H. B. 2980

 

         (By Delegates Hunt and Sponaugle )

         (By Request of Secretary of State)

         [Introduced March 19, 2013; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

A BILL to repeal §3-3-2a, §3-3-3a and §3-3-7 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-3-1, §3-3-2, §3-3-3, §3-3-4, §3-3-5, §3-3-5a, §3-3-5b, §3-3-5c, §3-3-8, §3-3-10 and §3-3-11 of said code; and to amend said code by adding thereto two new sections, designated §3-3-3b and §3-3-3c, all relating to absentee and early in-person voting; specifically, to clean up and update existing language in the code.

Be it enacted by the Legislature of West Virginia:

    That §3-3-2a, §3-3-3a and §3-3-7 of the Code of West Virginia, 1931, as amended, be repealed; that §3-3-1, §3-3-2, §3-3-3, §3-3-4, §3-3-5, §3-3-5a, §3-3-5b, §3-3-5c, §3-3-8, §3-3-10 and §3-3-11 of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §3-3-3b and §3-3-3c, all to read as follows:

ARTICLE 3. VOTING BY ABSENTEES.

§3-3-1. Persons eligible to vote absentee ballots by mail or electronically.

    (a) All registered and other qualified voters of the county may vote an absentee ballot during the period of early voting in person.

    (b) (a) Registered voters and other qualified voters in the county are authorized to vote an absentee ballot by mail in the following circumstances:

    (1) Any A voter who is confined to a specific location and prevented from voting in person throughout the period of voting in person because of:

    (A) Illness, injury, physical disability or immobility or other medical reason; or

    (B) Physical disability or immobility due to extreme advanced age; or

    (C) (B) Incarceration or home detention: Provided, That the underlying conviction is not for a crime which is a felony or a violation of section twelve, thirteen or sixteen, article nine of this chapter involving bribery in an election;

    (2) Any A voter who is absent from the county throughout the period and available hours for voting in person because of:

    (A) Personal or business travel;

    (B) Attendance at a college, university or other place of education or training; or

    (C) Employment which because of hours worked and distance from the county seat make voting in person impossible;

    (3) Any A voter absent from the county throughout the period and available hours for voting in person and who is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including members of the uniformed services on active duty, members of the merchant marine, spouses and dependents of those members on active duty and persons who reside outside the United States and are qualified to vote in the last place in which the person was domiciled before leaving the United States;

    (4) Any voter who is required to dwell temporarily outside the county and is absent from the county throughout the time for voting in person because of:

    (A) Serving as an elected or appointed federal or state officer; or

    (B) Serving in any other documented employment assignment of specific duration of four years or less;

    (5) Any A voter for whom the designated area for absentee voting within the county courthouse or annex of the courthouse and the voter’s assigned polling place are inaccessible because of his or her physical disability; and

    (6) Any voter who is participating in the Address Confidentiality Program as established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code.

    (c) (b) Registered voters and other qualified voters in the county may, in the following circumstances, vote an emergency absentee ballot subject to the availability of the services as provided in this article:

    (1) Any A voter who is confined or expects to be confined in a hospital or other duly licensed health care facility within the county of residence or other authorized area, as provided in this article, on the day of the election;

    (2) Any A voter who resides in a nursing home or veteran’s home within the county of residence and would be otherwise is unable to vote in person providing if the county commission has authorized the services; if the voter has resided in the nursing home for a period of less than thirty days; and

    (3) Any A voter who is working as a replacement poll worker and is assigned to a precinct out of his or her voting district if the assignment was made after the period for voting an absentee ballot in person has expired.

§3-3-2. Authority to conduct absentee voting; absentee voting application; form.

    (a) Absentee voting is to be supervised and conducted by the proper official for the political division in which the election is held in conjunction with the ballot commissioners appointed from each political party as follows:

    (1) The clerk of the county commission for any an election held throughout the county, within a political subdivision or territory other than a municipality or within a municipality when the municipal election is conducted in conjunction with a county election, the clerk of the county commission; or

    (2) The municipal recorder or other officer authorized by charter or ordinance provisions to conduct absentee voting, for any an election held entirely within the municipality or, in the case of annexation elections, within the area affected. The terms "clerk" or “clerk of the county commission” or “official designated to supervise and conduct absentee voting” used elsewhere in this article means municipal recorder or other officer in the case of municipal elections.

