed the absent
voters' ballots.
(2) After the ballot box has been opened, each of the absentee
ballot counting commissioners shall examine each of the mail-in
sealed absent voter's ballot envelopes no. 2 contained therein, as well as the information contained thereon, the application for such
ballot, the affidavits, records and lists, if any, made, prepared
or authorized under the provisions of this article which relate
thereto and make a decision as to each ballot whether a challenge
is or is not to be made to such ballot. The appropriate form
indicating the challenge shall be completed as to each ballot
challenged by one or more of the absentee ballot counting
commissioners. Each ballot challenged shall remain sealed in
absent voter's ballot envelope no. 2 and be deposited in the box or
envelope for challenged ballots.
(3) The absentee ballot counting commissioners shall next
determine whether any challenge has been made to any absent voter's
ballot by any registered voter in the county under the provisions
of section nine of this article. Each such ballot challenged shall
remain sealed in absent voter's ballot envelope no. 2 and be
deposited in the box or envelope for challenged ballots.
(4) The absentee ballot counting commissioners, in the
presence of each other, shall then open, in a manner as not to
deface or destroy the information thereon, all of the mail-in
absent voter's ballot envelopes no. 2 which contain ballots not
challenged and remove therefrom the absent voter's ballot envelopes
no. 1. These envelopes shall then be shuffled and intermingled.
(5) The absentee ballot counting commissioners, in the
presence of each other, shall next open all of the absent voter's
ballot envelopes no. 1 and remove the ballots therefrom. The
absentee ballot counting commissioners who are poll clerks shall write their names on the back of each of such ballots in the same
manner as other ballots are required to be endorsed by the poll
clerks at precinct voting. The absentee ballot counting
commissioners who are poll clerks shall then indicate with the
letter "a" in the appropriate place on the registration record the
fact that the voter had voted by absent voter's ballot in that
election and shall enter the absent voter's name on the pollbook.
(6) The absentee ballot counting commissioners shall next
count the mail-in and in-person absentee ballots and enter the
totals onto the precinct election records.
(a) In counties using paper ballots, all absentee ballots
shall be processed as follows:
_____(1) The ballot boxes containing the absentee ballots shall be
opened in the presence of the clerk of the county commission and
two representatives of opposite political parties;
_____(2) The ballots shall be separated by precincts as stated on
the sealed envelopes containing the ballots; and
_____(3) Absentee ballots shall be delivered to the polls to be
opened and counted in accordance with section thirty-three, article
one of this chapter, section fifteen, article five of this chapter;
and section six, article six of this chapter. Disclosure of any
results before the voting has been closed and the precinct returns
posted on the door of the polling place shall be a per se violation
of the oath taken by the counting board. In all other counties,
counting is to begin immediately after closing of the polls.
_____(b) In the counties using punch card systems, the absentee ballots shall be processed as follows:
_____(1) On election day, the ballot boxes containing the absentee
ballots shall be delivered to the central counting center and
opened in the presence of the clerk of the county commission and
two representatives of opposite political parties;
_____(2) The ballots shall be separated by precincts as stated on
the sealed envelopes containing the ballots; and
_____(3) The absentee ballots shall be counted in accordance with
section twenty-seven, article four-a of this chapter.
_____(c) In counties using optical scan systems, the absentee
ballots shall be processed as follows:
_____(1) On election day, the ballot boxes containing the absentee
ballots shall be delivered to the central counting center and
opened in the presence of the clerk of the county commission and
two representatives of opposite political parties; and
_____(2) The absentee ballots shall be counted in accordance with
section twenty-seven, article four-a of this chapter.
_____(d) In counties using direct recording elections systems, the
absentee ballots shall be counted in accordance with section
twenty-seven, article four-a of this chapter.
_____(7) (e) The challenged provisional ballots shall be deposited
in a challenged provisional ballot envelope and delivered to the
board of canvassers.
(c) (f) Any election official who determines a person has
voted an absent voter's ballot and has also voted at the polls on
election day must report the fact to the prosecuting attorney of the county in which the votes were cast.
§3-3-10. Challenging of absent voters' ballots.
(a) The official designated to supervise and conduct absentee
voting may challenge an absent voter's ballot on any of the
following grounds:
(1) That the application for an absent voter's ballot has not
been completed as required by law;
(2) That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) That the applicant for an absent voter's ballot is not
registered to vote in the precinct of his or her residence as
provided by law;
(4) That the person voting an absent voter's ballot by
personal appearance in his or her office had assistance in voting
the ballot when the person was not qualified for voting assistance
because: (A) The affidavit of the person who received assistance
does not indicate a legally sufficient reason for assistance; or
(B) the person who received assistance did not make an affidavit as
required by this article; or (C) the person who received assistance
is not so illiterate as to have been unable to read the names on
the ballot or that he or she is not so physically disabled as to
have been unable to see or mark the absent voter's ballot;
(5) That the person who voted an absent voter's ballot by mail
and received assistance in voting the ballot was not qualified
under the provisions of this article for assistance; and
(6) That the person has voted absentee by mail as a result of being out of the county more than four consecutive times:
Provided, That the determination as to whether the person has voted
more than four consecutive times does not apply if the person is a
citizen residing out of the United States; or a member, spouse or
dependent of a member serving in the uniformed services; or a
college student living outside of his or her home county.
(b) Any one or more of the election commissioners or poll
clerks in a precinct may challenge an absent voter's ballot on any
of the following grounds:
(1) That the application for an absent voter's ballot was not
completed as required by law;
(2) That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) That the person voting an absent voter's ballot is not
registered to vote in the precinct of his or her residence as
provided by law;
(4) That the signatures of the person voting an absent voter's
ballot as they appear on his or her registration record, his or her
application for an absent voter's ballot and the absent voter's
ballot envelope are not in the same handwriting;
(5) That the absent voter's ballot does not have the official
seal of the clerk of the circuit court and all signatures of
members of the board of ballot commissioners on it;
(6) (5) That the person voting an absent voter's ballot by
personal appearance had assistance in voting the ballot when the
person was not qualified for assistance because: (A) The affidavit of the person who received assistance does not indicate a legally
sufficient reason for assistance; or (B) the person who received
assistance did not make an affidavit as required by this article;
or (C) the person who received assistance is not so illiterate as
to have been unable to read the names on the ballot or that he or
she was not so physically disabled as to have been unable to see or
mark the absent voter's ballot;
(7) (6) That the person voted an absent voter's ballot by mail
and received assistance in voting the ballot when not qualified
under the provisions of this article for assistance;
(8) (7) That the person who voted the absent voter's ballot
voted in person at the polls on election day;
(9) (8) That the person voted an absent voter's ballot under
authority of subdivision (3), subsection (b), section one of this
article and is or was present in the county in which he or she is
registered to vote between the opening and closing of the polls on
election day; and
_____(10) That the person who voted an absent voter's ballot had
died before election day; and
(11) (9) On any other ground or for any reason on which or for
which the ballot of a voter voting in person at the polls on
election day may be challenged.
No challenge may be made to any absent voter ballot if the
voter was registered and qualified to vote pursuant to the
provisions of subsection (a), section one of this article.
(c) Forms for, and the manner of, challenging an absent voter's ballot under the provisions of this article are to be
prescribed by the secretary of state.
(d) Absent voters' ballots challenged by the official
designated to supervise and conduct absentee voting under the
provisions of this article are to be transmitted by the official
directly to the county commission sitting as a board of canvassers.
The absent voters' ballots challenged by the election commissioners
and poll clerks under the provisions of this article may not be
counted by the election officials but are to be transmitted by them
to the county commission sitting as a board of canvassers. Action
by the board of canvassers on challenged absent voters' ballots is
to be governed by the provisions of section forty-one, article one
of this chapter.
§3-3-11. Preparation, number and handling of absent voters'
ballots.
(a) Absent voters' ballots are to be in all respects like
other ballots. Not less than seventy days before the date on which
any primary, general or special election is to be held, unless a
lesser number of days is provided for in any specific election law
in which case the lesser number of days applies, the clerks of the
circuit courts of the several counties shall estimate and determine
the number of absent voters' ballots of all kinds which will be
required in their respective counties for that election. The
ballots for the election of all officers, or the ratification,
acceptance or rejection of any measure, proposition or other public
question to be voted on by the voters, are to be prepared and printed under the direction of the board of ballot commissioners
constituted as provided in article one of this chapter. The
several county boards of ballot commissioners shall prepare and
have printed, in the number they may determine, absent voters'
ballots that are to be printed under their directions as provided
in this chapter and those ballots are to be delivered to the clerk
of the circuit court of the county not less than forty-two days
before the day of the election at which they are to be used.
Before any ballot is mailed or delivered, the clerk of the circuit
court shall affix his or her official seal and he or she and the
other members of the board of ballot commissioners shall place
their signatures near the lower left-hand corner on the back of the
ballot. The clerks of the circuit courts are authorized to have
their signatures affixed by a facsimile printed on the back of
absentee ballots, by a facsimile signature stamp or by signing
their original signatures. An absent voter's ballot not containing
the seal and signatures shall be challenged. If an accurate
accounting is made for all ballots and applications in that
precinct and no other valid challenge exists against the voter, the
ballot shall be counted at the canvas. In counties where the clerk
of the county commission is responsible for conducting absentee
voting, the circuit clerk shall transfer the absentee ballots to
the clerk of the county commission prior to the beginning of
absentee voting.
(b) The official designated to supervise and conduct absentee
voting shall be primarily responsible for the mailing, receiving, delivering and otherwise handling of all absent voters' ballots.
He or she shall keep a record, as may be prescribed by the
secretary of state, of all ballots so delivered for the purpose of
absentee voting, as well as all ballots, if any, marked before him
or her and shall deliver to the commissioner of election a
certificate stating the number of ballots delivered or mailed to
absent voters and those marked before him or her, if any, and the
names of the voters to whom those ballots have been delivered or
mailed or by whom they have been marked, if marked before him or
her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy
changes; procedure and requirements.
(a) The ballot commissioners of any county in which voting
machines are to be used in any election shall cause to be printed
for use in the election the ballot labels for the voting machines
and paper ballots for absentee voting, voting by persons unable to
use the voting machine and challenged provisional ballots or if an
electronic voting system or direct recording election equipment is
to be used in an election, the ballot commissioners shall comply
with requirements of section eleven, article four-a of this
chapter. The labels shall be clearly printed in black ink on clear
white material of such in a size as that will fit the ballot
frames. The paper ballots shall be printed in compliance with the
provisions of this chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the printing and arrangement of names of the candidates for each office
indicated must be placed on the ballot for the primary election as
nearly as possible according to the provisions of sections thirteen
and thirteen-a, article five of this chapter and for the general
election according to the provisions of section two, article six of
this chapter: Provided, That the staggering of the names of
candidates in multicandidate races and the instructions to straight
ticket voters prescribed by section two, article six of this
chapter shall appear on paper ballots but shall not appear on
ballot labels for voting machines which mechanically control
crossover voting.
(c) Each question to be voted on must be placed at the end of
the ballot and must be printed according to the provisions of the
laws and regulations governing the question.
(d) The ballot labels printed must total in number one and
one-half times the total number of corresponding voting machines to
be used in the several precincts of the county in the election.
All the labels must be delivered to the clerk of the circuit court
at least twenty-eight days prior to the day of the election. The
clerk of the circuit court shall determine the number of paper
ballots needed for absentee voting and to supply the precincts for
challenged provisional ballots and ballots to be cast by persons
unable to use the voting machine. All required paper ballots shall
be delivered to the clerk of the circuit court at least forty-two
days prior to the day of the election.
(e) When the ballot labels and absentee ballots are delivered, the clerk of the circuit court shall examine them for accuracy,
assure that the appropriate ballots and ballot labels are
designated for each voting precinct and deliver the ballot labels
to the clerk of the county commission who shall insert one set in
each machine prior to the inspection of the machines as prescribed
in section twelve of this article. The remainder of the ballot
labels for each machine shall be retained by the clerk of the
county commission for use in an emergency.
(f) In addition to all other equipment and supplies required
by the provisions of this article, the ballot commissioners shall
cause to be printed a supply of instruction cards, sample ballots
and facsimile diagrams of the voting machine ballot adequate for
the orderly conduct of the election in each precinct in their
county. In addition, they shall provide appropriate facilities for
the reception and safekeeping of the ballots of absent voters and
of challenged voters and of such the "independent" voters who
shall, in primary elections, cast their votes on nonpartisan
candidates and public questions submitted to the voters.
§3-4-23. Voting by challenged voters.
If the right of any person to vote be is challenged in
accordance with provisions of article one of this chapter relating
to the challenging of voters, such the person shall not be
permitted to cast his or her vote by use of the voting machine but
he or she shall be supplied by the election officer at the polling
place with an official printed ballot of such the election. Such
The provisional ballot shall not be endorsed on the back by the poll clerks but, when voted by the challenged voter, shall have
affixed thereto by the poll clerks their statement of information
as to the challenge on the form prescribed therefor. Such
challenged The provisional ballots shall be secured, handled and
disposed of as challenged provisional ballots in other elections,
as provided in article one of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may
not be approved by the state election commission or be purchased,
leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the
act of voting or, at the voter's election, provides for open
voting;
(2) It is constructed to ensure that no person, except in
instances of open voting as provided for in this section, can see
or know for whom any voter has voted or is voting;
(3) It permits each voter to vote at any election for all
persons and offices for whom and which he or she is lawfully
entitled to vote, whether or not the name of any person appears on
a ballot or ballot label as a candidate; and it permits each voter
to vote for as many persons for an office as he or she is lawfully
entitled to vote for; and to vote for or against any question upon
which he or she is lawfully entitled to vote. The automatic
tabulating equipment used in electronic voting systems is to reject choices recorded on any ballot if the number of choices exceeds the
number to which a voter is entitled;
(4) It permits each voter to deposit, write in, affix upon a
ballot, card, envelope or other medium to be provided for that
purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots or
ballot labels;
(5) It permits each voter to change his or her vote for any
candidate and upon any question appearing upon the ballots or
ballot labels up to the time when his or her ballot is deposited in
the ballot box or his or her ballot is cast by electronic means;
(6) It contains a program deck consisting of cards that are
sequentially numbered or consisting of a computer program disk,
diskette, tape or other programming media containing sequentially
numbered program instructions and coded or otherwise protected from
tampering or substitution of the media or program instructions by
unauthorized persons and capable of tabulating all votes cast in
each election;
(7) It contains two standard validation test decks approved as
to form and testing capabilities by the state election commission;
(8) It correctly records and counts accurately all votes cast
for each candidate and for and against each question appearing upon
the ballots or ballot labels;
(9) It permits each voter at any election other than primary
elections by one mark or punch to vote a straight party ticket, as
provided in section five, article six of this chapter.
