H. B. 3324
(By Delegates Morgan, Craig,
Stephens and Reynolds)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §3-1-30 of the Code of West Virginia,
1931, as amended; and to amend and reenact §3-4A-28 of said
code, all relating to mandating that party executive
committees are to submit their list of nominees to serve as
election officials no later than the seventieth day before the
election, and to require that five percent of the precincts
ballots be manually counted only during any recount and not
during the canvass.
Be it enacted by the Legislature of West Virginia:
That §3-1-30 of the Code of West Virginia, 1931, as amended be
amended and reenacted; and that §3-4A-28 of said code be amended
and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-30. Nomination and appointment of election officials and
alternates; notice of appointment; appointment to fill vacancies in election boards.
(a) For any primary, general or special election held
throughout a county, poll clerks and election commissioners may be
nominated as follows:
(1) The county executive committee for each of the two major
political parties may, by a majority vote of the committee at a
duly called meeting, nominate one qualified person for each team of
poll clerks and one qualified person for each team of election
commissioners to be appointed for the election;
(2) The appointing body shall select one qualified person as
the additional election commissioner for each board of election
officials;
(3) Each county executive committee shall also nominate
qualified persons as alternates for at least ten percent of the
poll clerks and election commissioners to be appointed in the
county and is authorized to nominate as many qualified persons as
alternates as there are precincts in the county to be called upon
to serve in the event any of the persons originally appointed fail
to accept appointment or fail to appear for the required training
or for the preparation or execution of their duties;
(4) When an executive committee nominates qualified persons as
poll clerks, election commissioners or alternates, the committee,
or its chairman or secretary on its behalf, shall file in writing
with the appointing body, no later than the
fifty-sixth seventieth day before the election, a list of those persons nominated and the
positions for which they are designated.
(b) For any municipal primary, general or special election,
the poll clerks and election commissioners may be nominated as
follows:
(1) In municipalities which have municipal executive
committees for the two major political parties in the municipality,
each committee may nominate election officials in the manner
provided for the nomination of election officials by county
executive committees in subsection (a) of this section;
(2) In municipalities which do not have executive committees,
the governing body shall provide by ordinance for a method of
nominating election officials or shall nominate as many eligible
persons as are required, giving due consideration to any
recommendations made by voters of the municipality or by candidates
on the ballot.
(c) The governing body responsible for appointing election
officials is:
(1) The county commission for any primary, general or special
election ordered by the county commission and any joint county and
municipal election;
(2) The board of education for any special election ordered by
the board of education conducted apart from any other election;
(3) The municipal governing body for any primary, general or special municipal election ordered by the governing body.
(d) The qualifications for persons nominated to serve as
election officials may be confirmed prior to appointment by the
clerk of the county commission for any election ordered by the
county commission or for any joint county and municipal election
and by the official recorder of the municipality for a municipal
election.
(e) The appropriate governing body shall appoint the election
officials for each designated election board no later than the
forty-ninth day before the election as follows:
(1) Those eligible persons whose nominations for poll clerk
and election commissioner were timely filed by the executive
committees and those additional persons selected to serve as an
election commissioner are to be appointed;
(2) The governing body shall fill any positions for which no
nominations were filed.
(f) At the same time as the appointment of election officials
or at a subsequent meeting the governing body shall appoint persons
as alternates.
Provided, That However, no alternate may be
eligible for compensation for election training unless the
alternate is subsequently appointed as an election official or is
instructed to attend and actually attends training as an alternate
and is available to serve on election day. Alternates shall be
appointed and serve as follows:
(1) Those alternates nominated by the executive committees
shall be appointed;
(2) The governing body may appoint additional alternates who
may be called upon to fill vacancies after all alternates
designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons who
may be instructed to attend training as alternates.
(g) The clerk of the county commission shall appoint qualified
persons to fill all vacancies existing after all previously
appointed alternates have been assigned, have declined to serve or
have failed to attend training.
(h) Within seven days following appointment, the clerk of the
county commission shall notify, by first-class mail, all election
commissioners, poll clerks and alternates of the fact of their
appointment and include with the notice a response notice form for
the appointed person to return indicating whether or not he or she
agrees to serve in the specified capacity in the election.