    (b) A person authorized and desiring to vote a mail-in absentee ballot in any a primary, general or special election is to make application in writing in the proper form to the proper official as follows:

    (1) The completed application is to be on a form prescribed by the Secretary of State and is to contain the name, date of birth and political affiliation of the voter, residence address within the county, the address to which the ballot is to be mailed, the authorized reason if any, for which the absentee ballot is requested and if the reason is illness or hospitalization, the name and telephone number of the attending physician, the signature of the voter to a declaration made under the penalties for false swearing as provided in section three, article nine of this chapter that the statements and declarations contained in the application are true, any additional information which the voter is required to supply, any an affidavit which may be required and an indication as to whether it is an application for voting in person or by mail; or

    (2) For any a person authorized to vote an absentee ballot under the provisions of 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed application may be on the federal postcard application for absentee ballot form issued under authority of that act and submitted by mail or electronically; or

    (3) For any person unable to obtain the official form for absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the proper official, the completed application may be in a form set out by the voter, provided all information required to meet the provisions of this article is set forth and the application is signed by the voter requesting the ballot; or

    (4) (3) A person authorized to vote an absentee ballot who is participating in the Address Confidentiality Program as established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code, may apply to the program manager within the Office of the Secretary of State to vote a mail-in absentee ballot. The program manager will notify the designated county contact to coordinate the application and the provision of an absentee ballot to the program participant.

§3-3-3. Early voting in person.

    (a) All registered voters of the county may vote an absentee ballot during the period of early voting in person.

    (a) (b) The voting period for early in-person voting is to be conducted during regular business hours beginning on the thirteenth day before the election and continuing through the third day before the election. Additionally, early in-person voting is to be available from 9:00 a.m. to 5:00 p.m. on Saturdays during the early voting period.

    (b) (c) Any A person desiring to vote during the period of early in-person voting shall, upon entering the election room, clearly state his or her name and residence to the official or representative designated to supervise and conduct absentee early in-person voting. If that person is found to be duly registered as a voter in the precinct of his or her residence, he or she is required to sign his or her name in the space marked “signature of voter” on the pollbook. If the voter is unable to sign his or her name due to 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. No ballot may be given to the person until he or she signs his or her name on the pollbook.

    (c) (d) When the voter’s signature or mark is properly on the pollbook, two qualified representatives of the official designated to supervise and conduct absentee early in-person voting shall sign their names in the places indicated on the back of the official ballot for paper based systems or direct the voter to a voting booth.

    (d) (e) If the official designated to supervise and conduct absentee early in-person voting determines that the voter is not properly registered in the precinct where he or she resides, the clerk or his or her representative shall challenge the voter's absentee ballot as provided in this article.

    (e) (f) The official designated to supervise and conduct absentee early in-person voting shall provide each person voting an absentee ballot in person the following items to be printed a ballot with the following items as prescribed by the Secretary of State:

    (1) In counties using paper ballots, based voting systems, one of each type of official absentee ballot the voter is eligible to vote prepared according to law and other supplies needed; or

    (2) In counties using punch card systems, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law, and a gray secrecy envelope;

    (3) In counties using optical scan systems, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law, and a secrecy sleeve; or

    (4) (2) For direct recording election voting systems, access to the voting equipment in the voting booth.

    (f) (g) The voter shall enter the voting booth alone and there mark the ballot Provided, That the voter but may have assistance in voting according to the provisions of section four of this article. After the voter has voted the ballot or ballots, the absentee voter shall: Place the ballot or ballots in the gray secrecy envelope and return the ballot or ballots to the official designated to supervise and conduct the absentee voting: Provided, however, That voter shall return the ballot or ballots by the appropriate means to the official designated to supervise and conduct early in-person voting for paper based voting systems. In direct recording election voting systems, once the voter has cast his or her ballot, the voter shall exit the polling place and the designated official shall ensure that the voting system is cleared for the next voter.

    (g) (h) In counties using paper based voting systems, upon receipt of the voted ballot, representatives of the official designated to supervise and conduct the absentee early in-person voting shall:

    (1) Remove the ballot stub;

    (2) Place punch card ballots and paper ballots into one envelope which shall not have any with no marks except the precinct number and seal the envelope; and

    (3) Place ballots for all voting systems sealed ballots 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.

§3-3-3b. Early voting areas; prohibition against display of campaign material.

    (a) The county commission shall designate the courthouse or annex to the courthouse as the primary location for early voting and in addition, the commission may designate other locations as provided in section three-c of this article.

    (b) Throughout the period of early in-person voting, the official designated to supervise and conduct early in-person voting shall make the following provisions for voting:

    (1) Provide a sufficient number of voting booths or devices appropriate to the voting system where voters may prepare their ballots. The booths or devices are to be in an area separate from but within clear view of the public entrance area of the official's office or other area designated by the county commission for early in-person voting and are to be arranged to ensure the voter complete privacy in casting the ballot.