(10) It permits each voter in primary elections to vote only
for the candidates of the party for which he or she is legally
permitted to vote and precludes him or her from voting for any
candidate seeking nomination by any other political party, permits
him or her to vote for the candidates, if any, for nonpartisan
nomination or election and permits him or her to vote on public
questions;
(11) It, where applicable, is provided with means for sealing
or electronically securing the vote recording device to prevent its
use and to prevent tampering with ballot labels, both before the
polls are open or before the operation of the vote recording device
for an election is begun and immediately after the polls are closed
or after the operation of the vote recording device for an election
is completed;
(12) It has the capacity to contain the names of candidates
constituting the tickets of at least nine political parties and
accommodates the wording of at least fifteen questions;
(13) Where vote recording devices are used, they:
(A) Are durably constructed of material of good quality and in
a workmanlike manner and in a form which makes it safely
transportable;
(B) Are so constructed with frames for the placing of ballot
labels that the labels upon which are printed the names of
candidates and their respective parties, titles of offices and
wording of questions are reasonably protected from mutilation,
disfigurement or disarrangement or are constructed to ensure that the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are
reasonably protected from any modification;
(C) Bear a number that will identify it or distinguish it from
any other machine;
(D) Are constructed to ensure that a voter may easily learn
the method of operating it and may expeditiously cast his or her
vote for all candidates of his or her choice and upon any public
question;
(E) Are accompanied by a mechanically or electronically
operated instruction model which shows the arrangement of ballot
labels, party columns or rows, and questions;
(F) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;
(G) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates
for any office or who attempts to cast his or her ballot prior to
its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of the ballot;
(H) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to present the entire ballot to the voter,
in a series of sequential pages, and to ensure that the voter sees
all of the ballot options on all pages before completing his or her
vote and to allow the voter to review and change all ballot choices
prior to completing and casting his or her ballot;
(I) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to allow election commissioners to spoil a
ballot where a voter fails to properly cast his or her ballot, has
departed the polling place and cannot be recalled by a poll clerk
to complete his or her ballot;
(J) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to allow election commissioners, poll
clerks, or both, to designate, mark or otherwise record challenged
provisional ballots;
(K) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within
each device's internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;
(L) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;
(M) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;
(N) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed to record all preelection, election and
post-election activities, including all ballot images and system
anomalies, in each device's internal electronic memory and are to
be accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, are constructed with a battery backup system in each device
to, at a minimum, prevent the loss of any votes, as well as all
preelection, election and post-election activities, including all
ballot images and system anomalies, stored in the device's internal
electronic memory and to allow voting to continue for two hours of
uninterrupted operation in case of an electrical power failure; and
(P) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of
touch, are constructed to prevent the loss of any votes, as well as
all preelection, election and post-election activities, including
all ballot images and system anomalies, stored in each device's
internal electronic memory even in case of an electrical and
battery power failure.
§3-4A-19. Conducting electronic voting system elections generally;
duties of election officers; penalties.
(a) The election officers shall constantly and diligently
maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.
(b) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing the
party to which the voter belongs shall direct the voter to the vote
recording device or supply the voter with a ballot, as may be
appropriate, which will allow the voter to vote only for the
candidates who are seeking nomination on the ticket of the party
with which the voter is affiliated or for unaffiliated voters in
accordance with section thirty-one, article two of this chapter.
(c) The poll clerk shall issue to each voter when he or she
signs the pollbook a card or ticket numbered to correspond to the
number on the pollbook of the voter and in the case of a primary
election, indicating the party affiliation of the voter, which
numbered card or ticket is to be presented to the election
commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set up
the voting booths in clear view of the election commissioners.
Where applicable, they shall open the vote recording devices, place
them in the voting booths, examine them to see that they have the
correct ballots or ballot labels, where applicable by comparing
them with the sample ballots, and determine whether they are in
proper working order. They shall open and check the ballots,
supplies, records and forms and post the sample ballots or ballot
labels and instructions to voters. Upon ascertaining that all
ballots, supplies, records and forms arrived intact, the election
commissioners shall certify their findings in writing upon forms
provided and collected by the clerk of the county commission over
their signatures to the clerk of the county commission. Any
discrepancies are to be noted and reported immediately to the clerk
of the county commission. The election commissioners shall then
number in sequential order the ballot stub of each ballot in their
possession and report in writing to the clerk of the county
commission the number of ballots received. They shall issue the
ballots in sequential order to each voter.
(e) Where applicable, each voter shall be instructed how to
operate the vote recording device before he or she enters the
voting booth.
(f) Where applicable, any voter who spoils, defaces or
mutilates the ballot delivered to him or her, on returning the
ballot to the poll clerks, shall receive another in its place. Every person who does not vote any ballot delivered to him or her
shall, before leaving the election room, return the ballot to the
poll clerks. When a spoiled or defaced ballot is returned, the
poll clerks shall make a minute of the fact on the pollbooks, at
the time, write the word "spoiled" across the face of the ballot
and place it in an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the pollbooks the number of
persons who voted and shall report, in writing signed by them to
the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused. All
unused ballots are to be returned at the same time to the clerk of
the county commission who shall count them and record the number.
If there is no discrepancy, the clerk of the county commission or
a duly designated deputy clerk shall destroy the unused ballots
forthwith by fire or otherwise, before a representative of each
party on the ballot. If there is a discrepancy, the unused ballots
are to be impounded and secured under double locks until the
discrepancy is resolved. The county clerk and the president or
president pro tempore of the county commission are each to have a
key. Upon resolution of the discrepancy, the clerk of the county
commission or a duly designated deputy clerk, shall destroy the
unused ballots forthwith, by fire or otherwise, before a representative of each party on the ballot. All unused ballots
shall be stored with the other election materials and destroyed at
the expiration of twenty-two months.
(g) Each commissioner who is a member of an election board
which fails to account for every ballot delivered to it is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or confined in the county or
regional jail for not more than one year, or both.
(h) The board of ballot commissioners of each county, or the
chair of the board, shall preserve the ballots that are left over
in their hands, after supplying the precincts as provided, until
the close of the polls on the day of election and shall then
destroy the ballots, by fire or otherwise deliver them to the clerk
of the county commission who shall store them with the other
election materials and destroy them at the expiration of twenty-two
months.
(i) Where ballots are used, the voter, after he or she has
marked his or her ballot, shall, before leaving the voting booth,
place the ballot inside the envelope provided for this purpose,
with the stub extending outside the envelope, and return it to an
election commissioner who shall remove the stub and deposit the
envelope with the ballot inside in the ballot box. No ballot from
which the stub has been detached may be accepted by the officer in
charge of the ballot box, but the ballot shall be marked "spoiled"
and placed with the spoiled ballots. If an electronic voting
system is used that utilizes a screen on which votes may be recorded by means of a stylus or by means of touch and the signal
warning that a voter has attempted to cast his or her ballot has
failed to do so properly has been activated and the voter has
departed the polling place and cannot be recalled by a poll clerk
to complete his or her ballot while the voter remains physically
present in the polling place, then two election commissioners of
different registered party affiliations, two poll clerks of
different registered party affiliations or an election commissioner
and a poll clerk of different registered party affiliations shall
spoil the ballot.
(j) The precinct election commissioners shall prepare a report
in quadruplicate of the number of voters who have voted and, where
electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch,
the number of ballots that were spoiled, as indicated by the
pollbooks, and shall place two copies of this report in the ballot
box or where electronic voting systems are used that utilize a
screen upon which votes may be recorded by means of a stylus or by
means of touch, shall place two copies of this report and the
electronic ballot devices in a container provided by the clerk of
the county commission, which thereupon is to be sealed with a paper
seal signed by the election commissioners to ensure that no
additional ballots may be deposited or removed from the ballot box.
Two election commissioners of different registered party
affiliations shall forthwith deliver the ballot box or container to
the clerk of the county commission at the central counting center and receive a signed numbered receipt therefor. which The receipt
must carefully sets set forth in detail any and all irregularities
pertaining to the ballot boxes or containers and noted by the
precinct election officers.
The receipt is to be prepared in duplicate, a copy of which
remains with the clerk of the county commission who shall have any
and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the
report, which are to be immediately mailed to the clerk of the
county commission.
(k) The pollbooks, register of voters, unused ballots, spoiled
ballots and other records and supplies are to be delivered to the
clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-22. Assistance to illiterate and disabled voters.
(a) Any duly registered voter who requires assistance to vote
by reason of blindness, disability, advanced age or inability to
read and write may be given assistance by one of the following
means:
(1) By a person of the voter's choice: Provided, That such
the assistance may not be given by the voter's present or former
employer or agent of that employer or by an officer or agent of a
labor union of which the voter is a past or present member or a
candidate on the ballot or official write-in candidate; or
(2) If no person of the voter's choice be present at the
polling place, the voter may request such assistance from the poll clerks or ballot commissioners present at the polling place,
whereupon such assistance may be given by any two of such the
election officers of opposite political party affiliation to whom
such the voter shall thereupon declare his or her choice of
candidates and his or her position on public questions appearing on
the ballot. Such The election officers, in the presence of the
voter and in the presence of each other, shall thereupon cause such
the voter's declared choices to be recorded on the ballot or a vote
recording device, as may be appropriate, as votes.
(b) A person other than an election officer who assists a
voter in voting under the provisions of this section shall sign a
written oath or affirmation before assisting such the voter,
stating that he or she will not override the actual preference of
the voter being assisted or mislead the voter into voting for
someone other than the candidate of the voter's choice. Such The
person assisting the voter shall also swear or affirm that he or
she believes that the voter is voting free of intimidation or
manipulation.
§3-4A-24a. Voting by challenged voter where touch-screen
electronic voting systems are used.
If the right of any person to vote is challenged in accordance
with the provisions of article one of this chapter, relating to the
challenging of voters, and a vote recording device or ballot is
used that tabulates the vote as an individual vote, the person is
to be permitted to cast his or her vote by use of the vote
recording device or ballot, as may be appropriate. An election commissioner shall enter into the voting device a voter-specific
electronic code for any person voting a challenged provisional
ballot. The devices are to retain challenged provisional ballots
in electronic memory and are not to be tabulated in accordance with
the provisions of this code, but are to be reviewed in accordance
with the provisions of this code.
After the county commission, as prescribed in article one of
this chapter, has determined that the challenges are unfounded, the
commissioners shall ensure that the ballots are included in the
tabulation.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center are to be
under the supervision of the clerk of the county commission and are
to be conducted under circumstances which allow observation from a
designated area by all persons entitled to be present. The
proceedings shall take place in a room of sufficient size and
satisfactory arrangement to permit observation. Those persons
entitled to be present include all candidates whose names appear on
the ballots being counted or if a candidate is absent, a
representative of the candidate who presents a written
authorization signed by the candidate for the purpose and two
representatives of each political party on the ballot who are
chosen by the county executive committee chairperson. A reasonable
number of the general public is also freely admitted to the room.
In the event all members of the general public desiring admission
to the room cannot be admitted at one time, the county commission shall provide for a periodic and convenient rotation of admission
to the room for observation, to the end that each member of the
general public desiring admission, during the proceedings at the
central counting center, is to be granted admission for reasonable
periods of time for observation: Provided, That no person except
those authorized for the purpose may touch any ballot or ballot
card or other official records and papers utilized in the election
during observation.
(b) All persons who are engaged in processing and counting the
ballots are to work in teams consisting of two persons of opposite
political parties, and are to be deputized in writing and take an
oath that they will faithfully perform their assigned duties.
These deputies are to be issued an official badge or identification
card which is assigned an identity control number and the deputies
are to prominently wear on his or her outer garments the issued
badge or identification card. Upon completion of the deputies'
duties, the badges or identification cards are to be returned to
the county clerk.
(c) Ballots are to be handled and tabulated and the write-in
votes tallied according to procedures established by the secretary
of state, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards and
secrecy envelopes for a precinct are to be removed from the box and
examined for write-in votes before being separated and stacked for
delivery to the tabulator. Immediately after valid write-in votes
are tallied, the ballot cards are to be delivered to the tabulator. No write-in vote may be counted for an office unless the voter has
punched the write-in voting position for that office and entered
the name of that office and the name of an official write-in
candidate for that office on the inside of the secrecy envelope,
either by writing, affixing a sticker or label or placing an
ink-stamped impression thereon;
(2) In systems using ballots marked with electronically
sensible ink, ballots are to be removed from the boxes and stacked
for the tabulator which separates ballots containing marks for a
write-in position. Immediately after tabulation, the valid
write-in votes are to be tallied. No write-in vote may be counted
for an office unless the voter has marked the write-in voting
position for that office and entered the name of an official
write-in candidate for that office on the line provided, either by
writing, affixing a sticker or placing an ink-stamped impression
thereon;
(3) In systems using ballots in which votes are recorded upon
screens with a stylus or by means of touch, the personalized
electronic ballots are to be removed from the containers and
stacked for the tabulator. Systems using ballots in which votes
are recorded upon screens with a stylus or by means of touch are to
tally write-in ballots simultaneously with the other ballots;
(4) When more than one person is to be elected to an office
and the voter desires to cast write-in votes for more than one
official write-in candidate for that office, a single punch or
mark, as appropriate for the voting system, in the write-in location for that office is sufficient for all write-in choices.
When there are multiple write-in votes for the same office and the
combination of choices for candidates on the ballot and write-in
choices for the same office exceed the number of candidates to be
elected, the ballot is to be duplicated or hand counted, with all
votes for that office rejected;
(5) Write-in votes for nomination for any office and write-in
votes for any person other than an official write-in candidate are
to be disregarded;
(6) When a voter casts a straight ticket vote and also punches
or marks the location for a write-in vote for an office, the
straight ticket vote for that office is to be rejected, whether or
not a vote can be counted for a write-in candidate; and
(7) Official write-in candidates are those who have filed a
write-in candidate's certificate of announcement and have been
certified according to the provisions of section four-a, article
six of this chapter.
(d) If any ballot card is damaged or defective so that it
cannot properly be counted by the automatic tabulating equipment,
a true duplicate copy is to be made of the damaged ballot card in
the presence of representatives of each political party on the
ballot and substituted for the damaged ballot card. All duplicate
ballot cards are to be clearly labeled "duplicate" and are to bear
a serial number which is recorded on the damaged or defective
ballot card and on the replacement ballot card.
(e) The returns printed by the automatic tabulating equipment at the central counting center, to which have been added write-in
and other valid votes, are, when certified by the clerk of the
county commission, to constitute the official preliminary returns
of each precinct or election district. Further, all the returns
are to be printed on a precinct basis. Periodically throughout and
upon completion of the count, the returns are to be open to the
public by posting the returns as have been tabulated precinct by
precinct at the central counting center. Upon completion of the
canvass, the returns are to be posted in the same manner.
(f) If for any reason it becomes impracticable to count all or
a part of the ballots with tabulating equipment, the county
commission may direct that they be counted manually, following as
far as practicable the provisions governing the counting of paper
ballots.
(g) As soon as possible after the completion of the count, the
clerk of the county commission shall have the vote recording
devices properly boxed or securely covered and removed to a proper
and secure place of storage.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-10. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official primary ballot for each party and, as the case may
be, for the nonpartisan candidates to be voted for at the primary
election, according to the provisions of this article and articles
four and four-a of this chapter, as appropriate to the voting
system. If any ballot issue is to be voted on in the primary election, the ballot commissioners shall likewise prepare a sample
official ballot for that issue according to the provisions of law
authorizing such 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 fourteen twenty-six nor
less than eight 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 fourteen twenty-six nor less than eight twenty days
preceding the primary election, the ballot commissioners shall
publish the sample official primary election ballot as a Class I
legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages and
shall be printed in a size no less than eighty percent of the
actual size of the ballot, at the discretion of the ballot commissioners: Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts
in the appropriate order. If, in order to accommodate the size of
each ballot, the ballot or ballot pages must be divided onto more
than one page, the arrangement and order shall be made to conform
as nearly as possible to the arrangement of the ballot. The
publisher of the newspaper shall submit a proof of the ballot and
the arrangement to the ballot commissioners for approval prior to
publication.
