H. B. 2864
(By Delegate White)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §3-4A-1, §3-4A-2, §3-4A-11a, §3-4A-15,
§3-4A-17, §3-4A-19, §3-4A-26 and §3-4A-27 of the Code of West
Virginia, 1931, as amended, all relating to electronic voting
systems; prohibiting the use of touch screen voting machines.
Be it enacted by the Legislature of West Virginia:
That §3-4A-1, §3-4A-2, §3-4A-11a, §3-4A-15, §3-4A-17,
§3-4A-19, §3-4A-26 and §3-4A-27 of the Code of West Virginia, 1931,
as amended, be amended and reenacted all to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-1. Use of electronic voting systems authorized.
(a) Electronic voting systems may be used for the purpose of
registering or recording and computing votes cast in general,
special and primary elections: Provided, That the use of the
electronic voting systems shall be governed by the terms,
conditions, restrictions and limitations imposed by this article.
(b) Each county which is authorized to use electronic voting
systems in any statewide election shall establish a written policy for securing the electronic voting equipment. The policy shall
outline how the equipment is secured from tampering and under what
circumstances county personnel are authorized to have access. The
clerk of the county commission shall submit a copy of the policy to
the Secretary of State by February 1 in each even-numbered year.
The clerk shall also submit a copy of any change to the policy
within thirty days after its adoption.
(c) Notwithstanding any other provision of this code to the
contrary, voting machines employing "touch screens" or requiring
the voter to touch the screen with a stylus or means of touch to
make a selection on the ballot may not be used.
§3-4A-2. Definitions.
As used in this article, unless otherwise specified:
(1) "Automatic tabulating equipment" means all apparatus
necessary to electronically count votes recorded on ballots and
tabulate the results;
(2) "Ballot" means a tabulating card or paper on which votes
may be recorded by means of perforating or marking with
electronically sensible ink or pencil; or a screen upon which votes
may be recorded by means of a stylus or by means of touch;
(3) "Central counting center" means a facility equipped with
suitable and necessary automatic tabulating equipment, selected by
the county commission, for the electronic counting of votes
recorded on ballots;
(4) "Electronic poll book" means an electronic device
containing the same voter registration information maintained by the county clerk in a printed poll book.
(5) "Electronic voting system" is a means of conducting an
election whereby votes are recorded on ballots by means of an
electronically sensible marking ink, by perforating or are recorded
on equipment that registers votes on a computer disk, or by
touching a screen with a stylus or by means of touch, and votes are
subsequently counted by automatic tabulating equipment at the
central counting center;
(6) "Program deck" means the actual punch card deck or decks,
or a computer program disk, diskette, tape or other programming
media, containing the program for counting and tabulating the
votes, including the "application program deck";
(7) "Application program deck" means the punch card deck or
equivalent capacity in other program medias as provided, containing
specific options used and necessary to modify the program of
general application, to conduct and tabulate a specific election
according to applicable law;
(8) "Standard validation test deck" means a group of ballots
wherein all voting possibilities which can occur in an election are
represented; and
(9) "Vote-recording device" means equipment in which ballot
labels and ballots are placed to allow a voter to record his or her
vote by perforating or equipment with a screen upon which votes may
be recorded by means of a stylus or by means of touch.
§3-4A-11a. Ballots tabulated electronically; arrangement, quantity
to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using
ballots upon which votes may be recorded by means of marking with
electronically sensible ink or pencil and which marks are tabulated
electronically shall cause the ballots to be printed or displayed
upon the screens of the electronic voting system for use in
elections.
(b)(1) For the primary election, the heading of the ballot,
the type faces, the names and arrangement of offices and the
printing of names and arrangement of candidates within each office
are to conform as nearly as possible to the provisions of sections
thirteen and thirteen-a, article five of this chapter.
(2) For the general election, the heading of the ballot, the
straight ticket positions, the instructions to straight ticket
voters, the type faces, the names and arrangement of offices and
the printing of names and the arrangement of candidates within each
office are to conform as nearly as possible to the provisions of
section two, article six of this chapter, except as otherwise
provided in this article.
(3) Nonpartisan elections for board of education and any
question to be voted upon are to be separated from the partisan
ballot and separately headed in display type with a title clearly
identifying the purpose of the election and constituting a separate
ballot wherever a separate ballot is required under the provisions
of this chapter.
(4) Both the face and the reverse side of the ballot may
contain the names of candidates only if means to ensure the secrecy of the ballot are provided and lines for the signatures of the poll
clerks on the ballot are printed on a portion of the ballot which
is deposited in the ballot box and upon which marks do not
interfere with the proper tabulation of the votes.
