ENROLLED
Senate Bill No. 3002
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Passed November 16, 2004; in effect from passage.]
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AN ACT
to amend and reenact §3-1-48 of the code of West Virginia,
1931, as amended, relating to facilitating implementation of
the "Help America Vote Act of 2002"; implementing electronic
voting systems; providing legislative findings; continuing the
state election fund; establishing special revenue account;
specifying criteria for obtaining a loan; providing for
investment of fund moneys; allowing loans to counties for
electronic voting systems and for upgrades of previously
purchased electronic voting systems; specifying eligibility
requirements for loans; giving authority to state election
commission to waive matching moneys; authorizing emergency and
legislative rules; limiting availability of loans; specifying
duties of secretary of state; and authorizing methods for
compelling repayment of loans.
Be it enacted by the Legislature of West Virginia:
That §3-1-48 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. LIMITS AND JURISDICTION.
§3-1-48. Legislative findings; state election fund; loans to
counties; availability of funds; repayment of loans.
(a) Legislative findings. -- The "Help America Vote Act of
2002", PL 107-252, 42 U. S. C. §15301, et seq., provides funding so
that all states will be able to implement some form of electronic
voting system to replace punch card and lever machines by two
thousand six. The new voting systems must meet several
requirements including notifying the voter of over votes and
permitting each voter to review his or her ballot and correct
errors before casting the vote. The limited, finite funding
available to the state will not be sufficient to meet current and
future needs for equipment and services as equipment needs to be
obtained, repaired or replaced as technology changes. It is the
intent of the Legislature to maximize the available funds by
establishing a no-interest loan program to assist any county,
regardless of its current voting system, in purchasing necessary
electronic voting equipment and services. As the loans are repaid
funds will continue to be available to meet future needs. It is
not the intent of the Legislature to mandate any technology for
voting systems to be utilized in this state and this section is
intended only to establish terms and conditions for providing loan
assistance to counties in accordance with the provisions of this
section.
(b) State election fund. -- The special revenue account
created in the state treasury and known as the "State Election Fund" account is continued. Expenditures from the account shall be
used by the secretary of state for the administration of this
chapter in accordance with the provisions of 42 U. S. C. §15301, et
seq., the Help America Vote Act of 2002, PL 107-252, in accordance
with the provisions of article eleven, chapter four of this code.
(c) Establishment of special revenue account. -- There is
created in the state treasury a special revenue revolving fund
account known as the "county assistance voting equipment fund"
which shall be an interest-bearing account. The fund shall consist
of an initial transfer not to exceed eight million five hundred
thousand dollars from the state election fund established under
subsection (b) of this section pursuant to legislative
appropriation; any future funds received from the federal
government under the "Help America Vote Act of 2002", PL 107-252,
42 U. S. C. §15301, et seq., or subsequent acts providing funds to
states to obtain, modify or improve voting equipment and obtain
necessary related services including voting systems, technology and
methods for casting and counting votes; any funds appropriated by
the Legislature or transferred by any public agency as contemplated
or permitted by applicable federal or state law; and any accrued
interest or other return on the moneys in the fund. The balance
remaining in the fund at the end of each fiscal year shall remain
in the fund and not revert to the state general revenue fund.
(d) Use of funds. -- The money in the fund shall be used only
in the manner and for the purposes prescribed in this section.
Notwithstanding any provision of law to the contrary, funds in the county assistance voting equipment fund may not be designated or
transferred for any purpose other than those set forth in this
section.
(e) Administration of the fund. -- The secretary of state
shall administer the fund with the approval of the state election
commission.
(f) Investment of fund. -- The moneys of the fund shall be
invested pursuant to article six, chapter twelve of this code and
in such a manner that sufficient moneys are available as needed for
loans authorized under this section.
(g) Loans to counties. -- The county assistance voting
equipment fund shall be used to make no-interest loans to counties
to obtain, modify or replace voting equipment, software and
necessary related services including voting systems, technology and
methods for casting and counting votes:
Provided, That any county
commission that purchased an electronic voting system prior to the
thirteenth day of November, two thousand four, is eligible to apply
for matching funds under this section to upgrade the system:
Provided, however, That matching funds available for an upgrade
shall not exceed the amount available under subdivision (1) of this
subsection for the purchase of a new electronic voting system under
the secretary of state's authorized contract. The loans shall be
made
under the following terms and conditions:
(1) The state election commission shall, subject to
availability of funds, loan no more than fifty percent of the cost
of the voting equipment or services to any county commission: Provided, That a portion or all of the county matching requirement
may be waived in limited circumstances as determined by the state
election commission pursuant to this section.
(2) The county commission shall provide sufficient
documentation to establish to the satisfaction of the state
election commission that the county commission has at least fifty
percent of the money necessary to obtain the voting equipment,
software or services for which the loan is sought.
(3) The county commission shall enter into a contract with the
state election commission for the repayment of the loan over a
period not to exceed five years or the length of the contract to
obtain the equipment, software or services, whichever is less.
(4) The county commission shall use the loan for voting
equipment and services certified by the state election commission
pursuant to the provisions of article four-a of this chapter and
authorized for use by the secretary of state.
(5) A county commission may apply for a loan on a form
provided by the secretary of state. The form shall, in addition to
requesting information necessary for processing the application,
state the deadline for submitting the application and the
eligibility requirements for obtaining a loan.
(6) The state election commission may waive a portion or all
of the matching money required by this subsection for a county
commission that can establish that it has exercised due diligence
in raising its share of the costs but has been unable to do so. On
forms provided by the secretary of state the county commission shall request a waiver and shall make a full financial disclosure
of its assets and liabilities as well as potential for future
income when applying for a waiver. The county commission shall
demonstrate, to the satisfaction of the state election commission,
its inability to meet the matching requirements of this subsection
and its ability to repay the loan in a timely manner.
Notwithstanding the provisions of subdivision (3) of this
subsection, the state election commission may extend the repayment
period on a year-to-year basis for a repayment period not to exceed
five additional years.
(h) Application. -- An application for a loan shall be
approved by the state election commission if the requirements of
this section have been met.
(i) Rulemaking. -- The secretary of state shall propose for
promulgation in accordance with article three, chapter twenty-nine-
a of this code emergency and legislative rules necessary to
effectuate the purposes of this section.
(j) Availability of loans. -- The state election commission
may not approve a loan under this section until final standards for
electronic voting equipment with a voter verified paper ballot have
been established by the secretary of state or the national
institute for standards and technology. The state election
commission may not approve a loan for the purchase, lease, rental
or other similar transaction to obtain electronic voting equipment,
software or necessary related services unless obtained under a
contract authorized by the secretary of state pursuant to rules promulgated under this section.
(k) Repayment of loans. -- The secretary of state may, by
civil action, mandamus or other judicial or administrative
proceeding, compel performance by a county commission of all the
terms and conditions of the loan agreement between the state and
that county commission including periodic reduction of any moneys
due the county from the state.