ENGROSSED
Senate Bill No. 449
(By Senators Kessler, Caldwell, Fanning, Hunter, Jenkins, Minard,
Oliverio, Ross, Rowe, Snyder, White, Deem, Harrison, McKenzie,
Smith and Weeks)
____________
[Originating in the Committee on the Judiciary;
reported February 4, 2004.]
_____________
A BILL to amend and reenact §3-2-10 of the code of West Virginia,
1931, as amended; to amend and reenact §3-4-3 of said code; to
amend and reenact §3-4A-3 of said code; to amend and reenact
§3-5-8, §3-5-13 and §3-5-13a of said code; and to amend and
reenact §3-8-7 of said code, all relating to elections
generally; correcting United States code reference;
authorizing county commissions to discontinue use of voting
machines and replace them with other systems meeting certain
federal requirements under certain circumstances; reducing the
filing fee for presidential and vice presidential candidates;
clarifying that the filing fee for certain county offices is
based only on the annual salary of the position; adding family
court judge to list of offices on county ballot; and removing
the requirement that ballots be printed with space for ballot commissioners' signatures.
Be it enacted by the Legislature of West Virginia:
That §3-2-10 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §3-4-3 of said code be amended and
reenacted; that §3-4A-3 of said code be amended and reenacted; that
§3-5-8, §3-5-13 and §3-5-13a of said code be amended and reenacted;
and that §3-8-7 of said code be amended and reenacted, all to read
as follows:
§3-2-10. Application for registration by mail.
(a) Any qualified person may apply to register, change,
transfer or correct his or her voter registration by mail.
Application shall be made on a prescribed form as provided by
section five of this article.
(b) To the extent possible, with funds allocated annually for
such purpose, the secretary of state shall make state mail
registration forms available for distribution through governmental
and private entities and organized voter registration programs.
The secretary of state shall make a record of all requests by
entities or organizations for ten or more forms with a description
of the dates and locations in which the proposed registration drive
is to be conducted. The secretary of state may limit the
distribution to a reasonable amount per group.
(c) The clerk of the county commission shall provide up to
four mail registration forms to any resident of the county upon request. To the extent possible with funds allocated annually for
the purpose, the clerk of the county commission shall make state
mail registration forms available for distribution through
organized voter registration programs within the county. The clerk
of the county commission shall make a record of all requests by
entities or organizations for ten or more forms with a description
of the dates and locations in which the proposed registration drive
is to be conducted. The clerk may limit the distribution to a
reasonable amount per group.
(d) The applicant shall provide all required information and,
only after completing the information, sign the prescribed
applicant's oath under penalty of perjury as provided in section
thirty-six of this article. No person may alter or add any entry
or make any mark which would alter any material information on the
voter registration application after the applicant has signed the
oath:
Provided, That the clerk of the county commission may
correct any entry upon the request of the applicant provided the
request is properly documented and the correction is dated and
initialed by the clerk.
(e) Completed applications shall be mailed or delivered to the
clerk of the county commission of the county in which the voter
resides. If a clerk receives a completed mail application form
from a voter whose residence address is located in another county,
the clerk shall forward that application within three days to the clerk of the county commission of the county of the applicant's
residence.
(f) Upon receipt of the application for registration by the
appropriate clerk of the county commission, the clerk shall:
(1) Attempt to establish whether the residence address given
is within the boundaries of an incorporated municipality and, if
so, make the proper entry required for municipal residents to be
properly identified for municipal voter registration purposes; and
(2) Immediately begin the verification process required by the
provisions of section sixteen of this article.
(g) Any person who registers by mail pursuant to this section
and who has not previously voted in an election in the state, or if
the statewide voter registration has not yet been implemented, the
voter has not previously voted in the county, shall be required to
present the following forms of identification to the secretary of
state or clerk of the county commission:
(1) In the case of an individual who votes in person, a
current and valid photo identification; or a copy of a current
utility bill, bank statement, government check, paycheck or other
government document that shows the name and address of the voter;
(2) In the case of an individual who votes by mail, submits
with the ballot a copy of a current and valid photo identification
or a copy of a current utility bill, bank statement, government
check, paycheck or other government document that shows the name and address of the voter.
(h) An individual who desires to vote in person or by mail,
but who does not meet the requirements of subsection (g) of this
section, may cast a provisional ballot.
