Introduced Version
House Bill 3117 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3117
(By Delegate Manchin)
[Introduced
March 25, 2013
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §3-1-34 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §3-1-51; and to amend and reenact §17B-2-1
of said code, all relating to voter photo identification;
types of acceptable photo identification; authorization of the
execution of voter identity affidavits for qualified voters
without photo identification; procedure for the execution of
voter identity affidavit; recording voter identity affidavits;
authorizing the Secretary of State to propose for promulgation
necessary rules; procedures to verify the identity of voters
executing voter identity affidavit; providing for the issuance
of identification cards; and requiring the state to provide
the identification cards without charge to any qualified
voter.
Be it enacted by the Legislature of West Virginia:
That §3-1-34 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §3-1-51; and that §17B-2-1 of
said code be amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and
residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall sign his or her name in the designated location provided at
the precinct. If that person is physically or otherwise unable to
sign his or her name, his or her mark shall be affixed by one of
the poll clerks in the presence of the other and the name of the
poll clerk affixing the voter's mark shall be indicated immediately
under the affixation. No ballot may be given to the person until
he or she signs his or her name on the designated location or his
or her signature is affixed thereon.
(b) (1) One of the poll clerks shall request that the person
desiring to vote present a valid photo identification meeting the requirements of subdivision (2) of this subsection. If the person
desiring to vote does not have a valid photo identification, a poll
clerk shall inform the voter that he or she may execute a voter
identity affidavit.
_____(2) A valid photo identification shall show the name of the
individual to whom the identification was issued, and the name
shall substantially conform to the name in the individual's voter
registration record; it also shall show a photograph of the
individual to whom the identification was issued; and it shall also
have an expiration date that has not been exceeded by a period of
more than five years from the current date. The following forms of
identification bearing a photograph of the voter shall satisfy the
identification requirements of subdivision (1) of this subsection:
_____(A) A driver's license issued by the State of West Virginia or
any other state.
_____(B) An identification card issued by the Division of Motor
Vehicles pursuant to section one, article two, chapter seventeen-b
of this code or an identification card issued by any other state.
_____(C) A United States armed services identification card.
_____(D) A United States passport.
_____(E) Any other valid photo identification issued by federal,
state, county, or municipal government.
_____(F) A valid student identification card.
_____(G) A photo identification not authorized by paragraphs (A) through (F) but determined to be legitimate by the election
officials, provided that if any person authorized to challenge a
voter under section forty-one of this article objects to the use of
such photo identification, the voter shall be required to execute
a voter identity affidavit as if no identification was presented.
_____(3) If the person desiring to vote produces a photo
identification that is an out-of state driver's license or
nondriver's identification card, the poll clerk shall record the
state of issuance in accordance with uniform procedures developed
by the Secretary of State and the clerk of the county commission or
designee shall submit the information to the Secretary of State
within thirty days of the election.
_____(4) A person desiring to vote who does not have a valid photo
identification, shall receive an explanatory document prepared by
the Secretary of State explaining the proof of identity
requirements. If the person desiring to vote executes a voter
identity affidavit, the poll clerk shall document the execution of
the affidavit in accordance with uniform procedures developed by
the Secretary of State.
_____(A) The voter identity affidavit shall be in the following
form:
_____"State of West Virginia
_____County of .....................................
_____I do solemnly swear (or affirm) that my name is .................................................; that I reside
at.............................; and that I am the person listed in
the precinct pollbook under this name and at this address.
_____I understand that knowingly providing false information is a
violation of law and subjects me to fine of up to $1,000 and/or
confinement in jail for up to 1 year.
.................................
_____Signature of voter
_____Subscribed and affirmed before me this ........... day of
....................., 20....__________________________
................................
Name of Election Official
................................
Signature of Election Official".
_____(B) If the person desiring to vote executes a voter identity
affidavit, a poll clerk shall take a photograph of the voter and
immediately print and attach the photograph to, and thus make it a
part of, the affidavit form. The photograph shall be 2 inches by 2
inches, or larger, and be in color. The poll clerk who took the
photograph and the voter shall then sign the voter identity
affidavit. The poll clerk shall delete the photograph from the
camera in the presence of the voter. If the poll clerk is unable to
take the voter's photograph due to equipment failure or other cause
beyond the poll clerk's reasonable control, the voter may execute a voter identity affidavit without a photograph.
_____(C) If the voter objects to the photograph requirement because
of religious beliefs, he or she may execute an affidavit of
religious exemption that shall be in the following form:
_____"State of West Virginia
_____County of .....................................
_____I,........................, residing at
...................................., do hereby swear or affirm
that because of my religious beliefs, I object to having my
photograph taken and that I do not possess a form of identification
that meets the requirements of the election laws of this state
showing my photograph.