(5) The arrangement of candidates within each office is to be
determined in the same manner as for other electronic voting
systems, as prescribed in this chapter. On the general election
ballot for all offices, and on the primary election ballot only for
those offices to be filled by election, except delegate to national
convention, lines for entering write-in votes are to be provided
below the names of candidates for each office, and the number of
lines provided for any office shall equal the number of persons to
be elected, or three, whichever is fewer. The words "WRITE-IN, IF
ANY" are to be printed, where applicable, directly under each line
for write-ins. The lines are to be opposite a position to mark the
vote.
(c) Except for electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the The primary election ballots are to be printed in the
color of ink specified by the Secretary of State for the various
political parties, and the general election ballot is to be printed
in black ink. For electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary ballots and the general election ballot are
to be printed in black ink. All ballots are to be printed, where
applicable, on white paper suitable for automatic tabulation and are to contain a perforated stub at the top or bottom of the
ballot, which is to be numbered sequentially in the same manner as
provided in section thirteen, article five of this chapter, or are
to be displayed on the screens of the electronic voting system upon
which votes are recorded by means of a stylus or touch. The number
of ballots printed and the packaging of ballots for the precincts
are to conform to the requirements for paper ballots provided in
this chapter.
(d) In addition to the official ballots, the ballot
commissioners shall provide all other materials and equipment
necessary to the proper conduct of the election.
§3-4A-15. Instructions and help to voters; vote-recording device
models; facsimile diagrams; sample ballots; legal
ballot advertisements.
(a) For the instruction of the voters on any election day in
counties utilizing an electronic voting system that uses a screen
upon which votes may be recorded by means of a stylus or by means
of touch, the ballot commissioners shall provide for each polling
place a sample ballot with each screen as it will appear on the
devices, together with written instructions regarding the operation
of the devices. Upon request, the election officers shall offer
instruction to each voter, before voting, in the operation of the
vote-recording device.
(b) (a) The ballot commissioners shall also provide facsimile
ballots, at least two of which, or complete sets of which, are to
be posted on the walls of each polling place. The facsimile diagrams are exact diagrams of the ballots or screens so that the
voter may become familiar with the location of the parties,
offices, candidates and questions as they appear on the ballot to
be used in his or her precinct.
(c) (b) The ballot commissioners may, with the consent of the
county commission, or the county commission may, prepare and mail
to each qualified voter at the address shown on the registration
books a facsimile sample of the ballot or screens for his or her
precinct.
(d) (c) In counties where an electronic voting system has been
adopted, the legal ballot advertisements required by articles five
and six of this chapter, which specify the publication of a
facsimile sample ballot, are to consist of a facsimile of the
ballot or screens with the names of the candidates and the offices
for which they are running shown in their proper positions.
§3-4A-17. Check of vote-recording devices and electronic poll
books before use; corrections; reserve
vote-recording devices.
(a) In counties utilizing an electronic voting system where
votes are to be recorded by means of perforating or by touching a
screen with a stylus or by means of touch before permitting the
first voter to vote, the election commissioners shall examine the
vote-recording devices to ascertain whether the ballot labels are
arranged as specified on the facsimile diagram furnished to the
precinct. If the ballot labels are arranged incorrectly, the
commissioners shall immediately notify the clerk of the county commission of the foregoing facts in writing, indicating the number
of the device, and obtain from the clerk a reserve vote-recording
device and thereafter proceed to conduct the election.
(b) Any reserve vote-recording device so used is to be
prepared for use by the clerk or his or her duly appointed deputy
and the reserve vote-recording device is to be prepared, inspected
and sealed and delivered to the polling place wherein the seal is
to be broken and the device opened in the presence of the precinct
election commissioners who shall certify in writing signed by them
to the clerk of the county commission, that the reserve
vote-recording device was found to be sealed upon delivery to the
polling place, that the seal was broken and the device opened in
their presence at the polling place. The vote-recording device
found to have been with incorrect ballot labels is to be returned
immediately to the custody of the clerk who shall then promptly
cause the vote-recording device to be repaired, prepared and
resealed in order that it may be used as a reserve vote-recording
device if needed.
(c) In counties using electronic poll books, the election
commissioners shall examine the electronic poll books to ascertain
whether the poll books are in working order before allowing any
voters to enter the polling location. If the electronic poll books
are not in working order, the election commissioners shall contact
the county clerk who shall immediately authorize a printed poll
book to serve in place of the electronic poll book for that
election. A printed poll book shall accompany the electronic poll book to each precinct.