(i) Subsection (g) of this section 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) of this subdivision
with an existing state identification record bearing the same
number, name and date of birth as provided in the registration; or
(3) Who is: (A) Entitled to vote by absentee ballot under 42
U. S. C. §1973ff-1,
et seq., the Uniformed and Overseas Citizens
Absentee Voting Act; (B) provided the right to vote otherwise than
in person under 42
24 U. S. C. §1973ee-1(b)(2)(B)(ii); or 25 (iii),
section 3(b)(2)(B)(ii) of the Voting Accessibility for the Elderly and Handicapped Act; (C) entitled to vote otherwise than in person
under any other federal law:
Provided, That any person who has
applied for an absentee ballot pursuant to the provisions of
subdivision (1), subsection (b), section one, article three of this
chapter; paragraph (B), subdivision (2) of said subsection;
subdivision (3) of said subsection; or subsection (c) of said
section shall not have his or her ballot in that election
challenged for failure to appear in person or for failure to
present identification.
(j) Any person who submits a state mail voter registration
application to the clerk of the county commission in the county in
which he or she is currently registered for the purpose of entering
a change of address within the county, making a change of party
affiliation or recording a change of legal name shall not be
required to make his or her first vote in person or to present
identification or proof of age.
§3-4-3. Procedures for terminating use of voting machines.
If at any time after the adoption of voting machines in any
county as herein provided, five percent or more of the registered
voters of such county shall sign a petition requesting that the use
of voting machines be terminated, and such petition be filed with
the county court of such county, such county court shall submit to
the voters of such county at the next general or primary election,
following by not less than ninety days the date of the filing of such petition, the question: "Shall the use of voting machines in
...................... County be terminated?" If this question be
answered in the affirmative by a majority of the voters of such
county voting upon the question, the use of voting machines in all
future elections shall thereby be terminated; otherwise, the use of
voting machines shall be continued.
Any vote pursuant to this section and the preceding section
which results in a failure to adopt, or in a termination of the use
of voting machines shall not be construed to preclude any future
proceeding by the voters or the county court of any county to adopt
or readopt voting machines in a lawful manner as provided herein.
The county commission may discontinue the use of voting
machines and replace them with a different voting system meeting
the requirements of "The Help America Vote Act of 2002", 42 U. S.
C. 15302, et seq., six months prior to a primary or general
election by majority vote of the commission.
§3-4A-3. Procedure for adopting electronic voting systems.
An electronic voting system that has been approved in
accordance with section eight of this article may be adopted for
use in general, primary and special elections in any county by
either of the following
procedures procedure and not otherwise:
By a majority of the members of the county commission voting
to adopt the same at a
special public meeting called for
the that
purpose
of said adoption, with
due notice thereof published 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 the county involved.
Provided, That such meeting shall be held not less than six months
prior to a general election or six months prior to a primary
election. If at such meeting such county commission shall enter an
order of its intention to adopt the use of an electronic voting
system, it shall thereafter forthwith cause to be published a
certified copy of such order as a Class II-0 legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code and the publication area for such publication shall be
the county involved. The first publication of such order shall not
be less than twenty days after the entry of such order. Such
county commission shall not adopt the use of an electronic voting
system until eighty-five days after the entry of such order of its
intention to adopt the same. Promptly after the expiration of
eighty-five days after the entry of such order of intention to
adopt the use of an electronic voting system, if no petition has
theretofore been filed with such county commission requesting a
referendum on the question of adoption of an electronic voting
system as hereinafter provided, such county commission shall enter
a final order adopting the electronic voting system and the
electronic voting system shall thereby be adopted.
If five percent or more of the registered voters of such county shall sign a petition requesting that an electronic voting
system be not adopted for use in such county and such petition be
filed with the county commission of such county within eighty-five
days after the entry of such order of intention to adopt the use of
an electronic voting system, such county commission shall submit to
the voters of such county at the next general or primary election,
whichever shall first occur, the question: "Shall an electronic
voting system be adopted in _________ County?" If this question be
answered in the affirmative by a majority of the voters in such
election upon the question, an electronic voting system shall
thereby be adopted. If such question shall not be answered in the
affirmative by such majority, the use of an electronic voting
system shall not be adopted.
(2) By the affirmative vote of a majority of the voters of
such county voting upon the question of the adoption of an
electronic voting system in such county. If five percent or more
of the registered voters of such county shall sign a petition
requesting the adoption of an electronic voting system for use in
such county and such petition be filed with the county commission
of such county, such county commission shall submit to the voters
of such county at the next general or primary election the
question: "Shall an electronic voting system be adopted in
___________ County?" If this question be answered in the
affirmative by a majority of the voters of such county voting upon the question, an electronic voting system shall thereby be adopted.