(c) The ballot commissioners of each county shall prepare, in
the form and manner prescribed by the secretary of state, an
official list of offices and candidates for each office which will
appear on the primary election ballot for each party and, as the
case may be, for the nonpartisan candidates to be voted for at such
the primary election. All information which appears on the ballot,
including instructions as to the number of candidates for whom
votes may be cast for the office, any additional language which
will appear on the ballot below the name of the office, any
identifying information relating to the candidates, such as
residence, magisterial district or presidential preference, and the
ballot numbers of the candidates for punch card systems shall be
included in the list in the same order in which it appears on the
ballot. Following the names of all candidates, the list shall include the full title, text and voting positions of any issue to
appear on the ballot.
(d) The official list of candidates and issues as provided in
subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper is
published immediately preceding the primary election, the ballot
commissioners shall publish the official list of candidates and
issues as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish weekly,
on the last day on which a newspaper is published immediately
preceding the primary election, the ballot commissioners shall
publish the sample official list of nominees and issues as a Class
I legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(3) The publication of the official list of candidates for
each party and for nonpartisan candidates shall be in single or
double columns, as required to accommodate the type size
requirements as follows: (A) The words "official list of
candidates", the name of the county, the words "primary election",
the date of the election, the name of the political party or the designation of nonpartisan candidates shall be printed in all
capital letters and in bold type no smaller than fourteen point.
The designation of the national, state, district or other tickets
shall be printed in all capital letters in type no smaller than
fourteen point; (B) the title of the office shall be printed in
bold type no smaller than twelve point and any voting instructions
or other language printed below the title shall be printed in bold
type no smaller than ten point; and (C) the names of the candidates
shall be printed in all capital letters in bold type no smaller
than ten point and the residence information shall be printed in
type no smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than fourteen point. The text of the ballot
issue shall appear in no smaller than ten point type. The ballot
commissioners may require the publication of the ballot issue under
this subsection in the facsimile sample ballot format in lieu of
the alternate format.
(e) Notwithstanding the provisions of subsections (c) and (d)
of this section, beginning with the primary election to be held in
the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample ballot for each political
party and for nonpartisan candidates or ballot issues instead of
the official list of offices and candidates for each office for
purposes of the last publication required before any primary
election.
§3-5-13. Form and contents of ballots and ballot labels.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(a) The heading of every ballot is to be printed in display
type. The heading is to contain a ballot title, the name of the
county, the state, the words "Primary Election" and the month, day
and year of the election. The ballot title of the political party
ballots is to contain the words "Official Ballot of the (Name)
Party" and the official symbol of the political party may be
included in the heading. The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for
the board of education is to contain the words "Nonpartisan Ballot
of Election of Members of the ______________ County Board of
Education". The districts for which less than two candidates may
be elected and the number of available seats are to be specified
and the names of the candidates are to be printed without reference
to political party affiliation and without designation as to a
particular term of office. Any other ballot or portion of a ballot
on a question is to have a heading which clearly states the purpose
of the election according to the statutory requirements for that
question.
(b)(1) For paper ballots, the heading of the ballot is to be
separated from the rest of the ballot by heavy lines and the
offices shall be arranged in columns with the following headings,
from left to right across the ballot: "National Ticket", "State
Ticket", "County Ticket" and, in a presidential election year, "National Convention" or, in a nonpresidential election year,
"District Ticket". The columns are to be separated by heavy lines.
Within the columns, the offices are to be arranged in the order
prescribed in section thirteen-a of this article.
(2) For voting machines, electronic voting devices and any
ballot tabulated by electronic means, the offices are to appear in
the same sequence as prescribed in section thirteen-a of this
article and under the same headings as prescribed in subsection (a)
of this section. The number of pages, columns or rows, where
applicable, may be modified to meet the limitations of ballot size
and composition requirements subject to approval by the secretary
of state.
(3) The title of each office is to be separated from preceding
offices or candidates by a line and is to be printed in bold type
no smaller than eight point. Below the office is to be printed the
number of the district, if any, the number of the division, if any,
and the words "Vote for ________" with the number to be nominated
or elected or "Vote For Not More Than ________" in multicandidate
elections. For offices in which there are limitations relating to
the number of candidates which may be nominated, elected or
appointed to or hold office at one time from a political
subdivision within the district or county in which they are
elected, there is to be a clear explanation of the limitation, as
prescribed by the secretary of state, printed in bold type
immediately preceding the names of the candidates for those offices
on the ballot in every voting system. For counties in which the number of county commissioners exceeds three and the total number
of members of the county commission is equal to the number of
magisterial districts within the county, the office of county
commission is to be listed separately for each district to be
filled with the name of the magisterial district and the words
"Vote for One" printed below the name of the office.
(c) The location for indicating the voter's choices on the
ballot is to be clearly shown. For paper ballots, other than those
tabulated electronically, the official primary ballot is to contain
a square formed in dark lines at the left of each name on the
ballot, arranged in a perpendicular column of squares before each
column of names.
(d)(1) The name of every candidate certified by the secretary
of state or the board of ballot commissioners is to be printed in
capital letters in no smaller than eight-point type on the ballot
for the appropriate precincts. Subject to the rules promulgated by
the secretary of state, the name of each candidate is to appear in
the form set out by the candidate on the certificate of
announcement, but in no case may the name misrepresent the identity
of the candidate nor may the name include any title, position,
rank, degree or nickname implying or inferring any status as a
member of a class or group or affiliation with any system of
belief.
(2) The city of residence of every candidate, the state of
residence of every candidate residing outside the state, the county
of residence of every candidate for an office on the ballot in more than one county and the magisterial district of residence of every
candidate for an office subject to magisterial district limitations
are to be printed in lower case letters beneath the names of the
candidates.
(3) The arrangement of names within each office must be
determined as prescribed in section thirteen-a of this article.
(4) If the number of candidates for an office exceeds the
space available on a column or ballot label page and requires that
candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate
columns or pages are to be nearly equal and clear instructions
given the voter that the candidates for the office are continued on
the following column or page.
(e) When an insufficient number of candidates has filed for a
party to make the number of nominations allowed for the office or
for the voters to elect sufficient members to the board of
education or to executive committees, the vacant positions on the
ballot shall be filled with the words "No Candidate Filed":
Provided, That in paper ballot systems which allow for write-ins to
be made directly on the ballot, a blank line shall be placed in any
vacant position in the office of board of education or for election
to any party executive committee. A line shall separate each
candidate from every other candidate for the same office.
Notwithstanding any other provision of this code, if there are
multiple vacant positions on a ballot for one office, the multiple
vacant positions which would otherwise be filled with the words "No Candidate Filed" may be replaced with a brief detailed description,
approved by the secretary of state, indicating that there are no
candidates listed for the vacant positions.
(f) In presidential election years, the words "For election in
accordance with the plan adopted by the party and filed with the
secretary of state" is to be printed following the names of all
candidates for delegate to national convention.
(g) All paper ballots are to be printed in black ink on paper
sufficiently thick so that the printing or marking cannot be
discernible from the back. Ballot cards and paper for printing
ballots using electronically sensible ink are to meet minimum
requirements of the tabulating systems.
(h) Electronically tabulated ballots Ballots and ballot cards
are to contain perforated tabs at the top of the ballots and are to
be printed with unique sequential numbers from one to the highest
number representing the total number of ballots or ballot cards
printed. On paper ballots, the ballot is to be bordered by a solid
line at least one sixteenth of an inch wide and the ballot is to be
trimmed to within one-half inch of that border.
(i) On the back of every official ballot or ballot card the
words "Official Ballot" with the name of the county and the date of
the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words "Poll
Clerks".
(j) Absent voters' ballots are to be in all respects like
other official ballots except that three blank lines are to be printed on the back of the ballot or ballot card in the lower left
corner with the words "Ballot Commissioners" printed underneath.
(k) The face of sample paper ballots and sample ballot labels
are to be like other official ballots or ballot labels except that
the word "sample" is to be prominently printed across the front of
the ballot in a manner that ensures the names of candidates are not
obscured and the word "sample" may be printed in red ink. No
printing may be placed on the back of the sample.
§3-5-15. Ascertaining and certifying primary election results.
When the polls are closed in an election precinct where only
a single election board has served, the receiving board shall
perform all of the duties prescribed in this section. When the
polls are closed in an election precinct where two election boards
have served, both the receiving and counting boards shall together
conclude the counting of the votes cast, the tabulating and
summarizing of the number of the votes cast, unite in certifying
and attesting to the returns of the election and join in making out
the certificates of the result of the election provided for in this
article. They shall not adjourn until the work is completed.
In all election precincts, as soon as the polls are closed and
the last voter has voted, the receiving board shall first process
the absentee ballots according to the provisions of section eight,
article three of this chapter. After the absentee ballots to be
counted have been deposited in the ballot box, the election
officers shall proceed to ascertain the result of the election in
the following manner:
(a) The receiving board shall ascertain from the poll books
and record separately on the proper form the total number of voters
of each party and nonpartisan voters who have voted.
(1) The number of challenged provisional ballots of each party
shall be counted and subtracted from the number of voters of the
same party, which result should equal the number of ballots of that
party deposited in the ballot box.
(2) The total of all voters, including both partisan and
nonpartisan voters, minus the total of all challenged provisional
ballots, should equal the number of nonpartisan ballots deposited
in the ballot box.
(3) The commissioners and clerks shall also report, over their
signatures, the number of each type of ballots spoiled and the
number of each type of ballots not voted.
(b) The procedure for counting ballots, whether performed
throughout the day by the counting board, as provided in section
thirty-three, article one of this chapter, or after the close of
the polls by the receiving board or by the two boards together,
shall be as follows:
(1) The ballot box shall be opened and all votes shall be
tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the
box at a time and shall determine if the ballot is properly signed
by the two poll clerks of the receiving board. If not properly
signed, the ballot shall be placed in an envelope for the purpose
without unfolding it. If properly signed, the commissioner shall announce which type of ballot it is, and hand the ballot to a team
of commissioners of opposite politics, who shall together read the
votes marked on the ballot for each office. Write-in votes for
nomination for any office and write-in votes for election for any
person other than an official write-in candidate shall be
disregarded;
(3) The commissioner responsible for removing the ballots from
the box shall keep a tally of the number of ballots of each party
and any nonpartisan ballot as they are removed, and whenever the
number of ballots of a particular party shall equal the number of
voters entered on the poll book for that party minus the number of
challenged provisional ballots of that party, as determined
according to subsection (a) of this section, any other ballot found
in the ballot box shall be placed in the same envelope with
unsigned ballots not counted, without unfolding the same, or
allowing anyone to examine or know the contents thereof, and the
number of excess ballots of each party shall be recorded on the
envelope;
(4) Each poll clerk shall keep an accurate tally of the votes
cast by marking in ink on tally sheets, which shall be provided for
the purpose so as to show the number of votes received by each
candidate for each office;
(5) When the votes have been read from a ballot, the ballot
shall be immediately strung on a thread, with separate threads for
each party's ballots and for nonpartisan ballots.
(c) As soon as the results at the precinct are ascertained, the commissioners and clerks shall make out and sign four
certificates of result, for each party represented, of the vote for
all candidates of each party represented, on a form prescribed by
the secretary of state, giving the complete returns of the election
at the polling place, which form shall include the following oath:
"We, the undersigned commissioners and poll clerks of the
primary election held at precinct No. ....................... of
........... district of ................... County, W. Va., on the
.......... day of ..............., 19 20...., do hereby certify
that having been first duly sworn, we have carefully and
impartially ascertained the result of said election at said
precinct for the candidates on the official ballot of the
....................... party, and the same is as follows:
The election officers shall enter the name of each office and
the full name of each candidate on the ballot, and the number of
votes, in words and numbers, received by each. The election
officers shall also enter the full name of every official write-in
candidate for election to offices to be filled in the primary,
except delegate to national convention, and the number of votes for
each. Three of such the certificates of result of election, for
each party, shall then be sealed in separately addressed envelopes,
furnished for the purpose, and shall be disposed of by the precinct
commissioners as follows: One of the sealed envelopes containing
the returns of each party shall be delivered to the clerk of the
circuit court and two shall be delivered to the clerk of the county
commission who shall, within forty-eight hours, mail one of the sealed returns for each precinct by certified mail to the secretary
of state. The one not sealed up shall be posted on the outside of
the front door of the polling place.
(d) All ballots voted for candidates of each party shall be
sealed up in separate envelopes and the commissioners and clerks
shall each sign across the seal.
§3-5-19. Vacancies in nominations; how filled; fees.
(a) If any vacancy shall occur in the party nomination of
candidates for office nominated at the primary election or by
appointment under the provisions of section eleven of this article,
the vacancies may be filled, subject to the following requirements
and limitations:
(1) Each appointment made under this section shall be made by
the executive committee of the political party for the political
division in which the vacancy occurs: Provided, That if the
executive committee holds a duly called meeting in accordance with
section nine, article one of this chapter but fails to make an
appointment in a duly called meeting 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), or (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 or of a candidate and the vacancy occurs not later
than eighty-four days before the general election, a nominee may be
appointed by the executive committee and certified to the proper
filing officer not later than seventy-eight days before the general
election. A candidate may be determined ineligible if a written
request is made by an individual with information to show a
candidate's ineligibility to the state election commission no later
than ninety-five days before the general election explaining
grounds why a candidate is not eligible to be placed on the general
election ballot or not eligible to hold the office, if elected.
The state election commission shall review the reasons for the
request. If the commission finds the circumstances warrant the disqualification of the candidate, the commission may authorize
appointment by the executive committee to fill the vacancy. Upon
receipt of the authorization a nominee may be appointed by the
executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
_____(5) If a vacancy in nomination is caused by the incapacity of
the candidate and if the vacancy occurs not later than eighty-four
days before the general election, a nominee may be appointed by the
executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
(5) (6) If a vacancy in nomination is caused by the withdrawal
of the candidate no later than ninety-eight days before the general
election due to extenuating personal circumstances which will
prevent the candidate from serving in the office if elected and if
the candidate or the chairperson of the executive committee for the
political division applies in writing to the state election
commission no later than ninety-five days before the general
election for permission to fill the vacancy remove the candidate's
name from the general election ballot, the state election
commission shall review the reasons for the withdrawal request. If
the commission finds the circumstances warrant the withdrawal of
the candidate, the commission may shall authorize appointment by
the executive committee to fill the vacancy., upon which 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.
(6) (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 such 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 vacancy
creates an unexpired term for a position which would not otherwise
appear on the ballot in the general election, and the vacancy
occurs after the close of candidate filing for the primary election
but not later than eighty-four days before the general election, a
nominee of each political party may be appointed by the executive
committee and certified to the proper filing officer no later than
seventy-eight days before the general election. Appointments shall
be filed in the same manner as provided in subsection (a) of this
section, except that the filing fee shall be paid before the
appointment is complete.
(c) When a vacancy occurs in the board of education after the
close of candidate filing for the primary election but not later
than eighty-four days before the general election, a special
candidate filing period shall be established. Candidates seeking
election to any unexpired term for board of education shall file a
certificate of announcement and pay the filing fee to the clerk of the circuit court no earlier than the first Monday in August and no
later than seventy-seven days before the general election.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-3. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official general election ballot for all political party or
independent nominees, nonpartisan candidates for election, if any,
and all ballot issues to be voted for at the general election,
according to the provisions of this article and articles four and
four-a of this chapter, as appropriate to the voting system, and
for any ballot issue, according to the provisions of law
authorizing such 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 fourteen twenty-six nor
less than eight 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 fourteen twenty-six nor less than eight twenty days
preceding the primary election, the ballot commissioners shall publish the sample official general election ballot as a Class I
legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages and
shall be printed in a size no less than eighty percent of the
actual size of the ballot, at the discretion of the ballot
commissioners: Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts
in the appropriate order. If, in order to accommodate the size of
each ballot, the ballot or ballot pages must be divided onto more
than one page, the arrangement and order shall be made to conform
as nearly as possible to the arrangement of the ballot. The
publisher of the newspaper shall submit a proof of the ballot and
the arrangement to the ballot commissioners for approval prior to
publication.
