Senate Bill No. 139
(By Senator Bailey)
[Introduced January 13, 2003; referred to the Committee on the
A BILL to repeal articles four and four-a, chapter three of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to amend and reenact section four, article one of
said chapter; and to amend and reenact sections two and five,
article six of said chapter, all relating to abolishing the
use of voting machines and electronic voting systems during
primary and general elections in this state; and requiring
voting by paper ballots.
Be it enacted by the Legislature of West Virginia:
That articles four and four-a, chapter three of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that section four, article one of said chapter be
amended and reenacted; and that sections two and five, article six
of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-4. Manner of voting.
In all elections the mode of voting shall be by ballot, but the voter shall be left free to vote by either open, sealed, or
secret ballot, as he or she may elect. Voting by ballot may be
accomplished as provided in articles three,
four, five and six of
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-2. Preparation and form of general election ballots.
(a) All ballots prepared under the provisions of this section
are to contain:
(1) The name and ticket of each party which is a political
party under the provisions of section eight, article one of this
(2) The name chosen as the party name by each group of
citizens which has secured nomination for two or more candidates by
petition under the provisions of section twenty-three of this
(3) The names of every candidate for any office to be voted
for at the election whose nomination in the primary election,
nomination by petition or nomination by appointment to fill a
vacancy on the ballot has been certified and filed according to law
and no others.
(b) The provisions of subdivision (3), subsection (b);
subsection (c); subdivisions (1) and (2), subsection (d); and
subsections (g), (h), (i), (j) and (k), section thirteen of article
five pertaining to the preparation and form of primary election
ballots shall likewise apply to general election ballots.
(c) (1) For all ballot systems, the ballot heading is to be in display type and contain the words "Official Ballot, General
Election" and the name of the county and the month, day and year of
(2) After the heading, each ballot is to contain, laid out in
parallel columns, rows or pages as required by the particular
voting system, the party emblem, the position for straight party
voting for each party and the name of each party as prescribed in
subsection (a) of this section. On paper ballots, the position for
straight party voting is to be a heavy circle, three-fourths inch
in diameter, surrounded by the words "For a straight ticket mark
within this circle" printed in bold six-point type.
On all other
ballots or ballot labels, the positions for straight party voting
is to be marked "Straight Party Ticket". For ballots tabulated
electronically, the secretary of state shall prescribe a uniform
number for the straight ticket position for each party.
(3) The party whose candidate for president received the
highest number of votes at the last preceding presidential election
is to be placed in the left, or first column, row or page, as is
appropriate to the voting system. The party which received the
second highest vote is to be next and so on. Any groups or third
parties which did not have a candidate for president on the ballot
in the previous presidential election are to be placed in the
sequence in which the final certificates of nomination by petition
Except for lever machine ballot labels, the The
following general instructions for straight party voters are to be printed in no smaller than eight-point bold type: "IF YOU MARKED
A STRAIGHT TICKET: When you mark any individual candidate in a
different party, that vote will override your straight party vote
for that office. When you mark any individual candidate in a
different party for an office where more than one will be elected,
YOU MUST MARK EACH OF YOUR CHOICES FOR THAT OFFICE because your
straight ticket vote will not be counted for that office". The
last sentence of the instructions may not be included on any ballot
which does not contain any office or division where more than one
candidate will be elected.
On paper ballots, the general instructions are to be placed
below the party name and across the top of all columns, followed by
a heavy line separating them from the rest of the ballot.
ballots marked with electronically sensible ink and on ballot
labels for voting devices in punch card systems, the general
instructions are to be placed after the position for straight
voting and before any office.
Except for lever machine ballot labels, the The following
specific instructions are to be printed on the ballot for any
partisan election for an office or division to which more than one
candidate is to be elected: "If you marked a straight ticket and
you mark any candidate in a different party for this office, you
must mark all your choices for this office because your straight
ticket vote will not be counted for this office".
On paper ballots, the specific instructions are to be placed
below the office name of any partisan office where more than one is to be elected and across the top of all columns for that office
before the names of any candidates.
On all other ballots and
ballot labels, the specific instructions are to be placed above or
to the side of the names of the candidates as the voting system
(5) For all ballots, any columns, rows or sections in which
the ticket of one party appears are to be clearly separated from
the other columns, rows or sections by a heavy line or other clear
division. For each party, the offices are to be arranged in the
order prescribed in section thirteen-a, article five of this
chapter under the appropriate tickets, which are to be headed
"National Ticket", "State Ticket" and "County Ticket". 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.
(d) The arrangement of names within each office
for all ballot
systems is to be as follows:
(1) In elections for presidential electors, the names of the
candidates for president and vice president of each party are to be
placed beside a brace with a single voting position, so that a vote
for any presidential candidate is a vote for the electors of the
party for which the candidates were named.
(2) The order of names of candidates for any office or
division for which more than one is to be elected is determined as
prescribed in section thirteen-a, article five of this chapter:
Provided, That the drawing by lot is to be conducted on the seventieth day next preceding the date of the general election,
beginning at 9:00 a.m.