    (2) Secure the voting area free from interference with the voter and ensure that voted and unvoted ballots are at all times secure from tampering. No person, other than a person lawfully assisting the voter according to the provisions of this chapter, may be permitted to come within five feet of the voting booth while the voter is voting. No person may enter the area or room set aside for voting except for the officials or employees of the official designated to supervise and conduct early in-person voting, members of the Board of Ballot Commissioners assigned to conduct early in-person voting or representatives from the Secretary of State’s Office.

    (3) The official designated to supervise and conduct early in-person voting shall request the county commission to designate an area within the county courthouse, an annex of the courthouse or any other area designated as early in-person voting locations within the county, as a portion of the official's office for the purpose of early in-person voting, subject to the same requirements as the regular early in-person voting area, in the following circumstances:

    (A) If the voting area is not accessible to voters with physical disabilities;

    (B) If the voting area is not within clear view of the public entrance of the office of the official designated to supervise and conduct early in-person voting; or

    (C) If there is no suitable area for early in-person voting within the office.

    (4) The official designated to supervise and conduct early in-person voting shall have at least two representatives to assist with early voting. The two representatives may not be registered with the same political party affiliation or registered with no political party affiliation. The representatives may be full-time employees, temporary employees hired for the period of early in-person voting or volunteers. To be eligible to serve as an assistant with early in-person voting, a person:

    (A) Must be a registered voter;

    (B) Must be able to read and write the English language;

    (C) May not be a candidate on the ballot or an official write-in candidate in the election;

    (D) May not be the parent, child, sibling or spouse of either a candidate on the ballot or an official write-in candidate in the precinct where the official serves;

    (E) May not be a person prohibited from serving as an election official pursuant to a federal or state statute; and

    (F) May not have been previously convicted of a violation of an election law.

    (5) No person may electioneer or display or distribute, in any manner, or authorize the display or distribution of literature, posters or material of any kind which tends to influence the voting for or against a candidate or a public question on the property of the county courthouse, annex facilities or other designated early voting locations within the county during the period of early in-person voting. The official designated to supervise and conduct early in-person voting is authorized to remove the material and to direct the sheriff of the county to enforce the prohibition.

§3-3-3c. Community early voting areas.

    (a) The county commission, with the approval of the county clerk or other official charged with the administration of elections, may designate community voting locations for early voting other than the county courthouse or courthouse annex.

    (1) This designation must be made by a majority of the members of the county commission at a public meeting called for that purpose;

    (2) The county commission shall publish a notice of its intent to designate community voting location at least thirty days prior to the designation. Notice shall be by publication as a Class II-0 legal advertisement in compliance with provisions of article three, chapter fifty-nine of this code. The publication area is the county in which the community voting locations are designated;

    (3) Community voting locations shall comply with requirements of this article for early in-person voting as prescribed by the Secretary of State and the following criteria:

    (A) Available for use during the early voting period;

    (B) Has the physical facilities necessary to accommodate early voting requirements;

    (C) Has adequate space for voting equipment, poll workers and voters; and

    (D) Has adequate security, public accessibility, and parking;

    (4) The county executive committees of the two major political parties may nominate sites to be used as community voting locations during the early voting period;

    (5) Upon the designation of a community voting location, the county clerk shall, not less than thirty days prior to an election, give notice of the dates, times and place of community voting locations by publication as a Class II-0 legal advertisement in compliance with provisions of article three, chapter fifty-nine of this code;

    (6) Voting shall be conducted at each designated community voting site for a period of not less than five consecutive days during early in-person voting authorized by section three of this article but need not be conducted at each location for the entire period of early in-person voting;

    (7) The county commission, with the approval of the county clerk, may authorize community voting locations on a rotating basis where a community voting location may be utilized for less than the full period of early in-person voting; and

    (8) If more than one community voting location is designated, each location shall be utilized for an equal number of voting days and permit voting for the same number of hours per day.

    (c) The Secretary of State shall propose legislative and emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as necessary to implement the provisions of this section. The rules shall include establishment of criteria to assure neutrality and security in the selection of community voting locations.

§3-3-4. Assistance to voter in early in-person voting; penalties.

    (a) Any A registered voter who requires assistance to vote by reason of blindness, disability, advanced age or inability to read and write may be given assistance by a person of the voter's choice. Provided, That The assistance may not be given by the voter's present or former employer or agent of that employer, by the officer or agent of a labor union of which the voter is a past or present member or by a candidate on the ballot.

    (b) Any A voter who requests assistance in voting an absent voter's a ballot but who is determined by the official designated to supervise and conduct absentee early in-person voting not to be qualified for assistance under the provisions of this section and section thirty-four, article one of this chapter, may vote a challenged absent voter's provisional ballot with the assistance of any a person authorized to render assistance pursuant to this section. The official designated to supervise and conduct absentee voting shall in this case challenge the absent early in-person voting shall challenge the voter's ballot on the basis of his or her determination that the voter is not qualified for assistance.