(i) The position of any person notified of appointment who
fails to return the response notice or otherwise confirm to the
clerk of the county commission his or her agreement to serve within
fourteen days following the date of appointment is considered
vacant and the clerk shall proceed to fill the vacancies according
to the provisions of this section.
(j) If an appointed election official fails to appear at the
polling place by forty-five minutes past five o'clock a.m. on
election day, the election officials present shall contact the
office of the clerk of the county commission for assistance in
filling the vacancy. The clerk shall proceed as follows:
(1) The clerk may attempt to contact the person originally
appointed, may assign an alternate nominated by the same political
party as the person absent if one is available or, if no alternate
is available, may appoint another eligible person;
(2) If the election officials present are unable to contact
the clerk within a reasonable time, they shall diligently attempt
to fill the position with an eligible person of the same political
party as the party that nominated the person absent until a
qualified person has agreed to serve;
(3) If two teams of election officials, as defined in section
twenty-nine of this article, are present at the polling place, the
person appointed to fill a vacancy in the position of the
additional commissioner may be of either political party.
(k) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of the
county commission as provided in this section.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-28. Post-election custody and inspection of vote-recording devices and electronic poll books; canvass and
recounts.
(a) The vote-recording devices, electronic poll books,
tabulating programs and standard validation test ballots are to
remain sealed during the canvass of the returns of the election,
except that the equipment may be opened for the canvass and must be
resealed immediately thereafter. During the seven-day period after
the completion of the canvass, any candidate or the local chair of
a political party may be permitted to examine any of the sealed
materials.
Provided, That A notice of the time and place of the
examination shall be posted at the central counting center before
and on the hour of nine o'clock in the morning on the day the
examination is to occur and all persons entitled to be present at
the central counting center may, at their option, be present. Upon
completion of the canvass and after the seven-day period has
expired, the vote-recording devices, test results and standard
validation test ballots are to be sealed for one year.
Provided,
however, That However, the vote-recording devices, electronic poll
books, and all tabulating equipment may be released for use in any
other lawful election to be held more than ten days after the
canvass is completed and any of the electronic voting equipment or
electronic poll books discussed in this section may be released for
inspection or review by a request of a circuit court or the Supreme
Court of Appeals.
(b) In canvassing the returns of the election, the board of
canvassers shall examine, as required by subsection (d) of this
section, all of the vote-recording devices, electronic poll books,
the automatic tabulating equipment used in the election and those
voter-verified paper ballots generated by direct recording
electronic vote machines, shall determine the number of votes cast
for each candidate and for and against each question and, by this
examination, shall procure the correct returns and ascertain the
true results of the election. Any candidate or his or her party
representative may be present at the examination.
(c) If any qualified individual demands a recount of the votes
cast at an election, the voter-verified paper ballot shall be used
according to the same rules that are used in the original vote
count pursuant to section twenty-seven of this article. For
purposes of this subsection, "qualified individual" means a person
who is a candidate for office on the ballot or a voter affected by
an issue, other than an individual's candidacy, on the ballot.
(d) During
the canvass and any requested recount, at least
five percent of the precincts are to be chosen at random and the
voter-verified paper ballots are to be counted manually. Whenever
the vote total obtained from the manual count of the voter-verified
paper ballots for all votes cast in a randomly selected precinct:
(1) Differs by more than one percent from the automated vote
tabulation equipment; or
(2) Results in a different prevailing candidate or outcome,
either passage or defeat, of one or more ballot issues in the
randomly selected precincts for any contest or ballot issue, then
the discrepancies shall immediately be disclosed to the public and
all of the voter-verified paper ballots shall be manually counted.
In every case where there is a difference between the vote totals
obtained from the automated vote tabulation equipment and the
corresponding vote totals obtained from the manual count of the
voter-verified paper ballots, the manual count of the
voter-verified paper ballots is the vote of record.
NOTE: The purpose of this bill is to mandate that party
executive committees are to submit their list of nominees to serve
as election officials no later than the seventieth day before the
election, and to require that five percent of the precincts ballots
be manually counted only during any recount and not during the
canvass.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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