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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 606
(Senators Kessler, Hunter and White, original sponsors)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact
§3-3-5
of the Code of West Virginia,
1931, as amended, relating to absentee voting; providing that
the application for absentee voting may be distributed and
returned by electronic mail; providing for distribution and
return by facsimile of ballots for an absent uniformed
services voter or overseas voter; and providing procedures for
securely receiving and tabulating facsimile ballots.
Be it enacted by the Legislature of West Virginia:
That
§3-3-5 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of
the county, in person, by mail, by electronic mail or by facsimile
the appropriate application for voting absentee by mail as provided in this article. The voter shall complete and sign the application
in his or her own handwriting or, if the voter is unable to
complete the application because of illiteracy or physical
disability, the person assisting the voter and witnessing the mark
of the voter shall sign his or her name in the space provided.
(b) Completed applications for voting an absentee ballot by
mail are to be accepted when received by the official designated to
supervise and conduct absentee voting in person, by mail, by
electronic mail or by facsimile within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official
designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail
under the provisions of paragraph (A) or (B), subdivision (2),
subsection (b), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official
designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of
the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee ballot will be challenged as provided in this article and shall
enter that challenge.
(e) (1) Within one day after the official designated to
supervise and conduct absentee voting has both the completed
application and the ballot, the official shall mail to the voter at
the address given on the application the following items as
required and as prescribed by the Secretary of State:
(A) One of each type of official absentee ballot the voter is
eligible to vote, prepared according to law;
(B) One envelope, unsealed, which may have no marks except the
designation "Absent Voter's Ballot Envelope No. 1" and printed
instructions to the voter;
(C) One postage paid envelope, unsealed, designated "Absent
Voter's Ballot Envelope No. 2";
(D) Instructions for voting absentee by mail;
(E) For electronic systems, a device for marking by
electronically sensible pen or ink, as may be appropriate;
(F) Notice that a list of write-in candidates is available
upon request; and
(G) Any other supplies required for voting in the particular
voting system.
(2) If the voter is an absent uniformed services voter or
overseas voter, as defined by 42 U. S. C.§1973, et seq., the
official designated to supervise and conduct absentee voting may
voluntarily upon request of the voter transmit the ballot to the voter via facsimile. If the ballot is transmitted by facsimile
pursuant to this subdivision, the official designated to supervise
and conduct absentee voting shall also transmit via facsimile:
(A) A waiver of privacy form, to be promulgated by the
Secretary of State;
(B) Instructions for voting absentee utilizing the Federal
Voting Assistance Program Electronic Transmission System. For the
purposes of this subsection, the "Federal Voting Assistance Program
Electronic Transmission System" is the system established by the
Department of Defense for the explicit purpose of sending and
receiving absentee ballots by military and overseas United States
citizens;
(C) Notice that a list of write-in candidates is available
upon request.
The official designated to supervise and conduct absentee
voting is not required to mail to the voter the materials listed in
paragraphs (B), (C) and (E), subdivision (1) of this subsection.
(f) The voter shall mark the ballot alone: Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article.
(1) After the voter has voted the ballot or ballots to be
returned by mail, the voter shall:
(A) Place the ballot or ballots in envelope no. 1 and seal
that envelope;
(B) Place the sealed envelope no. 1 in envelope no. 2 and
seal that envelope;
(C) Complete and sign the forms on envelope no. 2; and
(D) Return that envelope to the official designated to
supervise and conduct absentee voting.
(2)
If the ballot was transmitted via facsimile as provided in
subdivision (2), subsection (e) of this section, the voter shall
return the ballot via facsimile to the designated facsimile number
of the Federal Voting Assistance Program Electronic Transmission
System, along with a signed privacy waiver form.
(g) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service are to be accepted if:
(1) The ballot is received by the official designated to
supervise and conduct absentee voting no later than the day after
the election; or
(2) The ballot bears a postmark of the United States Postal
Service dated no later than election day and the ballot is received
by the official designated to supervise and conduct absentee voting
no later than the hour at which the board of canvassers convenes to
begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(i) Ballots transmitted via facsimile pursuant to subdivision
(2), subsection (f) of this section are to be accepted if the
ballot is received by the official designated to supervise and
conduct absentee voting no later than the close of polls on
election day: Provided, That the Secretary of State's office shall
enter into an agreement with the Federal Voting Assistance Program
of the United States Department of Defense to transmit the ballots
to the county clerks at a time when two individuals of opposite
political parties are available to process the received ballots.
(j) Ballots received after the proper time which cannot be
accepted are to be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they are to be destroyed without being
opened.
(k) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election: Provided, That no person may hand deliver
more than two absentee ballots in any election and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(l) Upon receipt of the sealed envelope, the official
designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope any other required information; (2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record
of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope into a ballot box that is
secured by two locks with a key to one lock kept by the president
of the county commission and a key to the other lock kept by the
county clerk.
(m) Upon receipt of a ballot submitted via facsimile pursuant
to subdivision (2), subsection (f) of this section, the official
designated to supervise and conduct absentee voting shall place the
ballot in an envelope marked "Absentee by Facsimile" with the
completed waiver: Provided, That no ballots are to be processed
without the presence of two individuals of opposite political
parties.
(n) All ballots received by facsimile prior to the close of
the polls on election day are to be tabulated in the manner
prescribed for tabulating absentee ballots submitted by mail to the
extent that those procedures are appropriate for the applicable
voting system. The clerk of the county commission shall keep a
record of absentee ballots sent and received by facsimile.