    (c) Any one or more of the election commissioners or poll clerks in the precinct to which an absent voter's ballot has been sent may challenge the ballot on the ground that the voter received assistance in voting it when in his or their opinion: (1) The person who received the assistance in voting the absent voter's ballot did not require assistance; or (2) the person who provided the assistance in voting did not make an affidavit as required by this section. The election commissioner or poll clerk or commissioners or poll clerks making a challenge shall enter the challenge and reason for the challenge on the form and in the manner prescribed or authorized by this article.

    (d) (c) Before entering the voting booth or compartment, the person who intends to provide a voter assistance in voting shall make an affidavit, the form of which is to be on a form as prescribed by the Secretary of State, asserting the following:

    (1) That he or she will not in any manner request or seek to persuade or induce the voter to vote any a particular ticket or for any a particular candidate or for or against any a public question; and

    (2) That he or she will not keep or make any memorandum or entry of anything occurring within the voting booth or compartment; and

    (3) That he or she will not, directly or indirectly, reveal to any person the name of any a candidate voted for by the voter, or which ticket he or she had voted, or how he or she had voted on any a public question or anything occurring within the voting booth or compartment or voting machine booth, except when required pursuant to by law to give testimony as to the matter in a judicial proceeding.

    (e) (d) In accordance with instructions issued by the Secretary of State, the official designated to supervise and conduct absentee early in-person voting shall provide a form entitled “List of Assisted Voters”, prescribed by the Secretary of State, which list is to be divided into two parts. Part A is to be entitled “Unchallenged Assisted Voters” and Part B is to be entitled “Challenged Assisted Voters”.

    (1) Under Part A, the official designated to supervise and conduct absentee early in-person voting shall enter the name of each voter receiving unchallenged assistance in voting an absent voter's the ballot, the address of the voter assisted, the nature of the disability which qualified the voter for assistance, in voting an absent voter's ballot, the name of the person providing the voter with assistance, in voting an absent voter's ballot, the fact that the person rendering the assistance in voting made and subscribed to the oath required by this section and the signature of the official designated to supervise and conduct absentee early in-person voting certifying to the fact that he or she had determined that the voter who received assistance in voting an absent voter's ballot was qualified to receive the assistance under the provisions of this section.

    (2) Under Part B, the official designated to supervise and conduct absentee early in-person voting shall enter the name of each voter receiving challenged assistance in voting, the address of the voter receiving challenged assistance, the reason for the challenge and the name of the person providing the challenged voter with assistance in voting. At the close of the period provided for voting an absent voter's ballot by personal appearance, early in-person voting, the official designated to supervise and conduct absentee early in-person voting shall make and subscribe to an oath on the list that the list is correct in all particulars. If no voter has been assisted in voting an absent voter's ballot as provided in this section, the official designated to supervise and conduct absentee early in-person voting shall make and subscribe to an oath of that fact on the list. The “List of Assisted Voters” is to be available for public inspection in the office of the official designated to supervise and conduct absentee voting county clerk during regular business hours throughout the period provided for early in-person voting. an absent voter's ballot by personal appearance and, unless otherwise directed by the Secretary of State, the official shall transmit the list, together with the affidavits, applications and absent voters' ballots, to the precincts on election day.

    (f) (e) Following the election, the affidavits required by this section from persons providing assistance in voting, together with the “List of Assisted Voters”, are to be returned by the election commissioners to the clerk of the county commission, along with the election supplies, records and returns, retained by the clerk of the county commission who shall make the oaths and list available for public inspection and who shall preserve the oaths and list for twenty-two months or, if under order of the court, until their destruction or other disposition is authorized or directed by the court.

    (g) (f) Any A person making an affidavit required under the provisions of this section who knowingly swears falsely in the affidavit or any a person who counsels or 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 the county or regional jail for a period of not more than one year, or both fined and confined.

    (h) (g) Any A person who provides a voter assistance in voting an absent voter's ballot in the office of the official designated to supervise and conduct absentee early in-person voting who is not qualified or permitted by this section to provide assistance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county or regional confined in jail for a period of not more than one year, or both fined and confined.

    (i) (h) Any An official designated to supervise and conduct absentee early in-person voting, election commissioner or poll clerk who authorizes or allows a voter to receive or to have received unchallenged assistance in voting an absent voter's a ballot when the voter is known to the official designated to supervise and conduct absentee early in-person voting or election commissioner or poll clerk not to be or have been authorized by the provisions of this section to receive or to have received assistance in voting, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county or regional or confined in jail for a period of not more than one year, or both fined and confined.

    (j) (i) The term "physical disability" as used in this section means:

    (1) Blindness or a degree of blindness as will prevent that prevents the voter from seeing the names on the ballot; or

    (2) Amputation of both hands; or

    (3) A disability of both hands that neither can be used to make cross marks on the absent voter's ballot.

