Introduced Version
Senate Bill 579 History
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Senate Bill No. 579
(By Senators Beach, Miller and D. Hall)
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[Introduced March 20, 2013; referred to the Committee on the
Judiciary .]
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A BILL to repeal §3-3-2a, §3-3-3a and §3-3-7 of the Code of West
Virginia, 1931, as amended; to amend and reenact §3-3-1,
§3-3-2, §3-3-3, §3-3-4, §3-3-5, §3-3-5a, §3-3-5b, §3-3-5c,
§3-3-8, §3-3-10 and §3-3-11 of said code; and to amend said
code by adding thereto two new sections, designated §3-3-3b
and §3-3-3c, all relating to absentee and early in-person
voting; and cleaning up and updating existing language in the
code.
Be it enacted by the Legislature of West Virginia:
That §3-3-2a, §3-3-3a and §3-3-7 of the Code of West Virginia,
1931, as amended, be repealed; that §3-3-1, §3-3-2, §3-3-3, §3-3-4,
§3-3-5, §3-3-5a, §3-3-5b, §3-3-5c, §3-3-8, §3-3-10 and §3-3-11 of
said code be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §3-3-3b and §3-3-3c,
all to read as follows:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots by mail or
electronically.
(a) All registered and other qualified voters of the county
may vote an absentee ballot during the period of early voting in
person.
(b) (a) Registered voters and other qualified voters in the
county are authorized to vote an absentee ballot by mail in the
following circumstances:
(1) Any A voter who is confined to a specific location and
prevented from voting in person throughout the period of voting in
person because of:
(A) Illness, injury, physical disability or immobility or
other medical reason; or
_____(B) Physical disability or immobility due to extreme advanced
age; or
(C) (B) Incarceration or home detention: Provided, That the
underlying conviction is not for a crime which is a felony or a
violation of section twelve, thirteen or sixteen, article nine of
this chapter involving bribery in an election;
(2) Any A voter who is absent from the county throughout the
period and available hours for voting in person because of:
(A) Personal or business travel;
(B) Attendance at a college, university or other place of
education or training; or
(C) Employment which because of hours worked and distance from
the county seat make voting in person impossible;
(3) Any A voter absent from the county throughout the period
and available hours for voting in person and who is an absent
uniformed services voter or overseas voter, as defined by 42 U.S.C.
§1973, et seq., the Uniformed and Overseas Citizens Absentee Voting
Act of 1986, including members of the uniformed services on active
duty, members of the merchant marine, spouses and dependents of
those members on active duty and persons who reside outside the
United States and are qualified to vote in the last place in which
the person was domiciled before leaving the United States;
(4) Any voter who is required to dwell temporarily outside the
county and is absent from the county throughout the time for voting
in person because of:
(A) Serving as an elected or appointed federal or state
officer; or
(B) Serving in any other documented employment assignment of
specific duration of four years or less;
(5) Any A voter for whom the designated area for absentee
voting within the county courthouse or annex of the courthouse and
the voter's assigned polling place are inaccessible because of his
or her physical disability; and
(6) Any voter who is participating in the Address
Confidentiality Program as established by section one hundred
three, article twenty-eight-a, chapter forty-eight of this code.
(c) (b) Registered voters and other qualified voters in the
county may, in the following circumstances, vote an emergency
absentee ballot subject to the availability of the services as
provided in this article:
(1) Any A voter who is confined or expects to be confined in
a hospital or other duly licensed health care facility within the
county of residence or other authorized area, as provided in this
article, on the day of the election;
(2) Any A voter who resides in a nursing home or veteran's
home within the county of residence and would be otherwise is
unable to vote in person providing if the county commission has
authorized the services; if the voter has resided in the nursing
home for a period of less than thirty days; and
(3) Any A voter who is working as a replacement poll worker
and is assigned to a precinct out of his or her voting district if
the assignment was made after the period for voting an absentee
ballot in person has expired.
§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) The clerk of the county commission for any an 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
an 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 a 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 an 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 a 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 and 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; or
(4) (3) A person authorized to vote an absentee ballot who is
participating in the Address Confidentiality Program as established
by section one hundred three, article twenty-eight-a, chapter forty-eight of this code, may apply to the program manager within
the Office of the Secretary of State to vote a mail-in absentee
ballot. The program manager will notify the designated county
contact to coordinate the application and the provision of an
absentee ballot to the program participant.