(c) The ballot commissioners of each county shall prepare, in
the form and manner prescribed by the secretary of state, an
official list of offices and nominees for each office which will
appear on the general election ballot for each political party or
as independent nominees and, as the case may be, for the
nonpartisan candidates to be voted for at the general election:
(1) All information which appears on the ballot, including the
names of parties for which a straight ticket may be cast,
instructions relating to straight ticket voting, instructions as to
the number of candidates for whom votes may be cast for the office,
any additional language which will appear on the ballot below the
name of the office, any identifying information relating to the
candidates, such as residence, magisterial district or presidential
preference, and the ballot numbers of the candidates for punch card
systems shall be included in the list in the order specified in
subdivision (2) of this subsection. Following the names of all
candidates, the list shall include the full title, text and voting
positions of any issue to appear on the ballot.
(2) The order of the straight ticket positions, offices and
candidates for each office and the manner of designating the
parties shall be as follows: (A) The straight ticket positions
shall be designated "straight (party name) ticket", with the
parties listed in the order in which they appear on the ballot,
from left to right or from top to bottom, as the case may be; (B)
the offices shall be listed in the same order in which they appear
on the ballot; (C) the candidates within each office for which one
is to be elected shall be listed in the order they appear on the
ballot, from left to right or from top to bottom, as the case may
be, and the candidate's political party affiliation or independent
status shall be indicated by the one or two letter initial
specifying the affiliation, placed in parenthesis to the right of
the candidate's name; and (D) the candidates within each office for which more than one is to be elected shall be arranged by political
party groups in the order they appear on the ballot and the
candidate's affiliation shall be indicated as provided in part (C)
of this subdivision.
(d) The official list of candidates and issues as provided in
subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper is
published immediately preceding the general election, the ballot
commissioners shall publish the official list of nominees and
issues as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily paper, or
having only one or more qualified newspapers which publish weekly,
on the last day on which a newspaper is published immediately
preceding the general election, the ballot commissioners shall
publish the sample official list of nominees and issues as a Class
I legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(3) The publication of the official list of nominees for each
party and for nonpartisan candidates shall be in single or double
columns, as required to accommodate the type size requirements as
follows: (A) The words "official list of nominees and issues", the name of the county, the words "General Election" and the date of
the election shall be printed in all capital letters and in bold
type no smaller than fourteen point; (B) the designation of the
straight ticket party positions shall be printed in all capital
letters in bold type no smaller than twelve point and the title of
the office shall be printed in bold type no smaller than twelve
point and any voting instructions or other language printed below
the title shall be printed in bold type no smaller than ten point;
and (C) the names of the candidates and the initial within
parenthesis designating the candidate's affiliation shall be
printed in all capital letters in bold type no smaller than ten
point and the residence information shall be printed in type no
smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than twelve point. The text of the ballot
issue shall appear in no smaller than ten point type. The ballot
commissioners may require the publication of the ballot issue under
this subsection in the facsimile sample ballot format in lieu of
the alternate format.
(e) Notwithstanding the provisions of subsections (c) and (d)
of this section, beginning with the general election to be held in
the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample general election ballot,
instead of the official list of candidates and issues, for purposes
of the last publication required before any general election.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in votes
to an office, except delegate to national convention, which is to
be filled in a primary, general or special election held under the
provisions of this chapter shall file a write-in candidate's
certificate of announcement as provided in this section. No
certificate of announcement may be accepted and no person may be
certified as a write-in candidate for a political party nomination
for any office or for election as delegate to national convention.
(a) The write-in candidate's certificate of announcement shall
be in a form prescribed by the secretary of state on which the
candidate shall make a sworn statement before a notary public or
other officer authorized to give oaths containing the following
information:
(1) The name of the office sought and the district and
division, if any;
(2) The legal name of the candidate and the first and last
name by which the candidate may be identified in seeking the
office;
(3) The specific address designating the location at which the
candidate resides at the time of filing, including number and
street or rural route and box number and city, state and zip code;
(4) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith; and
(5) The words "subscribed and sworn to before me this ______
day of _____________, ____" and a space for the signature of the officer giving the oath.
(b) The certificate of announcement shall be filed with the
filing officer for the political division of the office as
prescribed in section seven, article five of this chapter.
(c) The certificate of announcement shall be filed with and
received by the proper filing officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this
subsection, the certificate of announcement for any office shall be
received no later than the close of business on the fourteenth
twenty-first day before the election at which the office is to be
filled;
(2) When a vacancy occurs in the nomination of candidates for
an office on the ballot resulting from the death of the nominee or
from the disqualification or removal of a nominee from the ballot
by a court of competent jurisdiction not earlier than the
twenty-first day nor later than the fifth day before the general
election, the certificate shall be received no later than the close
of business on the fifth day before the election or the close of
business on the day following the occurrence of the vacancy,
whichever is later;
(3) When a vacancy occurs in an elective office which would
not otherwise appear on the ballot in the election, but which
creates an unexpired term of one or more years which, according to
the provisions of this chapter, is to be filled by election in the
next ensuing election and such the vacancy occurs no earlier than
the twenty-first day and no later than the fifth day before the general election, the certificate shall be received no later than
the close of business on the fifth day before the election or the
close of business on the day following the occurrence of the
vacancy, whichever is later.
(d) Any eligible person who files a completed write-in
candidate's certificate of announcement with the proper filing
officer within the required time shall be certified by that filing
officer as an official write-in candidate:
(1) The secretary of state shall, immediately following the
filing deadline, post the names of all official write-in candidates
for offices on the ballot in more than one county and certify the
name of each official write-in candidate to the clerks of the
circuit court of the appropriate counties.
(2) The clerk of the circuit court shall, immediately
following the filing deadline, post the names of all official
write-in candidates for offices on the ballot in one county and
certify and deliver to the clerk of the county commission and the
election officials of the appropriate precincts the names of all
official write-in candidates and the office sought by each for
statewide, district and county offices on the ballot in the
precinct for which valid write-in votes will be counted and the
names shall be posted at the office where absentee voting is
conducted and at the precincts in accordance with section twenty,
article one of this chapter.
§3-6-5. Rules and procedures in election other than primaries.
The provisions of article one of this chapter relating to elections generally shall govern and control arrangements and
election officials for the conduct of elections under this article.
The following rules and procedures shall govern the voting for
candidates in general and special elections:
(a) If the voter desires to vote a straight ticket, or in
other words, for each and every candidate for one party for
whatever office nominated, the voter shall either:
(1) Mark the position designated for a straight ticket in the
manner appropriate to the voting system; or
(2) Mark the voting position for each and every candidate of
the chosen party in the manner appropriate to the voting system.
(b) If the voter desires to vote a mixed ticket, or in other
words, for candidates of different parties, the voter shall either:
(1) Omit marking any straight ticket voting position and mark,
in the manner appropriate to the voting system, the name of each
candidate for whom he or she desires to vote on whatever ticket the
name may be; or
(2) Mark the position designated for a straight ticket for the
party for some of whose candidates he or she desires to vote and
then mark the name of any candidate of any other party for whom he
or she may desire to vote, in which case the cross mark in the
circular space above the name of the party straight ticket mark
will cast his or her vote for every candidate on the ticket of such
the party except for offices for which candidates are marked on
other party tickets and the marks for such the candidates will cast
a vote for them; or
(3) Write with ink or other means or affix a sticker or label
or place an ink-stamped impression of the name of an official
write-in candidate for an office for whom he or she desires to vote
in the space designated for write-in votes for the particular
voting system and mark that voting position as required in this
chapter; or for paper ballot systems, write or place the name and
office designation in any position on the face of the ballot which
makes the intention of the voter clear as to both the office and
the candidate chosen.
(c) If in marking either a straight or mixed ticket as above
defined, a straight ticket voting position is marked, and also one
or more marks are made for candidates on the same ticket for
offices for which candidates on other party tickets are not
individually marked, such the marks before the name of candidate on
the ticket so marked shall be treated as surplusage and ignored.
(d) When a voter casts a straight ticket vote and also writes
in any name for an office, and, in electronic voting systems,
punches or marks the voting position for that write-in, the
straight ticket vote for that office shall be rejected, whether or
not a vote can be counted for a write-in candidate.
(e) The secretary of state may proscribe devices for casting
write-in votes which would cause mechanical difficulty with voting
machines or electronic devices or which would obliterate or deface
a paper ballot or any portion thereof, but the secretary of state
shall preserve the right to vote by a write-in vote for those
candidates who have filed and have been certified as official write-in candidates under the provisions of section four-a of this
article.
(f) If the voter marks more names than there are persons to be
elected to an office or if, for any reason, it is impossible to
determine the voter's choice for an office to be filled, the ballot
shall not be counted for such the office. The intention of the
voter shall be deemed to be clear if the write-in vote cast for an
office contains both the first and last name of an official write-
in candidate for that office; and if no two official write-in
candidates for that office share a first or last name, either the
first name or last name alone shall be deemed to express the clear
intention of the voter.
(g) Except as otherwise specifically provided in this chapter,
no ballot shall be rejected for any technical error which does not
make it impossible to determine the voter's choice.
§3-6-6. Ballot counting procedures in paper ballot systems.
When the polls are closed in an election precinct where only
a single election board has served, the receiving board shall
perform all of the duties prescribed in this section. When the
polls are closed in an election precinct where two election boards
have served, both the receiving and counting boards shall together
conclude the counting of the votes cast, the tabulating and
summarizing of the number of the votes cast, unite in certifying
and attesting to the returns of the election and join in making out
the certificates of the result of the election provided for in this
article. They shall not adjourn until the work is completed.
In all election precincts, as soon as the polls are closed and
the last voter has voted, the receiving board shall proceed to
ascertain the result of the election in the following manner:
(a) In counties in which the clerk of the county commission
has determined that the absentee ballots should be counted at the
precincts in which the absent voters are registered, the receiving
board must first process the absentee ballots and deposit the
ballots to be counted in the ballot box. The receiving board shall
then proceed as provided in subsections (b) and (c) of this
section. In counties in which the absentee ballots are counted at
the central counting center, the receiving board shall proceed as
provided in subsections (b) and (c) of this section.
(b) The receiving board shall ascertain from the pollbooks and
record on the proper form the total number of voters who have
voted. The number of ballots challenged shall be counted and
subtracted from the total, which the result should equal the number
of ballots deposited in the ballot box. The commissioners and
clerks shall also report, over their signatures, the number of
ballots spoiled and the number of ballots not voted.
(c) The procedure for counting ballots, whether performed
throughout the day by the counting board as provided in section
thirty-three, article one of this chapter or after the close of the
polls by the receiving board or by the two boards together, shall
be as follows:
(1) The ballot box shall be opened and all votes shall be
tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the
box at a time and shall determine if the ballot is properly signed
by the two poll clerks of the receiving board. If not properly
signed, the ballot shall be placed in an envelope for the purpose,
without unfolding it. Any ballot which does not contain the proper
signatures shall be challenged. If an accurate accounting is made
for all ballots in the precinct in which the ballot was voted and
no other challenge exists against the voter, the ballot shall be
counted at the canvas. If properly signed, the commissioner shall
hand the ballot to a team of commissioners of opposite politics,
who shall together read the votes marked on the ballot for each
office. Write-in votes for election for any person other than an
official write-in candidate shall be disregarded. When a voter
casts a straight ticket vote and also casts a write-in vote for an
office, the straight ticket vote for that office shall be rejected
whether or not a vote can be counted for a write-in candidate;
(3) The commissioner responsible for removing the ballots from
the box shall keep a tally of the number of ballots as they are
removed and whenever the number shall equal the number of voters
entered on the pollbook minus the number of challenged provisional
ballots, as determined according to subsection (a) of this section,
any other ballot found in the ballot box shall be placed in the
same envelope with unsigned ballots not counted, without unfolding
the same or allowing anyone to examine or know the contents
thereof, and the number of excess ballots shall be recorded on the
envelope;
(4) Each poll clerk shall keep an accurate tally of the votes
cast by marking in ink on tally sheets, which shall be provided for
the purpose, so as to show the number of votes received by each
candidate for each office and for and against each issue on the
ballot; and
(5) When the reading of the votes is completed, the ballot
shall be immediately strung on a thread.
§3-6-7. Ballot irregularities; procedures.
If two or more ballots be are found folded or rolled together
and the names voted for thereon be the same, one of them only shall
be counted; but if the names voted for thereon be different, in any
particular, neither of them shall be counted except as hereinbefore
provided; and in either case, the commissioners of election shall,
in writing in ink, place a common number on such the ballots and
state thereon that they were folded or rolled together when voted.
If any ballot be found to contain more than the proper number of
names for any office, such the ballot shall not be counted as to
such the office. In any election for state senator, if a person be
is voted for on any ballot who is not a resident of the proper
county, as required by the fourth section four, of the sixth
article VI of the constitution, such the ballot shall not be
counted for said the office. Any ballot which is not endorsed with
the names of the poll clerks, as provided in this chapter, shall be
void and shall not be counted; and any ballot, or part of a ballot
from which it is impossible to determine the elector's choice of
candidates shall not be counted as to the candidates affected thereby.
§3-6-9. Canvass of returns; declaration of results; recounts;
record keeping.
(a) The commissioners of the county commission shall be ex
officio a board of canvassers and, as such, shall keep in a well-
bound book, marked "election record", a complete record of all
their proceedings in ascertaining and declaring the results of
every election in their respective counties. They shall convene as
the canvassing board at the courthouse on the fifth day (Sundays
excepted) after every election held in their county, or in any
district thereof, and the officers in whose custody the ballots,
pollbooks, registration records, tally sheets and certificates have
been placed shall lay them before the board for examination. They
may, if considered necessary, require the attendance of any of the
commissioners, poll clerks or other persons present at the election
to appear and testify respecting the same election and make such
other orders as shall seem proper to procure correct returns and
ascertain the true results of the election in their county; but in
this case all the questions to the witnesses and all the answers
thereto and evidence shall be taken down in writing and filed and
preserved. All orders made shall be entered upon the record. They
may adjourn, from time to time, but no longer than absolutely
necessary., and, when When a majority of the commissioners are not
present, their the meeting shall stand adjourned until the next day
and so from day to day, until a quorum is present. All meetings of
the commissioners sitting as a board of canvassers shall be open to the public. The board shall proceed to open each sealed package of
ballots so laid before them and, without unfolding them, count the
number in each package and enter the number upon their record. The
ballots shall then be again sealed up carefully in a new envelope
and each member of the board shall write his or her name across the
place where the envelope is sealed. After canvassing the returns
of the election, the board shall publicly declare the results of
the election; however, they shall not enter an order certifying the
election results for a period of forty-eight hours after the
declaration.