_____I understand that knowingly providing false information is a
violation of law and subjects me to fine of up to $1,000 and/or
confinement in jail for up to 1 year.
I hereby swear or affirm, under the penalties for providing
false information, that I am the identical person whom I represent
myself to be and that to the best of my knowledge and belief the
information above is true and correct.
...........................
Signature of voter
__________Subscribed and affirmed before me this ........... day of
....................., 20....__________________________
................................
Name of Election Official
................................
Signature of Election Official".
_____(D) The person entering voter information into the centralized
voter registration database shall cause the records to indicate
when a voter has not presented a valid photo identification and has
executed a voter identity affidavit.
_____(E) If a voter participating in the Address Confidentiality
Program established by section one hundred three, article twenty-
eight-a, chapter forty-eight of this code, executes a voter
identity affidavit, the program participant's residential or
mailing address is subject to the confidentiality provisions of
section one hundred eight article twenty-eight-a, chapter forty-
eight of this code and shall be used only for those statutory and
administrative purposes authorized by this section.
_____(5) The Secretary of State shall propose for promulgation in
accordance with article three, chapter twenty-nine-a of this code
emergency and legislative rules necessary to effectuate the
purposes of this subsection.
_____(b) (c) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person for a transfer of registration must be received by the county clerk
no later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of
registration at least thirty days prior to the date of the election
may vote a provisional ballot at a handicap accessible polling
place in the county of his or her registration. If during the
canvass the county commission determines that the person had been
registered in a precinct that is not handicap accessible, the voted
ballot, if otherwise valid, shall be counted. The handicapped
person may vote in the precinct to which the registration was
transferred only as long as the disability exists or the precinct
from which the handicapped person was transferred remains
inaccessible to the handicapped. To ensure confidentiality of the
transferred ballot, the county clerk processing the ballot shall
provide the voter with an unmarked envelope and an outer envelope
designated "provisional ballot/handicapped voter". After
validation of the ballot at the canvass, the outer envelope shall
be destroyed and the handicapped voter's ballot shall be placed
with other approved provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) (d) When the voter's signature is properly marked, and
having presented a valid photo identification verifying the voter's
identify or executed a voter identity affidavit, the two poll
clerks shall sign their names in the places indicated on the back of the official ballot and deliver the ballot to the voter to be
voted by him or her without leaving the election room. If he or
she returns the ballot spoiled to the clerks, they shall
immediately mark the ballot "spoiled" and it shall be preserved and
placed in a spoiled ballot envelope together with other spoiled
ballots to be delivered to the board of canvassers and deliver to
the voter another official ballot, signed by the clerks on the
reverse side. The voter shall thereupon retire alone to the booth
or compartment prepared within the election room for voting
purposes and there prepare his or her ballot. In voting for
candidates in general and special elections, the voter shall comply
with the rules and procedures prescribed in section five, article
six of this chapter.
(d) (e) It is the duty of a poll clerk, in the presence of the
other poll clerk, to indicate by a check mark, or by other means,
inserted in the appropriate place on the registration record of
each voter the fact that the voter voted in the election. In
primary elections the clerk shall also insert thereon a
distinguishing initial or initials of the political party for whose
candidates the voter voted. If a person is challenged at the
polls, the challenge shall be indicated by the poll clerks on the
registration record, together with the name of the challenger. The
subsequent removal of the challenge shall be recorded on the
registration record by the clerk of the county commission.
(e) (f) (1) No voter may receive any assistance in voting
unless, by reason of blindness, disability, advanced age or
inability to read and write, that voter is unable to vote without
assistance. Any voter qualified to receive assistance in voting
under the provisions of this section may:
(A) Declare his or her choice of candidates to an Election
Commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request,
shall read to the voter the names of the candidates selected on the
ballot;
(B) Require the Election Commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner
hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter
is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct by the absentee balloting
method provided in subsection (e), section five, article three of this chapter in the presence of an Election Commissioner of each
political party if all of the following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
(2) The voted ballot shall then be returned to the precinct
officials and secured in a sealed envelope to be returned to the
clerk of the county commission with all other election materials.
The ballot shall then be tabulated using the appropriate method
provided in section eight of this chapter as it relates to the
specific voting system in use.
(3) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(4) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that
the voter thereof received assistance in voting it when in his, her
or their opinion the person who received assistance in voting is
not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The Election
Commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the form and in the manner prescribed or authorized by article three of
this chapter.
