COMMITTEE SUBSTITUTE
FOR
H. B. 2647
(By Delegates Kuhn and Hutchins)
[Originating in the Committee on the Judiciary]
[April 2, 1997]
A BILL to amend and reenact section nine, article six, chapter
three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to county
commissioners canvassing primary and general election
returns; county commissioners who are candidates in primary
or general elections may not serve on the board of
canvassers or otherwise participate in the canvassing of
returns from that election; appointing the recorder of the
city council of the largest incorporated municipality in a
county to assume the commissioner's canvassing duties; and
penalties for violation.
Be it enacted by the Legislature of West Virginia:
That section nine, article six, chapter three of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-9. Canvass of returns; declaration of results; recounts;
recordkeeping.
The commissioners of the county commission shall be ex officio
a board of canvassers and, as such, shall keep in a well-bound
book, marked "election record," a complete record of all their
proceedings in ascertaining and declaring the results of every
election in their respective counties. They shall convene as the
canvassing board at the courthouse on the fifth day (Sundays
excepted) after every election held in their county, or in any
district thereof and the officers in whose custody the ballots,
pollbooks, registration records, tally sheets and certificates
have been placed shall lay them before the board for examination.
They may, if considered necessary, require the attendance of any
of the commissioners, poll clerks or other persons present at the
election, to appear and testify respecting the same, and make
such any other orders as shall seem proper, to procure correct
returns and ascertain the true results of the election in their
county; but in this case all the questions to the witnesses and
all the answers thereto, and evidence, shall be taken down in
writing and filed and preserved. All orders made shall be
entered upon the record. They may adjourn from time to time, but
no longer than absolutely necessary and, when a majority of the
commissioners are not present, their meeting shall stand
adjourned until the next day, and so from day to day, until a
quorum is present. All meetings of the commissioners sitting as
a board of canvassers shall be open to the public. The board
shall proceed to open each sealed package of ballots so laid before them and, without unfolding them, count the number in each
package and enter the number upon their record. The ballots
shall then be again sealed up carefully in a new envelope, and
each member of the board shall write his or her name across the
place where the envelope is sealed. After canvassing the returns
of the election, the board shall publicly declare the results of
the election; however, they shall may not enter an order
certifying the election results for a period of forty-eight hours
after the declaration.
(a) Within the forty-eight-hour period a candidate voted for
at the election may demand the board to open and examine any of
the sealed packages of ballots, and recount them; but in such
case they shall seal the ballots again, along with the envelope
above named, and the clerk of the county commission and each
member of the board shall write his or her name across the places
where it is sealed, and endorse in ink, on the outside: "Ballots
of the election held at precinct No.____, in the district of
______________, and county of ______________, on the ____________
day of _____________." In computing the forty-eight-hour
period as used in this section, Saturdays, Sundays and legal
holidays shall be excluded: Provided, That at the end of the
forty-eight-hour period, an order shall be entered certifying all
election results except for those offices in which a recount has
been demanded.
(b) If a recount has been demanded, the board shall have an
additional twenty-four hours after the end of the
forty-eight-hour period, in which to send notice to all candidates who filed for the office in which a recount has been
demanded, of the date, time and place where the board will
convene to commence the recount. The notice shall be served
under the provisions of subdivision (c) of this section. The
recount shall be set for no sooner than three days after the
serving of the notice: Provided, That after the notice is
served, candidates so served shall have an additional twenty-four
hours in which to notify the board, in writing, of their
intention to preserve their right to demand a recount of
precincts not requested to be recounted by the candidate
originally requesting a recount of ballots cast: Provided,
however, That there shall be only one recount of each precinct,
regardless of the number of requests for a recount of any
precinct. A demand for the recount of ballots cast at any
precinct may be made during the recount proceedings only by the
candidate originally requesting the recount and those candidates
who notify the board, pursuant to this subdivision, of their
intention to preserve their right to demand a recount of
additional precincts.
(c) Any sheriff of the county in which the recount is to occur
shall deliver a copy thereof in writing to the candidate in
person; or if the candidate is not found, by delivering the copy
at the usual place of abode of the candidate, and giving
information of its purport, to the spouse of the candidate or any
other person found there who is a member of his or her family and
above the age of sixteen years; or if neither the spouse of the
candidate nor any other person be found there, and the candidate is not found, by leaving the copy posted at the front door of the
place of abode. Any sheriff, thereto required, shall serve a
notice within his or her county and make return of the manner and
time of service; for a failure so to do, he shall forfeit twenty
dollars. The return shall be evidence of the manner and time of
service.
(d) Every candidate who demands a recount shall be required to
furnish bond in a reasonable amount with good sufficient surety
to guarantee payment of the costs and the expenses of such any
recount in the event the result of the election is not changed by
the recount; but the amount of the bond shall in no case exceed
three hundred dollars.
When they have made their certificates and declared the
results as hereinafter provided, they shall deposit the sealed
packages of ballots, absent voter ballots, registration records,
pollbooks, tally sheets and precinct certificates with the clerks
of the county commissions and circuit courts from whom they were
received, who shall carefully preserve them for twenty-two
months, and if there is no contest pending as to any election,
and their further preservation is not required by any order of a
court, the ballots, pollbooks, tally sheets and certificates
shall be destroyed by fire or otherwise, without opening the
sealed packages of ballots; and if there is a contest pending,
then they shall be so destroyed as soon as the contest is ended.
If the result of the election is not changed by the recount,
the costs and expenses thereof shall be paid by the party at
whose instance the recount was made.
(e) Notwithstanding any provision in this chapter to the
contrary, a county commissioner who is a candidate in a primary
or general election may not serve on the board of canvassers or
otherwise participate in the canvassing of returns from that
election. When a county commissioner is prohibited from serving
on the board of canvassers or otherwise participating in the
canvassing of returns pursuant to this subsection, the recorder
of the city council of the largest incorporated municipality in
the county shall assume the county commissioner's canvassing
duties. A county commissioner violating the provisions of this
subsection is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one thousand dollars nor
more than two thousand dollars, or confined in the county or
regional jail not more than sixty days, or both fined and
imprisoned.
NOTE: The purpose of this bill is to prohibit county
commissioners who are candidates in a general or primary election
from serving on the board of canvassers or otherwise
participating in the canvassing of returns from that election.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.