§3-4A-19. Conducting electronic voting system elections
generally; duties of election officers; penalties.
(a) The election officers shall constantly and diligently
maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.
(b) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing the
party to which the voter belongs shall direct the voter to the
vote-recording device or supply the voter with a ballot, as may be
appropriate, which will allow the voter to vote only for the
candidates who are seeking nomination on the ticket of the party
with which the voter is affiliated or for unaffiliated voters in
accordance with section thirty-one, article two of this chapter.
(c) The poll clerk shall issue to each voter when he or she
signs the poll book a printed card or ticket numbered to correspond
to the number on the poll book of the voter and in the case of a
primary election, indicating the party affiliation of the voter,
which numbered card or ticket is to be presented to the election
commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set up
the voting booths in clear view of the election commissioners.
Where applicable, they shall open the vote-recording devices, place
them in the voting booths, examine them to see that they have the correct ballots or ballot labels, where applicable by comparing
them with the sample ballots, and determine whether they are in
proper working order. They shall open and check the ballots, the
electronic poll books, if applicable, supplies, records and forms
and post the sample ballots or ballot labels and instructions to
voters. Upon ascertaining that all ballots, supplies, electronic
poll books, if applicable, records and forms arrived intact, the
election commissioners shall certify their findings in writing upon
forms provided and collected by the clerk of the county commission
over their signatures to the clerk of the county commission. Any
discrepancies are to be noted and reported immediately to the clerk
of the county commission. The election commissioners shall then
number in sequential order the ballot stub of each ballot in their
possession and report in writing to the clerk of the county
commission the number of ballots received. They shall issue the
ballots in sequential order to each voter.
(e) Upon entering a precinct which is using an electronic poll
book, each voter shall be verified by use of the electronic poll
book to be a registered voter. If the voter is not registered
according to the electronic poll book within that precinct, the
poll clerk is to inform the voter of the proper precinct in which
the voter is registered.
(f) Where applicable, each voter shall be instructed how to
operate the vote-recording device before he or she enters the
voting booth.
(g) Where applicable, any voter who spoils, defaces or mutilates the ballot delivered to him or her, on returning the
ballot to the poll clerks, shall receive another in its place.
Every person who does not vote any ballot delivered to him or her
shall, before leaving the election room, return 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 poll books, at
the time, write the word "spoiled" across the face of the ballot
and place it in an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the poll books the number
of persons who voted and shall report, in writing signed by them to
the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused. All
unused ballots are to be returned at the same time to the clerk of
the county commission who shall count them and record the number.
All unused ballots shall be stored with the other election
materials and destroyed at the expiration of twenty-two months.
(h) 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 jail for not more than one year, or
both.
(i) The board of ballot commissioners of each county, or the chair of the board, shall preserve the ballots that are left over
in their hands, after supplying the precincts as provided, until
the close of the polls on the day of election and shall deliver
them to the clerk of the county commission who shall store them
with the other election materials and destroy them at the
expiration of twenty-two months.
(j) Where ballots are used, the voter, after he or she has
marked his or her ballot, shall, before leaving the voting booth,
place the ballot inside the envelope or sleeve provided for this
purpose, with the stub extending outside the envelope, and return
it to an election commissioner who shall remove the stub and
deposit the envelope, if applicable, with the ballot inside in the
ballot box. No ballot from which the stub has been detached may be
accepted by the officer in charge of the ballot box, but the ballot
shall be marked "spoiled" and placed with the spoiled ballots. If
an electronic voting system is used that utilizes a screen on which
votes may be recorded by means of a stylus or by means of touch and
the signal warning that a voter has attempted to cast his or her
ballot has failed to do so properly has been activated and the
voter has departed the polling place and cannot be recalled by a
poll clerk to complete his or her ballot while the voter remains
physically present in the polling place, then two election
commissioners of different registered party affiliations, two poll
clerks of different registered party affiliations or an election
commissioner and a poll clerk of different registered party
affiliations shall spoil the ballot.
(k) The precinct election commissioners shall prepare a report
in quadruplicate of the number of voters who have voted and, where
electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch,
the number of ballots that were spoiled, as indicated by the poll
books, and shall place two copies of this report in the ballot box
or where electronic voting systems are used that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, shall place two copies of this report and the electronic
ballot devices in a container provided by the clerk of the county
commission, which thereupon is to be sealed with a paper seal
signed by the election commissioners to ensure that no additional
ballots may be deposited or removed from the ballot box. Two
election commissioners of different registered party affiliations
or two special messengers of different registered party
affiliations appointed by the clerk of the county commission, shall
forthwith deliver the ballot box or container to the clerk of the
county commission at the central counting center and receive a
signed numbered receipt therefor. The receipt must carefully set
forth in detail any and all irregularities pertaining to the ballot
boxes or containers and noted by the precinct election officers.