§3-3-3. Early voting in person.
(a) All registered voters of the county may vote an absentee
ballot during the period of early voting in person.
_____(a) (b) The voting period for early in-person voting is to be
conducted during regular business hours beginning on the thirteenth
day before the election and continuing through the third day before
the election. Additionally, early in-person voting is to be
available from 9:00 a.m. to 5:00 p.m. on Saturdays during the early
voting period.
(b) (c) Any A person desiring to vote during the period of
early in-person voting shall, upon entering the election room,
clearly state his or her name and residence to the official or
representative designated to supervise and conduct absentee early
in-person voting. If that person is found to be duly registered as
a voter in the precinct of his or her residence, he or she is
required to sign his or her name in the space marked "signature of
voter" on the pollbook. If the voter is unable to sign his or her
name due to 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. No ballot may be given to the
person until he or she signs his or her name on the pollbook.
(c) (d) When the voter's signature or mark is properly on the
pollbook, two qualified representatives of the official designated
to supervise and conduct absentee early in-person voting shall sign
their names in the places indicated on the back of the official
ballot for paper based systems or direct the voter to a voting
booth.
_____(d) (e) If the official designated to supervise and conduct
absentee early in-person voting determines that the voter is not
properly registered in the precinct where he or she resides, the
clerk or his or her representative shall challenge the voter's
absentee ballot as provided in this article.
(e) (f) The official designated to supervise and conduct
absentee early in-person voting shall provide each person voting an
absentee ballot in person the following items to be printed
a
ballot with the following items as prescribed by the Secretary of
State:
(1) In counties using paper ballots,
based voting systems, one
of each type of official absentee ballot the voter is eligible to
vote prepared according to law and other supplies needed; or
_____(2) In counties using punch card systems, one of each type of
official absentee ballot the voter is eligible to vote, prepared
according to law, and a gray secrecy envelope;
(3) In counties using optical scan systems, one of each type
of official absentee ballot the voter is eligible to vote, prepared
according to law, and a secrecy sleeve; or
(4) (2) For direct recording election voting systems, access
to the voting equipment in the voting booth.
(f) (g) The voter shall enter the voting booth alone and there
mark the ballot Provided, That the voter but may have assistance in
voting according to the provisions of section four of this article.
After the voter has voted the ballot or ballots, the absentee voter
shall: Place the ballot or ballots in the gray secrecy envelope and
return the ballot or ballots to the official designated to
supervise and conduct the absentee voting: Provided, however, That
voter shall return the ballot or ballots by the appropriate means
to the official designated to supervise and conduct early in-person
voting for paper based voting systems. In direct recording election
voting systems, once the voter has cast his or her ballot, the
voter shall exit the polling place and the designated official
shall ensure that the voting system is cleared for the next voter.
_____(g) (h) In counties using paper based voting systems, upon
receipt of the voted ballot, representatives of the official
designated to supervise and conduct the absentee early in-person
voting shall:
(1) Remove the ballot stub;
(2) Place punch card ballots and paper ballots into one envelope which shall not have any with no marks except the precinct
number and seal the envelope; and
(3) Place ballots for all voting systems sealed ballots 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.
§3-3-3b. Early voting areas; prohibition against display of
campaign material.
(a) The county commission shall designate the courthouse or
annex to the courthouse as the primary location for early voting
and in addition, the commission may designate other locations as
provided in section three-c of this article.
(b) Throughout the period of early in-person voting, the
official designated to supervise and conduct early in-person voting
shall make the following provisions for voting:
(1) Provide a sufficient number of voting booths or devices
appropriate to the voting system where voters may prepare their
ballots. The booths or devices are to be in an area separate from
but within clear view of the public entrance area of the official's
office or other area designated by the county commission for early
in-person voting and are to be arranged to ensure the voter
complete privacy in casting the ballot.
