Introduced Version
House Bill 3107 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3107
(By Delegate Lane)
[Introduced
March 25, 2013
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §3-1-34 of the Code of West Virginia,
1931, as amended; to amend and reenact §3-4A-10 of said code;
to amend said code by adding thereto a new section, designated
§5-1A-6; and to amend and reenact §17B-2-1 of said code, all
relating to voting procedures; requiring a voter to present an
identifying document issued either by the State of West
Virginia or the United States Government that contains the
name, address and a photograph of the person desiring to vote
which the poll clerk must inspect and confirm that the name on
the document conforms to the name in the individual's voter
registration record and that the image displayed is truly an
image of the person presenting the document; permitting the
casting of a provisional ballot by a person without adequate
proof of identification if the voter executes an affidavit;
permitting the provisional ballot to be counted if certain conditions are met; providing that certain funds be made
available; requiring identification photos to be taken by
certain spending units; accessing databases; exempting voters
who vote in person at a precinct polling place that is located
at a state licensed care facility where the voters are
residents; county clerks being the custodian of vote-recording
devices, tabulating equipment and electronic poll books;
duties; requirements and specifications for electronic poll
books; permitting the Division of Motor Vehicles to issue, at
no charge, identification cards to persons who will be at
least eighteen years of age at the next general, municipal or
special election and intends to use the identification card as
a form of identification for voting; and providing criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That §3-1-34 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §3-4A-10 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §5-1A-6; and that §17B-2-1 of said code be
amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-34. Voting procedures generally; identification 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. The person
desiring to vote shall present to one of the poll clerks an
identifying document issued either by the State of West Virginia or
by the United States government which contains the name, address
and a photograph of the person desiring to vote, which the poll
clerk shall inspect and confirm that the name thereon conforms to
the name in the individual's voter registration record and that the
image displayed is truly an image of the person presenting the
document: Provided, That a Social Security Direct Express debit
card is a valid form of identifying document for the purposes of
this section. If that person is found to be duly registered as a
voter at that precinct, he or she shall sign his or her name in the
designated location provided at 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 signs his or her name on the
designated location or his or her signature is affixed thereon.
(1) If the person desiring to vote is unable to furnish an identifying document which contains the name, address and a
photograph of the person desiring to vote, or if the poll clerk
determines that the proof of identification presented by the voter
does not qualify as proof of identification under the above listed
criteria, the person desiring to vote shall be allowed to vote, but
must cast a provisional ballot. An individual who appears at a
polling place without identification in the form described in
subsection (a) of this section, and who is otherwise qualified to
vote at that polling place, may cast a provisional ballot after
executing an affidavit affirming his or her identity.
_____(2) The provisional ballot is entitled to be counted when the
election authority verifies the identity of the individual by
comparing that individual's signature to the current signature on
file with the election authority and determines that the individual
was otherwise eligible to cast a ballot at the polling place where
the ballot was cast.
_____(3) The affidavit to be used for voting shall be substantially
in the following form:
_____"State of West Virginia
_____County of .....................................
_____I do solemnly swear (or affirm) that my name is
.................................................; that I reside at
.............................; and that I am the person listed in
the precinct register under this name and at this address.
_____I understand that knowingly providing false information is a
violation of law and subjects me to possible criminal prosecution.
.......................................................
_____Signature of voter
_____Subscribed and affirmed before me this ........... day of
....................., 20....
___________________________________................................
___________________________________Signature of Election Official".
_____ (4) A voter who votes in person at a precinct polling place
that is located at a state licensed care facility where the voter
is a resident is not required to provide proof of identification as
a condition before voting in an election.
(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. A request by a handicapped person
for a transfer of registration 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 provisional ballot at a handicap accessible polling
place in the county of his or her registration. 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 "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 provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) When the voter's signature is properly marked, the two
poll clerks shall sign their names in the places indicated on the
back of the official ballot and deliver the ballot to the voter to
be voted by him or her 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. 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. 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, or by other means,
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 to the voter the names of the candidates selected on the
ballot;
(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 by the absentee balloting
method provided in subsection (e), section five, article three of
this chapter 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) The voted ballot shall then be returned to the precinct
officials and secured in a sealed envelope to be returned to the
clerk of the county commission with all other election materials.
The ballot shall then be tabulated using the appropriate method provided in section eight of this chapter as it relates to the
specific voting system in use.
(3) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(4) 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 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.
(5) 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.
(6) 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 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
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall 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. The clerk of the county
commission shall make the oaths, affirmations and list available
for public inspection and shall preserve 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 $1,000 or confined in jail for a period of not more than one
year, or both fined and 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 $5,000 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.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-10. County clerk to be custodian of vote-recording devices, tabulating equipment and electronic poll books;
duties; requirements and specifications for
electronic poll books.
