Introduced Version
Senate Bill 570 History
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Committee Substitute (1)
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 570
(By Senators Beach, Miller, D. Hall and Wells)
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[Introduced March 19, 2013; referred to the Committee on the
Judiciary .]
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A Bill to repeal §3-1-10 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §3-1-2a, §3-1-4, §3-1-21,
§3-1-21a, §3-1-22, §3-1-26, §3-1-32, §3-1-36, §3-1-37,
§3-1-38, §3-1-39, §3-1-41, §3-1-42 and §3-1-49 of said code,
all relating to cleaning up outdated language in article one,
chapter three of the West Virginia Code.
Be it enacted by the Legislature of West Virginia:
That §3-1-10 of the Code of West Virginia, 1931, as amended,
be repealed; and that §3-1-2a, §3-1-4, §3-1-21, §3-1-21a, §3-1-22,
§3-1-26, §3-1-32, §3-1-36, §3-1-37, §3-1-38, §3-1-39, §3-1-41,
§3-1-42 and §3-1-49 of said code be amended and reenacted, all to
read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-2a. Municipal elections.
(a) Notwithstanding other provisions of this code or of any
special legislative or home rule city charter, the provisions of:
(1) Articles eight and nine of this chapter; (2) any rules promulgated under authority granted in articles eight and nine of
this chapter; and (3) any provisions of this chapter making a
practice or conduct unlawful shall apply applies to every municipal
election held for any purpose.
(b) For purposes of:
(1) This section;
(2) The application of articles eight and nine of this
chapter;
(3) The application of the rules mentioned in this section;
and
(4) The application of provisions of this chapter making a
practice or conduct unlawful, the provisions of law which impose
any a duty upon or define any an offense or prohibition with
respect to the duty or authority of a county officer or county
election officer or body of county election officers shall be
construed to and shall apply applies with equal force and effect to
the person or persons in a municipal election upon whom this code
or the city charter or ordinance imposes such duty or vests the
same or similar authority.
(c) Every municipality shall by charter or ordinance designate
the persons in the municipality who perform the same duties as any
officer in a county election. The designated persons shall attend
a biannual election training held and training conducted by the
Office of the Secretary of State every two years.
(d) This section shall not be construed to does not abrogate
the applicability of other provisions of this chapter to municipal elections.
§3-1-4. Manner of voting.
In all elections, the mode of voting shall be by ballot but
the voter shall be left free to vote by either open, sealed or
secret ballot as he the voter may elect. Voting by ballot may be
accomplished as provided in articles three, four, four-a, five and
six of this chapter.
§3-1-21. Printing of official and sample ballots; number;
packaging and delivery; correction of ballots.
(a) The board of ballot commissioners for each county shall
provide the ballots and sample ballots necessary for conducting
every election for public officers in which the voters of the
county participate.
(b) The persons required to provide the ballots necessary for
conducting all other elections are:
(1) The Secretary of State, for any a statewide special
election ordered by the Legislature;
(2) The board of ballot commissioners, for any a countywide
special election ordered by the county commission;
(3) The Board of Education, for any a special levy or bond
election ordered by the Board of Education; or
(4) The municipal board of ballot commissioners, for any an
election conducted for or within a municipality except an election
in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those
printed by the proper authorities as specified in this section may not be cast, received or counted in any an election.
(c) When paper ballots are used, the total number of regular
official ballots printed shall equal one and one-twentieth times
the number of registered voters eligible to vote that ballot. When
paper ballots are used in conjunction with or as part of an
electronic voting system, the total number of regular official
ballots printed shall equal at a minimum eighty percent of the
number of registered voters eligible to vote that ballot. The
clerk of the county commission shall determine the number of
absentee official ballots.
(d) The number of regular official ballots packaged for each
precinct shall equal at a minimum seventy-five percent of the
number of registered voters of the precinct. The remaining regular
official ballots shall be packaged and delivered to the clerk of
the county commission who shall retain them unopened until they are
required for an emergency. Each package of ballots shall be
wrapped and sealed in a manner which will immediately make apparent
any attempt to open, alter or tamper with the ballots. Each
package of ballots for a precinct shall be clearly labeled in a
manner which cannot be altered with the county name, the precinct
number and the number of ballots contained in each package. If the
packaging material conceals the face of the ballot, a sample ballot
identical to the official ballots contained therein shall be
securely attached to the outside of the package or, in the case of
ballot cards, the type of ballot shall be included in the label.