If such question shall not be answered in the affirmative by such
majority, the use of an electronic voting system shall not be
adopted: Provided, That nothing in this section shall be construed
to affect or invalidate the adoption of any electronic voting
system by any county in accordance with applicable law prior to the
effective date of this section: Provided, however, That the
amendments to this section adopted during the regular session of
the Legislature in the year two thousand two apply to any county
commission which is in the process of adopting an electronic voting
system on the effective date of the amendments.
§3-5-8. Filing fees and their disposition.
Every person who becomes a candidate for nomination for or
election to office in any primary election shall, at the time of
filing the certificate of announcement as required in this article,
pay a filing fee as follows:
(a) A candidate for president of the United States, for vice
president of the United States, for United States senator, for
member of the United States House of Representatives, for governor
and for all other state elective offices shall pay a fee equivalent
to one percent of the annual salary of the office for which the
candidate announces
: Provided, That the filing fee for any
candidate for president or vice president of the United States
shall not exceed two thousand five hundred dollars commencing with the two thousand four filing period;
(b) A candidate for the office of judge of a circuit court and
judge of a family court shall pay a fee equivalent to one percent
of the total annual salary of the office for which the candidate
announces;
(c) A candidate for member of the House of Delegates shall pay
a fee of one-half percent of the total annual salary of the office
and a candidate for state senator shall pay a fee of one percent of
the total annual salary of the office;
(d) A candidate for sheriff, prosecuting attorney, circuit
clerk, county clerk, assessor, member of the county commission and
magistrate shall pay a fee equivalent to one percent of the annual
salary
, excluding any additional compensation or commission of the
office for which the candidate announces. A candidate for county
board of education shall pay a fee of twenty-five dollars. A
candidate for any other county office shall pay a fee of ten
dollars;
(e) Delegates to the national convention of any political
party shall pay the following filing fees:
A candidate for delegate-at-large shall pay a fee of twenty
dollars; and a candidate for delegate from a congressional district
shall pay a fee of ten dollars;
(f) Candidates for members of political executive committees
and other political committees shall pay the following filing fees:
A candidate for member of a state executive committee of any
political party shall pay a fee of twenty dollars; a candidate for
member of a county executive committee of any political party shall
pay a fee of ten dollars; and a candidate for member of a
congressional, senatorial or delegate district committee of any
political party shall pay a fee of five dollars.
Candidates filing for an office to be filled by the voters of
one county shall pay the filing fee to the clerk of the circuit
court and candidates filing for an office to be filled by the
voters of more than one county shall pay the filing fee to the
secretary of state at the time of filing their certificates of
announcement and no certificate of announcement shall be received
until the filing fee is paid.
All moneys received by such clerk from such fees shall be
credited to the general county fund. Moneys received by the
secretary of state from fees paid by candidates for offices to be
filled by all the voters of the state shall be deposited in a
special fund for that purpose and shall be apportioned and paid by
him to the several counties on the basis of population and that
received from candidates from a district or judicial circuit of
more than one county shall be apportioned to the counties
comprising the district or judicial circuit in like manner. When
such moneys are received by sheriffs, it shall be credited to the
general county fund.
§3-5-13. Form and contents of ballots and ballot labels.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(a) The heading of every ballot is to be printed in display
type. The heading is to contain a ballot title, the name of the
county, the state, the words "Primary Election" and the month, day
and year of the election. The ballot title of the political party
ballots is to contain the words "Official Ballot of the (Name)
Party" and the official symbol of the political party may be
included in the heading. The ballot title of any separate paper
ballot or portion of any electronic or voting machine ballot for
the board of education is to contain the words "Nonpartisan Ballot
of Election of Members of the ______________ County Board of
Education". The districts for which less than two candidates may
be elected and the number of available seats are to be specified
and the names of the candidates are to be printed without reference
to political party affiliation and without designation as to a
particular term of office. Any other ballot or portion of a ballot
on a question is to have a heading which clearly states the purpose
of the election according to the statutory requirements for that
question.
(b) (1) For paper ballots, the heading of the ballot is to be
separated from the rest of the ballot by heavy lines and the
offices shall be arranged in columns with the following headings, from left to right across the ballot: "National Ticket", "State
Ticket", "County Ticket" and, in a presidential election year,
"National Convention" or, in a nonpresidential election year,
"District Ticket". The columns are to be separated by heavy lines.
Within the columns, the offices are to be arranged in the order
prescribed in section thirteen-a of this article.
(2) For voting machines, electronic voting devices and any
ballot tabulated by electronic means, the offices are to appear in
the same sequence as prescribed in section thirteen-a of this
article and under the same headings as prescribed in subsection (a)
of this section. The number of pages, columns or rows, where
applicable, may be modified to meet the limitations of ballot size
and composition requirements subject to approval by the secretary
of state.