(a) When an electronic voting system is acquired by any county
commission, the vote-recording devices, where applicable, and the
tabulating equipment shall be immediately placed in the custody of
the county clerk and shall remain in his or her custody at all
times except when in use at an election or when in custody of a
court or court officers during contest proceedings. The clerk
shall see that the vote-recording devices and the tabulating
equipment are properly protected and preserved from damage or
unnecessary deterioration and shall not permit any unauthorized
person to tamper with them. The clerk shall also keep the
vote-recording devices and tabulating equipment in repair and
prepare the same for voting.
(b) When a Each county commission elects to shall, at least
ninety days prior to the primary elections in May 2014, acquire and
use electronic poll books in lieu of, or in addition to, printed
poll books and the clerk of the county commission shall immediately
take custody of the electronic poll books, which shall remain in
his or her custody at all times except when in use at an election
or when in the custody of a court or court officers during contest
proceedings. The clerk shall ensure that the electronic poll books
are properly protected and preserved from damage or unnecessary deteriorations and the clerk shall not permit any unauthorized
person to tamper with the electronic poll books. The clerk shall
also keep the electronic poll books in good repair and the clerk
shall prepare the electronic poll books for election day.
(c) The clerk of the county commission shall ensure that the
electronic poll books acquired shall be capable of accessing the
databases of the Department of Motor Vehicles and other state
databases, including photographs of persons contained within these
databases. Each electronic poll book acquired must allow an
election official at a polling place, at the time an individual
seeks to vote, to obtain information on the individual's
eligibility to vote; including, but not limited to, whether the
individual is registered to vote in an election for federal office,
the polling place to which the individual is assigned, and whether
the individual has already voted in the election. Acquisition of
these systems is to be provided for by using the Help America Vote
Act (HAVA) funds available for disbursement by the Office of the
Secretary of State. If such funds are exhausted and should prove
insufficient, then the funds contained in the Supreme Court Public
Campaign Financing Pilot Program as defined generally in article
twelve of chapter three of this code shall be available for the
purpose.
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 1A. ITEMIZATION OF PROPOSED APPROPRIATIONS IN BUDGET BILL
SUBMITTED BY GOVERNOR TO LEGISLATURE.
§5-1A-6. Identification photos to be taken by spending units;
__databases.
_____(a) Each spending unit which disburses any state funds to the
public as part a program of means-tested public benefits consisting
of state assistance shall take a photograph of any person receiving
those benefits and shall store the same in an electronic database.
_____(b) Each spending unit covered by this section shall maintain
a database of such photographs and shall ensure that the database
is accessible by an electronic pollbook as defined in section two
of article four-a of chapter three of this Code.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-1. Drivers must be licensed; types of licenses; licensees
need not obtain local government license;
motorcycle driver license; identification cards.
(a) (1) No person, except those hereinafter expressly
exempted, may drive any motor vehicle upon a street or highway in
this state or upon any subdivision street used by the public
generally unless the person has a valid driver's license issued
pursuant to this code for the type or class of vehicle being driven.
(2) Any person licensed to operate a motor vehicle pursuant to
this code may exercise the privilege thereby granted in the manner
provided in this code and, except as otherwise provided by law, is
not required to obtain any other license to exercise the privilege
by any county, municipality or local board or body having authority
to adopt local police regulations.
(b) The division, upon issuing a driver's license, shall
indicate on the license the type or general class or classes of
vehicles the licensee may operate in accordance with this code,
federal law or rule. Licenses shall be issued in different colors
for those drivers under age eighteen, those drivers age eighteen to
twenty-one and adult drivers. The commissioner is authorized to
select and assign colors to the licenses of the various age groups.
(c) The following drivers licenses classifications are hereby
established:
(1) A Class A, B or C license shall be issued to those persons
eighteen years of age or older with two years of driving experience
who have qualified for the commercial driver's license established
by chapter seventeen-e of this code and the federal Motor Carrier
Safety and Improvement Act of 1999 and subsequent rules, and have
paid the required fee.
(2) A Class D license shall be issued to those persons
eighteen years and older with one year of driving experience who operate motor vehicles other than those types of vehicles which
require the operator to be licensed under the provisions of chapter
seventeen-e of this code and federal law and rule and whose primary
function or employment is the transportation of persons or property
for compensation or wages and have paid the required fee. For the
purpose of regulating the operation of motor vehicles, wherever the
term "chauffeur's license" is used in this code, it shall be
construed to mean the Class A, B, C or D license described in this
section or chapter seventeen-e of this code or federal law or rule:
Provided, That anyone not required to be licensed under the
provisions of chapter seventeen-e of this code and federal law or
rule and who operates a motor vehicle registered or required to be
registered as a Class A motor vehicle, as that term is defined in
section one, article ten, chapter seventeen-a of this code, with a
gross vehicle weight rating of less than eight thousand one pounds,
is not required to obtain a Class D license.