(2) Secure the voting area free from interference with the
voter and ensure that voted and unvoted ballots are at all times secure from tampering. No person, other than a person lawfully
assisting the voter according to the provisions of this chapter,
may be permitted to come within five feet of the voting booth while
the voter is voting. No person may enter the area or room set aside
for voting except for the officials or employees of the official
designated to supervise and conduct early in-person voting, members
of the Board of Ballot Commissioners assigned to conduct early
in-person voting or representatives from the Secretary of State's
Office.
(3) The official designated to supervise and conduct early
in-person voting shall request the county commission to designate
an area within the county courthouse, an annex of the courthouse or
any other area designated as early in-person voting locations
within the county, as a portion of the official's office for the
purpose of early in-person voting, subject to the same requirements
as the regular early in-person voting area, in the following
circumstances:
(A) If the voting area is not accessible to voters with
physical disabilities;
(B) If the voting area is not within clear view of the public
entrance of the office of the official designated to supervise and
conduct early in-person voting; or
(C) If there is no suitable area for early in-person voting
within the office.
(4) The official designated to supervise and conduct early
in-person voting shall have at least two representatives to assist
with early voting. The two representatives may not be registered
with the same political party affiliation or registered with no
political party affiliation. The representatives may be full-time
employees, temporary employees hired for the period of early
in-person voting or volunteers. To be eligible to serve as an
assistant with early in-person voting, a person:
(A) Must be a registered voter;
(B) Must be able to read and write the English language;
(C) May not be a candidate on the ballot or an official
write-in candidate in the election;
(D) May not be the parent, child, sibling or spouse of either
a candidate on the ballot or an official write-in candidate in the
precinct where the official serves;
(E) May not be a person prohibited from serving as an election
official pursuant to a federal or state statute; and
(F) May not have been previously convicted of a violation of
an election law.
(5) No person may electioneer or display or distribute, in any
manner, or authorize the display or distribution of literature,
posters or material of any kind which tends to influence the voting
for or against a candidate or a public question on the property of
the county courthouse, annex facilities or other designated early voting locations within the county during the period of early
in-person voting. The official designated to supervise and conduct
early in-person voting is authorized to remove the material and to
direct the sheriff of the county to enforce the prohibition.
§3-3-3c. Community early voting areas.
(a) The county commission, with the approval of the county
clerk or other official charged with the administration of
elections, may designate community voting locations for early
voting other than the county courthouse or courthouse annex.
(1) This designation must be made by a majority of the members
of the county commission at a public meeting called for that
purpose;
(2) The county commission shall publish a notice of its intent
to designate community voting location at least thirty days prior
to the designation. Notice shall be by publication as a Class II-0
legal advertisement in compliance with provisions of article three,
chapter fifty-nine of this code. The publication area is the county
in which the community voting locations are designated;
(3) Community voting locations shall comply with requirements
of this article for early in-person voting as prescribed by the
Secretary of State and the following criteria:
(A) Available for use during the early voting period;
(B) Has the physical facilities necessary to accommodate early
voting requirements; (C) Has adequate space for voting equipment, poll workers and
voters; and
(D) Has adequate security, public accessibility, and parking;
(4) The county executive committees of the two major political
parties may nominate sites to be used as community voting locations
during the early voting period;
(5) Upon the designation of a community voting location, the
county clerk shall, not less than thirty days prior to an election,
give notice of the dates, times and place of community voting
locations by publication as a Class II-0 legal advertisement in
compliance with provisions of article three, chapter fifty-nine of
this code;
(6) Voting shall be conducted at each designated community
voting site for a period of not less than five consecutive days
during early in-person voting authorized by section three of this
article but need not be conducted at each location for the entire
period of early in-person voting;
(7) The county commission, with the approval of the county
clerk, may authorize community voting locations on a rotating basis
where a community voting location may be utilized for less than the
full period of early in-person voting; and
(8) If more than one community voting location is designated,
each location shall be utilized for an equal number of voting days
and permit voting for the same number of hours per day.
(c) The Secretary of State shall propose legislative and
emergency rules in accordance with the provisions of article three,
chapter twenty-nine-a of this code as necessary to implement the
provisions of this section. The rules shall include establishment
of criteria to assure neutrality and security in the selection of
community voting locations.
§3-3-4. Assistance to voter in early in-person voting; penalties.