(3) The title of each office is to be separated from preceding
offices or candidates by a line and is to be printed in bold type
no smaller than eight point. Below the office is to be printed the
number of the district, if any, the number of the division, if any,
and the words "Vote for ________" with the number to be nominated
or elected or "Vote For Not More Than ________" in multicandidate
elections. For offices in which there are limitations relating to
the number of candidates which may be nominated, elected or
appointed to or hold office at one time from a political
subdivision within the district or county in which they are elected, there is to be a clear explanation of the limitation, as
prescribed by the secretary of state, printed in bold type
immediately preceding the names of the candidates for those offices
on the ballot in every voting system. For counties in which the
number of county commissioners exceeds three and the total number
of members of the county commission is equal to the number of
magisterial districts within the county, the office of county
commission is to be listed separately for each district to be
filled with the name of the magisterial district and the words
"Vote for One" printed below the name of the office.
(c) The location for indicating the voter's choices on the
ballot is to be clearly shown. For paper ballots, other than those
tabulated electronically, the official primary ballot is to contain
a square formed in dark lines at the left of each name on the
ballot, arranged in a perpendicular column of squares before each
column of names.
(d) (1) The name of every candidate certified by the secretary
of state or the board of ballot commissioners is to be printed in
capital letters in no smaller than eight-point type on the ballot
for the appropriate precincts. Subject to the rules promulgated by
the secretary of state, the name of each candidate is to appear in
the form set out by the candidate on the certificate of
announcement, but in no case may the name misrepresent the identity
of the candidate nor may the name include any title, position, rank, degree or nickname implying or inferring any status as a
member of a class or group or affiliation with any system of
belief.
(2) The city of residence of every candidate, the state of
residence of every candidate residing outside the state, the county
of residence of every candidate for an office on the ballot in more
than one county and the magisterial district of residence of every
candidate for an office subject to magisterial district limitations
are to be printed in lower case letters beneath the names of the
candidates.
(3) The arrangement of names within each office must be
determined as prescribed in section thirteen-a of this article.
(4) If the number of candidates for an office exceeds the
space available on a column or ballot label page and requires that
candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate
columns or pages are to be nearly equal and clear instructions
given the voter that the candidates for the office are continued on
the following column or page.
(e) When an insufficient number of candidates has filed for a
party to make the number of nominations allowed for the office or
for the voters to elect sufficient members to the board of
education or to executive committees, the vacant positions on the
ballot shall be filled with the words "No Candidate Filed":
Provided, That in paper ballot systems which allow for write-ins to
be made directly on the ballot, a blank line shall be placed in any
vacant position in the office of board of education or for election
to any party executive committee. A line shall separate each
candidate from every other candidate for the same office.
Notwithstanding any other provision of this code, if there are
multiple vacant positions on a ballot for one office, the multiple
vacant positions which would otherwise be filled with the words "No
Candidate Filed" may be replaced with a brief detailed description,
approved by the secretary of state, indicating that there are no
candidates listed for the vacant positions.
(f) In presidential election years, the words "For election in
accordance with the plan adopted by the party and filed with the
secretary of state" is to be printed following the names of all
candidates for delegate to national convention.
(g) All paper ballots are to be printed in black ink on paper
sufficiently thick so that the printing or marking cannot be
discernible from the back. Ballot cards and paper for printing
ballots using electronically sensible ink are to meet minimum
requirements of the tabulating systems.
(h) Ballots and ballot cards are to contain perforated tabs at
the top of the ballots and are to be printed with unique sequential
numbers from one to the highest number representing the total
number of ballots or ballot cards printed. On paper ballots, the ballot is to be bordered by a solid line at least one sixteenth of
an inch wide and the ballot is to be trimmed to within one-half
inch of that border.
(i) On the back of every official ballot or ballot card the
words "Official Ballot" with the name of the county and the date of
the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words "Poll
Clerks".
(j) Absent voters' ballots are to be in all respects like
other official ballots except that three blank lines are to be
printed on the back of the ballot or ballot card in the lower left
corner with the words "Ballot Commissioners" printed underneath.
(k) (j) 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.
§3-5-13a. Order of offices and candidates on the ballot; uniform
drawing date.
(a) The order of offices for state and county elections on all
ballots within the state shall be as prescribed herein. When the
office does not appear on the ballot in an election, then it shall
be omitted from the sequence. When an unexpired term for an office appears on the ballot along with a full term, the unexpired term
shall appear immediately below the full term.