§3-3-5. Voting an absentee ballot by mail or electronically; penalties.

    (a) Upon oral or written request, the official designated to supervise and conduct absentee voting shall provide to any a voter of the county, in person, by mail or electronically, 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 or electronically within the following times:

    (1) For persons eligible to vote an absentee ballot under the provisions of subdivision (3), subsection (b), (a), section one of this article, relating to absent uniformed services and overseas voters, not earlier than January 1 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, is to 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; and

    (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) (4) 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 provisional as provided in this article and shall enter that challenge the provisional reason.

    (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 with 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; The list of write-in candidates; 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 shall transmit the ballot to the voter via mail or electronically, as requested by the voter, not later than forty six days before the election when the application is received by the clerk by this day, otherwise, within one day after receiving and processing the application. If the voter does not designate a preference for transmittal, the clerk may select either method of transmittal for the ballot. If the ballot is transmitted electronically, pursuant to this subdivision, the official designated to supervise and conduct absentee voting shall also transmit electronically:

    (A) A waiver of privacy form, to be promulgated by the Secretary of State;

    (B) Instructions for voting absentee utilizing a federally approved system for voting by mail or electronically;

    (C) Notice that a (B) The list of write-in candidates; is available upon request; and

    (D) Statement (C) Oath of the voter affirming the voter’s current name and address and whether or not he or she received assistance in voting.

    (f) The voter shall mark the ballot alone Provided, That the voter but 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 electronically as provided in subdivision (2), subsection (e) of this section, the voter shall return the ballot in the same manner the ballot was received, or the voter may return the ballot by United States mail, along with a signed privacy waiver form.

    (2) After the voter has voted the ballots or ballots to be returned electronically, the voter shall return the ballot, the privacy waiver form and the oath of voter according to instructions provided for returning the ballot by electronic means or by mail.

    (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), (a), 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) Voted ballots submitted electronically 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. Ballots which cannot be accepted are to be entered into the voter’s record within the statewide voter registration system with the reason for not being accepted.

    (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 an election and any a person hand delivering an absentee ballot is required to certify that he or she has not examined or altered the ballot. Any A 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 statewide voter registration system 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 electronically 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 Electronic Means" with the completed waiver and oath: Provided, That no ballots are to be processed without the presence of two individuals of opposite political parties.

    (n) All ballots received electronically 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 electronically within the statewide voter registration system.

§3-3-5a. Processing federal postcard applications.

    When a federal postcard registration and absentee ballot request (FPCA), as defined in subdivision (2), subsection (b), section two of this article, is received by the official designated to supervise and conduct absentee voting, the official shall examine the application and take the following steps:

    (1) The official shall first enter the name of the applicant in the permanent absentee statewide voter registration system voter's record for each election for which a ballot is requested, make a photocopy of the application for each election for which a ballot is requested and place the separate copies in secure files to be maintained for use in the various elections.

    (2) The official designated to supervise and conduct absentee voting shall determine if the applicant is registered to vote at the residence address listed in the voting residence section of the application. If the applicant is not registered or not registered at the address given, the official shall deliver the original FPCA to the clerk of the county commission for processing and the clerk of the county commission shall process the application as an application for registration. and, If the application is received after the close of voter registration for the next succeeding election, the official shall challenge the absentee ballot for that election and send a provisional ballot to the voter.

    (3) Except as provided in subdivision (2) of this section, the federal application for an absentee ballot received from a person qualified to use the application as provided in section two of this article is to be processed as all other applications. and The ballot or ballots for each election for which ballots are requested by the applicant is to be mailed to the voter on the first day on which both the application and the ballot are available. transmitted to the voter by the voter’s preferred option on the forty-sixth day before the election if both the application and the ballot are available. If after the forty-sixth day, the ballot or ballots are to be transmitted on the first day after receipt of the application.

§3-3-5b. Procedures for voting a federal write-in absentee ballot by qualified persons.

    (a) Notwithstanding any other provisions of this chapter, a person qualified to vote an absentee ballot in accordance with subdivision (3), subsection (d) (a), section one of this article may apply not earlier than January 1 of an election year for a special federal write-in absentee ballot for a primary or general election in conjunction with the application for a regular absentee ballot or ballots. If the application is received after the forty-ninth day preceding the election, the official designated to supervise and conduct absentee voting shall honor only the application for local, state and federal offices in general, special and primary elections.

    (b) The application for a special federal write-in absentee ballot may be made on the federal postcard application form.

    (c) In order to qualify for a special federal write-in absentee ballot, the voter must state that he or she is unable to vote by regular absentee ballot or in person due to requirements of military service or due to living in isolated areas or extremely remote areas of the world. This statement may be made on the federal postcard application or on a form prepared by the Secretary of State and supplied and returned with the special federal write-in absentee ballot.