(a) Any A registered voter who requires assistance to vote by
reason of blindness, disability, advanced age or inability to read
and write may be given assistance by a person of the voter's
choice. Provided, That The assistance may not be given by the
voter's present or former employer or agent of that employer, by
the officer or agent of a labor union of which the voter is a past
or present member or by a candidate on the ballot.
(b) Any A voter who requests assistance in voting an absent
voter's a ballot but who is determined by the official designated
to supervise and conduct absentee early in-person voting not to be
qualified for assistance under the provisions of this section and
section thirty-four, article one of this chapter, may vote a
challenged absent voter's provisional ballot with the assistance of
any a person authorized to render assistance pursuant to this
section. The official designated to supervise and conduct absentee
voting shall in this case challenge the absent early in-person
voting shall challenge the voter's ballot on the basis of his or her determination that the voter is not qualified for assistance.
(c) Any one or more of the election commissioners or poll
clerks in the precinct to which an absent voter's ballot has been
sent may challenge the ballot on the ground that the voter received
assistance in voting it when in his or their opinion: (1) The
person who received the assistance in voting the absent voter's
ballot did not require assistance; or (2) the person who provided
the assistance in voting did not make an affidavit as required by
this section. The election commissioner or poll clerk or
commissioners or poll clerks making a challenge shall enter the
challenge and reason for the challenge on the form and in the
manner prescribed or authorized by this article.
(d) (c) Before entering the voting booth or compartment, the
person who intends to provide a voter assistance in voting shall
make an affidavit, the form of which is to be on a form as
prescribed by the Secretary of State, asserting the following:
(1) That he or she will not in any manner request or seek to
persuade or induce the voter to vote any a particular ticket or for
any a particular candidate or for or against any a public question;
and
(2) That he or she will not keep or make any memorandum or
entry of anything occurring within the voting booth or compartment;
and
(3) That he or she will not, directly or indirectly, reveal to any person the name of any a candidate voted for by the voter, or
which ticket he or she had voted, or how he or she had voted on any
a public question or anything occurring within the voting booth or
compartment or voting machine booth, except when required pursuant
to by law to give testimony as to the matter in a judicial
proceeding.
(e) (d) In accordance with instructions issued by the
Secretary of State, the official designated to supervise and
conduct absentee early in-person voting shall provide a form
entitled "List of Assisted Voters", prescribed by the Secretary of
State, which list is to be divided into two parts. Part A is to be
entitled "Unchallenged Assisted Voters" and Part B is to be
entitled "Challenged Assisted Voters".
(1) Under Part A, the official designated to supervise and
conduct absentee early in-person voting shall enter the name of
each voter receiving unchallenged assistance in voting an absent
voter's the ballot, the address of the voter assisted, the nature
of the disability which qualified the voter for assistance, in
voting an absent voter's ballot, the name of the person providing
the voter with assistance, in voting an absent voter's ballot, the
fact that the person rendering the assistance in voting made and
subscribed to the oath required by this section and the signature
of the official designated to supervise and conduct absentee early
in-person voting certifying to the fact that he or she had determined that the voter who received assistance in voting an
absent voter's ballot was qualified to receive the assistance under
the provisions of this section.
(2) Under Part B, the official designated to supervise and
conduct absentee early in-person voting shall enter the name of
each voter receiving challenged assistance in voting, the address
of the voter receiving challenged assistance, the reason for the
challenge and the name of the person providing the challenged voter
with assistance in voting. At the close of the period provided for
voting an absent voter's ballot by personal appearance, early
in-person voting, the official designated to supervise and conduct
absentee early in-person voting shall make and subscribe to an oath
on the list that the list is correct in all particulars. If no
voter has been assisted in voting an absent voter's ballot as
provided in this section, the official designated to supervise and
conduct absentee early in-person voting shall make and subscribe to
an oath of that fact on the list. The "List of Assisted Voters" is
to be available for public inspection in the office of the official
designated to supervise and conduct absentee voting county clerk
during regular business hours throughout the period provided for
early in-person voting. an absent voter's ballot by personal
appearance and, unless otherwise directed by the Secretary of
State, the official shall transmit the list, together with the
affidavits, applications and absent voters' ballots, to the precincts on election day.