(a)(b) Within the 48-hour period a candidate voted for at the
election may demand the board to open and examine any of the sealed
packages of ballots and recount them; but in such case they shall
seal the ballots again, along with the envelope above named, and
the clerk of the county commission and each member of the board
shall write his or her name across the places where it is sealed
and endorse in ink, on the outside: "Ballots of the election held
at precinct No.____, in the district of _______________, and county
of _______________, on the ____________ day of _____________." In
computing the 48-hour period as used in this section, Saturdays,
Sundays and legal holidays shall be excluded: Provided, That at
the end of the 48-hour period, an order shall be entered certifying
all election results except for those offices in which a recount
has been demanded.
(b)(c) If a recount has been demanded, the board shall have an
additional twenty-four hours after the end of the 48-hour period in which to send notice to all candidates who filed for the office in
which a recount has been demanded of the date, time and place where
the board will convene to commence the recount. The notice shall
be served under the provisions of subdivision (c) (d) of this
section. The recount shall be set for no sooner than three days
after the serving of the notice: Provided, That after the notice
is served, candidates so served shall have an additional twenty-
four hours in which to notify the board, in writing, of their
intention to preserve their right to demand a recount of precincts
not requested to be recounted by the candidate originally
requesting a recount of ballots cast: Provided, however, That
there shall be only one recount of each precinct, regardless of the
number of requests for a recount of any precinct. A demand for the
recount of ballots cast at any precinct may be made during the
recount proceedings only by the candidate originally requesting the
recount and those candidates who notify the board, pursuant to this
subdivision, of their intention to preserve their right to demand
a recount of additional precincts.
(c) (d) Any sheriff of the county in which the recount is to
occur shall deliver a copy thereof in writing to the candidate in
person; or if the candidate is not found, by delivering the copy at
the usual place of abode of the candidate and giving information of
its purport, to the spouse of the candidate or any other person
found there who is a member of his or her family and above the age
of sixteen years; or if neither the spouse of the candidate nor any
other person be found there and the candidate is not found, by leaving the copy posted at the front door of the place of abode.
Any sheriff, thereto required, shall serve a notice within his or
her county and make return of the manner and time of service; for
a failure so to do, he or she shall forfeit twenty dollars. The
return shall be evidence of the manner and time of service.
(d) (e) Every candidate who demands a recount shall be
required to furnish bond in a reasonable amount with good
sufficient surety to guarantee payment of the costs and the
expenses of such the recount in the event the result of the
election is not changed by the recount; but the amount of the bond
shall in no case exceed three hundred dollars.
(f) When they have After the board of canvassers has made
their certificates and declared the results as hereinafter
provided, they shall deposit the sealed packages of ballots, absent
voter ballots, registration records, pollbooks, tally sheets and
precinct certificates with the clerks of the county commissions and
circuit courts from whom they were received, who shall carefully
preserve them for twenty-two months: Provided, That the clerk may
use these records to update the voter registration records in
accordance with subsection (d), section eighteen, article two of
this chapter. and if 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.; and if If there is a
contest pending, then they shall be so destroyed as soon as the contest is ended.
(g) If the result of the election is not changed by the
recount, the costs and expenses thereof shall be paid by the party
at whose instance the recount was made.
ARTICLE 7. CONTESTED ELECTIONS.
§3-7-1. Contests for state offices and judgeships; procedure.
If the election of governor, secretary of state, treasurer,
auditor, attorney general, commissioner of agriculture, a judge of
the supreme court of appeals or a judge of a circuit court, be is
contested, the contestant shall give notice, with specifications
and affidavit, to the person whose election is contested within
sixty ten days after the day upon which the election was held in
case the election of governor, secretary of state, treasurer,
auditor, attorney general, or commissioner of agriculture, be
contested, and within forty-five days after the day upon which the
election was held in case the election of a judge of the supreme
court of appeals, or a judge of a circuit court, be contested; and
within thirty election is certified and within ten days thereafter
the return notice shall be given to the contestant. The parties
shall finish taking depositions within forty days after the last-
mentioned notice is delivered. The depositions shall be
transmitted to the clerk of the House of Delegates, to be delivered
by him or her to the joint committee or special court hereinafter
provided for. In other respects the regulations contained in this
article respecting contests for a seat in the Legislature shall be
observed, so far as they are applicable.
§3-7-4. Contests of seats in Legislature; notices and procedure.
Any person intending to contest the election of another as
senator or delegate shall, within twenty-one ten days after the
election in case of a delegate, and within thirty days after the
election, in case of a senator, is certified, give him or her
notice thereof in writing and a list of the votes he or she will
dispute, with the objections to each, and of the votes rejected for
which he or she will contend. If the contestant objects to the
legality of the election or the qualification of the person
returned, the notice shall set forth the facts on which such the
objection is founded. The person whose election as delegate is
contested shall, within fourteen ten days after receiving such the
notice, and the person whose election as senator is contested
shall, within twenty days after receiving such notice, deliver to
the contestant a like list of the votes he or she will dispute and
of the objection to each, and of the rejected votes he or she will
claim; and, if he or she has any objection to the qualification of
the contestant, shall specify in such the notice the facts on which
the objection is founded. Each party shall append to the notice an
affidavit that the matters therein set forth, so far as they are
stated of his or her knowledge, are true and that, so far as they
are stated on the information of others, he or she believes them to
be true. If new facts be are discovered by either party after he
or she has given notice as aforesaid, he or she may give an
additional notice or notices to his or her adversary, with
specifications and affidavit as above prescribed.
The notice of contest shall be presented to the proper branch
of the Legislature, within ten days after its meeting.
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-2. Accounts for receipts and expenditures in elections;
requirements for reporting independent expenditures.
(a) Except candidates for party committeemen and
committeewomen, in primary and other elections and federal
committees required to file under the provisions 2 U. S. C. §434,
all candidates for nomination or election and all persons or
organizations of any kind advocating or opposing a nomination,
election or defeat of any candidate or the passage or defeat of any
issue, shall keep records of receipts and expenditures which are
made for political purposes. All such of the receipts and
expenditures shall be are subject to regulation by the provisions
of this article. Verified financial statements of such the records
and expenditures shall be made and filed as public records by all
candidates and by their financial agents, representatives or any
person acting for and on behalf of any candidate, or the passage or
defeat of any issue, and by the treasurers of all political party
committees.
(b) In addition to any other reporting required by the
provisions of this chapter, any independent expenditure in the
amount of one thousand dollars or more for any statewide,
legislative or multicounty judicial candidate or in the amount of
five hundred dollars or more for any county office, single-county
judicial candidate, committee supporting or opposing an issue or a candidate on the ballot in more than one county, any municipal
candidate or issue on a municipal election ballot, which is made
after the eleventh day but more than twelve hours before the day of
any election shall be reported, on a form prescribed by the
secretary of state, within twenty-four hours after the expenditure
is made or debt is incurred for a communication, to the secretary
of state by hand-delivery, facsimile or other means to assure
receipt by the secretary of state within such the 24-hour period.
(c) For purposes of this section, "independent expenditure"
means an expenditure made by a person other than a candidate or
committee for a communication which expressly advocates the
election or defeat of a clearly identified candidate but which is
made independently of a candidate's campaign and which has not been
made with the cooperation or consent of, or in consultation with,
or at the request or suggestion of, any candidate or any of his or
her agents or authorized committees. An expenditure which does not
meet the criteria for independence established in this subsection
is considered a contribution.
(d) Any independent expenditure must include a clear and
conspicuous public notice which identifies the name of the person
who paid for the expenditure and states that the communication is
not authorized by the candidate or his or her committee.
§3-8-4. Treasurers and financial agents; written designation
requirements; "person" and "financial agent" defined.
(a) No person shall act as the treasurer of any political
committee, or as financial agent for any candidate for nomination or election to any office to be filled by the voters of the entire
state, or candidates for nomination or election for any office,
encompassing an election district larger than a county, or
candidates for nomination for legislative office, or any person or
organization advocating or opposing the nomination, election or
defeat of any candidate, or the passage or defeat of any issue,
thing or item to be voted upon, encompassing an election district
larger than a county, unless a written statement designating him or
her as such the treasurer or financial agent shall be is filed with
the secretary of state at least twenty-eight days before the
election at which he or she is to act and must be received before
midnight, eastern standard time, of that day or if mailed, shall be
postmarked before that hour: Provided, That a change of treasurer
may be made at any time by filing a written statement with the
secretary of state.
(b) No person shall act as treasurer of any such committee or
as financial agent for any candidate to be nominated or elected by
the voters of a county or a district therein, except legislative
candidates, or as the treasurer or financial agent for a candidate
for the nomination or election to any other office, or for the
passage or defeat of any issue, thing or item to be voted upon not
herein mentioned, unless a written statement designating him or her
as such the treasurer or financial agent shall be is filed with the
clerk of the county commission at least twenty-eight days before
the election at which he or she is to act and must be received
before midnight, eastern standard time, of that day or if mailed, shall be postmarked before that hour: Provided, That a change of
treasurer may be made at any time by filing a written statement
with the clerk of the county commission.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, a filing designating a treasurer or financial
agent for a state or county political executive committee may be
made anytime before the committee either accepts or spends funds on
behalf of the committee. Once a designation is made by a state or
county political executive committee, no additional designations
shall be are required under this section until a successor
treasurer or financial agent is designated. A state or county
political executive committee may terminate a designation made
pursuant to this section by making a written request to terminate
the designation and by stating in the request that the committee
has no funds remaining in the committee's account. This written
request shall be made with either the secretary of state or the
clerk of the county commission as provided by subsections (a) and
(b) of this section.
(d) As used in this article:
The term "person" shall include means an individual,
partnership, committee, association, corporation, and any other
organization or group of persons; and
The term "financial agent" shall include means any person
acting for and by himself or herself, or any two or more natural
persons acting together or cooperating in a financial way to aid or
take part in the nomination or election of any candidate for public office, or to aid or promote the success or defeat of any political
party or principle at any election, or any proposition submitted to
a vote at a public election.
§3-8-5. Detailed accounts and verified financial statements
required.
(a) Every candidate, financial agent, person and association
of persons, organization of any kind, including every corporation,
directly or indirectly, supporting a political committee
established pursuant to paragraph (C), subdivision (1), subsection
(b), section eight of this article or engaging in other activities
permitted by said this section and also including the treasurer or
equivalent officer of such the association or organization,
advocating or opposing the nomination, election or defeat of any
candidate or the passage or defeat of any issue, thing or item to
be voted upon, and the treasurer of every political party committee
shall keep detailed accounts of every sum of money or other thing
of value received by him or her, including all loans of money or
things of value, and of all expenditures and disbursements made,
liabilities incurred, by such the candidate, financial agent,
person, association or organization or committee, for political
purposes, or by any of the officers or members of such the
committee, or any person acting under its authority or on its
behalf.
(b) Every person or association of persons required to keep
detailed accounts under this section shall file with the officers
hereinafter prescribed a detailed itemized sworn statement, subscribed and sworn to before an officer authorized to administer
oaths, according to the following provisions and times:
(1) On the last Saturday in March or within fifteen six days
thereafter, next preceding the primary election day and annually
whenever the total of all financial transactions relating to an
election exceed five hundred dollars a statement which shall
include all financial transactions which have taken place by the
date of that statement, subsequent to any previous statement filed
within the previous five years under this section, or if no
previous statement was filed, all financial transactions made
within the preceding five years; and
(2) Not less than seven ten nor more than ten seventeen days
preceding each primary or other election, a statement which shall
include all financial transactions which have taken place by the
date of such the statement, subsequent to the previous statement,
if any; and
(3) Not less than twenty-five nor more than thirty thirty-one
days after each primary or other election, a statement which shall
include all financial transactions which have taken place by the
date of such the statement, subsequent to the previous statement;
and
(4) On the first day of July, one thousand nine hundred
eighty-five, and thereafter on the last Saturday in March or within
fifteen days thereafter annually, whenever contributions or
expenditures relating to an election exceed five hundred dollars or
whenever any loans are outstanding, a statement which shall include all financial transactions which have taken place by the date of
such report, subsequent to any previous report; and
(5) (4) On the last first Saturday in September or within
fifteen six days thereafter, next preceding the general election
day whenever the total of all financial transactions relating to an
election exceed five hundred dollars or whenever any loans are
outstanding, a statement which shall include all financial
transactions which have taken place by the date of such the
statement, subsequent to the previous statement.
(c) Every person who shall announce as a write-in candidate
for any elective office and his or her financial agent or election
organization of any kind shall comply with all of the requirements
of this section after public announcement of such the person's
candidacy has been made.
(d) For purposes of this section, the term "financial
transactions" includes all contributions or loans received and all
repayments of loans or expenditures made to promote the candidacy
of any person by any candidate or any organization advocating or
opposing the nomination, election or defeat of any candidate or to
promote the passage or defeat of any issue, thing or item to be
voted on.
(e)(1) Except as provided in subdivision (2) of this
subsection, any person, association, organization, corporation or
other legal entity who publishes, distributes or disseminates any
scorecard, voter guide or other written analysis of a candidate's
position or votes on specific issues within sixty days of an election is presumed to be engaging in such activity for the
purpose of advocating or opposing the nomination, election or
defeat of any candidate.
(2) The provisions of subdivision (1) of this subsection shall
not apply to:
(A) The publication, distribution or dissemination of such
materials in the form of a news release to broadcast or print
media;
(B) Persons who engage in news or feature reporting activities
and editorial comment as working members of the press, radio or
television, and persons who publish, distribute or disseminate such
news, features or editorial comment through a newspaper, book,
regularly published periodical, radio station or television
station;
(C) The members of a nonprofit corporation or other
organization who have such membership in accordance with the
provisions of the articles of incorporation, bylaws or other
instruments creating its form of organization and who have bona
fide rights and privileges in the organization such as the right to
vote, to elect officers, directors and issues, to hold office or
otherwise as ordinarily conferred on members of such organizations
who publish, distribute or disseminate materials described in
subdivision (1) of this subsection to other such members; or
(D) The employees of a church or synagogue which currently
holds or is eligible to hold an exemption as a church issued by the
internal revenue service under the provisions of §26 U.S.C. 501(c)(3) who publish, distribute or disseminate materials
described in subdivision (1) of this subsection within the
membership of the church or synagogue or upon the premises of any
facility owned or controlled by the church or synagogue: Provided,
That the exemption from the presumption provided by this
subparagraph shall not apply to such employees of a church when the
church or synagogue otherwise advocates or opposes the nomination,
election or defeat of any candidate, or the passage of any issue,
thing or item to be voted upon.
(f) No scorecard, voter guide or other written analysis of a
candidate's position or votes on specific issues shall be
published, distributed or disseminated within sixty days of an
election unless it shall state thereon the name of the person,
association, organization, corporation or other legal entity
authorizing its publication, distribution or dissemination.
§3-8-12. Additional acts forbidden; circulation of written matter;
newspaper advertising; solicitation of contributions;
intimidation and coercion of employees; promise of employment
or other benefits; limitations on contributions; public
contractors; penalty.
(a) No person may publish, issue or circulate, or cause to be
published, issued or circulated, any anonymous letter, circular,
placard, radio or television advertisement or other publication
expressly advocating the election or defeat of a clearly identified
candidate.
(b) No owner, publisher, editor or employee of a newspaper or other periodical may insert, either in its advertising or reading
columns, any matter, paid for or to be paid for, which tends to
influence the voting at any election, unless directly designating
it as a paid advertisement and stating the name of the person
authorizing its publication and the candidate in whose behalf it is
published.
