Senate Bill No. 112
(By Senator Deem)
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[Introduced February 24, 1997; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section thirty-one, article two,
chapter three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact sections four, thirteen and fifteen, article five of
said chapter, all relating to registration of voters;
primary elections; and permitting voters to vote for the
election of a candidate of any political party in a primary
election.
Be it enacted by the Legislature of West Virginia:
That section thirty-one, article two, chapter three of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections four,
thirteen and fifteen, article five of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-31. Rules pertaining to voting after registration or change
of address within the county.
(a) A voter who designates a political affiliation with a
major party on a registration application filed at least thirty
days before the primary may vote the ballot of that political
party in the primary election. Political parties, through the
official action of their state executive committees, shall be
permitted to determine whether unaffiliated voters or voters of
other parties shall be allowed to vote that party's primary
election ballot upon request. for the election of a candidate of
any political party participating in the primary election but may
not be permitted to vote for the candidates of more than one
political party on more than one ballot. He or she is entitled
to vote on any nonpartisan ballot for candidates or on public
questions submitted to the voters at the primary election.
(b) A voter whose registration record lists one residence
address but the voter has since moved to another residence
address within the precinct shall be permitted to update the
registration at the polling place and vote without challenge for
that reason.
(c) A voter whose registration record lists one residence
address but the voter has since moved to another residence
address in a different precinct in the same county shall be
permitted to update the registration at the polling place serving the new precinct and shall be permitted to vote a challenged or
provisional ballot at the new polling place. If the voter's
registration is found on the registration records within the
county during the canvass and no other challenge of eligibility
was entered on election day, the challenge shall be removed and
the ballot shall be counted.
(d) A voter whose registration record has been placed on an
inactive status or transferred to an inactive file and who has
not responded to a confirmation notice sent pursuant to the
provisions of section twenty-four, twenty-five or twenty-six of
this article and who offers to vote at the polling place where
he or she is registered to vote shall be required to affirm his
or her present residence address under penalty of perjury, as
provided in section thirty-six of this article.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
At each primary election, the candidate or candidates of each
political party for all offices to be filled at the ensuing
general election by the voters of the entire state, of each
congressional district, of each state senatorial district, of
each delegate district, of each judicial circuit of West
Virginia, of each county and of each magisterial district in the
state shall be nominated by the voters of the different political
parties, except that no presidential elector shall be nominated at a primary election.
In primary elections a plurality of the votes cast shall be
sufficient for the nomination of candidates for office. Where
only one candidate of a political party for any office in a
political division, including party committeemen and delegates to
national conventions, is to be chosen, or where a judicial
circuit has two or more circuit judges and one circuit judge is
to be chosen for each numbered division within the circuit, the
candidate receiving the highest number of votes therefor in the
primary election shall be declared the party nominee for such the
office. Where two or more such candidates are to be chosen in
the primary election, the candidates constituting the proper
number to be so chosen who shall receive the highest number of
votes cast in the political division in which they are candidates
shall be declared the party nominees and choices for such
offices, except that: (1) Candidates for the office of
commissioner of the county commission shall be nominated and
elected in accordance with the provisions of section ten, article
nine IX of the constitution of the state of West Virginia; (2)
members of county boards of education shall be elected at primary
elections in accordance with the provisions of sections five and
six of this article; (3) candidates for the House of Delegates
shall be nominated and elected in accordance with the residence
restrictions provided in section two, article two, chapter one of this code; and (4) in judicial circuits having numbered
divisions, each numbered division shall be tallied separately and
the candidate in each division receiving a plurality of the votes
cast shall be declared the party nominee for the office in that
numbered division.
In case of tie votes between candidates for party nominations
or elections in primary elections, the choice of the political
party shall be determined by the executive committee of the party
for the political division in which such these persons are
candidates.
§3-5-13. Form and contents of ballots and ballot labels.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election,
except that there shall be printed in bold type at the top of
every primary election ballot: "You May Vote for the Election of
a Candidate of Any Political Party Participating in the Primary
Election But You May Not Vote for Candidates of More Than One
Political Party."
(a) The heading of every ballot shall be printed in display
type. The heading shall contain a ballot title, the name of the
county, the state, the words "Primary Election" and the month,
day and year of the election. The ballot title of the political
party ballots shall contain the words "Official Ballot of the
(Name) Party" and the official symbol of the political party may be included in the heading. The ballot title of any separate
paper ballot or portion of any electronic or voting machine
ballot for the board of education shall contain the words
"Nonpartisan Ballot of Election of Members of the ______________
County Board of Education". The districts for which less than
two candidates may be elected and the number of available seats
shall be specified and the names of the candidates shall be
printed without reference to political party affiliation, and
without designation as to a particular term of office. Any other
ballot or portion of a ballot on a question shall have a heading
which clearly states the purpose of the election, according to
the statutory requirements for that question.