(e) All absentee ballots necessary for conducting absentee voting in all voting systems shall be delivered to the clerk of the
county commission of the appropriate county not later than the
forty-second forty-sixth day before the election. All official
ballots in paper ballot systems shall be delivered to the clerk of
the county commission of the appropriate county not later than
twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that
an official ballot contains an error which, in the opinion of the
board, is of sufficient magnitude 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.
§3-1-21a. Vendors authorized to print ballots; eligibility;
application and certification; denial, suspension
and revocation of authorization; appeal.
(a) The printing of ballots for any an election to be held
pursuant to the provisions of this chapter shall be contracted for
with a vendor authorized in accordance with the provisions of this
section.
(b) Any A vendor authorized to do business in West Virginia
and in good standing may apply for a certificate of authorization
to print ballots for elections in this state. Provided, That any
individual, partnership, association or corporation who does not
qualify as a resident vendor pursuant to the provisions of section
thirty-seven-a, article three, chapter five-a of this code or who prints the ballots in a state which prohibits that state or any of
its political subdivisions from contracting with West Virginia
resident vendors for the printing of ballots or which prohibits the
printing of ballots outside of such state, is not eligible to
obtain a certificate of authorization.
(c) (1) Every vendor desiring to print ballots for elections
held pursuant to the provisions of this chapter shall, prior to the
execution of any a contract for the printing of ballots with any a
state, county, or municipal government, obtain a certificate of
authorization to print ballots.
(2) A certificate of authorization may be obtained by
application to the Secretary of State upon a form prescribed by the
Secretary of State. The form shall include a statement that all
printing, packaging and delivery specifications for ballots set
forth in this chapter will be substantially met and that the vendor
applying for certification is eligible in accordance with the
provisions of this section.
(3) Upon receipt of the completed application, the Secretary
of State shall issue a certificate of authorization to print
ballots which shall will remain in effect for two years from the
date of issuance and may be renewed upon application. therefor:
Provided, That The Secretary of State may deny the application to
issue or renew the certificate of authorization or may suspend or
revoke the certificate of authorization upon a determination that
the vendor has not substantially complied with the printing,
packaging and delivery specifications in the printing of ballots for any a state, county or municipal election or that the vendor is
not eligible or is no longer eligible to print ballots pursuant to
the provisions of this section. The Secretary of State shall give
written notice of any such the determination by certified mail,
return receipt requested, to the vendor setting forth the reason
for the suspension, revocation or the denial of the application or
the denial of the renewal. thereof. The applicant may, within
sixty days of the receipt of such the denial, file a written appeal
with the State Election Commission. The State Election Commission
shall promulgate rules establishing a hearing process for such
appeals.
(d) On or before the second Monday of January of each year,
the Secretary of State shall provide a list of all vendors
authorized to print ballots for state, county and municipal
elections to the clerk of each county commission of this state.
(e) The provision of electronic ballots for elections held
pursuant to the provisions of this chapter shall be authorized by
the Secretary of State.
§3-1-22. County commission clerks to provide election supplies;
requirements for poll books and ballot boxes.
The clerk of the county court commission of each county shall
provide poll books, a list of all precincts within the county,
tally sheets, ballot boxes, voting booths, registration records and
forms, strong and durable envelopes upon which to make returns,
blank forms for certifying returns and whatever further supplies
are needed for holding the elections and making the returns thereof. The poll books shall bear upon each page the following
heading: "Names of persons voting at precinct No. ...... in the
District of ....................... in the county of
...................... on this (the) ................. day of
................. in the year ........" Such poll books shall
have columns headed respectively: "Number of Voters," "Signature
of Voter" and "Challenge of Voter", and shall have under the
heading "Number of Voters" numbers in consecutive order to the
bottom of each page. Forms for oaths of commissioners of election
and poll clerks shall be written or printed on the poll books. The
poll books shall be printed from the statewide voter registration
system. Each ballot box shall be provided with two locks with
different keys so that the key for one lock will not open the other
and shall be so constructed as to be safely and securely closed and
locked with an opening in the lid of the box sufficient only for
the passage of a single ballot.