Except in voting machine systems, in In any office where
more than one person is to be elected, the names of the candidates
for the office are to be staggered so that no two candidates for
that office appear directly opposite any other candidate, as shown
in the example below:
For House of DelegatesFor House of Delegates
First Delegate DistrictFirst Delegate District
(Vote For Not More Than Two) (Vote For Not More Than Two)
SUSAN B. ANTHONY
Each The paper ballot voting system is to provide a means
for voters to vote for any person whose name does not appear on the
ticket by writing it with pen or pencil or by using stamps,
stickers, tapes, labels or other means of writing in the name of a
candidate which does not interfere with the tabulation of the
(A) In paper ballot systems which allow for write-ins to be
made directly on the ballot, a blank square and a blank line equal
to the space which would be occupied by the name of the candidate
is to be placed under the proper office for each vacancy in
nomination and for an office for which more than one is to be
elected, any vacancy is to appear after any other candidates for
(B) In machine and electronically tabulated ballot systems in
which write-in votes must be made in a place other than on the
ballot label, if there is a vacancy in nomination leaving fewer
candidates in any party than can be elected to that office, the
words "No Candidate Nominated" is to be printed in the space that
would be occupied by the name of the candidate and for an office
for which more than one is to be elected, any such vacancy is to
appear after any other candidates for the office. Notwithstanding
any other provision of this code, if there are multiple vacant positions on a ballot for one office, the multiple vacant positions
which would otherwise be filled with the words "No Candidate Filed"
may be replaced with a brief detailed description, approved by the
secretary of state, indicating that there are no candidates listed
for the vacant positions.
(5) In a general election in any county in which unexpired
terms of the board of education are to be filled by election, a
separate section or page of the ballot is to be set off by means
clearly separating the nonpartisan ballot from the ballot for the
political party candidates and is to be headed "Nonpartisan Board
(e) Any constitutional amendment is to be placed following all
offices, followed by any other issue upon which the voters are to
cast a vote. The heading for each amendment or issue is to be
printed in large, bold type according to the requirements of the
resolution authorizing the election.
(f) The board of ballot commissioners may not place any issue
on the ballot for election which is not specifically authorized
under the West Virginia constitution or statutes or which has not
been properly ordered by the appropriate governmental body charged
with calling the election.
§3-6-5. Rules and procedures in election other than primaries.
The provisions of article one of this chapter relating to
elections generally shall govern and control arrangements and
election officials for the conduct of elections under this article.
The following rules and procedures shall govern the voting for candidates in general and special elections:
(a) If the voter desires to vote a straight ticket, or in
other words, for each and every candidate for one party for
whatever office nominated, the voter shall either:
(1) Mark the position designated for a straight ticket in the
manner appropriate to the voting system; or
(2) Mark the voting position for each and every candidate of
the chosen party in the manner appropriate to the voting system.
(b) If the voter desires to vote a mixed ticket, or in other
words, for candidates of different parties, the voter shall either:
(1) Omit marking any straight ticket voting position and mark,
in the manner appropriate to the voting system, the name of each
candidate for whom he or she desires to vote on whatever ticket the
name may be; or
(2) Mark the position designated for a straight ticket for the
party for some of whose candidates he or she desires to vote, and
then mark the name of any candidate of any other party for whom he
or she may desire to vote, in which case the cross mark in the
circular space above the name of the party straight ticket mark
will cast his or her vote for every candidate on the ticket of such
party except for offices for which candidates are marked on other
party tickets, and the marks for such candidates will cast a vote
for them; or
Write with ink or other means or affix a sticker or label
or place an ink-stamped impression of the name of an official
write-in candidate for an office for whom he or she desires to vote in the space designated for write-in votes for the particular
voting system and mark that voting position as required in this
chapter; or for For paper ballot systems, write or place the name
and office designation in any position on the face of the ballot
which makes the intention of the voter clear as to both the office
and the candidate chosen.
(c) If in marking either a straight or mixed ticket as above
defined, a straight ticket voting position is marked, and also one
or more marks are made for candidates on the same ticket for
offices for which candidates on other party tickets are not
individually marked, such marks before the name of candidate on the
ticket so marked shall be treated as surplusage and ignored.
(d) When a voter casts a straight ticket vote and also writes
in any name for an office
and, in electronic voting systems,
punches or marks the voting position for that write-in, the
straight ticket vote for that office shall be rejected, whether or
not a vote can be counted for a write-in candidate.
(e) The secretary of state may proscribe devices for casting
write-in votes which would cause mechanical difficulty with voting
machines or electronic devices or which would obliterate or deface
a paper ballot or any portion thereof, but the secretary of state
shall preserve the right to vote by a write-in vote for those
candidates who have filed and have been certified as official
write-in candidates under the provisions of section four-a of this
(f) (e) If the voter marks more names than there are persons to be elected to an office, or if, for any reason, it is impossible
to determine the voter's choice, for an office to be filled, the
ballot shall not be counted for such office. The intention of the
voter shall be deemed to be clear if the write-in vote cast for an
office contains both the first and last name of an official
write-in candidate for that office; and, if no two official
write-in candidates for that office share a first or last name,
either the first name or last name alone shall be deemed to express
the clear intention of the voter.
(g) (f) Except as otherwise specifically provided in this
chapter, no ballot shall be rejected for any technical error which
does not make it impossible to determine the voter's choice.
NOTE: The purpose of this bill is to repeal articles 4 and 4A
of chapter 3 of the West Virginia Code relating to abolishing the
use of voting machines and electronic voting systems during primary
and general elections in this state and requiring voting by paper
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would