ENROLLED
H. B. 4589
(By Delegates Iaquinta, Longstreth,
Duke, Ellem and Frazier)
[Passed March 12, 2010; in effect ninety days from passage.
]
AN ACT to amend and reenact §
3-3-2, §3-3-2b, §3-3-5 and §3-3-11
of
the Code of West Virginia, 1931, as amended; to amend and
reenact §3-4-10 of said code; and to amend and reenact §3-5-13
of said code, all relating to
conforming the appropriate
sections to the requirements of the Military
and Overseas
Voter Empowerment Act of 2009.
Be it enacted by the Legislature of West Virginia:
That §3-3-2, §3-3-2b, §3-3-5 and §3-3-11 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that §3-4-10
of said code be amended and reenacted; that §3-5-13 of said code be
amended and reenacted, all to read as follows:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-2. Authority to conduct absentee voting; absentee voting
application; form.
(a) Absentee voting is to be supervised and conducted by the proper official for the political division in which the election is
held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a
political subdivision or territory other than a municipality, or
within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county
commission; or
(2) The municipal recorder or other officer authorized by
charter or ordinance provisions to conduct absentee voting, for any
election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms "clerk"
or "clerk of the county commission" or "official designated to
supervise and conduct absentee voting" used elsewhere in this
article means municipal recorder or other officer in the case of
municipal elections.
(b) A person authorized and desiring to vote a mail-in
absentee ballot in any primary, general or special election is to
make application in writing in the proper form to the proper
official as follows:
(1) The completed application is to be on a form prescribed by
the Secretary of State and is to contain the name, date of birth
and political affiliation of the voter, residence address within
the county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the absentee ballot is
requested and, if the reason is illness or hospitalization, the
name and telephone number of the attending physician, the signature
of the voter to a declaration made under the penalties for false
swearing as provided in section three, article nine of this chapter
that the statements and declarations contained in the application
are true, any additional information which the voter is required to
supply, any affidavit which may be required and an indication as to
whether it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under
the provisions of 42 U.S.C. §1973,
et seq., the Uniformed and
Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee
ballot form issued under authority of that act, submitted by mail
or electronically; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for an
application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out
by the voter, provided all information required to meet the
provisions of this article is set forth and the application is
signed by the voter requesting the ballot.
§3-3-2b. Special absentee voting list.
(a) Any person who is registered and otherwise qualified to vote and who is permanently and totally physically disabled and who
is unable to vote in person at the polls in an election may apply
to the official designated to supervise and conduct absentee voting
for placement on the special absentee voting list.
(b) The application is to be on a form prescribed by the
Secretary of State which is to include the voter's name and
signature, residence address, a statement that the voter is
permanently and totally physically disabled and would be unable to
vote in person at the polls in any election, a description of the
nature of that disability, and a statement signed by a physician to
that effect.
(c) Upon receipt of a properly completed application, the
official designated to supervise and conduct absentee voting shall
enter the name on the special absentee voting list, which is to be
maintained in a secure and permanent record. The person's name
will remain active on the list until: (1) The person requests in
writing that his or her name be removed; (2) the person removes his
or her residence from the county, is purged from the voter
registration books or otherwise becomes ineligible to vote; (3) a
ballot mailed to the address provided on the application is
returned undeliverable by the United States postal service; or (4)
the death of the person.
(d) The official designated to supervise and conduct absentee
voting shall mail an application for an absentee ballot by mail to each person active on the special absentee voting list not later
than forty-six days before each election.
§3-3-5. Voting an absentee ballot by mail or electronically;
penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of
the county, in person, by mail, or electronically the appropriate
application for voting absentee by mail as provided in this
article. The voter shall complete and sign the application in his
or her own handwriting or, if the voter is unable to complete the
application because of illiteracy or physical disability, the
person assisting the voter and witnessing the mark of the voter
shall sign his or her name in the space provided.