§3-1-26. Election supplies in emergencies.
If, by any an accident or casualty, the ballots or ballot box
or boxes delivered to a commissioner of election, or to any a
messenger, shall be are lost or destroyed, it shall be the duty of
such is the duty of the commissioner or messenger to report the
loss forthwith to the board of ballot commissioners and clerk of
the county court commission from whom the same were or was, these
were obtained and make affidavit of the circumstances of the loss.
whereupon such The board and clerk shall at once send a new supply
by special messenger as provided in other cases. If, for any reason, there should be found no ballots or ballot box or other
necessary means or contrivances for voting at the opening of the
polls, it shall be is the duty of the commissioners of election to
secure the same these as speedily as possible and, if necessary,
the ballot commissioners may have ballots printed or written and
the election commissioners may have a ballot box or boxes made.
§3-1-32. Opening and closing polls; procedure.
At the time of opening the polls in all precincts wherein
where voting machines are not to be used, the election
commissioners shall examine the ballot box and ascertain that there
are no ballots in the same, box and they shall thereupon securely
lock the box and give one key to one of the commissioners and one
to a commissioner of the opposite political party who shall hold
the same. and such The boxes shall not be again opened until the
time to begin counting the votes arrives and for that purpose. At
or before opening the polls, the commissioners of election shall
open the package containing the ballots in such manner as to
preserve the seals full and thereupon deliver all of the ballots to
the poll clerk. Before any a voter is permitted to vote, the
commissioners of election shall proclaim that such election is
opened. When the polls are closed, proclamation must be made of
the fact by one of the commissioners of election to the people
outside in a loud and audible tone of voice and a minute of such
the proclamation and of the time when it was made must be entered
on the pollbooks form provided by the clerks. The election
commissioner shall permit those electors to vote who are present at the polling place prior to the hour specified for the closing of
the polls: Provided, That at that time they are in a line awaiting
their turn to vote within the voting room itself or, if the line
extends outside of the voting room itself, within that line. In
that event an election commissioner from each party shall
immediately, after the closing proclamation, begin with the last
voter in line and together supply the voters within the line with
waiting-voter permits which shall be prescribed by the Secretary of
State. Each voter shall sign his or her permit in the presence of
both commissioners who shall then likewise affix their signatures
to the permit in the presence of the voter and each other. After
each such voter in line has received and signed his or her permit
and the election commissioners have affixed their signatures
thereto, voting shall be resumed. Each voter shall present his or
her permit to one of the poll clerks so that the signature thereon
may be compared to the voter's signature when he the voter signs
the pollbook. Each permit so presented shall be attached to the
page in the pollbook on which the voter affixed his or her
signature. In no case shall any may a person who arrives at the
polling place after the closing hour be given a waiting-voter
permit or be allowed to vote. After the final voter presents his
or her waiting-voter permit and casts his or her ballot no more
ballots shall be cast or received.
§3-1-36. Report on and disposition of ballots spoiled or not used.
Any A voter who shall spoil, deface or mutilate the ballot
delivered to him or her, on returning the same ballot to the poll clerks, shall receive another in place thereof. Every person who
does not vote any a ballot delivered to him or her shall, before
leaving the election room, return such 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, and the word "spoiled" shall be written across the face of
the ballot and such the ballot shall be placed in an envelope for
spoiled ballots.
Immediately on closing the polls, the commissioners of
election shall ascertain the number of ballots spoiled during the
election and the number of ballots remaining not voted. The
commissioners of election shall also ascertain from the pollbooks
the number of persons who voted and shall report, over their
signatures, to the clerk of the county commission, the number of
votes case, cast, the number of ballots spoiled during the election
and the number of ballots not voted. All unused ballots shall at
the same time be returned to the clerk of the county commission who
shall separately package the unused ballots from each precinct,
mark the name and number of the precinct on the package and retain
them securely along with other election materials.
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 $1,000 or confined in the county jail for not more than one
year, or both fined and imprisoned.
