WEST virginia legislature
2019 regular session
Senate Bill 251
By Senators Baldwin and Jeffries
January 10, 2019; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §3-1-37 of the Code of West Virginia, 1931, as amended; and to amend and reenact §3-9-6 and §3-9-9 of said code, all relating to adjusting the distance from a polling place that certain electioneering and election-related activity is prohibited; making legislative findings and justifications for the changes; and ensuring consistency in the law with respect to application of the distances within which certain conduct is prohibited at polling places.
Be it enacted by the Legislature of West Virginia:
Article 1. General Provisions and Definitions.
§3-1-37. Restrictions on presence and conduct at polls.
(a) Except as otherwise provided in this section, no
person, other than the election officers and voters going to the election room
to vote and returning therefrom, may be or remain within
250 feet of the outside entrance to the building housing the polling
place while the polls are open. This subsection does not apply to persons who
reside or conduct business within such distance of the entrance to the building
housing the polling place, while in the discharge of their legitimate business,
or to persons whose business requires them to pass and repass within one
hundred 250 feet of such entrance.
(b) A person who is delivering a voter to a polling place
by motor vehicle may drive such vehicle to a convenient and accessible location
to discharge the voter, notwithstanding that the location is within
250 feet of the outside entrance to the building housing the polling
place. Upon discharging such voter from the vehicle, the person shall remove
the vehicle from within one hundred 250 feet of the
entrance until such time as the voter is to be transported from the polling
place or another voter delivered: Provided, That vehicles delivering
voters who require assistance by reason of blindness, disability or advanced
age may remain within one hundred 250 feet of the entrance
until such time as the voter is to be transported from the polling place.
(c) The election commissions shall limit the number of voters in the election room so as to preserve order. No person may approach nearer than five feet to any booth or compartment while the election is being held, except the voters to prepare their ballots, or the poll clerks when called on by a voter to assist in the preparation of his or her ballot, and no person, other than election officers and voters engaged in receiving, preparing and depositing their ballots, may be permitted to be within five feet of any ballot box, except by authority of the board of election commissioners, and then only for the purpose of keeping order and enforcing the law.
(d) Not more than one person may be permitted to occupy any booth or compartment at one time. No person may remain in or occupy a booth or compartment longer than may be necessary to prepare his or her ballot, and in no event longer than five minutes, except that any person who claims a disability pursuant to §3-1-34 of this code shall have additional time up to ten additional minutes to prepare his or her ballot. No voter, or person offering to vote, may hold any conversation or communication with any person other than the poll clerks or commissioners of election, while in the election room.
(e) The provisions of this section do not apply to persons rendering assistance to blind voters as provided in §3-1-34 of this code or to any child 14 years of age or younger who accompanies a parent, grandparent or legal guardian who is voting. Any dispute concerning the age of a child accompanying a parent, grandparent or legal guardian who is voting shall be determined by the election commissioners.
Article 9. Offenses and Penalties.
§3-9-6. Unauthorized presence in election room;
foot 250 foot limit; penalties.
If any person, not herein authorized so to do, enters or
attempts to enter the election room, except upon a lawful errand and for a
proper purpose, or remains within
three hundred 250 feet of the outside
entrance to the building housing the polling place, contrary to the provisions
of this chapter, he the person shall be is guilty
of a misdemeanor and, on conviction thereof, shall be fined not less than $50
nor more than $500, or confined in jail for not more than 30 days.
Excepting those individuals provided for expressly in this or other sections of the code, only full-time employees of the Secretary of State's office or full-time employees of the respective county offices of the county clerk or the county prosecutor may enter or otherwise disturb the polling place.
§3-9-9. Electioneering defined; unlawful acts at polling places; exceptions; penalties.
(a) As used in this section, “electioneering” means the displaying
of signs or other campaign paraphernalia, the distribution of campaign
literature, cards, or handbills, the soliciting of signatures to any petition,
or the solicitation of votes for or against any bona fide candidate or ballot
question in a manner which expressly advocates the election or defeat of the
candidate or expressly advocates the passage or defeat of the ballot question.
“Electioneering” does not include: (1) Exit polling, so long as persons
conducting exit polling are not otherwise engaging in electioneering activities
described above, or (2) bumper stickers or signs affixed to a person’s
vehicle which is parked within or passing through a distance of
250 feet of the entrance to a polling place while such person is voting
or transporting any voter to the polls.
(b) No officer of election may disclose to any person the name of any candidate for whom a voter has voted. No officer of election may do any electioneering on election day.
(c) The Legislature finds that: (1) There is a
compelling state interest to allow voters to enter and exit the polling place
without being intimidated or unduly influenced, (2) the Supreme Court of
Appeals has held a 100 foot radius buffer-zone to be constitutional, (3) the
United States Court of Appeals for the Sixth Circuit held a 300 foot
buffer-zone without sufficient exceptions unconstitutional, (4) in response to
that decision, West Virginia reduced its buffer-zone from 300 feet to 100 feet,
despite the distinguishable exceptions in West Virginia code, (5) the 100 foot
buffer in the 2018 general election resulted in chanting, screaming, and
attempts at manipulating voters 100 feet from the polling locations, (6) 100
feet is simply too close to the polling location for people to be stationed in
an attempt to intimidate or unduly influence voters, (7) 250 feet is a
reasonable distance to protect voters from intimidation from groups of people
taking direct political action particularly in light of the fact that a
distance of 250 feet in a parking lot is enough for approximately 25 cars to
park in typical spaces thereby generally excluding electioneering from moderate
sized parking facilities attached to polling locations, and (8) it is critical
that West Virginia retain the absolute right to electioneering activities on
one’s personal property. Accordingly, the law must be updated pursuant to the
changes made in this bill during the 2019 regular legislative session. No
person may do any electioneering on election day within any polling place, or
one hundred 250 feet of the outside entrance to the
building housing the polling place. No person may do any electioneering in the
polling place or within one hundred 250 feet of the
outside entrance of any polling place where early voting is conducted during
the period in which early voting is offered during the hours while such early
voting is actually taking place. Nothing in this subsection shall prohibit a
citizen from doing any electioneering upon his or her own private property,
regardless of distance from the polling place, so long as that electioneering
conforms to other existing laws and ordinances.
(d) No person may apply for or receive any ballot in any polling place, other than that in which the person is entitled to vote, nor may any person examine a ballot which any voter has prepared for voting, or solicit the voter to show the same, nor ask, nor make any arrangement, directly or indirectly, with any voter, to vote an open ballot. No person, except a commissioner of election, may receive from any voter a ballot prepared by him or her for voting. No voter may receive a ballot from any person other than one of the poll clerks; nor may any person other than a poll clerk deliver a ballot to a commissioner of election to be voted by such commissioner. No voter may deliver any ballot to a commissioner of election to be voted, except the one he or she receives from the poll clerk. No voter may place any mark upon his or her ballot, or suffer or permit any other person to do so, by which it may be afterward identified as the ballot voted by him or her.
(e) Whoever violates any provision of this section
be is guilty of a misdemeanor and, on conviction thereof, shall be
fined not less than $100 nor more than $1,000, or confined in jail for not more
than one year, or both fined and confined.
NOTE: The purpose of this bill is to protect voters from undue influence and intimidation by extending the prohibition on electioneering at polling places from 100 feet to 250 feet from the entrance.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.