(f) (e) Following the election, the affidavits required by
this section from persons providing assistance in voting, together
with the "List of Assisted Voters", are to be returned by the
election commissioners to the clerk of the county commission, along
with the election supplies, records and returns, retained by the
clerk of the county commission who shall make the oaths and list
available for public inspection and who shall preserve the oaths
and list for twenty-two months or, if under order of the court,
until their destruction or other disposition is authorized or
directed by the court.
(g) (f) Any A person making an affidavit required under the
provisions of this section who knowingly swears falsely in the
affidavit or any a person who counsels or advises, aids or abets
another in the commission of false swearing under this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $1,000 or confined in the county or regional
jail for a period of not more than one year, or both fined and
confined.
_____(h) (g) Any A person who provides a voter assistance in voting
an absent voter's ballot in the office of the official designated
to supervise and conduct absentee early in-person voting who is not
qualified or permitted by this section to provide assistance is
guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county or regional
confined in jail for a period of not more than one year, or both
fined and confined.
_____(i) (h) Any An official designated to supervise and conduct
absentee early in-person voting, election commissioner or poll
clerk who authorizes or allows a voter to receive or to have
received unchallenged assistance in voting an absent voter's a
ballot when the voter is known to the official designated to
supervise and conduct absentee early in-person voting or election
commissioner or poll clerk not to be or have been authorized by the
provisions of this section to receive or to have received
assistance in voting, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000 or
imprisoned in the county or regional or confined in jail for a
period of not more than one year, or both fined and confined.
_____(j) (i) The term "physical disability" as used in this section
means:
(1) Blindness or a degree of blindness as will prevent that
prevents the voter from seeing the names on the ballot; or
(2) Amputation of both hands; or
(3) A disability of both hands that neither can be used to
make cross marks on the absent voter's ballot.
§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 a 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), (a), 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, is to 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; and
_____(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) (4) 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 provisional as provided in this article
and shall enter that challenge the provisional reason.
(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 with 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; The list of write-in candidates; 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, not later than forty six days before the
election when the application is received by the clerk by this day,
otherwise, within one day after receiving and processing the
application. 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 (B) The list of write-in candidates; is
available upon request; and
(D) Statement (C) Oath 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 but 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.
(2) After the voter has voted the ballots or ballots to be
returned electronically, the voter shall return the ballot, the
privacy waiver form and the oath of voter according to instructions
provided for returning the ballot by electronic means or by mail.
(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), (a), 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. Ballots which cannot be accepted are to be entered into
the voter's record within the statewide voter registration system
with the reason for not being accepted.
(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 an election and any a person
hand delivering an absentee ballot is required to certify that he
or she has not examined or altered the ballot. Any A 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
statewide voter registration system 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 and oath: 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 within
the statewide voter registration system.
§3-3-5a. Processing federal postcard applications.
When a federal postcard registration and absentee ballot
request (FPCA), as defined in subdivision (2), subsection (b),
section two of this article, is received by the official designated
to supervise and conduct absentee voting, the official shall examine the application and take the following steps:
(1) The official shall first enter the name of the applicant
in the permanent absentee statewide voter registration system
voter's record for each election for which a ballot is requested,
make a photocopy of the application for each election for which a
ballot is requested and place the separate copies in secure files
to be maintained for use in the various elections.
(2) The official designated to supervise and conduct absentee
voting shall determine if the applicant is registered to vote at the
residence address listed in the voting residence section of the
application. If the applicant is not registered or not registered
at the address given, the official shall deliver the original FPCA
to the clerk of the county commission for processing and the clerk
of the county commission shall process the application as an
application for registration. and, If the application is received
after the close of voter registration for the next succeeding
election, the official shall challenge the absentee ballot for that
election and send a provisional ballot to the voter.
(3) Except as provided in subdivision (2) of this section, the
federal application for an absentee ballot received from a person
qualified to use the application as provided in section two of this
article is to be processed as all other applications. and The ballot
or ballots for each election for which ballots are requested by the
applicant is to be mailed to the voter on the first day on which both the application and the ballot are available. transmitted to
the voter by the voter's preferred option on the forty-sixth day
before the election if both the application and the ballot are
available. If after the forty-sixth day, the ballot or ballots are
to be transmitted on the first day after receipt of the application.