(5) An Election Commissioner or other person who assists a
voter in voting:
(A) May not in any manner request or seek to persuade or
induce the voter to vote any particular ticket or for any
particular candidate or for or against any public question and must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must not, directly or
indirectly, reveal to any person the name of any candidate voted
for by the voter or which ticket he or she had voted or how he or
she had voted on any public question or anything occurring within
the voting booth or compartment or voting machine booth except when
required pursuant to law to give testimony as to the matter in a
judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the Secretary of State stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation: Provided, That no person providing
assistance to a voter is required to sign an oath or affirmation where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(6) In accordance with instructions issued by the Secretary of
State, the clerk of the county commission shall provide a form
entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the Secretary of State. The
commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) (g) After preparing the ballot, the voter shall fold the
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall announce his or her
name and present his or her ballot to one of the commissioners who
shall hand the same to another commissioner, of a different
political party, who shall deposit it in the ballot box if the
ballot is the official one and properly signed. The commissioner
of election may inspect every ballot before it is deposited in the ballot box to ascertain whether it is single, but without unfolding
or unrolling it so as to disclose its content. When the voter has
voted, he or she shall retire immediately from the election room
and beyond the sixty-foot limit thereof and may not return except
by permission of the commissioners.
(g) (h) Following the election, the oaths or affirmations
required by this section from those assisting voters, together with
the "list of assisted voters", shall be returned by the Election
Commissioners to the clerk of the county commission along with the
election supplies, records and returns. The clerk of the county
commission shall make the oaths, affirmations and list available
for public inspection and shall preserve them for a period of
twenty-two months or until disposition is authorized or directed by
the Secretary of State or court of record: Provided, That the
clerk may use these records to update the voter registration
records in accordance with subsection (d), section eighteen,
article two of this chapter.
(h) (i) Any person making an oath or affirmation required
under the provisions of this section who knowingly swears falsely
or any person who counsels, advises, aids or abets another in the
commission of false swearing under this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $1,000 or confined in jail for a period of not more than one
year, or both fined and confined.
(i) (j) Any Election Commissioner or poll clerk who authorizes
or provides unchallenged assistance to a voter when the voter is
known to the Election Commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than $5,000 or imprisoned in a
state correctional facility for a period of not less than one year
nor more than five years, or both fined and imprisoned.
§3-1-51. Identity Verification of Voters Executing a Voter Identity
Affidavit.
__(a) The clerk of the county commission shall cause a letter of
identity verification to be mailed by first class mail to each
voter who executed a voter identity affidavit pursuant to section
thirty-four of this article. The letter shall be mailed within
sixty days after the election. The clerk shall mark the envelope
with instructions to the United States Post Office not to forward
the letter and to provide address correction information. The
letter shall notify the addressee that a person who did not present
valid photo identification voted using his or her name and address
and instruct the addressee to contact the clerk immediately if he
or she did not vote. The letter shall also inform the addressee of
the procedure for obtaining a nondriver's picture identification
card for voting purposes.
__(b) The clerk of the county commission shall cause letters
mailed pursuant to subsection (a) that are returned as undeliverable by the United States Post Office to be referred to
the Secretary of State. The clerk shall also prepare and forward to
the Secretary of State a list of all persons who were mailed
letters under subsection (a) and who notified the clerk that they
did not vote. Upon receipt of notice from a person who receives a
letter of identity verification that the person did not vote, or
upon receipt of a referral from the clerk, the Secretary of State
shall cause an investigation to be made to determine whether
fraudulent voting occurred.
__(c) Within sixty days after a general election, the Secretary
of State shall compile a report of the number of voters that did
not present valid photo identification at each election occurring
since the previous state general election, and forward the report
to the Speaker of the House of Delegates,and the President of the
Senate.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-1. Drivers must be licensed; types of licenses; licensees
need not obtain local government license; motorcycle
driver license; identification cards.
(a)(1) No person, except those hereinafter expressly exempted,
may drive any motor vehicle upon a street or highway in this state
or upon any subdivision street used by the public generally unless the person has a valid driver's license issued pursuant to this
code for the type or class of vehicle being driven.
(2) Any person licensed to operate a motor vehicle pursuant to
this code may exercise the privilege thereby granted in the manner
provided in this code and, except as otherwise provided by law, is
not required to obtain any other license to exercise the privilege
by any county, municipality or local board or body having authority
to adopt local police regulations.
(b) The division, upon issuing a driver's license, shall
indicate on the license the type or general class or classes of
vehicles the licensee may operate in accordance with this code,
federal law or rule. Licenses shall be issued in different colors
for those drivers under age eighteen, those drivers age eighteen to
twenty-one and adult drivers. The commissioner is authorized to
select and assign colors to the licenses of the various age groups.
(c) The following drivers licenses classifications are hereby
established:
(1) A Class A, B or C license shall be issued to those persons
eighteen years of age or older with two years of driving experience
who have qualified for the commercial driver's license established
by chapter seventeen-e of this code and the federal Motor Carrier
Safety and Improvement Act of 1999 and subsequent rules, and have
paid the required fee.