The board of ballot commissioners of each county, or the chairman thereof, shall preserve the ballots that are left over in
their hands, after supplying the precincts as provided, until
twenty-two months after the election.
§3-1-37. Restrictions on presence and conduct at polls.
(a) Except as otherwise provided in this section, no person
other than the election officers and voters going to the election
room to vote and returning therefrom, may be or remain within three
hundred feet of the outside entrance to the building housing the
polling place while the polls are open. This subsection does not
apply to persons who reside or conduct business within such
distance of the entrance to the building housing the polling place
while in the discharge of their legitimate business or to persons
whose business requires them to pass and repass within three
hundred feet of such the entrance.
(b) A person who is delivering a voter to a polling place by
motor vehicle may drive such his or her vehicle to a convenient and
accessible location to discharge the voter notwithstanding that the
location is within three hundred feet of the outside entrance to
the building housing the polling place. Upon discharging such the
voter from the vehicle, the person shall remove the vehicle from
within three hundred feet of the entrance until such time as the
voter is to be transported from the polling place or another voter
delivered. Provided, That Vehicles delivering voters who require
assistance by reason of blindness, disability or advanced age may
remain within three hundred feet of the entrance until such time as
the voter is to be transported from the polling place.
(c) The election commissions commissioners shall limit the
number of voters in the election room so as to preserve order. No
person may approach nearer than five feet to any booth or
compartment while the election is being held except the voters to
prepare their ballots or the poll clerks when called on by a voter
to assist in the preparation of his or her ballot. and No person,
other than election officers and voters engaged in receiving,
preparing and depositing their ballots, may be permitted to be
within five feet of any ballot box except by authority of the board
of election commissioners and then only for the purpose of keeping
order and enforcing the law.
(d) Not more than one person may be permitted to occupy any a
booth or compartment at one time. No person may remain in or
occupy a booth or compartment longer than may be necessary to
prepare his or her ballot and in no event longer than five minutes.
except that any A person who claims a disability pursuant to
section thirty-four of this article shall have additional time up
to ten additional minutes to prepare his or her ballot. No voter
or person offering to vote may hold any conversation or
communication with any a person, other than the poll clerks or
commissioners of election, while in the election room.
(e) The provisions of this section do not apply to persons
rendering assistance to blind voters as provided in section
thirty-four of this article or to any a child fourteen years of age
or younger who accompanies a parent, grandparent or legal guardian
who is voting. Any A dispute concerning the age of a child accompanying a parent, grandparent or legal guardian who is voting
shall be determined by the election commissioners.
§3-1-38. Disorder at polls; procedure.
The commissioners of election shall preserve order at and in
the vicinity of the polls, and keep the way to the polls open and
free from obstruction and may direct disorderly persons to be
removed. therefrom, and, if necessary and proper, to be taken and
held in custody until sunrise of the next day, or for any shorter
time, which may be done by any sheriff or constable or other person
or persons designated by the commissioners of election. For such
purpose no warrant or authority in writing shall be necessary. The
jail of the county or other place designated by the commissioners
of election may be used as the place of custody. But any person so
arrested shall have an opportunity to vote, if he be entitled to do
so, before he shall be committed to jail, if he so desires and
shall be prepared to do so promptly.
§3-1-39. Illegal voting; affidavit; procedure.
(a) If at any time during the election, any a qualified voter
shall appear appears at the polls for the purpose of stating that
any a person who has voted is an illegal voter in the precinct,
that person shall be admitted to the election room 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 county commission in accordance with section
sixteen, article five of this chapter and section eight, article
six of this chapter. The clerk of the circuit court county
commission shall carefully preserve the envelope containing the
affidavits and deliver it, with the seal unbroken, to the
prosecuting attorney in the county. The prosecuting attorney shall
proceed as if 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 is the duty of the members of the receiving board,
jointly or severally, to challenge the right of any a person
requesting a ballot to vote in any an election:
(1) If the person's registration record is not available at
the time of the election;
(2) If the signature written by the person in the poll book
does not correspond with the signature purported to be his or hers
on the registration record; on file in the poll book;
(3) If the registration record of the person indicates any
other legal disqualification; or
(4) If any other valid challenge exists against the voter
pursuant to section ten, article three of this chapter.