The receipt is to be prepared in duplicate, a copy of which
remains with the clerk of the county commission who shall have any
and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the
report, which are to be immediately mailed to the clerk of the county commission.
(l) The poll books, register of voters, unused ballots,
spoiled ballots and other records and supplies are to be delivered
to the clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-26. Test of automatic tabulating equipment.
(a) One week prior to the start of the count of the votes
recorded on ballots or screens, the clerk of the county commission
shall have the automatic tabulating equipment tested to ascertain
that it will accurately count the votes cast for all offices and on
all measures. This test shall consist of a test of the entire
voting system, including removal of data from a vote-recording
device and its transferral to automatic tabulating equipment. The
county commission shall give public notice of the time and place of
the test not less than forty-eight hours nor more than two weeks
prior to the test by publication of a notice as a Class I-0 legal
advertisement in the county involved, in compliance with the
provisions of article three, chapter fifty-nine of this code.
(b) (1) Vote-recording devices used and tested for early
voting may also be used on election day. upon compliance with all
of the following requirements:
(A) Following the close of early voting, the personal
electronic ballot and the programable memory chip shall be removed
and replaced with another personal electronic ballot and
programable memory chip prepared for, but unused during, the
current election period;
(B) The printed paper trail used during the early voting
period shall be removed and replaced with a new paper trail; and
(C) The So long as the vote-recording device shall be retested
prior to being used on election day.
(2) Any personal electronic ballot programable memory chip and
printed paper trail removed from a vote-recording device used for
early voting shall be securely stored by the county clerk until
such time as it is used to tally the votes on election day in
accordance with section twenty-seven of this article.
(c) (1) A test performed pursuant to this section shall be
open to representatives of the political parties, candidates, the
press and the public. It is to be conducted by processing a set of
preaudited ballots marked to record a predetermined number of valid
votes for each candidate or each measure. For each multicandidate
office, the test shall include one or more ballots which have
cross-over votes in order to test the ability of the automatic
tabulating equipment to record those votes in accordance with the
provisions of this article and any other applicable law. For each
office, the test shall include one or more ballots which have votes
in excess of the number allowed by law in order to test the ability
of the automatic tabulating equipment to reject votes. If, in the
process of any of the test counts, any error is detected, the cause
of the error is to be ascertained and corrective action promptly
taken. After the completion of the corrective action, the test
counts are to continue, including a retesting of those precincts
previously test counted. Prior to the continuation of the testing, the county commission shall certify in writing, signed by each
commissioner, the nature of the error, its cause and the type of
corrective action taken. The certification shall be recorded in
the office of the clerk of the county commission in the record
book. Immediately after conclusion of this completed test, a
certified duplicate copy of the test results shall be sent by
certified mail to the offices of the State Election Commission,
where it is to be preserved and secured for one year and made
available for comparison or analysis by order of a circuit court or
the Supreme Court of Appeals.
(2) The tabulating equipment to be used in the election shall
be immediately certified by the county commission to be free from
error as determined by the test. All testing material shall be
placed with the certification in a sealed container and kept under
individual multiple locks with individual keys for each lock. The
number of locks and keys shall be the same as the number of county
commissioners together with the county clerk, with each
commissioner and the county clerk having a single key in his or her
possession. The sealed container shall be opened to conduct the
test required immediately before the start of the official count.
(3) The test shall be repeated immediately before the start of
the official count and at the conclusion of the official count
before the count is approved as errorless and before the election
returns are approved as official.
(4) All results of all of the tests are to be immediately
certified by the county commission, filed in the office of the clerk of the county commission and immediately recorded in the
record book. On completion of the count, the test materials and
test ballots are to be sealed, except for purposes of the canvass
as provided in section twenty-eight of this article, and retained
and kept under individual multiple locks and individual keys for
each lock. The number of locks and keys shall be the same as the
number of county commissioners together with the county clerk, with
each commissioner and the county clerk having a single key in his
or her possession.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center are to be
under the supervision of the clerk of the county commission and are
to be conducted under circumstances which allow observation from a
designated area by all persons entitled to be present. The
proceedings shall take place in a room of sufficient size and
satisfactory arrangement to permit observation. Those persons
entitled to be present include all candidates whose names appear on
the ballots being counted or if a candidate is absent, a
representative of the candidate who presents a written
authorization signed by the candidate for the purpose and two
representatives of each political party on the ballot who are
chosen by the county executive committee chairperson. A reasonable
number of the general public is also freely admitted to the room.