    (d) Upon receipt of the application within the time required, the official designated to supervise and conduct absentee voting shall issue the special federal write-in absentee ballot which is to be the same ballot issued under the provisions of 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986. The ballot is to permit the elector to vote in a primary election by indicating his or her political party affiliation and the names of the specific candidates for each office and, in a general election, by writing in a party preference for each office, the names of specific candidates for each office or the name of the person whom the voter prefers for each office.

    (e) When a special federal write-in ballot is A federal write-in ballot may not be counted when received by the official designated to supervise and conduct absentee voting from a voter:     (1) Who mailed the write-in ballot from any a location within the United States;

    (2) Who did not apply for a regular absentee ballot; or

    (3) who did not apply for a regular absentee ballot by mail; or

    (4)(3) Whose application for a regular absentee ballot by mail was received less than thirty days before the election. the write-in ballot may not be counted.

    (f) Any write-in absentee ballot must be received by the official designated to supervise and conduct absentee voting prior to the close of the polls on election day or it may not be counted.

§3-3-5c. Procedures for voting an emergency absentee ballot by qualified voters.

    (a) Notwithstanding any other provision of this chapter, a person qualified to vote an emergency absentee ballot, as provided in subsection (c) (b), section one of this article, may vote an emergency absentee ballot under the procedures established in this section. The county commission may adopt a policy extending the emergency absentee voting procedures to: (1) Hospitals or other duly licensed health care facilities within an adjacent county or within thirty-five miles of the county seat; or (2) nursing homes and veterans’ homes within the county. Provided, That The policy is to be adopted by the county commission at least ninety days prior to the election that will be affected and a copy of the policy is to be filed with the Secretary of State.

    (b) On or before the fifty-sixth day preceding the date on which any an election is to be held, the official designated to supervise and conduct absentee voting shall notify the county commission of the number of sets of emergency absentee ballot commissioners which he or she determines necessary to perform the duties and functions pursuant to this section.

    (c) A set of emergency absentee ballot commissioners at-large shall consist consists of two persons with different political party affiliations appointed by the county commission in accordance with the procedure prescribed for the appointment of election commissioners under the provisions of article one of this chapter. Emergency absentee ballot commissioners have the same qualifications and rights and take the same oath required under the provisions of this chapter for commissioners of elections. Emergency absentee ballot commissioners are to be compensated for services and expenses in the same manner as commissioners of election or poll clerks obtaining and delivering election supplies under the provisions of section forty-four, article one of this chapter.

    (d) Upon request of the voter or a member of the voter's immediate family or, when the county commission has adopted a policy to provide emergency absentee voting services to nursing home and veterans’ home residents within the county, upon request of a staff member of the nursing or veterans’ home, the official designated to supervise and conduct absentee voting, upon receiving a proper request for voting an emergency absentee ballot no earlier than the seventh day next preceding the election and no later than noon of election day, shall supply to the emergency absentee ballot commissioners the application for voting an emergency absentee ballot and the balloting materials. The emergency absentee ballot application is to be prescribed by the Secretary of State and is to include the name, residence address, and political party affiliation of the voter, the date location and reason for confinement in the case of an emergency, and the name of the attending physician. and location of the voter.

    (e) The application for an emergency absentee ballot is to be signed by the person applying. If the person applying for an emergency absentee ballot is unable to sign his or her application because of illiteracy or physical disability, he or she is to make his or her mark on the signature line provided for an illiterate or disabled applicant. The mark is to be witnessed. The person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided.

    (f) A declaration is to be completed and signed by each of the emergency absentee ballot commissioners stating their names and the date on which they appeared at the place of confinement of the person applying for an emergency absentee. ballot and the particulars of the confinement.

    (g) At least one of the emergency absentee ballot commissioners receiving the balloting materials shall sign a receipt which is to be attached to the application form. Each of the emergency absentee ballot commissioners shall deliver the materials to the absent voter, await his or her completion of the application and ballot and return the application and the ballot ballot in a sealed envelope and the application to the official designated to supervise and conduct absentee voting. Upon delivering the application and the voted ballot to the official, the emergency absentee ballot commissioners shall sign an oath that no person other than the absent voter voted the ballot. The application and the voted ballot are to be returned to the official designated to supervise and conduct absentee voting prior to the close of the polls on election day. Any Ballots received by the official after the time that delivery may reasonably be made but before the closing of the polls are to be delivered to the canvassing board along with the absentee ballots challenged in accordance with the provisions of section ten of this article.