(c) No person may, in any room or building occupied for the
discharge of official duties by any officer or employee of the
state or a political subdivision of the state, solicit orally or by
written communication delivered within the room or building, or in
any other manner, any contribution of money or other thing of value
for any party or political purpose, from any postmaster or any
other officer or employee of the federal government, or officer or
employee of the state, or a political subdivision of the state. No
officer, agent, clerk or employee of the federal government, or of
this state, or any political subdivision of the state, who may have
charge or control of any building, office or room, occupied for any
official purpose, may knowingly permit any person to enter any
building, office or room, occupied for any official purpose for the
purpose of soliciting or receiving any political assessments from,
or delivering or giving written solicitations for, or any notice
of, any political assessments to, any officer or employee of the
state, or a political subdivision of the state.
(d) Except as provided in section eight of this article, no
person entering into any contract with the state or its
subdivisions, or any department or agency of the state, either for rendition of personal services or furnishing any material, supplies
or equipment or selling any land or building to the state, or its
subdivisions, or any department or agency of the state, if payment
for the performance of the contract or payment for the material,
supplies, equipment, land or building is to be made, in whole or in
part, from public funds may, during the period of negotiation for
or performance under the contract or furnishing of materials,
supplies, equipment, land or buildings, directly or indirectly,
make any contribution to any political party, committee or
candidate for public office or to any person for political purposes
or use; nor may any person or firm solicit any contributions for
any purpose during any period.
(e) No person may, directly or indirectly, promise any
employment, position, work, compensation or other benefit provided
for, or made possible, in whole or in part, by act of the
Legislature, to any person as consideration, favor or reward for
any political activity for the support of or opposition to any
candidate, or any political party in any election.
(f) No person may, directly or indirectly, make any
contribution in excess of the value of one thousand dollars in
connection with any campaign for nomination or election to or on
behalf of any statewide or national elective office, or in excess
of the value of one thousand dollars, in connection with any other
campaign for nomination or election to or on behalf of any other
elective office in the state or any of its subdivisions, or in
connection with or on behalf of any committee or other organization or person engaged in furthering, advancing or advocating the
nomination or election of any candidate for any of the offices.
(g) (1) Notwithstanding the provisions of subsection (f) of
this section to the contrary, the aggregate contributions made to
a state party executive committee or state party legislative caucus
committee are to be permitted only pursuant to the limitations
imposed by the provisions of this subsection.
(2) No person may, directly or indirectly, make contributions
to a state party executive committee or state party legislative
caucus committee which, in the aggregate, exceed the value of one
thousand dollars in any calendar year.
(h) The limitations on contributions contained in this section
do not apply to transfers between and among a state party executive
committee or a state party's legislative caucus political committee
from national committees of the same political party: Provided,
That transfers permitted by this subsection may not exceed fifty
thousand dollars in the aggregate in any calendar year to any state
party executive committee or state party legislative caucus
political committee: Provided, however, That the moneys
transferred may only be used for voter registration and
get-out-the-vote activities of the state committees.
(i) No person may solicit any contribution from any
nonelective salaried employee of the state government or of any of
its subdivisions or coerce or intimidate any nonelective salaried
employee into making a contribution. No person may coerce or
intimidate any nonsalaried employee of the state government or any of its subdivisions into engaging in any form of political
activity. The provisions of this subsection may not be construed
to prevent any employee from making a contribution or from engaging
in political activity voluntarily, without coercion, intimidation
or solicitation.
(j) No person may solicit a contribution from any other person
without informing the other person at the time of the solicitation
of the amount of any commission, remuneration or other compensation
that the solicitor or any other person will receive or expect to
receive as a direct result of the contribution being successfully
collected. Nothing in this subsection may be construed to apply to
solicitations of contributions made by any person serving as an
unpaid volunteer.
(k) No person may place any letter, circular, flyer,
advertisement, election paraphernalia, solicitation material or
other printed or published item tending to influence voting at any
election in a roadside receptacle unless it is: (1) Approved for
placement into a roadside receptacle by the business or entity
owning the receptacle; and (2) contains a written acknowledgment of
the approval. This subdivision does not apply to any printed
material contained in a newspaper or periodical published or
distributed by the owner of the receptacle. The term "roadside
receptacle" means any container placed by a newspaper or periodical
business or entity to facilitate home or personal delivery of a
designated newspaper or periodical to its customers.
(l) Any person violating any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in a regional
or county jail for not more than one year, or, in the discretion of
the court, be subject to both fine and confinement.
ARTICLE 10. FILLING VACANCIES.
§3-10-7. Vacancies in offices of county commissioner and clerk of
county commission.
Any vacancy in the office of county commissioner or clerk of
county commission shall be filled by the county commission of the
county, unless the number of vacancies in a county commission
deprive that body of a quorum, in which case the governor of the
state shall fill any vacancy in such the county commission
necessary to create a quorum thereof. Persons appointed shall be
of the same political party as the officeholder vacating the office
and shall continue in office until the next general election is
certified, or until the completion of the term if the term ends on
the thirty-first day of December following the next general
election The vacancy shall be filled by election for the unexpired
term if the unexpired term is greater than one year: Provided,
That in the event a quorum of the county commission cannot agree
upon a person to fill a vacancy in the office of county
commissioner it shall be the mandatory, nondiscretionary duty of
each such county commissioner, within sixty days from the date such
the vacancy occurs, to submit in person to the chief judge of the
circuit court of such the county, the name of one person who is a
member of the same political party as was the person whose vacancy is being filled and was such member for at least one year next
preceding the filling of such the vacancy and who is legally
qualified and willing to fill such the vacancy. The judge shall
thereupon, in the presence of the quorum of the county commission,
cause each name to be written on a separate piece of paper, shall
fold or roll up the pieces of paper so as to resemble each other
and so that the name written thereon shall not be visible on the
outside, and shall deposit the pieces of paper in a box from which
one of the county commissioners, selected by lot under the
supervision of such the judge, shall, in the presence of each other
and the judge, draw one of the names. and the The person whose name
is so drawn shall be the county commission's choice to fill such
the vacancy. The circuit court shall have jurisdiction to compel
compliance with the provisions of this proviso.
Notice of such the election as aforesaid shall be given by
order of the county commission and published as prescribed in
section six of this article. Nomination of candidates to fill the
office for an unexpired term in the office of county commissioner
or clerk of the county commission shall be made in the manner
prescribed for making nominations to fill a vacancy in the office
of the clerk of the circuit court.
In the event that the election for an unexpired term is held
at the same time as the election for a full term for county
commissioner, the full term shall be counted first and the
unexpired term shall be counted second. If the candidate with the
highest number of votes for the unexpired term resides in the same magisterial district as the candidate with the highest number of
votes for the full term, the candidate for the full term shall be
seated. The candidate with the next highest number of votes for
the unexpired term residing in a different magisterial district
shall be seated for the unexpired term.
§3-10-8. Vacancies in offices of prosecuting attorney, sheriff,
assessor and surveyor.
Any vacancy occurring in the office of prosecuting attorney,
sheriff, assessor or county surveyor shall be filled by the county
commission by appointment of a person of the same political party
as the officeholder vacating the office., and the The appointed
person shall hold the office until the next general election is
certified, or until the completion of the term if the term ends on
the thirty-first day of December following the next general
election. Such vacancy shall be filled by election for the
unexpired term if the unexpired term is greater than one year.
Notice of an election to fill a vacancy in any of the offices named
in this section shall be given by the county commission, or by the
president thereof in vacation, and published or posted in the
manner prescribed in section six of this article. Nomination of
candidates to fill any such vacancy shall be made in the manner
prescribed in said section six of this article for nominating
candidates to fill a vacancy in the office of the clerk of the
circuit court.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 6. ANNEXATION.
PART II. ANNEXATION BY ELECTION.
§8-6-2. Petition for annexation.
(a) Five percent or more of the freeholders of a municipality
desiring to have territory annexed thereto may file a petition in
writing with the governing body thereof setting forth the change
proposed in the metes and bounds of the municipality and asking
that a vote be taken upon the proposed change. The petition shall
be verified and shall be accompanied by an accurate survey map
showing the territory to be annexed to the corporate limits by the
proposed change.
(b) The petitioners shall obtain a surety bond in an amount
set by the governing body sufficient to cover the cost of the
election. The bond shall be forfeited if a majority of the votes
cast are against the proposed annexation.
(c) The governing body shall, upon receipt of the bond, order
a vote of the qualified voters of the municipality to be taken upon
the proposed annexation on a date and at a time and place to be
named in the order, not less than twenty nor more than thirty days
from the date thereof.
(d) The governing body shall, at the same time, order a vote
of all of the qualified voters of the additional territory and of
all of the freeholders of such the additional territory whether
they reside or have a place of business therein or not, to be taken
upon the question on the same day at some convenient place in or
near the additional territory.
(e) The governing body shall cause the order for the election to be published, at the cost of the municipality, as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area is the
municipality and the additional territory. The first publication
must be at least fourteen days prior to the date upon which the
vote is to be taken. The order for the election shall contain an
accurate description by metes and bounds of the additional
territory proposed to be annexed to the corporate limits by the
proposed change, a summary of the municipality's plan for providing
services to the additional territory and, if practicable, shall
also contain a popular description of the additional territory.
(f) The election shall be held, superintended and conducted
and the results thereof ascertained, certified, returned and
canvassed in the same manner by the same individuals as elections
for municipal officers. The election is reviewable by the circuit
court of the county in which the municipality or the major portion
thereof, including the area proposed to be annexed, is located.
The order may be reviewed by the circuit court as an order of a
county commission ordering an election may be reviewed under
section sixteen, article five of this chapter.
(g) The ballots, or ballot labels where voting machines are
used, shall have written or printed on them the words:
? For Annexation
? Against Annexation
(h) Any freeholder which is a firm or corporation may vote by
its manager, president or executive officer duly designated in writing by such the firm or corporation.
(i) An individual who is a qualified voter and freeholder of
the municipality or the additional territory shall be entitled to
vote only once.
(j) For purposes of this section, the term "qualified voter of
the additional territory" includes a firm or corporation in the
additional territory regardless of whether the firm or corporation
is a freeholder. A firm or corporation may vote by its manager,
president, or executive officer duly designated in writing by the
firm or corporation. In any instance where a freeholder leases or
rents real property to a firm or corporation the freeholder and the
firm or corporation shall determine which entity will be entitled
to vote in the annexation election.
(k) When an election is held in any municipality in accordance
with the provisions of this section, another election relating to
the same proposed change or any part thereof shall not be held for
a period of one year.
(l) If a majority of all of the legal votes cast both in the
municipality and a majority of all the legal votes cast in the
territory are in favor of the proposed annexation, then the
governing body shall proceed as specified in the immediately
succeeding section of this article.;
And,
On pages one through seven, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 648--A Bill to repeal section forty, article one, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to repeal section
twenty, article two of said chapter; to repeal section twenty-one,
article four-a of said chapter; to repeal section twenty-one,
article nine of said chapter; to amend and reenact sections seven,
nine, twenty, twenty-one, twenty-four, twenty-five, twenty-eight,
twenty-nine, thirty, thirty-four, thirty-nine, forty-one, forty-
four and forty-five, article one of said chapter; to further amend
said article by adding thereto three new sections, designated
sections forty-eight, forty-nine and fifty; to amend and reenact
sections two, three, five, seven, ten, thirteen, nineteen and
thirty, article two of said chapter; to further amend said article
by adding thereto a new section, designated section four-a; to
amend and reenact sections one, two, two-a, three, five, five-c,
seven, eight, ten and eleven, article three of said chapter; to
amend and reenact sections ten and twenty-three, article four of
said chapter; to amend and reenact sections nine, nineteen, twenty-
two, twenty-four-a and twenty-seven, article four-a of said
chapter; to amend and reenact sections ten, thirteen, fifteen and
nineteen, article five of said chapter; to amend and reenact
sections three, four-a, five, six, seven and nine, article six of
said chapter; to amend and reenact sections one and four, article
seven of said chapter; to amend and reenact sections two, four,
five and twelve, article eight of said chapter; to amend and
reenact sections seven and eight, article ten of said chapter; and
to amend and reenact section two, article six, chapter eight of said code, all relating to elections generally; requiring written
notice to registered voters if precinct is changed; clarifying how
members of the state executive committees are elected and providing
for additional members; specifying the information to be on the
general information cards; providing instruction on casting a
provisional ballot; requiring posting of names of official write-in
candidates; requiring all information available to voters on
election day to be available during the early in-person voting
period; requiring the circuit clerk to transfer absentee ballots to
the clerk of the county commission where clerk of the county
commission is responsible for absentee voting; authorizing poll
clerks to pick up election supplies; authorizing reimbursement for
county employees who deliver election supplies; prohibiting
election officials from also being official write-in candidates;
making expanded receiving boards optional; clarifying that
alternate election officials be paid for attending training;
changing challenged ballot to provisional ballot throughout;
clarifying that the clerk of the county commission may use election
records and returns to update voter registration records;
eliminating the requirement for the immediate arrest of a person
accused of voting illegally; establishing procedures for taking and
securing affidavits regarding illegal voting; providing for the
secured affidavits to be given to the prosecuting attorney;
establishing procedures for challenging ballots and voting a
provisional ballot; requiring that the secretary of state establish
a system to allow provisional voters to learn whether or not their vote was counted and why; requiring the circuit court to decide
proceedings to compel performance of election duties within fifteen
days; establishing a state election fund; setting new standards for
voting systems; providing for state administrative complaint
procedures for election law violations; authorizing the secretary
of state to establish and maintain a statewide voter registration
list; providing for stricter identification procedures for voter
registration; clarifying when seventeen-year-olds may vote in
municipal elections; providing that voter registration services
will be provided whenever the office of the clerk of the county
commission is open for business; clarifying that the secretary of
state must periodically review and revise the rule relating to
voter registration; clarifying that voter registration lists or
data files may not be used or sold for commercial or charitable
solicitations or advertising; changing regular absentee voting to
early in-person voting; allowing voters who have resided in a
nursing home for less than thirty days to vote by an emergency
absentee ballot; clarifying that absentee ballots require a mail-in
absentee ballot application; authorizing two representatives to
assist with absentee voting and establishing qualifications;
expanding the early in-person voting period to twenty days;
eliminating voting on Monday before a Tuesday election and adding
voting on the two Saturdays prior to the election; requiring notice
to voters that Monday voting is no longer available; clarifying
procedures for, and materials required for, early in-person voting;
authorizing representatives to sign the back of mail-in ballots; requiring proper supplies be sent to mail-in absentee voters;
establishing measures for securing mail-in absentee ballots;
providing that the emergency absentee ballot commissioners must
sign an oath; authorizing counties that use paper ballots to begin
counting absentee ballots at nine o'clock the morning of election
day; removing certain requirements for challenging absentee
ballots; removing language that require ballot commissioner's
signatures on absentee ballots; requiring that all electronic
voting system materials be retained twenty-two months; providing
that a person who assists voters casting their ballots cannot be a
candidate on the ballot or an official write-in candidate; removing
the requirement that write-in votes be indicated by punching out
write-in voting position on a punch card ballot in addition to
entering the candidate's name; providing that the publication of
sample ballots will be made not more than twenty-six nor less than
twenty days prior to the primary and general elections; requiring
numbers and perforated stubs on paper ballots; clarifying the
requirements for an executive committee to call a meeting to fill
vacancies on a ballot; allowing issues of candidate eligibility to
be brought before the election commission; requiring the
certificate of announcement for a write-in candidate be received by
the close of business the eighteenth day prior to the election;
requiring contests for state offices, legislative seats and
judgeships to be filed within ten days of the certification of the
election; removing the requirement that political committees
advocating for or against an issue file financial statements; excluding federal political action committees from filing with the
state; allowing a change of treasurer of a campaign committee by
filing a written statement; requiring that candidates in a primary
election file financial statements on the last Saturday in March or
within six days thereafter; requiring that candidates in a general
election file financial statement on the first Saturday in
September or within six days thereafter; eliminating requirement
that financial reports be notarized and requiring them to be sworn;
allowing corporations to participate in nonpartisan registration
and get-out-the-vote campaigns; prohibiting anonymous radio or
television advertisements advocating the election or defeat of
candidates; clarifying how a vacancy in the office of county
commissioner or clerk of the county commission is to be filled;
removing requirement to fill certain vacancies by election if the
unexpired term is greater than one year; removing inconsistent time
frames for holding annexation election; and clarifying that a
majority of votes in the municipality and a majority of votes in
the territory to be annexed determine the outcome of annexation
elections.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 648, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 648) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Com. Sub. for Senate Concurrent Resolution No. 27, Requesting
Joint Committee on Government and Finance study protection of water
supply.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 47, Requesting construction
of access road to Beckley Veterans Administration Medical Center.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2001, Restricting public
access to military discharge forms recorded in the county clerks
office.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2500, Clarifying the
authority of the courts to continue protective orders during
certain proceedings.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments to the Senate
amendments, as to
Eng. Com. Sub. for House Bill No. 2511, Authorizing the
issuance of a special motor vehicle license plate for "Nemesis
Shrine" members.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page thirty-five, after section fourteen, by adding a new
section, designated section twenty-three, to read as follows:
§17A-3-23. Registration plates to state, county, municipal and
other governmental vehicles; use for undercover activities.
