COMMITTEE SUBSTITUTE
FOR
H. B. 4492
(By Mr. Speaker, Mr. Kiss and Delegates Iaquinta,
Staton, Ennis, DeLong, H. White, Beane, Azinger,
Fragale, Wakim and Eldridge)
(Originating in the Committee on the Judiciary)
[February 27, 2006]
A BILL to amend and reenact §3-3-5 of the Code of West Virginia,
1931, as amended, relating to absentee voting by facsimile by
absent uniformed services and overseas voters; and authorizing
the Secretary of State to promulgate legislative rules and
emergency rules.
Be it enacted by the Legislature of West Virginia:
That §3-3-5 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of
the county, in person, by mail or by facsimile, if the official has
access to facsimile equipment, 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 is to be accepted when received by the official designated to
supervise and conduct absentee voting in person, by mail or by
facsimile, if the official has access to facsimile equipment,
within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year, or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official
designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail under the provisions of paragraph (A) or (B), subdivision (2),
subsection (b), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official
designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of
the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee
ballot will be challenged as provided in this article and shall
enter that challenge.
(e) 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 prescribed by the
Secretary of State:
(1) One of each type of official absentee ballot the voter is eligible to vote, prepared according to law;
(2) One envelope, unsealed, which may have no marks except the
designation "Absent Voter's Ballot Envelope No. 1" and printed
instructions to the voter;
(3) One postage paid envelope, unsealed, designated "Absent
Voter's Ballot Envelope No. 2";
(4) Instructions for voting absentee by mail;
(5) For electronic systems, one punching tool for perforating
or a device for marking by electronically sensible pen or ink, as
may be appropriate;
(6) If a punching tool is to be utilized, one disposable
styrofoam block to be placed behind the ballot card for voting
purposes and to be discarded after use by the voter; and
(7) Any other supplies required for voting in the particular
voting system.
(f) The voter shall mark the ballot alone:
Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article. After the voter has voted the ballot
or ballots, the voter shall:
(1) Place the ballot or ballots in envelope no. 1 and seal
that envelope;
(2) Place the sealed envelope no. 1 in envelope no. 2 and seal
that envelope;
(3) Complete and sign the forms on envelope no. 2; and
(4) Return that envelope to the official designated to
supervise and conduct absentee voting.
(g)(1) On or after the first day of July, two thousand-six,
absent uniformed services and overseas voters eligible to vote by an absentee ballot pursuant to the provisions of subdivision (3),
subsection (b), section one of this article, may return a voted
ballot and other required documents to the official designated by
rules promulgated by the Secretary of State to supervise and
conduct absentee voting by means of facsimile transmission, if
facsimile facilities are available.
(2) To return a voted ballot and other required documents by
facsimile, the eligible voter must have access to the technology to
scan and must transmit the documents directly to a facsimile device
by a telephone number assigned by the official designated by rules
promulgated by the Secretary of State to supervise and conduct
absentee voting for that purpose, by close of the polls on the day
of the election.
(3) The Secretary of State is hereby directed to propose
legislative rules and emergency rules implementing this subsection
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code.
(g) (h) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service
or by facsimile are to be accepted if:
(1) The ballot
or facsimile 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) (i) Absentee ballots received through the United States
mail
and by facsimile from persons eligible to vote an absentee
ballot under the provisions of subdivision (3), subsection (b),
section one of this article, relating to uniform services and
overseas voters, are to be accepted if the ballot is received by
the official designated to supervise and conduct absentee voting no
later than the hour at which the board of canvassers convenes to
begin the canvass.
(I) (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.
(j) (k) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election:
Provided, That no person may hand deliver
more than two absentee ballots in any election, and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(k) (l) Upon receipt of the sealed envelope
or facsimile, the
official designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope or facsimile any other required
information;
(2) Enter the challenge, if any, to the ballot
or facsimile;
(3) Enter the required information into the permanent record of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope
or facsimile 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.
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