    (h) Upon receiving the application and emergency absentee ballot, the official designated to supervise and conduct absentee voting shall ascertain whether the application is complete, whether the voter appears to be eligible to vote an emergency absentee ballot, and whether the voter is properly registered to vote with the office of the clerk of the county commission. If the voter is found to be properly registered in the precinct shown on the application, the ballot is to be delivered to the precinct election commissioner pursuant to section seven of this article. If the voter is found not to be registered or is otherwise ineligible to vote an emergency ballot, the ballot is to be challenged for the appropriate reason provided for in section ten of this article.

    (i) If either or both of the emergency absentee ballot commissioners refuse to sign any an application for voting an emergency absentee ballot, the voter may vote as an emergency absentee and the ballot will be challenged in accordance with the provisions of section ten of this article in addition to those absentee ballots subject to challenge as provided in that section.

    (j) Any A voter who receives assistance in voting an emergency absentee ballot shall comply with the provisions of section six of this article. Any Other provisions of this chapter relating to absentee ballots not altered by the provisions of this section are to govern the treatment of emergency absentee ballots.

§3-3-8. Disposition and counting of absent voters' ballots.

    (a) In counties using paper ballots instead of electronic voting systems, all absentee ballots shall be processed as follows:

    (1) The ballot boxes containing the absentee ballots shall be opened in the presence of the clerk of the county commission and two representatives of opposite political parties;

    (2) The ballots shall be separated by precincts as stated on the sealed envelopes containing the ballots; and

    (3) Absentee ballots shall be delivered to the polls to be opened and counted in accordance with section thirty-three, article one of this chapter, section fifteen, article five of this chapter; and section six, article six of this chapter. Disclosure of any results before the voting has been closed and the precinct returns posted on the door of the polling place shall be is a per se violation of the oath taken by the counting board. In all other counties, counting is to begin immediately after closing of the polls.

    (4) Except as otherwise provided in this article, in counties using paper ballots instead of electronic voting systems, the absentee ballots of each precinct and forms, lists and records as designated by the Secretary of State, are to be delivered in a sealed carrier envelope to the election commissioner of the precinct at the time he or she picks up the official ballots and other election supplies as provided in section twenty-four, article one of this chapter.

    (5) Absentee ballots received after the election commissioner has retrieved the official ballots and other election supplies for the precinct are to be delivered to the election commissioner of the precinct who has been designated, pursuant to section twenty-four, article one of this chapter, as the official to supervise and conduct absentee voting in person or by messenger before the closing of the polls if the ballots are received by the official in time to make the delivery. Ballots received by the official after the time that delivery may reasonably be made but within the time required as provided in subsection (g), section five of this article are to be delivered to the board of canvassers along with the provisional ballots.

    (b) In counties using optical scan systems, paper based electronic voting systems, the absentee ballots shall be processed as follows:

    (1) On election day, the ballot boxes containing the absentee ballots shall be delivered to the central counting center and opened in the presence of the clerk of the county commission and two representatives of opposite political parties; and

    (2) The absentee ballots shall be counted in accordance with section twenty-seven, article four-a of this chapter.

    (c) In counties using direct recording elections voting systems, the absentee ballots shall be counted as follows:

    (1) On election day, the ballot boxes containing the paper absentee ballots shall be delivered to the central counting center and opened in the presence of the clerk of the county commission and two representatives of opposite political parties; and

    (2) Each absentee ballot shall be recorded on a direct recording voting terminal designated by the clerk of the county commission as the terminal for absentee tabulations after being read aloud by a separate team of two representatives of opposite political parties; and

    (3) The ballot shall be verified by both teams as being accurately printed on the paper receipt before the ballot is tabulated; and

    (4) The appropriate election officials shall follow the procedures set out in subsections (a), (b), (d) and (e), section twenty-seven, article four-a of this chapter and subdivisions (3), (4), (5) and (6), subsection (c) of said section twenty-seven, article four-a of this chapter.

    (d) The provisional ballots shall be deposited in a provisional ballot envelope and delivered to the board of canvassers.

    (e) Any An election official who determines a person has voted an absent voter’s ballot and has also voted at the polls on election day must report the fact to the prosecuting attorney of the county in which the votes were cast.

§3-3-10. Challenging of absent voters' ballots.