(a) Any motor vehicle designed to carry passengers, owned or
leased by the state of West Virginia, or any of its departments,
bureaus, commissions or institutions, except vehicles used by the
governor, treasurer, three plates vehicles per elected office of the board of public works, vehicles operated by the state police,
vehicles operated by conservation officers of the division of
natural resources, not to exceed ten vehicles operated by the arson
investigators of the office of state fire marshal, not to exceed
two vehicles operated by the division of protective services and
not to exceed sixteen vehicles operated by inspectors of the office
of the alcohol beverage control commissioner, may not be operated
or driven by any person unless it has displayed and attached to the
front thereof, in the same manner as regular motor vehicle
registration plates are attached, a plate of the same size as the
regular registration plate, with white lettering on a green
background bearing the words "West Virginia" in one line and the
words "State Car" in another line and the lettering for the words
"State Car" shall be of sufficient size to be plainly readable from
a distance of one hundred feet during daylight.
The vehicle shall also have attached to the rear a plate
bearing a number and any other words and figures as the
commissioner of motor vehicles shall prescribe. The rear plate
shall also be green with the number in white.
(b) On registration plates issued to vehicles owned by
counties, the color shall be white on red with the word "County" on
top of the plate and the words "West Virginia" on the bottom. On
any registration plates issued to a city or municipality, the color
shall be white on blue with the word "City" on top and the words
"West Virginia" on the bottom. The colors may not be reversed and
shall be of reflectorized material. The registration plates issued to counties, municipalities and other governmental agencies
authorized to receive colored plates hereunder shall be affixed to
both the front and rear of the vehicles.
(c) Registration plates issued to vehicles operated by county
sheriffs shall be designed by the commissioner in cooperation with
the sheriffs' association with the word "Sheriff" on top of the
plate and the words "West Virginia" on the bottom. The plate shall
contain a gold shield representing the sheriff's star and a number
assigned to that plate by the commissioner. Every county sheriff
shall provide the commissioner with a list of vehicles operated by
the sheriff, unless otherwise provided in this section, and a fee
of ten dollars for each vehicle submitted by the first day of July,
two thousand two.
(d) The commissioner is authorized to designate the colors and
design of any other registration plates that are issued without
charge to any other agency in accordance with the motor vehicle
laws.
(e) Upon application, the commissioner is authorized to issue
a maximum of five Class A license plates per applicant to be used
by county sheriffs and municipalities on law-enforcement vehicles
while engaged in undercover investigations.
(f) The commissioner is authorized to issue an unlimited
number of license plates per applicant to authorized drug and
violent crime task forces in the state of West Virginia when the
chairperson of the control group of a drug and violent crime task
force signs a written affidavit stating that the vehicle or vehicles for which the plates are being requested will be used only
for official undercover work conducted by a drug and violent crime
task force.
(g) The commissioner is authorized to issue twenty Class A
license plates to the criminal investigation division of the
department of tax and revenue for use by its investigators.
(h) The commissioner may issue a maximum of ten Class A
license plates to the division of natural resources for use by
conservation officers. The commissioner shall designate the color
and design of the registration plates to be displayed on the front
and the rear of all other state-owned vehicles owned by the
division of natural resources and operated by conservation
officers.
(i) The commissioner is authorized to issue an unlimited
number of Class A license plates to the commission on special
investigations for state-owned vehicles used for official
undercover work conducted by the commission on special
investigations. The commissioner is authorized to issue a maximum
of two Class A plates to the division of protective services for
state owned vehicles used by the division of protective services in
fulfilling its mission.
(j) No other registration plate may be issued for, or attached
to, any state-owned vehicle.
(k) The commissioner of motor vehicles shall have a sufficient
number of both front and rear plates produced to attach to all
state-owned cars. The numbered registration plates for the vehicles shall start with the number "five hundred" and the
commissioner shall issue consecutive numbers for all state-owned
cars.
(l) It is the duty of each office, department, bureau,
commission or institution furnished any vehicle to have plates as
described herein affixed thereto prior to the operation of the
vehicle by any official or employee.
(m) Any person who violates the provisions of this section
shall be is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than fifty dollars nor more than one
hundred dollars. Magistrates shall have concurrent jurisdiction
with circuit and criminal courts for the enforcement of this
section.
;
On page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That sections fourteen and twenty-three, article three,
chapter seventeen-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2511--A
Bill to amend and
reenact sections fourteen and twenty-three, article three, chapter
seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to original and renewal of
registration plates; authorizing the issuance of special motor
vehicle license plates for members of the nemesis shrine,
volunteers and employees of the American red cross, individuals who
have received the combat infantry badge or combat medic badge,
members of the knights of Columbus, former members of the
Legislature, democratic state or county executive committee
members, female veterans, West Liberty state college, harley owners
and knights of Columbus; prescribing fees; providing that special
registration plates may only be issued to those nonprofit
charitable and educational organizations authorized by prior law;
prohibiting the commissioner of motor vehicles from approving or
authorizing additional nonprofit charitable and educational
organizations to design or market special registration plates;
eliminating the requirement that a certified firefighter produce
annual evidence of certification; requiring the West Virginia
university fire service extension to notify the division of motor
vehicles when a firefighter loses his or her certification; making
technical corrections; removing the restriction on the number of
plates a volunteer firefighter may obtain and increasing the cost
of those plates; prohibiting the division of motor vehicles from
beginning the design or production of any license plate based on
membership or affiliation with a private organization until a
minimum number of persons have applied and paid for the plate;
procedure where minimum number not met by private organization; and
providing that the division of protective services may have up to two Class A license plates.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 2511, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe,
Snyder, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Harrison, Smith and Sprouse--3.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2511) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment to
the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2512, Relating to
competitive bidding and notice requirements for the development of natural resources in which the public land corporation has an
interest.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections three, five and six, article one-a, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 1A. REAL ESTATE MANAGEMENT AND PROCEDURES.
§20-1A-3. Public land corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the state auditor or any
local, state or federal agency, by purchase, lease or other
agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement,
receive by gifts and devises, or exchange, rights-of-way,
easements, waters and minerals suitable for public use;
(3) Sell or exchange public lands where it is determined that
the sale or exchange of such tract meets any or all of the
following disposal criteria:
(A) Such The tract was acquired for a specific purpose and the
tract is no longer required for that or any other state purpose; or
(B) Disposal of such the tract serves important public
objectives including, but not limited to, expansion of communities
and economic development which cannot be achieved on lands other
than public lands and which clearly outweigh other public
objectives and values including, but not limited to, recreation and
scenic values which would be served by maintaining such the tract
in state ownership; or
(C) Such The tract, because of its location or other
characteristics, is difficult and uneconomic to manage as part of
the public lands and is not suitable for management by another
state department or agency;
There is hereby created in the state treasury a special public
land corporation fund into which shall be paid all proceeds from
public land sales and exchanges. The corporation may acquire
public lands from use of the payments made to the fund, along with
any interest accruing to said the fund. The corporation shall
report annually, just prior to the beginning of the regular session
of the Legislature, to the finance committees of the Legislature on
the financial condition of the special fund.
(4) Sell, purchase or exchange lands or stumpage for the
purpose of consolidating lands under state or federal government
administration subject to the disposal criteria specified in
subdivision three of this section;
(5) Negotiate and effect loans or grants from the government
of the United States or any agency thereof for acquisition and
development of such lands as may be authorized by law to be acquired for public use;
(6) Expend the income from the use and development of public
lands for the following purposes:
(A) Liquidate obligations incurred in the acquisition,
development and administration of such lands, until all such
obligations have been fully discharged;
(B) Purchase, develop, restore and preserve for public use,
sites, structures, objects and documents of prehistoric,
historical, archaeological, recreational, architectural and
cultural significance to the state of West Virginia; and
(C) Obtain grants or matching moneys available from the
government of the United States or any of its instrumentalities for
prehistoric, historic, archaeological, recreational, architectural
and cultural purposes;
(7) The corporation shall have the authority to Designate
lands, to which it has title, for development and administration
for the public use including recreation, wildlife stock grazing,
agricultural rehabilitation and homesteading or other conservation
activities;
(8) The corporation shall have authority to Enter into leases
as a lessor for the development and extraction of minerals,
including coal, oil, gas, sand and or gravel, except as otherwise
circumscribed herein: Provided, That leases for the development
and extraction of minerals shall be made in accordance with the
provisions of sections five and six of this article. The
corporation shall reserve title and ownership to the mineral rights in all cases;
(9) It shall Convey, assign, or allot lands to the title or
custody of proper departments or other agencies of state government
for administration and control within the functions of such
departments or other agencies as provided by law;
(10) The corporation shall Make proper lands available for the
purpose of cooperating with the government of the United States in
the relief of unemployment and hardship or for any other public
purpose.
(b) There is hereby created in the state treasury a special
public land corporation fund into which shall be paid all proceeds
from public land sales and exchanges and rents, royalties and other
payments from mineral leases. The corporation may acquire public
lands from use of the payments made to the fund, along with any
interest accruing to the fund. The corporation shall report
annually, just prior to the beginning of the regular session of the
Legislature, to the finance committees of the Legislature on the
financial condition of the special fund. The corporation shall
report annually to the Legislature on its public land holdings and
all its leases, its financial condition and its operations and
shall make such recommendations to the Legislature as deemed proper
concerning the acquisition, leasing, development, disposition and
use of public lands.
(c) All state agencies, institutions, divisions and
departments shall make an inventory of the public lands of the
state as may be by law specifically allocated to and used by each and provide to the corporation a list of such public lands and
minerals, including their current use, intended use or best use to
which such land lands and minerals may be put: Provided, That the
state department division of highways need not provide such the
inventory of public lands allocated to and used by it. The
inventory shall identify those parcels of land which have no
present or foreseeable useful purpose to the state of West
Virginia. The inventory shall be submitted annually to the
corporation by the first day of August. one thousand nine hundred
eighty-nine The corporation shall compile such the inventory of
all public lands and minerals and report annually to the
Legislature by no later than the first day of January, one thousand
nine hundred ninety, on its public land holdings lands and minerals
and the land holdings lands and minerals of the other agencies,
institutions, divisions or departments of this state which are
required to report their holdings to the corporation as set forth
hereinabove in this subsection, and its financial condition and its
operations.
During the continuance of the Blennerhassett historical park
commission, the public land corporation and its members shall
consult with and keep the said Blennerhassett historical park
commission fully informed as to any official action to be taken or
proposed to be taken pursuant to this act regarding or affecting
Blennerhassett Island and its prehistoric, historic,
archaeological, architectural, cultural and recreational
significance or development or any of the powers and duties of the Blennerhassett historical park commission.
§20-1A-5. Public land corporation to hold public hearing before
sale, lease, exchange or transfer of land or minerals.
(a) Prior to any final decision of any state agency to sell,
lease as a lessor, exchange or transfer land or minerals title to
which is vested in the public land corporation pursuant to section
one of this article, the public land corporation shall:
(1) Prepare and reduce to writing the reasons and supporting
data regarding such the sale, lease, or exchange or transfer of
land or minerals. The written reasons required under this section
shall be available for public inspection at the office of the
county clerk at the county courthouse of each county in which the
affected land is lands or minerals are located during the two
successive weeks before the date of the public hearing required by
this section;
(2) Provide for a public hearing to be held at a reasonable
time and place within each county in which the affected land is
lands or minerals are located to allow interested members of the
public to attend the hearing without undue hardship. Members of
the public may be present, submit statements and testimony and
question the corporation's representative appointed pursuant to
this section;
(3) Not less than thirty days prior to such the public
hearing, provide notice to all members of the Legislature, to the
head of the governing body of any political subdivision having
zoning or other land use regulatory responsibility in the geographic area within which the public lands or minerals are
located and to the head of any political subdivision having
administrative or public services responsibility in the geographic
area within which the lands or minerals are located;
(4) Cause to be published a notice of the required public
hearing. The notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
each county in which the affected land is lands or minerals are
located. The public hearing shall be held no earlier than the
fourteenth successive day and no later than the twenty-first
successive day following the first publication of the notice. The
notice shall contain the time and place of the public hearing along
with a brief description of the affected land lands or minerals;
(5) Cause a copy of the required notice to be posted in a
conspicuous place at the affected land for members of the public to
observe. Such The notice shall remain posted for two successive
weeks prior to the date of the public hearing;
(6) Appoint a representative of the corporation who shall
conduct the required public hearing. The corporation's
representative shall have full knowledge of all the facts and
circumstances surrounding the proposed sale, lease, exchange or
transfer. The representative of the corporation conducting the
public hearing shall make the results of the hearing available to
the corporation for its consideration prior to the board making
final decisions regarding the affected lands or minerals. The representative of the corporation shall make a report of the public
hearing available for inspection by the public or, upon written
request of any interested person, provide a written copy thereof
and to all individuals previously receiving written notice of the
hearing within thirty days following the public hearing; and
(7) If the evidence at the public hearing establishes by a
preponderance that the appraisal provided for in subsection (c),
section four of this article does not reflect the true, fair market
value, the public land corporation shall cause another appraisal to
be made.
(8) If the evidence at the public hearing establishes by a
preponderance that the sale or exchange of land does not meet the
criteria set forth in subdivision three, subsection (a), section
three of this article, the public land corporation shall may not
proceed with the sale or exchange of said land without judicial
approval.
The representative of the corporation conducting the public
hearing shall make the results of the hearing available to the
corporation for its consideration prior to the board making
decisions regarding the affected lands.
(b) No sale, exchange or transfer of land subject to the
provisions of this section may be made The corporation may not
sell, lease as lessor, exchange or transfer lands or minerals
before the thirtieth successive day following the public hearing
required by this section, but in no event shall may the sale,
lease, exchange or transfer of such lands or minerals be made prior to fifteen days after the report of the public hearings are made
available to the public in general.
