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Introduced Version House Bill 2438 History

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H. B. 2438

 

         (By Delegates Miley, Hunt, Brown, Frazier,

            Barker, Moore, Hamilton and Ellem)


         [Introduced January 13, 2011; referred to the

         Committee on the Judiciary.]

 

 

A BILL to amend and reenact §3-1-2 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-4-18 and §3-4-19 of said code; and to amend and reenact §3-4A-9 and §3-4A-20 of said code, all relating to elections; general provisions and definitions; bringing older contradicting language still remaining in said code into conformity with current code sections; and to reestablish a definition for “independent voter” as the presently cited definition is no longer in said code.

Be it enacted by the Legislature of West Virginia:

     That §3-1-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §3-4-18 and §3-4-19 of said code be amended and reenacted; and that §3-4A-9 and §3-4A-20 of said code be amended and reenacted, all to read as follows:

ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

§3-1-2. Scope of chapter; definitions.

    Unless restricted by the context, the provisions of this chapter shall apply applies to every general, primary and special election in which candidates are nominated or elected or in which voters pass upon any public question submitted to them, except that the provisions hereof shall be construed to be operative in municipal elections only in those instances in which they are made expressly so applicable.

    Unless the context clearly requires a different meaning, as herein used:

    “Voter” shall mean means any person who possesses the statutory and Constitutional qualifications for voting;

    “Independent” means any registered voter who declined to state a preference for party affiliation on their voter registration or who listed a party affiliation which is not qualified as a political party as defined in section eight, article one of this chapter.

    “Election” shall mean means the procedures whereby the voters of this state or any subdivision thereof elect persons to fill public offices, or elect members of a Constitutional convention, or vote on public questions;

    “Any election” or “all elections” shall include includes every general, primary or special election held in this state, or in any of its subdivisions, for the purpose of nominating or electing federal or state officers, or county, city, town or village officers of any subdivision now existing or hereafter created, or for the purpose of electing members of a Constitutional convention, or for voting upon any public question submitted to the people of the state or any of the aforesaid subdivisions;

    “Office” shall be construed to mean “public office” which shall include: (1) Any elective office provided for by the Constitution or laws of the United States or of this state to which a salary or other compensation attaches; and (2) membership in a Constitutional convention.

    “Candidate” shall mean means any person to be voted for at an election;

    “Public question” shall mean means any issue or proposition, now or hereafter required by the governing body of this state or any of its subdivisions to be submitted to the voters of the state or subdivision for decision at elections;

    The term “minor” as used in article four, section one of the State Constitution and as used in this chapter shall mean means a person who has not become eighteen years of age.

ARTICLE 4. VOTING MACHINES.

§3-4-18. Conducting voting machine elections generally; duties of election officials.

    (1) The election officers shall constantly and diligently maintain a watch in order to see that no a person votes does not vote more than once and to prevent any voter from occupying the voting machine for more than three minutes.

    (2) In primary elections before a voter is permitted to use the voting machine, the election officer representing the party to of which the voter belongs shall adjust the machine so that the voter will be able to vote only for the candidates who are seeking nomination on the ticket of the party with which the voter is affiliated,

    (3) If the machine is so constructed as to require adjustment after one person has voted before another person can vote, the election officers shall so adjust it after each person has voted.

     (4) The election officers shall issue to each voter when he signs the poll book a card or ticket numbered to correspond to the number on the poll book of such voter, and in the case of a unless the voter requests an alternative ballot of a political party which has determined such a voter may participate in its primary election voting. indicating the party affiliation of such voter, which numbered card or ticket shall be presented to the election officer in charge of the machine

§3-4-19. “Independent” voting in primary elections.

    If at any primary elections nonpartisan candidates for office and public questions are submitted to the voters and on which candidates and questions persons registered as "independent" are entitled to vote, as provided in section eighteen five(b)(3) of article two of this chapter, the election officers shall adjust the voting machines, if mechanically possible to do so, so that such "independent" voters may vote only those portions of the voting machine ballot relating to the nonpartisan candidates and the public questions submitted, unless the voter requests an alternative ballot of a political party which has determined such a voter may participate in its primary election voting.

    If the voting machines cannot be so adjusted for the "independent" voters, then such "independent" voters, under the close supervision of two commissioners of the election of different political party affiliation, shall be permitted to use the voting machines for voting only those parts of the ballot relating to such nonpartisan candidates and public questions so submitted to the voters, unless the voter requests an alternative ballot of a political party which has determined such a voter may participate in its primary election.