(2) A Class D license shall be issued to those persons eighteen years and older with one year of driving experience who
operate motor vehicles other than those types of vehicles which
require the operator to be licensed under the provisions of chapter
seventeen-e of this code and federal law and rule and whose primary
function or employment is the transportation of persons or property
for compensation or wages and have paid the required fee. For the
purpose of regulating the operation of motor vehicles, wherever the
term "chauffeur's license" is used in this code, it shall be
construed to mean the Class A, B, C or D license described in this
section or chapter seventeen-e of this code or federal law or rule:
Provided, That anyone not required to be licensed under the
provisions of chapter seventeen-e of this code and federal law or
rule and who operates a motor vehicle registered or required to be
registered as a Class A motor vehicle, as that term is defined in
section one, article ten, chapter seventeen-a of this code, with a
gross vehicle weight rating of less than eight thousand one pounds,
is not required to obtain a Class D license.
(3) A Class E license shall be issued to those persons who
have qualified for a driver's license under the provisions of this
chapter and who are not required to obtain a Class A, B, C or D
license and who have paid the required fee. The Class E license
may be endorsed under the provisions of section seven-b of this
article for motorcycle operation. The Class E or (G) license for
any person under the age of eighteen may also be endorsed with the appropriate graduated driver license level in accordance with the
provisions of section three-a of this article.
(4) A Class F license shall be issued to those persons who
successfully complete the motorcycle examination procedure provided
by this chapter and have paid the required fee, but who do not
possess a Class A, B, C, D or E driver's license.
(5) A Class G driver's license or instruction permit shall be
issued to a person using bioptic telescopic lenses who has
successfully completed an approved driver training program and
complied with all other requirements of article two-b of this
chapter.
(d) All licenses issued under this section may contain
information designating the licensee as a diabetic, organ donor, as
deaf or hard-of-hearing, or as having any other handicap or
disability, or that the licensee is an honorably discharged veteran
of any branch of the Armed Forces of the United States according to
criteria established by the division, if the licensee requests this
information on the license. An honorably discharged veteran may be
issued a replacement license without charge if the request is made
before the expiration date of the current license and the only
purpose for receiving the replacement license is to get the
veterans designation placed on the license.
(e) No person, except those hereinafter expressly exempted,
may drive any motorcycle upon a street or highway in this state or upon any subdivision street used by the public generally unless the
person has a valid motorcycle license, a valid license which has
been endorsed under section seven-b of this article for motorcycle
operation or a valid motorcycle instruction permit.
(f) (1) An identification card may be issued to any person
who:
(A) Is a resident of this state in accordance with the
provisions of section one-a, article three, chapter seventeen-a of
this code;
(B) Has reached the age of two years. The division may also
issue an identification card to a person under the age of two years
for good cause shown;
(C) Has paid the required fee of two dollars and fifty cents
per year: Provided, That the fee is not required no fees or
charges, including renewal fees, are required if the applicant is
(i) Sixty-five years or older; or
(ii) Is legally blind; or
(iii) Will be at least eighteen years of age at the next
general, municipal, or special election and intends to use this
identification card as a form of identification for voting; and
(D) Presents a birth certificate or other proof of age and
identity acceptable to the division with a completed application on
a form furnished by the division.
(2) The identification card shall contain the same information as a driver's license except that the identification card shall be
clearly marked as an identification card. The division may issue
an identification card with less information to persons under the
age of sixteen. An identification card may be renewed annually on
application and payment of the fee required by this section.
(A) Every identification card issued to a person who has
attained his or her twenty-first birthday expires on the licensee's
birthday in those years in which the licensee's age is evenly
divisible by five. Except as provided in paragraph (B) of this
subdivision, no identification card may be issued for less than
three years or for more than seven years and expires on the
licensee's birthday in those years in which the licensee's age is
evenly divisible by five.
(B) Every identification card issued to a person who has not
attained his or her twenty-first birthday expires thirty days after
the licensee's twenty-first birthday.
(C) Every identification card issued to persons under the age
of sixteen shall be issued for a period of two years and shall
expire on the last day of the month in which the applicant's
birthday occurs.
(3) The division may issue an identification card to an
applicant whose privilege to operate a motor vehicle has been
refused, canceled, suspended or revoked under the provisions of
this code.
(g) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction, shall be fined not
more than $500 ; and upon a second or subsequent conviction, shall
be fined not more than $500 or confined in jail not more than six
months, or both fined and confined.
NOTE: The purpose of this bill is to require voters to
provide a photo identification when voting, to provide for the
execution of an affidavit by voters without photo identification.
The bill also provides for complimentary photo identification cards
to be issued to any voter who requests one.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.