In the event all members of the general public desiring admission
to the room cannot be admitted at one time, the county commission
shall provide for a periodic and convenient rotation of admission to the room for observation, to the end that each member of the
general public desiring admission, during the proceedings at the
central counting center, is to be granted admission for reasonable
periods of time for observation: Provided, That no person except
those authorized for the purpose may touch any ballot or ballot
card or other official records and papers utilized in the election
during observation.
(b) All persons who are engaged in processing and counting the
ballots are to work in teams consisting of two persons of opposite
political parties, and are to be deputized in writing and take an
oath that they will faithfully perform their assigned duties.
These deputies are to be issued an official badge or identification
card which is assigned an identity control number and the deputies
are to prominently wear on his or her outer garments the issued
badge or identification card. Upon completion of the deputies'
duties, the badges or identification cards are to be returned to
the county clerk.
(c) Ballots are to be handled and tabulated and the write-in
votes tallied according to procedures established by the Secretary
of State, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards and
secrecy envelopes for a precinct are to be removed from the box and
examined for write-in votes before being separated and stacked for
delivery to the tabulator. Immediately after valid write-in votes
are tallied, the ballot cards are to be delivered to the tabulator.
No write-in vote may be counted for an office unless the voter has entered the name of that office and the name of an official
write-in candidate for that office on the inside of the secrecy
envelope, either by writing, affixing a sticker or label or placing
an ink-stamped impression thereon;
(2) In systems using ballots marked with electronically
sensible ink, ballots are to be removed from the boxes and stacked
for the tabulator which separates ballots containing marks for a
write-in position. Immediately after tabulation, the valid
write-in votes are to be tallied. No write-in vote may be counted
for an office unless the voter has entered the name of an official
write-in candidate for that office on the line provided, either by
writing, affixing a sticker or placing an ink-stamped impression
thereon;
(3) In systems using ballots in which votes are recorded upon
screens with a stylus or by means of touch, the personalized
electronic ballots are to be removed from the containers and
stacked for the tabulator. Systems using ballots in which votes
are recorded upon screens with a stylus or by means of touch are to
tally write-in ballots simultaneously with the other ballots;
(4) (3) When more than one person is to be elected to an
office and the voter desires to cast write-in votes for more than
one official write-in candidate for that office, a single punch or
mark, as appropriate for the voting system, in the write-in
location for that office is sufficient for all write-in choices.
When there are multiple write-in votes for the same office and the
combination of choices for candidates on the ballot and write-in choices for the same office exceed the number of candidates to be
elected, the ballot is to be duplicated or hand counted, with all
votes for that office rejected;
(5) (4) Write-in votes for nomination for any office and
write-in votes for any person other than an official write-in
candidate are to be disregarded;
(6) (5) When a voter casts a straight ticket vote and also
punches or marks the location for a write-in vote for an office,
the straight ticket vote for that office is to be rejected, whether
or not a vote can be counted for a write-in candidate; and
(7) (6) Official write-in candidates are those who have filed
a write-in candidate's certificate of announcement and have been
certified according to the provisions of section four-a, article
six of this chapter.
(d) If any ballot card is damaged or defective so that it
cannot properly be counted by the automatic tabulating equipment,
a true duplicate copy is to be made of the damaged ballot card in
the presence of representatives of each political party on the
ballot and substituted for the damaged ballot card. All duplicate
ballot cards are to be clearly labeled "duplicate" and are to bear
a serial number which is recorded on the damaged or defective
ballot card and on the replacement ballot card.
(e) The returns printed by the automatic tabulating equipment
at the central counting center, to which have been added write-in
and other valid votes, are, when certified by the clerk of the
county commission, to constitute the official preliminary returns of each precinct or election district. Further, all the returns
are to be printed on a precinct basis. Periodically throughout and
upon completion of the count, the returns are to be open to the
public by posting the returns as have been tabulated precinct by
precinct at the central counting center. Upon completion of the
canvass, the returns are to be posted in the same manner.
(f) If for any reason it becomes impracticable to count all or
a part of the ballots with tabulating equipment, the county
commission may direct that they be counted manually, following as
far as practicable the provisions governing the counting of paper
ballots.
(g) As soon as possible after the completion of the count, the
clerk of the county commission shall have the vote recording
devices properly boxed or securely covered and removed to a proper
and secure place of storage.
NOTE: The purpose of this bill is to prohibit the use of
electronic voting technology that employs "touch screens" or
requires the voter to touch a screen with a stylus to cast a vote.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.