    In lieu of using the voting machines, such "independent" voters may request official printed ballots. relating to such nonpartisan candidates and public questions. Such These ballots, when signed on the back by the poll clerks as in other elections, shall be voted and folded by the "independent" voter and shall be delivered to one of the election commissioners who shall secure same in a sealed or locked container until canvassed and counted in the same manner as provided for handling and recording absent voter ballots as provided in the section next hereafter.

ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.

§3-4A-9. Minimum requirements of electronic voting systems.

    An electronic voting system of particular make and design may not be approved by the State Election Commission or be purchased, leased or used by any county commission unless it meets the following requirements:

    (1) It secures or ensures the voter absolute secrecy in the act of voting or, at the voter’s election, provides for open voting;

    (2) It is constructed to ensure that no a person, except in instances of open voting as provided in this section, can may not see or know for whom any voter has voted or is voting;

    (3) It permits each voter to vote at any election for all persons and offices for whom and which he or she is lawfully entitled to vote, whether or not the name of any person appears on a ballot or ballot label as a candidate; and it permits each voter to vote for as many persons for an office as he or she is lawfully entitled to vote for; and to vote for or against any question upon which he or she is lawfully entitled to vote. The automatic tabulating equipment used in electronic voting systems is to reject choices recorded on any ballot if the number of choices exceeds the number to which a voter is entitled;

    (4) It permits each voter to deposit, write in, affix upon a ballot, card, envelope or other medium to be provided for that purpose, ballots containing the names of persons for whom he or she desires to vote whose names do not appear upon the ballots or ballot labels;

    (5) It permits each voter to change his or her vote for any candidate and upon any question appearing upon the ballots or ballot labels up to the time when his or her ballot is deposited in the ballot box or his or her ballot is cast by electronic means;

    (6) It contains a program deck consisting of cards that are sequentially numbered or consisting of a computer program disk, diskette, tape or other programming media containing sequentially numbered program instructions and coded or otherwise protected from tampering or substitution of the media or program instructions by of unauthorized persons and capable of tabulating all votes cast in each election;

    (7) It contains two standard validation test decks approved as to form and testing capabilities by the State Election Commission;

    (8) It correctly records and counts accurately all votes cast each for the candidate and for and against each question appearing upon the ballots or ballot labels;

    (9) It permits each voter at any election other than primary elections by one mark or punch to vote a straight party ticket, as provided in section five, article six of this chapter;

    (10) It permits each voter in primary elections to vote only for the candidates of the party for which he or she is legally permitted to vote and precludes him or her from voting for any candidate seeking nomination by any other political party unless that political party has determined such a voter may participate in its primary election voting, permits him or her to vote for the candidates, if any, for nonpartisan nomination nominations or election and permits him or her to vote on public questions;

    (11) It, where applicable, is provided with means for sealing or electronically securing the vote recording device to prevent its use and to prevent tampering with ballot labels, both before the polls are open or before the operation of the vote recording device for an election is begun and immediately after the polls are closed at after the operation of the vote recording device for an election is completed;

    (12) It has the capacity to contain the names of candidates constituting the tickets of at least nine political parties and accommodates the wording of at least fifteen questions;

    (13) (A) Direct recording electronic voting machines must generate a paper copy of each voter’s votes vote that will be automatically kept within a storage container, that is locked, closely attached to the direct recording electronic voting machine, and inaccessible to all but authorized voting officials, who will handle such storage containers and such paper copies contained therein in accordance with section nineteen of this article.

    (B) The paper copy of the voter’s vote shall be generated at the time the voter is at the voting station using the direct recording electronic voting machine.

    (C) The voter may examine the paper copy visually or through headphone readout, and may accept or reject the printed copy.

    (D) The voter may not touch, handle or manipulate the printed copy manually in any way.

    (E) Once the printed copy of the voter’s votes is accepted by the voter as correctly reflecting the voter’s intent, but not before, it will automatically be stored for recounts or random checks and the electronic vote will be cast within the computer mechanism of the direct recording electronic voting machine.

    (F) Direct recording electronic voting machines with a mandatory paper copy shall be approved by the Secretary of State. The Secretary of State may promulgate rules and emergency rules to implement or enforce this subsection pursuant to the provisions of section five, article three, chapter twenty-nine-a of this code.