(b) (1) For paper ballots, the heading of the ballot shall
be separated from the rest of the ballot by heavy lines, and the
offices shall be arranged in columns with the following headings,
from left to right across the ballot: "National Ticket", "State
Ticket", "County Ticket", and, in a presidential election year,
"National Convention", or, in a nonpresidential election year
"District Ticket". The columns shall be separated by heavy
lines. Within the columns, the offices shall be arranged in the
order prescribed in section thirteen-a of this article.
(2) For voting machines, electronic voting devices, and any
ballot tabulated by electronic means, the offices shall appear in
the same sequence as prescribed in section thirteen-a, and under the same headings as prescribed in subsection (a) of this
section. The number of pages, columns or rows, where applicable,
may be modified to meet the limitations of ballot size and
composition requirements, subject to approval by the secretary of
state.
(3) The title of each office shall be separated from
preceding offices or candidates by a line, and shall be printed
in bold type, no smaller than eight point. Below the office
shall be printed the number of the district, if any, the number
of the division, if any, and the words "Vote for ________" with
the number to be nominated or elected or "Vote For Not More Than
________" in multicandidate elections. For offices in which
there are limitations relating to the number of candidates which
may be nominated, elected or appointed to or hold office at one
time from a political subdivision within the district or county
in which they are elected, there shall be a clear explanation of
such the limitation, as prescribed by the secretary of state,
printed in bold type immediately preceding the names of the
candidates for those offices on the ballot in every voting
system.
(c) The location for indicating the voter's choices on the
ballot shall be clearly shown. For paper ballots, other than
those tabulated electronically, the official primary ballot shall
contain a square formed in dark lines at the left of each name on the ballot, arranged in a perpendicular column of squares before
each column of names.
(d) (1) The name of every candidate certified by the
secretary of state or the board of ballot commissioners shall be
printed in capital letters in no smaller than eight point type on
the ballot for the appropriate precincts. Subject to the rules
promulgated by the secretary of state, the name of each candidate
shall appear in the form set out by the candidate on the
certificate of announcement, but in no case shall the name
misrepresent the identity of the candidate, nor shall the name
include any title, position, rank, degree or nickname implying or
inferring any status as a member of a class or group or
affiliation with any system of belief.
(2) The city of residence of every candidate, the state of
residence of every candidate residing outside the state, the
county of residence of every candidate for an office on the
ballot in more than one county, and the magisterial district of
residence of every candidate for an office subject to magisterial
district limitations, shall be printed in lower case letters
beneath the names of the candidates.
(3) The arrangement of names within each office shall be
determined as prescribed in section thirteen-a of this article.
(4) If the number of candidates for an office exceeds the
space available on a column or ballot label page and requires that candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate
columns or pages shall be nearly equal, and clear instructions
given the voter that the candidates for the office are continued
on the following column or page.
(e) When an insufficient number of candidates has filed for
a party to make the number of nominations allowed for the office,
or for the voters to elect sufficient members to the board of
education or to executive committees, the vacant positions on the
ballot shall be filled with the words "No Candidate Filed":
Provided, That in paper ballot systems which allow for write-ins
to be made directly on the ballot, a blank line shall be placed
in any vacant position in the office of board of education or for
election to any party executive committee. A line shall separate
each candidate from every other candidate for the same office.
(f) In presidential election years, the words "For election
in accordance with the plan adopted by the party and filed with
the secretary of state" shall be printed following the names of
all candidates for delegate to national convention.
(g) All paper ballots shall be printed in black ink on paper
sufficiently thick so that the printing or marking cannot be
discernible from the back. Ballot cards and paper for printing
ballots using electronically sensible ink shall meet minimum
requirements of the tabulating systems.
(h) Electronically tabulated ballots and ballot cards shall
contain perforated tabs at the top of the ballots and shall be
printed with unique sequential numbers from one to the highest
number representing the total number of ballots or ballot cards
printed. On paper ballots, the ballot shall be bordered by a
solid line at least one sixteenth of an inch wide, and the ballot
shall be trimmed to within one-half inch of that border.
(i) On the back of every official ballot or ballot card,
there shall be printed the words "Official Ballot" with the name
of the county and the date of the election. Beneath shall be two
blank lines, followed by the words "Poll Clerks".
(j) Absent voters' ballots shall be in all respects like
other official ballots, except that three blank lines shall be
printed on the back of the ballot or ballot card in the lower
left corner with the words "Ballot Commissioners" printed
underneath.
(k) The face of sample paper ballots and sample ballot labels
shall be like other official ballots or ballot labels, except
that the word "sample" shall be prominently printed across the
front of the ballot in such a way that the names of candidates
are not obscured, and the word "sample" may be printed in red
ink. No printing shall be placed on the back of the sample.