(3) A Class E license shall be issued to those persons who
have qualified for a driver's license under the provisions of this
chapter and who are not required to obtain a Class A, B, C or D
license and who have paid the required fee. The Class E license
may be endorsed under the provisions of section seven-b of this
article for motorcycle operation. The Class E or (G) license for
any person under the age of eighteen may also be endorsed with the
appropriate graduated driver license level in accordance with the provisions of section three-a of this article.
(4) A Class F license shall be issued to those persons who
successfully complete the motorcycle examination procedure provided
by this chapter and have paid the required fee, but who do not
possess a Class A, B, C, D or E driver's license.
(5) A Class G driver's license or instruction permit shall be
issued to a person using bioptic telescopic lenses who has
successfully completed an approved driver training program and
complied with all other requirements of article two-b of this
chapter.
(d) All licenses issued under this section may contain
information designating the licensee as a diabetic, organ donor, as
deaf or hard-of-hearing, or as having any other handicap or
disability, or that the licensee is an honorably discharged veteran
of any branch of the Armed Forces of the United States according to
criteria established by the division, if the licensee requests this
information on the license. An honorably discharged veteran may be
issued a replacement license without charge if the request is made
before the expiration date of the current license and the only
purpose for receiving the replacement license is to get the
veterans designation placed on the license.
(e) No person, except those hereinafter expressly exempted,
may drive any motorcycle upon a street or highway in this state or
upon any subdivision street used by the public generally unless the person has a valid motorcycle license, a valid license which has
been endorsed under section seven-b of this article for motorcycle
operation or a valid motorcycle instruction permit.
(f) (1) An identification card may be issued to any person
who:
(A) Is a resident of this state in accordance with the
provisions of section one-a, article three, chapter seventeen-a of
this code;
(B) Has reached the age of two years. The division may also
issue an identification card to a person under the age of two years
for good cause shown;
(C) Has paid the required fee of two dollars and fifty cents
per year: Provided, That the fee is not required no fees or
charges, including renewal fees, are required if the applicant:
(i) Is sixty-five years or older; or
(ii) Is legally blind; or
_____(iii) Will be at least eighteen years of age at the next
general, municipal, or special election and intends to use this
identification card as a form of identification for voting; and
(D) Presents a birth certificate or other proof of age and
identity acceptable to the division with a completed application on
a form furnished by the division.
(2) The identification card shall contain the same information
as a driver's license except that the identification card shall be clearly marked as an identification card. The division may issue
an identification card with less information to persons under the
age of sixteen. An identification card may be renewed annually on
application and payment of the fee required by this section.
(A) Every identification card issued to a person who has
attained his or her twenty-first birthday expires on the licensee's
birthday in those years in which the licensee's age is evenly
divisible by five. Except as provided in paragraph (B) of this
subdivision, no identification card may be issued for less than
three years or for more than seven years and expires on the
licensee's birthday in those years in which the licensee's age is
evenly divisible by five.
(B) Every identification card issued to a person who has not
attained his or her twenty-first birthday expires thirty days after
the licensee's twenty-first birthday.
(C) Every identification card issued to persons under the age
of sixteen shall be issued for a period of two years and shall
expire on the last day of the month in which the applicant's
birthday occurs.
(3) The division may issue an identification card to an
applicant whose privilege to operate a motor vehicle has been
refused, canceled, suspended or revoked under the provisions of
this code.
(g) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not
more than five hundred dollars; and upon a second or subsequent
conviction, shall be fined not more than five hundred dollars or
confined in jail not more than six months, or both fined and
confined.
NOTE: The purpose of this bill is to require voters to present
identifying documents, issued either by the State of West Virginia
or the United States Government that contain the name, address and
a photograph of the person desiring to vote, which the poll clerk
must inspect and confirm that the name on the document conforms to
the name in the individual's voter registration record and that the
image displayed is truly an image of the person presenting the
document. The bill exempts voters who vote in person at a precinct
polling place that is located at a state licensed care facility
where the voters are residents. The bill permits the casting of a
provisional ballot by a person without adequate proof of
identification if the voter executes an affidavit. The bill
permits the provisional ballot to be counted if certain conditions
are met, and provides certain funds shall be made available. The
bill requires each county clerk to be custodian of vote-recording
devices, tabulating equipment and electronic poll books; clarifies
their duties; and sets requirements and specifications for
electronic poll books. The bill requires identification photos to
be taken by certain spending units; and compels them to maintain
databases. The bill permits the Division of Motor Vehicles to
issue, at no charge, identification cards to persons who will be at
least eighteen years of age at the next general, municipal or
special election and intends to use the identification card as a
form of identification for voting. The bill also contains criminal
penalties.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5-1A-6 is new; therefore,strike throughs and underscoring
have been omitted.