NATIONAL TICKET: President (and vice president in the general
election), United States senator, member of the United States house
of representatives
STATE TICKET: Governor, secretary of state, auditor, treasurer,
commissioner of agriculture, attorney general, justice of the
supreme court of appeals, state senator, member of the house of
delegates, circuit judge in multicounty districts,
family court
judge in multicounty districts, any other multicounty office, state
executive committee
COUNTY TICKET: Circuit judge in single-county districts,
family
court judge in single-county districts, clerk of the circuit court,
county commissioner, clerk of the county commission, prosecuting
attorney, sheriff, assessor, magistrate, surveyor, congressional
district executive committee, senatorial district executive
committee in multicounty districts, delegate district executive
committee in multicounty districts
NATIONAL CONVENTION: Delegate to the national convention --
at-large, delegate to the national convention -- congressional
district
DISTRICT TICKET: County executive committee.
(b) Except for office divisions in which no more than one
person has filed a certificate of announcement, the arrangement of names for all offices shall be determined by lot according to the
following provisions:
(1) On the fourth Tuesday following the close of the candidate
filing, beginning at nine o'clock a. m., a drawing by lot shall be
conducted in the office of the clerk of the circuit court in each
county. Notice of the drawing shall be given on the form for the
certificate of announcement and no further notice shall be
required. The clerk of the circuit court shall superintend and
conduct the drawing and the method of conducting the drawing shall
be prescribed by the secretary of state.
(2) Except as provided herein, the position of each candidate
within each office division shall be determined by the position
drawn for that candidate individually:
Provided, That if fewer
candidates file for an office division than the total number to be
nominated or elected, the vacant positions shall appear following
the names of all candidates for the office.
(3) Candidates for delegate to national convention who have
filed a commitment to a candidate for president shall be listed
alphabetically within the group of candidates committed to the same
candidate for president and uncommitted candidates shall be listed
alphabetically in an uncommitted category. The position of each
group of committed candidates and uncommitted candidates shall be
determined by lot by drawing the names of the presidential
candidates and for an uncommitted category.
(4) A candidate or the candidate's representative may attend
the drawings.
§3-8-7. Failure to file statement; delinquent or incomplete
filing; criminal and civil penalties.
(a) Any candidate, financial agent or treasurer of a political
party committee who fails to file a sworn, itemized statement
within the time limitations specified in this article or who
willfully files a grossly incomplete or grossly inaccurate
statement shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than five hundred dollars or
imprisoned in the county jail for not more than one year, or both,
in the discretion of the court. Forty days after any such primary
or other election, the secretary of state, or county clerk,
or
municipal recorder, as the case may be, shall give notice of any
failure to file such sworn statement or the filing of any grossly
incomplete or grossly inaccurate statement by any candidate,
financial agent or treasurer of a political party committee and
forward copies of any grossly incomplete or grossly inaccurate
statement to the prosecuting attorney of the county where such
candidate, agent or treasurer resides.
(b) (1) Any candidate, financial agent or treasurer of a
political party committee who fails to file a sworn, itemized
statement as provided in this article or who files a grossly
incomplete or grossly inaccurate statement may be assessed a civil penalty by the secretary of state of twenty-five dollars a day for
each day after the due date the statement is delinquent, grossly
incomplete or grossly inaccurate. Forty days after any such
primary or other election the county clerk shall give notice to the
secretary of state of any failure to file such sworn statement or
the filing of any grossly incomplete or grossly inaccurate
statement by any candidate, financial agent or treasurer of a
political party committee and forward copies of such delinquent,
incomplete or inaccurate statements to the secretary of state.
(2) A civil penalty assessed pursuant to the provisions of
this section shall be payable to the state of West Virginia and is
collectable in any manner authorized by law for the collection of
debts.
(3) The secretary of state may negotiate and enter into
settlement agreements for the payment of civil penalties assessed
as a result of the filing of a delinquent, grossly incomplete or
inaccurate statement.
(4) The secretary of state and county clerk may review and
audit any sworn statement required to be filed pursuant to the
provisions of this article. The state election commission shall
propose legislative rule for promulgation, in accordance with the
provisions of chapter twenty-nine-a of this code, to establish
procedures for the assessment of civil penalties as provided in
this section.
(c) No candidate nominated at a primary election who has
failed to file a sworn statement, as required by the provisions of
this article, shall have his name placed on the official ballot for
the ensuing election, unless there has been filed by or on behalf
of such candidate, or by his financial agent, if any, the financial
statement relating to nominations required by this article. It is
unlawful to issue a commission or certificate of election, or to
administer the oath of office, to any person elected to any public
office who has failed to file a sworn statement as required by the
provisions of this article and no such person may enter upon the
duties of his office until he has filed such statement, nor may he
receive any salary or emolument for any period prior to the filing
of such statement.