(b) Completed applications for voting an absentee ballot by
mail are to be accepted when received by the official designated to
supervise and conduct absentee voting in person, by mail, or
electronically within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than January 1 of an election year or eighty-four days
preceding the election, whichever is earlier, and not later than
the sixth day preceding the election, which application is to, upon
the voter's request, be accepted as an application for the ballots for all elections in the calendar year; and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official
designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail
under the provisions of paragraph (A) or (B), subdivision (2),
subsection (b), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official
designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of
the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee
ballot will be challenged as provided in this article and shall
enter that challenge.
(e) (1) Within one day after the official designated to
supervise and conduct absentee voting has both the completed
application and the ballot, the official shall mail to the voter at
the address given on the application the following items as
required and as prescribed by the Secretary of State:
(A) One of each type of official absentee ballot the voter is
eligible to vote, prepared according to law;
(B) One envelope, unsealed, which may have no marks except the
designation "Absent Voter's Ballot Envelope No. 1" and printed
instructions to the voter;
(C) One postage paid envelope, unsealed, designated "Absent Voter's Ballot Envelope No. 2";
(D) Instructions for voting absentee by mail;
(E) For electronic systems, a device for marking by
electronically sensible pen or ink, as may be appropriate;
(F) Notice that a list of write-in candidates is available
upon request; and
(G) Any other supplies required for voting in the particular
voting system.
(2) If the voter is an absent uniformed services voter or
overseas voter, as defined by 42 U.S.C. §1973,
et seq., the
official designated to supervise and conduct absentee voting shall
transmit the ballot to the voter via mail, or electronically as
requested by the voter. If the voter does not designate a
preference for transmittal, the clerk may select either method of
transmittal for the ballot. If the ballot is transmitted
electronically pursuant to this subdivision, the official
designated to supervise and conduct absentee voting shall also
transmit electronically:
(A) A waiver of privacy form, to be promulgated by the
Secretary of State;
(B) Instructions for voting absentee utilizing a federally
approved system for voting by mail or electronically;
(C) Notice that a list of write-in candidates is available
upon request; and
(D) Statement of the voter affirming the voter's current name
and address and whether or not he or she received assistance in
voting.
(f) The voter shall mark the ballot alone:
Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article.
(1) After the voter has voted the ballot or ballots to be
returned by mail, the voter shall:
(A) Place the ballot or ballots in envelope no. 1 and seal
that envelope;
(B) Place the sealed envelope no. 1 in envelope no. 2 and seal
that envelope;
(C) Complete and sign the forms on envelope no. 2; and
(D) Return that envelope to the official designated to
supervise and conduct absentee voting.
(2) If the ballot was transmitted electronically as provided
in subdivision (2), subsection (e) of this section, the voter shall
return the ballot in the same manner the ballot was received, or
the voter may return the ballot by United States mail, along with
a signed privacy waiver form.
(g) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service are to be accepted if:
(1) The ballot is received by the official designated to supervise and conduct absentee voting no later than the day after
the election; or
(2) The ballot bears a postmark of the United States Postal
Service dated no later than election day and the ballot is received
by the official designated to supervise and conduct absentee voting
no later than the hour at which the board of canvassers convenes to
begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(i) Voted ballots submitted electronically pursuant to
subdivision (2), subsection (f) of this section are to be accepted
if the ballot is received by the official designated to supervise
and conduct absentee voting no later than the close of polls on
election day:
Provided, That the Secretary of State's office shall
enter into an agreement with the Federal Voting Assistance Program
of the United States Department of Defense to transmit the ballots
to the county clerks at a time when two individuals of opposite
political parties are available to process the received ballots.
(j) Ballots received after the proper time which cannot be accepted are to be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they are to be destroyed without being
opened.
(k) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election:
Provided, That no person may hand deliver
more than two absentee ballots in any election and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(l) Upon receipt of the sealed envelope, the official
designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record
of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope into a ballot box that is
secured by two locks with a key to one lock kept by the president
of the county commission and a key to the other lock kept by the
county clerk.