    (14) Where vote recording devices are used, they shall:

    (A) Be durably constructed of material of good quality and in a workmanlike manner and in a form which makes it safely transportable;

    (B) Be constructed with frames for the placing of ballot labels that the labels upon which are printed the names of candidates and their respective parties, titles of offices office and wording of questions are reasonably protected from mutilation, disfigurement or disarrangement or are constructed to ensure that the screens upon which appear the names of the candidates and their respective parties, titles of offices and wording of questions are reasonably protected any from modification;

    (C) Bear a number that will identify it or distinguish it from any other machine;

    (D) Be constructed to ensure that a voter may easily learn the method of operating it and may expeditiously cast his or her vote for all candidates of his or her choice and upon any public question;

    (E) Be accompanied by a mechanically or electronically operated instruction model which shows the arrangement of ballot labels, party columns or rows, and questions;

    (F) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch: be constructed to provide for the direct electronic recording and tabulating of votes cast in a system specifically designed and engineered for the election application;

    (i) Be constructed to provide for the direct electronic recording and tabulating of votes cast in a system specifically designed and engineered for the election application;

    (G) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (ii) Be constructed to prevent any voter from voting for more than the allowable number of candidates for any office, to include an audible or visual signal, or both, warning any voter who attempts to vote for more than the allowable number of candidates for any office or who attempts to cast his or her ballot prior to its completion and are constructed to include a visual or audible confirmation, or both, to the voter upon completion and casting of the ballot;

    (H) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (iii) Be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot;

    (I) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (iv) Be constructed to allow election commissioners to spoil a ballot where a voter fails to properly cast his or her ballot, has departed the polling place and cannot be recalled by a poll clerk to complete his or her ballot;

    (J) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (v) Be constructed to allow election commissioners, poll clerks, or both, to designate, mark or otherwise record provisional ballots;

    (K) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (vi) Consist of devices which are independent, nonnetworked voting systems in which each vote is recorded and retained within each device's internal nonvolatile electronic memory and contain an internal security, the absence of which prevents substitution of any other device;

    (L) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (vii) Store each vote in no fewer than three separate, independent, nonvolatile electronic memory components and that each device contains comprehensive diagnostics to ensure that failures do not go undetected;

    (M) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (viii) Contain a unique, embedded internal serial number for auditing purposes for each device used to activate, retain and record votes;

    (N) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (ix) Be constructed to record all preelection, election and post-election activities, including all ballot images and system anomalies, in each device's internal electronic memory and are to be accessible in electronic or printed form;

    (O) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (x) Be constructed with a battery backup system in each device to, at a minimum, prevent the loss of any votes, as well as all preelection, election and post-election activities, including all ballot images and system anomalies, stored in the device's internal electronic memory and to allow voting to continue for two hours of uninterrupted operation in case of an electrical power failure; and

    (P) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch, (xi) Be constructed to prevent the loss of any votes, as well as all preelection, election and post-election activities, including all ballot images and system anomalies, stored in each device's internal electronic memory even in case of an electrical and battery power failure.

§3-4A-20. “Independent” voting in primary elections.

    If at any primary elections, nonpartisan candidates for office and public questions are submitted to the voters on which persons registered as "independent" are entitled to vote, as provided in section eighteen five(b)(3), article two of this chapter, the election officers shall provide a vote recording device, where applicable, or the appropriate ballot to be marked by an electronically sensible pen or ink, or by means of a stylus or by means of touch, so that "independent" voters may vote only those portions of the ballot relating to the nonpartisan candidates and the public questions submitted, or shall provide a ballot containing only provisions for voting for those candidates and upon those issues submitted common to the ballots provided to all voters regardless of political party affiliation, or both, unless the voter requests an alternative ballot of a political party which has determined such a voter may participate in its primary election.

    In counties utilizing electronic voting systems in which votes are recorded by perforating, if vote recording devices are not available for the "independent" voters, provisions are to be made for sealing the partisan section or sections of the ballot or ballot labels on a vote recording device using temporary seals, thus permitting the independent voter to vote for the nonpartisan section or sections of the ballot or ballot labels, unless the voter requests an alternative ballot of a political party which has determined such a voter may participate in its primary election. After the "independent" voter has voted, the temporary seals may be removed and the device may then be used by partisan voters.

 

 

    NOTE: The purpose of this bill is to bring older contradicting language still remaining in the code into conformity with current code sections and to reestablish a definition for “independent voter” as the presently cited definition is no longer in the code.

 

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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