§3-5-15. Ascertaining and certifying primary election results.
When the polls are closed in an election precinct where only a single election board has served, the receiving board shall
perform all of the duties prescribed in this section. When the
polls are closed in an election precinct where two election
boards have served, both the receiving and counting boards shall
together conclude the counting of the votes cast, the tabulating
and summarizing of the number of the votes cast, unite in
certifying and attesting to the returns of the election, and join
in making out the certificates of the result of the election
provided for in this article. They shall may not adjourn until
the work is completed.
In all election precincts, as soon as the polls are closed
and the last voter has voted, the receiving board shall first
process the absentee ballots according to the provisions of
section eight, article three of this chapter. After the absentee
ballots to be counted have been deposited in the ballot box, the
election officers shall proceed to ascertain the result of the
election in the following manner:
(a) The receiving board shall ascertain from the poll books
and record separately on the proper form the total number of
voters of each party and nonpartisan voters who have voted.
(1) The number of challenged ballots of each party shall be
counted and subtracted from the number of voters of the same
party, which result should equal the number of ballots of that
party deposited in the ballot box.
(2)(1) The total of all voters, including both partisan and
nonpartisan voters, minus the total of all challenged ballots,
should equal the number of nonpartisan ballots deposited in the
ballot box.
(3)(2) The commissioners and clerks shall also report, over
their signatures, the number of each type of ballots spoiled and
the number of each type of ballots not voted.
(b) The procedure for counting ballots, whether performed
throughout the day by the counting board, as provided in section
thirty-three, article one of this chapter, or after the close of
the polls by the receiving board or by the two boards together,
shall be as follows:
(1) The ballot box shall be opened and all votes shall be
tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the
box at a time and shall determine if the ballot is properly
signed by the two poll clerks of the receiving board. If not
properly signed, the ballot shall be placed in an envelope for
the purpose, without unfolding it. If properly signed, the
commissioner shall announce which type of ballot it is, and hand
the ballot to a team of commissioners of opposite politics, who
shall together read the votes marked on the ballot for each
office. Write-in votes for nomination for any office and write- in votes for election for any person other than an official write-in candidate shall be disregarded;
(3) The commissioner responsible for removing the ballots
from the box shall keep a tally of the number of ballots of
containing votes for each party and any nonpartisan ballot as
they are removed; and whenever the number of ballots of a
particular party shall equal the number of voters entered on the
poll book for that party minus the number of challenged ballots
of that party, as determined according to subsection (a) of this
section, any other ballot found in the ballot box shall be placed
in the same envelope with unsigned ballots not counted, without
unfolding the same, or allowing anyone to examine or know the
contents thereof, and the number of excess ballots of each party
shall be recorded on the envelope;
(4) Each poll clerk shall keep an accurate tally of the
votes cast by marking in ink on tally sheets, which shall be
provided for the purpose, so as to show the number of votes
received by each candidate for each office;
(5) When the votes have been read from a ballot, the ballot
shall be immediately strung on a thread, with separate threads
for each party's ballots containing votes for each party and for
nonpartisan ballots.
(c) As soon as the results at the precinct are ascertained,
the commissioners and clerks shall make out and sign four
certificates of result, for each party represented, of the vote for all candidates of each party represented, on a form
prescribed by the secretary of state, giving the complete returns
of the election at the polling place, which form shall include
the following oath:
"We, the undersigned commissioners and poll clerks of the
primary election held at precinct No. ....................... of
........... district of ................... County, W.Va., on the
.......... day of ..............., 19...., do hereby certify that
having been first duly sworn, we have carefully and impartially
ascertained the result of said election at said precinct for the
candidates on the official ballot of the .......................
party, and the same is as follows:"
The election officers shall enter the name of each office
and the full name of each candidate on the ballot, and the number
of votes, in words and numbers, received by each. The election
officers shall also enter the full name of every official
write-in candidate for election to offices to be filled in the
primary, except delegate to national convention, and the number
of votes for each. Three of such the certificates of result of
election, for each party, shall then be sealed in separately
addressed envelopes, furnished for the purpose, and shall be
disposed of by the precinct commissioners as follows: One of the
sealed envelopes containing the returns of each party shall be
delivered to the clerk of the circuit court and two shall be delivered to the clerk of the county commission, who shall within
forty-eight hours mail one of the sealed returns for each
precinct by certified mail to the secretary of state. The one
not sealed up shall be posted on the outside of the front door of
the polling place.
(d) All ballots voted for candidates of each party shall be
sealed up in separate envelopes and the commissioners and clerks
shall each sign across the seal.
NOTE: The purpose of this bill is to permit voters to vote
for the election of a candidate of any political party in a
primary election. The bill provides that the voter may not vote
for candidate of more than one party.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.