(m) Upon receipt of a ballot submitted electronically pursuant
to subdivision (2), subsection (f) of this section, the official
designated to supervise and conduct absentee voting shall place the
ballot in an envelope marked "Absentee by Electronic Means" with
the completed waiver:
Provided, That no ballots are to be
processed without the presence of two individuals of opposite
political parties.
(n) All ballots received electronically prior to the close of
the polls on election day are to be tabulated in the manner
prescribed for tabulating absentee ballots submitted by mail to the
extent that those procedures are appropriate for the applicable
voting system. The clerk of the county commission shall keep a
record of absentee ballots sent and received electronically.
§3-3-11. Preparation, number and handling of absent voters'
ballots.
(a) Absent voters' ballots are to be in all respects like
other ballots. Not less than seventy days before the date on which
any primary, general or special election is to be held, unless a
lesser number of days is provided in any specific election law in
which case the lesser number of days applies, the clerks of the
county commissions of the several counties shall estimate and
determine the number of absent voters' ballots of all kinds which
will be required in their respective counties for that election.
The ballots for the election of all officers, or the ratification, acceptance or rejection of any measure, proposition or other public
question to be voted on by the voters, are to be prepared and
printed under the direction of the board of ballot commissioners
constituted as provided in article one of this chapter. The
several county boards of ballot commissioners shall prepare and
have printed, in the number they may determine, absent voters'
ballots that are to be printed under their directions as provided
in this chapter and those ballots are to be delivered to the clerk
of the county commission of the county not less than forty-six days
before the day of the election at which they are to be used.
(b) The official designated to supervise and conduct absentee
voting shall be responsible for the mailing, transmitting,
receiving, delivering and otherwise handling of all absent voters'
ballots. He or she shall keep a record, as may be prescribed by
the Secretary of State, of all ballots delivered for the purpose of
absentee voting, as well as all ballots, if any, marked before him
or her and shall deliver to the commissioner of election a
certificate stating the number of ballots delivered, transmitted,
or mailed to absent voters and those marked before him or her, if
any, and the names of the voters to whom those ballots have been
delivered, transmitted, or mailed or by whom they have been marked,
if marked before him or her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy changes; procedure and requirements.
(a) The ballot commissioners of any county in which voting
machines are to be used in any election shall cause to be printed
for use in the election the ballot labels for the voting machines
and paper ballots for absentee voting, voting by persons unable to
use the voting machine and provisional ballots or if an electronic
voting system or direct recording election equipment is to be used
in an election, the ballot commissioners shall comply with
requirements of section eleven, article four-a of this chapter.
The labels shall be clearly printed in black ink on clear white
material in a size that will fit the ballot frames. The paper
ballots shall be printed in compliance with the provisions of this
chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the
printing and arrangement of names of the candidates for each office
indicated must be placed on the ballot for the primary election as
nearly as possible according to the provisions of sections thirteen
and thirteen-a, article five of this chapter and for the general
election according to the provisions of section two, article six of
this chapter:
Provided, That the staggering of the names of
candidates in multicandidate races and the instructions to straight
ticket voters prescribed by section two, article six of this
chapter shall appear on paper ballots but shall not appear on
ballot labels for voting machines which mechanically control crossover voting.
(c) Each question to be voted on must be placed at the end of
the ballot and must be printed according to the provisions of the
laws and rules governing the question.
(d) The ballot labels printed must total in number one and
one-half times the total number of corresponding voting machines to
be used in the several precincts of the county in the election.
All the labels must be delivered to the clerk of the county
commission at least twenty-eight days prior to the day of the
election. The clerk of the county commission shall determine the
number of paper ballots needed for absentee voting and to supply
the precincts for provisional ballots and ballots to be cast by
persons unable to use the voting machine. All required paper
ballots shall be delivered to the clerk of the county commission at
least forty-six days prior to the day of the election.
(e) When the ballot labels and absentee ballots are delivered,
the clerk of the county commission shall examine them for accuracy,
assure that the appropriate ballots and ballot labels are
designated for each voting precinct and insert one set in each
machine prior to the inspection of the machines as prescribed in
section twelve of this article. The remainder of the ballot labels
for each machine shall be retained by the clerk of the county
commission for use in an emergency.