(c) If the corporation authorizes the staff to proceed with
consideration of the lease or sale under the terms of this article,
all requirements of this section shall be completed within one year
of date of the authorization by the corporation.
§20-1A-6. Competitive bidding and notice requirements before the
development or extraction of minerals on certain lands;
related standards.
(a) The corporation may enter into a lease or contract for the
development of minerals, gas or oil including, but not limited to,
coal, gas, oil, sand or gravel on or under lands in which the
corporation holds any right, title or interest: Provided, That no
lease or contract may be entered into for the extraction and
removal of minerals by surface mining or auger mining of coal.
(b) With the exception of deep mining operations which are
already in progress and permitted as of the effective date of this
article fifth day of July, one thousand nine hundred eighty-nine,
the extraction of coal by deep mining methods under state forests
or wildlife refuges may be permitted only if such the lease or
contract provides that no entries, portals, air shafts or other
incursions upon and into said the land incident to said the mining
operations may be placed or constructed upon said the lands or
within three thousand feet of the its boundary. thereof
(c) Any lease or contract entered into by the corporation for
the development of minerals shall reserve to the state all rights to subjacent surface support with which the state is seized or
possessed of at the time of such lease or contract.
(d) Notwithstanding any other provisions of the code to the
contrary, nothing herein shall may be construed to permit
extraction of minerals oil or gas by any method from, on or under
any state park or state recreation area, nor the extraction of
minerals by strip or auger mining upon any state forest or wildlife
refuge.
(e) The corporation may enter into a lease or contract for the
development of minerals oil or gas where such the lease or contract
is not prohibited by any other provisions of this code, only after
receiving sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code. The area for such
publication shall be each county in which such lands the minerals
are located.
(f) The minerals oil or gas so advertised may be leased or
contracted for development at not less than the fair market value,
as determined by an appraisal made by an independent person or firm
chosen by the corporation, to the highest responsible bidder, who
shall give bond for the proper performance of the contract or lease
as the corporation shall designate but designates: Provided, That
the corporation shall have the right to may reject any and all bids
and to readvertise for bids.
(g) If the foregoing provisions of this section have been
complied with, and no bid equal to or in excess of the fair market value of such natural resources is received, the corporation may,
at any time during a period of six months after the opening of the
bids, lease or contract for the development of such natural
resources in such manner as it is deemed appropriate the minerals,
but the lease or contract price shall may not be less than the fair
market value. of such natural resources advertised
(h) Any lease or contract for the development of minerals
entered into after the effective date of this section shall be made
in accordance with the provisions of this section and section five
of this article.
_____(i) The corporation will consult with the office of the
attorney general to assist the corporation in carrying out the
provisions of this section.
_____(j) The corporation shall consult with an independent mineral
consultant and any other competent third parties with experience
and expertise in the leasing of minerals, to assist the corporation
in carrying out the provisions of this section, including
determining fair market value and negotiating terms and conditions
of mineral leases.
_____(k) Once the lessee commences the production of minerals and
royalties become due and are paid to the public land corporation,
the public land corporation shall hire an independent auditing firm
to periodically review the lessee's books and accounts for
compliance of payment of appropriate royalties due the public land
corporation for its minerals as produced under the lease agreement.
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 2512, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2512) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2603, Authorizing the
department of environmental protection to promulgate legislative
rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by
the House of Delegates, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment to
the Senate amendment, as to
Eng. Com. Sub. for House Bill No. 2715, Modernizing the
regulation of surplus lines insurers by enactment of the NAIC
nonadmitted insurance model act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendment to the bill was reported by the Clerk:
On page sixty-three, section twenty-nine, line six, after the
word "section" by striking out the word "five" and inserting in
lieu thereof the word "eight".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendment to
the bill.
Engrossed Committee Substitute for House Bill No. 2715, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2715) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 2794, Increasing the service fee for
worthless check.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 2866, Relating to construction financing
for surface transportation improvements through federal grant
anticipation notes.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Mezzatesta, Stalnaker and Ashley.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2868, Allowing alcohol
beverage control commissioner to enter into contracts for sale and
promotion of certain proprietary scanner technology.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2910, Establishing an "Amber
Alert" system to be utilized to rapidly disseminate information
with regard to abducted and missing children.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3077, Authorizing the tax commissioner to
enter into agreements with the internal revenue service for
offsetting tax refunds against tax liabilities.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3117, Requiring contractors
bidding on public works construction projects to submit valid bid
bonds in their proposals and to direct how public bids are receive.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3199, Relating to reduced telephone
service rates for qualified low-income residential consumer.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 24--Requesting the United States Congress to broaden the eligibility categories of membership
in veterans' organizations.
Whereas, Young American men and women are at the forefront of
the war on terror; and
Whereas, Many Americans have served in the armed services of
this country and have been placed in harm's way both in times of
peace and in times of war; and
Whereas, Membership in American veterans' organizations
continues to decline as fewer and fewer veterans are eligible for
membership in these organizations; and
Whereas, The contributions made to local communities by
members of the American Legion, the Veterans of Foreign Wars and
other similar organizations are invaluable and may not be replaced
if the eligibility for membership continues to be restricted;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Congress of the
United States to broaden the eligibility categories of membership
in veterans' organizations; and, be it
Further Resolved, That the Clerk of the House of Delegates is
hereby directed to forward a copy of this resolution to the members
of West Virginia's delegation in Congress and to the Clerk of the
United States House of Representatives and the Clerk of the United
States Senate.
Referred to the Committee on Military.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 35--Requesting the Joint
Committee on Government and Finance to conduct a study of the
shortage of qualified nursing personnel to involve the study of:
Current funding sources for nursing education; administration of
funding for nursing education; adequacy of funding levels per
nursing student; capacity for expansion of nursing programs; the
need to increase nursing faculty salaries; the need to upgrade and
enhance distance education technology; funding for enhanced
distance education; and the need to provide stipends to support
nontuition-related expenses for nursing education programs.
Whereas, There is a critical shortage of qualified nurses in
several areas of this state; and
Whereas, State-supported nursing programs are struggling with
limited budgets and the recognized need to keep abreast of modern
technological and health care advances in offering educational
courses and training to nursing students; and
Whereas, The West Virginia Board of Registered Professional
Nurses has established a nursing shortage study commission to bring
these issues before the Legislature and has filed a report on its
findings; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Joint Committee on
Government and Finance to conduct a study of the shortage of
qualified nursing personnel to involve a study of: Current funding sources for nursing education; administration of funding for
nursing education; adequacy of funding levels per nursing student;
capacity for expansion of nursing programs; the need to increase
nursing faculty salaries; the need to upgrade and enhance distance
education technology; funding for enhanced distance education; and
the need to provide stipends to support nontuition-related expenses
for nursing education programs; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2004, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 66--Requesting the Joint
Committee on Government and Finance to conduct a study of the
benefits of captive insurance companies and the most effective
means of regulating these entities.
Whereas, There is concern in West Virginia relating to the
availability and affordability of medical malpractice insurance and other lines of insurance coverage; and
Whereas, Captives are an alternative type of risk management
which may afford significant financial and business advantages; and
Whereas, Captives can be a means of providing insurance
coverage that might otherwise be unavailable; and
Whereas, The citizens and businesses of West Virginia have an
interest in exploring alternative means of risk management; and
Whereas, The effective and efficient regulation of captive
insurance companies is important to the stability of West
Virginia's economy and its consumers; and
Whereas, The Legislature finds that both citizens and
businesses in West Virginia would benefit from a study of the
impact of captive insurance companies and the most efficient means
of regulating these entities; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
directed to conduct a study of the impact of captive insurance
companies and the most efficient means of regulating these
entities; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report its findings and recommendations resulting from the
study to the regular session of Legislature, 2004, together with
drafts of any proposed legislation necessary to effectuate such
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 67--Requesting the Joint
Committee on Government and Finance to conduct a study on payday
advances and lending.
Whereas, Certain financial service associations and
institutions offer payday advances to customers; and
Whereas, This practice is commonly referred to as payday
lending; and
Whereas, Certain states regulate payday lending; and
Whereas, The federal government regulates payday lending
through institutions which are subject to federal regulation; and
Whereas, The citizens and financial institutions of West
Virginia would benefit from a study to determine if the State of
West Virginia should regulate payday lending and thereby allow
certain state financial institutions to offer this service; and
Whereas, To determine the most effective means of regulating
this industry and the impact of regulation upon West Virginia
financial institutions and citizens, it is necessary to study the
regulation of the practice of payday lending by other states and
federal agencies; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
directed to conduct a study of payday lending; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report its findings and recommendations resulting from the
study to the regular session of Legislature, 2004, together with
drafts of any proposed legislation necessary to effectuate such
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 68--Requesting the Joint
Committee on Government and Finance to conduct a study of the
availability and affordability of automobile insurance in West
Virginia.
Whereas, The availability and affordability of automobile
insurance is a concern for citizens in West Virginia; and
Whereas, Certain national insurance companies offering
automobile insurance coverage have announced that they will no
longer be writing new business in the State; and
Whereas, The citizens of West Virginia and businesses may be
adversely affected by their inability to obtain both adequate and affordable coverage; and
Whereas, The effective regulation of insurance is important to
both insurers and citizens; and
Whereas, The laws of this state governing the nonrenewal of
automobile insurance policies impact both insurers and consumers;
and
Whereas, Both insurers and consumers would benefit from a
study of the impact of the laws of the State relating to
restrictions on the nonrenewal of automobile insurance policies;
and
Whereas, The surcharging and multitiering practices of
insurance companies may impact the cost of certain automobile
insurance coverage; and
Whereas, A study of the impact of surcharging and multitiering
would be beneficial to consumers; and
Whereas, The consumers and insurers in West Virginia would
benefit from a study to determine the underlying factors affecting
the availability and affordability of automobile insurance coverage
and to determine the effect of state regulation on this industry;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
directed to conduct a study of the availability and affordability
and the impact of regulation of automobile insurance coverage in
West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report its findings and recommendations resulting from the
study to the regular session of Legislature, 2004, together with
drafts of any proposed legislation necessary to effectuate such
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 69--Requesting the Joint
Committee on Government and Finance to conduct a study of the
availability and affordability of commercial, property and casualty
insurance.
Whereas, The affordability and availability of commercial,
property and casualty insurance is a concern for businesses and
citizens in West Virginia; and
Whereas, Access to affordable insurance is crucial to the
economic viability of West Virginia's economy; and
Whereas, Businesses in the state have been experiencing
difficulty in obtaining and maintaining insurance coverage; and
Whereas, If present trends continue in West Virginia, there
may be a commercial, property and casualty insurance crisis; and
Whereas, A study of the impact of economic forces and regulation upon these lines of insurance is important to
maintaining a stable insurance market in West Virginia and ensuring
the continued availability of these lines of coverage; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
directed to conduct a study of the availability and affordability
of commercial, property and casualty insurance in West Virginia;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report its findings and recommendations resulting from the
study to the regular session of Legislature, 2004, together with
drafts of any proposed legislation necessary to effectuate such
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 70--Requesting the West
Virginia Division of Highways to name the new bridge crossing the
Elk River on State Route 4 South of Gassaway, the "Veterans
Memorial Bridge".
Whereas, The State of West Virginia has seen more of its
citizens, per capita, serve in the United States military during
times of war and peace than any other state in the union; and
Whereas, Many State veterans have fought and served,
exhibiting great acts of selflessness and gallantry while in harm's
way, while still others have made the ultimate sacrifice of their
lives in order to preserve and protect the liberty, tranquility and
freedom of this country; and
Whereas, In view of the great sacrifices endured by State
veterans, both living and deceased, and their commitment to duty on
behalf of their country and fellow citizens, it is appropriate to
bestow the modest gesture, in comparison to such sacrifices and
duty, of naming a State landmark as a memorial to their collective
memory and spirit; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests of the West Virginia
Division of Highways to name the new bridge crossing the Elk River
on State Route 4 South of Gassaway, the "Veterans Memorial Bridge;"
and, be it
Further Resolved, That the Commissioner is requested to have
made and be placed, at either end of the bridge, signs identifying
the bridge as the "Veterans Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby
directed to forward a copy of this resolution to the Secretary of
Transportation, the Commissioner of the Division of Highways, the
County Commission of Braxton County and the Adjutant General of the military forces of this state.
Referred to the Committee on Transportation.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 72--Requesting the
Commissioner of the Division of Highways to name the lane,
immediately to the right after crossing a cement bridge and after
turning left off of U. S. Route 250 North of the Town of Metz in
Marion County "Sam Slay Lane".
Whereas, Sam Slay who passed away in early two thousand two,
was not well known across this great state, but he was known to
have the qualities that helped to make this state great; and
Whereas, Sam Slay was a leader of the First Century Church of
Metz, a coal miner and a teacher of young people; and
Whereas, Sam Slay was a champion weightlifter and president of
the Metz Barbell Club; and
Whereas, He gave unselfishly of himself by teaching young
people techniques and skills necessary to become champions; and
Whereas, Many of these young people have qualified for the
Olympic games; and
Whereas, For Sam Slay, it was not enough to just teach
physical techniques and skills to young people, he knew that
success depended on a tough and competitive mental attitude and a
commitment to spiritual and ethical conduct; and he instilled these
qualities in his students; and
Whereas, The contributions of Sam Slay to the lives of young
people, his community and his sport have had a positive and lasting
impact across this state and this country and should not go
unnoticed; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the West Virginia
Division of Highways and the County Commission of Marion County to
name the lane, immediately to the right after crossing a cement
bridge and after turning left off of U. S. Route 250 North of the
Town of Metz in Marion County "Sam Slay Lane"; and, be it
Further Resolved, That the Division of Highways and the County
Commission of Marion County cause an appropriate sign to be placed
to identify the lane as "Sam Slay Lane"; and, be it
Further Resolved, That the Clerk of the House is hereby
directed to forward a copy of this resolution to the Commissioner
of the Division of Highways, the members of Sam Slay's family and
the First Century Church of Metz.
Referred to the Committee on Transportation.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 74--Requesting the Division of
Highways name the bridge to be built over Pigeon Creek at Ferrell
Bottom, above Taylorville, Mingo County, West Virginia, the
"Ireland & Willis Duty Bridge".
Whereas, Ireland Duty and Willis Duty are brothers; Ireland having been born on May 29, 1906, and Willis having been born on
December 12, 1915; and
Whereas, Ireland Duty, who had six children, served in the
military service and worked in the coal mines for forty-three
years; and
Whereas, Willis Duty, who had three children, also served in
the military service and worked in the coal mines for forty years;
and
Whereas, Both brothers are well liked and esteemed by the
people of their community and many of their friends and neighbors
have expressed a desire to have the proposed bridge named in honor
of these fine men; and
Whereas, The naming of the bridge for these outstanding
citizens of Mingo County is an appropriate act to recognize their
contributions to the community in which they live; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the West Virginia
Division of Highways name the bridge to be built over Pigeon Creek
at Ferrell Bottom, near Taylorville, Mingo County, West Virginia,
the "Ireland & Willis Duty Bridge"; and, be it
Further Resolved, That the Commissioner is requested to have
made and placed, at either end of the bridge, signs identifying the
bridge as the "Ireland and Willis Duty Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby
directed to forward a copy of this resolution to the Secretary of
Transportation, the Commissioner of the Division of Highways, the County Commission of Mingo County and Ireland and Willis Duty.
Referred to the Committee on Transportation.
At the request of Senator Plymale, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.