    (a) The official designated to supervise and conduct absentee voting may challenge an absent voter's ballot on any of the following grounds:

    (1) That the application for an absent voter's ballot has not been completed as required by law;

    (2) That any a statement or declaration contained in the application for an absent voter's ballot is not true;

    (3) That the applicant for an absent voter's ballot is not registered to vote in the precinct of his or her residence as provided by law;

    (4) That the person voting an absent early in-person voter's ballot by personal appearance in his or her office had assistance in voting the ballot when the person was not qualified for voting assistance because:

    (A) The affidavit of the person who received assistance does not indicate a legally sufficient reason for assistance; or

    (B) The person who received assistance did not make an affidavit as required by this article; or

    (C) The person who received assistance is not so illiterate as to have been unable to read the names on the ballot or that he or she is not so physically disabled as to have been unable to see or mark the absent voter's ballot;

    (5) That the person who voted an absent voter's ballot by mail and received assistance in voting the ballot was not qualified under the provisions of this article for assistance; and

    (6) That the person has voted absentee by mail as a result of being out of the county more than four consecutive times. Provided, That The determination as to whether the person has voted more than four consecutive times does not apply if the person is a citizen residing out of the United States; a member, spouse or dependent of a member serving in the uniformed services; or a college student living outside of his or her home county.

    (b) Any One or more of the election commissioners or poll clerks in a precinct may challenge an absent voter's ballot on any of the following grounds:

    (1) That the application for an absent voter's ballot was not completed as required by law;

    (2) That any a statement or declaration contained in the application for an absent voter's ballot is not true;

    (3) That the person voting an absent voter's ballot is not registered to vote in the precinct of his or her residence as provided by law;

    (4) That the signatures of the person voting an absent voter's ballot as they appear on his or her registration record, his or her application for an absent voter's ballot and the absent voter's ballot envelope are not in the same handwriting;

    (5) That the person voting an absent voter's ballot by personal appearance had assistance in voting the ballot when the person was not qualified for assistance because:

    (A) The affidavit of the person who received assistance does not indicate a legally sufficient reason for assistance; or

    (B) The person who received assistance did not make an affidavit as required by this article; or

    (C) The person who received assistance is not so illiterate as to have been unable to read the names on the ballot or that he or she was not so physically disabled as to have been unable to see or mark the absent voter's ballot;

    (6) That the person voted an absent voter's ballot by mail and received assistance in voting the ballot when not qualified under the provisions of this article for assistance;

    (7) That the person who voted the absent voter's ballot voted in person at the polls on election day;

    (8) That the person voted an absent voter's ballot under authority of subdivision (3), subsection (b), (a), section one of this article and is or was present in the county in which he or she is registered to vote between the opening and closing of the polls on election day; and

    (9) On any other ground or for any reason on which or for which the ballot of a voter voting in person at the polls on election day may be challenged.

    No challenge may be made to any absent voter ballot if the voter was registered and qualified to vote pursuant to the provisions of subsection (a), section one of this article.

    (c) Forms for, and the manner of, challenging an absent voter's ballot under the provisions of this article are to be prescribed by the Secretary of State.

    (d) Absent voters' ballots challenged by the official designated to supervise and conduct absentee voting under the provisions of this article are to be transmitted by the official directly to the county commission sitting as a board of canvassers. The absent voters' ballots challenged by the election commissioners and poll clerks under the provisions of this article may not be counted by the election officials but are to be transmitted by them to the county commission sitting as a board of canvassers. Action by the board of canvassers on challenged absent voters' ballots is to be governed by the provisions of section forty-one, article one of this chapter.

§3-3-11. Preparation, number and handling of absent voters’ ballots.

    (a) Absent voters' ballots are to be in all respects like other ballots. Not less than seventy eighty-four days before the date on which any a primary, general or special election is to be held, unless a lesser number of days is provided in any a specific election law in which case the lesser number of days applies, the clerks of the county commissions of the several counties shall estimate and determine the number of absent voters' ballots of all kinds which will be required in their respective counties for that election. The ballots for the election of all officers, or the ratification, acceptance or rejection of any a measure, proposition or other public question to be voted on by the voters, are to be prepared and printed under the direction of the board of ballot commissioners constituted as provided in article one of this chapter. The several county boards of ballot commissioners shall prepare and have printed, in the number they may determine, absent voters' ballots that are to be printed under their directions as provided in this chapter. and those These ballots are to be delivered to the clerk of the county commission of the county not less than forty-six days before the day of the election at which they are to be used.

    (b) The official designated to supervise and conduct absentee voting shall be is responsible for the mailing, transmitting, receiving, delivering and otherwise handling of all absent voters' ballots. He or she shall keep a record within the statewide voter registration system, as may be prescribed by the Secretary of State, of all ballots delivered for the purpose of absentee voting, as well as all ballots, if any, marked before him or her. and The official shall deliver to the commissioner of election a certificate stating the number of ballots delivered, transmitted or mailed to absent voters and those marked before him or her, if any, and the names of the voters to whom those ballots have been delivered, transmitted or mailed or by whom they have been marked, if marked before him or her.

 

 

    NOTE: The purpose of this bill is to clean up and update existing code language concerning absentee and early in-person voting.

 

    §3-3-3b and §3-3-3c are new; it has been completely underscored.

 

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