(f) In addition to all other equipment and supplies required by the provisions of this article, the ballot commissioners shall
cause to be printed a supply of instruction cards, sample ballots
and facsimile diagrams of the voting machine ballot adequate for
the orderly conduct of the election in each precinct in their
county. In addition, they shall provide appropriate facilities for
the reception and safekeeping of the ballots of absent voters and
of challenged voters and of the "independent" voters who shall, in
primary elections, cast their votes on nonpartisan candidates and
public questions submitted to the voters.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-13. Form and contents of ballots.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(1) The heading of every ballot is to be printed in display
type. The heading is to 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 is to 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 is to 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 are to be specified
and the names of the candidates are to 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 is to have a heading which clearly states the purpose
of the election according to the statutory requirements for that
question.
(2) (A) For paper ballots, the heading of the ballot is to 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 are to be separated by heavy lines.
Within the columns, the offices are to be arranged in the order
prescribed in section thirteen-a of this article.
(B) For voting machines, electronic voting devices and any
ballot tabulated by electronic means, the offices are to appear in
the same sequence as prescribed in section thirteen-a of this
article 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.
(C) The title of each office is to be separated from preceding
offices or candidates by a line and is to be printed in bold type
no smaller than eight point. Below the office is to 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 is to be a clear explanation of 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. For counties in which the
number of county commissioners exceeds three and the total number
of members of the county commission is equal to the number of
magisterial districts within the county, the office of county
commission is to be listed separately for each district to be
filled with the name of the magisterial district and the words
"Vote for One" printed below the name of the office:
Provided,
That the office title and applicable instructions may span the
width of the ballot so as it is centered among the respective
columns.
(D) The location for indicating the voter's choices on the ballot is to be clearly shown. For paper ballots, other than those
tabulated electronically, the official primary ballot is to 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.
(3)(A) The name of every candidate certified by the Secretary
of State or the board of ballot commissioners is to 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 is to appear in
the form set out by the candidate on the certificate of
announcement, but in no case may the name misrepresent the identity
of the candidate nor may 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.
(B) 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
are to be printed in lower case letters beneath the names of the
candidates.
(C) The arrangement of names within each office must be determined as prescribed in section thirteen-a of this article.
(D) If the number of candidates for an office exceeds the
space available on a column or ballot 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 are to be nearly equal and clear instructions
given the voter that the candidates for the office are continued on
the following column or page.
(4) 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.
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 presidential election years, the words "For election in
accordance with the plan adopted by the party and filed with the
Secretary of State" is to be printed following the names of all
candidates for delegate to national convention.
(6) All paper ballots are to be printed in black ink on paper
sufficiently thick so that the printing or marking cannot be
discernible from the back:
Provided, That no paper ballot voted
pursuant to the provisions of 42 U.S.C. §1973,
et seq., the
Uniformed and Overseas Citizens Absentee Voting Act of 1986, or
Federal write-in absentee ballot may be rejected due to paper type,
envelope type, or notarization requirement. Ballot cards and paper
for printing ballots using electronically sensible ink are to meet
minimum requirements of the tabulating systems and are to conform
in size and weight to ensure ease in tabulation.
(7) Ballots are to contain perforated tabs at the top of the
ballots and are to be printed with unique sequential numbers from
one to the highest number representing the total number of ballots
printed. On paper ballots, the ballot is to be bordered by a solid
line at least one sixteenth of an inch wide and the ballot is to be
trimmed to within one-half inch of that border.
(8) On the back of every official ballot or ballot card the
words "Official Ballot" with the name of the county and the date of
the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words "Poll Clerks".
(9) The face of sample paper ballots and sample ballot labels
are to be like other official ballots or ballot labels except that
the word "sample" is to be prominently printed across the front of
the ballot in a manner that ensures the names of candidates are not
obscured and the word "sample" may be printed in red ink. No
printing may be placed on the back of the sample.