(b) Any A person challenged shall nevertheless be permitted to
vote in the election. He or she shall be furnished an official a provisional ballot not endorsed by the poll clerks. In lieu of the
endorsements, the poll clerks shall complete and sign an
appropriate form indicating the challenge, the reason thereof and
the name or names of the challengers. The form shall be securely
attached to the voter's ballot and deposited together with the
ballot in a separate box or envelope marked "provisional ballots".
(c) At the time that an individual casts a provisional ballot,
the poll clerk shall give the individual written information
stating that an individual who casts a provisional ballot will be
able to ascertain under the free access system established in this
section whether the vote was counted and, if the vote was not
counted, the reason that the vote was not counted.
(d) Before an individual casts a provisional ballot, the poll
clerk shall provide the individual written instructions, supplied
by the board of ballot commissioners, stating that if the voter is
casting a ballot in the incorrect precinct, the ballot cast may not
be counted for that election. Provided, That If the voter is found
to be in the incorrect precinct, then the poll worker shall attempt
to ascertain the appropriate precinct for the voter to cast a
ballot and immediately give the voter the information if
ascertainable.
(e) Provisional ballots may not be counted by the election
officials. The county commission shall, on its own motion, at the
time of canvassing of the election returns, sit in session to
determine the validity of any challenges according to the
provisions of this chapter. If the county commission determines that the challenges are unfounded, each provisional ballot of each
challenged voter, if otherwise valid, shall be counted and tallied
together with the regular ballots cast in the election. The county
commission, as the board of canvassers, shall protect the privacy
of each provisional ballot cast. The county commission shall
disregard technical errors, omissions or oversights if it can
reasonably be ascertained that the challenged voter was entitled to
vote.
(f) Any A person duly appointed as an election commissioner or
clerk under the provisions of section twenty-eight of this article
who serves in that capacity in a precinct other than the precinct
in which the person is legally entitled to vote, may cast a
provisional ballot in the precinct in which the person is serving
as a commissioner or clerk. The ballot is not invalid for the sole
reason of having been cast in a precinct other than the precinct in
which the person is legally entitled to vote. The county
commission shall record the provisional ballot on the voter's
permanent registration record: record in the statewide voter
registration system and Provided, That the county commission may
count only the votes for the offices that the voter was legally
authorized to vote for in his or her own precinct.
(g) The Secretary of State shall establish a free access
system which may include a toll-free telephone number or an
Internet website that may be accessed by any an individual who
casts cast a provisional ballot to discover whether his or her vote
was counted and, if not, the reason that the vote was not counted.
§3-1-42. Time off for voting.
Every person entitled to vote at any an election who may be
employed by any a person, company or corporation on the day on
which such election shall be the election is held in this state,
shall, on written demand of such the employee made at least three
days prior thereto, be given a period of not more than three hours,
if necessary, between the opening and the closing of the polls on
such day, for the purpose of enabling such person to repair go to
the place of voting to cast his or her vote and return, without
liability to any a penalty or deduction from his or her usual
salary or wages. on account of such absence, except that any
employee, An employee, however, who has three or more hours of his
or her own time away from his or her work or place of employment at
any time between the hours of the opening and the closing of the
polls on election day and who fails or neglects to vote or elects
not to vote during such the free time away from his or her work or
employment, may be subject to wage or salary deductions for the
time actually absent from his or her work or employment for voting
in such the election.
In essential government, health, hospital, transportation and
communication services and in production, manufacturing and
processing works requiring continuity in operation, the employer
may, upon receipt of such a written demand for voting time off,
arrange and schedule a calendar of time off for any and all of his
or her employees for voting so as to avoid impairment or disruption
of essential services and operations. but every such The schedule or calendar of time off for voting so arranged shall provide ample
and convenient time and opportunity for each employee of such
services or works to cast his or her vote. as herein provided.
§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 meets the following requirements:
(1) Produce Produces a permanent paper record with a manual
audit capacity for the system; and
(2) Provide Provides 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.
NOTE: The purpose of this bill is to clean up existing
language in select sections of article one, chapter three of the
West Virginia Code, 1931, as amended.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.