§3-3-5b. Procedures for voting a federal write-in absentee ballot
by qualified persons.
(a) Notwithstanding any other provisions of this chapter, a
person qualified to vote an absentee ballot in accordance with
subdivision (3), subsection (d) (a), section one of this article may
apply not earlier than January 1 of an election year for a special
federal write-in absentee ballot for a primary or general election
in conjunction with the application for a regular absentee ballot
or ballots. If the application is received after the forty-ninth
day preceding the election, the official designated to supervise and
conduct absentee voting shall honor only the application for local,
state and federal offices in general, special and primary elections.
(b) The application for a special federal write-in absentee
ballot may be made on the federal postcard application form.
(c) In order to qualify for a special federal write-in absentee
ballot, the voter must state that he or she is unable to vote by
regular absentee ballot or in person due to requirements of military
service or due to living in isolated areas or extremely remote areas
of the world. This statement may be made on the federal postcard application or on a form prepared by the Secretary of State and
supplied and returned with the special federal write-in absentee
ballot.
(d) Upon receipt of the application within the time required,
the official designated to supervise and conduct absentee voting
shall issue the special federal write-in absentee ballot which is
to be the same ballot issued under the provisions of 42 U.S.C.
§1973, et seq., the Uniformed and Overseas Citizens Absentee Voting
Act of 1986. The ballot is to permit the elector to vote in a
primary election by indicating his or her political party
affiliation and the names of the specific candidates for each office
and, in a general election, by writing in a party preference for
each office, the names of specific candidates for each office or the
name of the person whom the voter prefers for each office.
(e) When a special federal write-in ballot is A federal
write-in ballot may not be counted when received by the official
designated to supervise and conduct absentee voting from a voter:
(1) Who mailed the write-in ballot from any a location within
the United States;
(2) Who did not apply for a regular absentee ballot; or
_____(3) who did not apply for a regular absentee ballot by mail;
or
(4)(3) Whose application for a regular absentee ballot by mail
was received less than thirty days before the election. the write-in ballot may not be counted.
(f) Any write-in absentee ballot must be received by the
official designated to supervise and conduct absentee voting prior
to the close of the polls on election day or it may not be counted.
§3-3-5c. Procedures for voting an emergency absentee ballot by
qualified voters.
(a) Notwithstanding any other provision of this chapter, a
person qualified to vote an emergency absentee ballot, as provided
in subsection (c) (b), section one of this article, may vote an
emergency absentee ballot under the procedures established in this
section. The county commission may adopt a policy extending the
emergency absentee voting procedures to: (1) Hospitals or other
duly licensed health care facilities within an adjacent county or
within thirty-five miles of the county seat; or (2) nursing homes
and veterans' homes within the county. Provided, That The policy
is to be adopted by the county commission at least ninety days prior
to the election that will be affected and a copy of the policy is
to be filed with the Secretary of State.
(b) On or before the fifty-sixth day preceding the date on
which any an election is to be held, the official designated to
supervise and conduct absentee voting shall notify the county
commission of the number of sets of emergency absentee ballot
commissioners which he or she determines necessary to perform the
duties and functions pursuant to this section.
(c) A set of emergency absentee ballot commissioners at-large
shall consist consists of two persons with different political party
affiliations appointed by the county commission in accordance with
the procedure prescribed for the appointment of election
commissioners under the provisions of article one of this chapter.
Emergency absentee ballot commissioners have the same qualifications
and rights and take the same oath required under the provisions of
this chapter for commissioners of elections. Emergency absentee
ballot commissioners are to be compensated for services and expenses
in the same manner as commissioners of election or poll clerks
obtaining and delivering election supplies under the provisions of
section forty-four, article one of this chapter.
(d) Upon request of the voter or a member of the voter's
immediate family or, when the county commission has adopted a policy
to provide emergency absentee voting services to nursing home and
veterans' home residents within the county, upon request of a staff
member of the nursing or veterans' home, the official designated to
supervise and conduct absentee voting, upon receiving a proper
request for voting an emergency absentee ballot no earlier than the
seventh day next preceding the election and no later than noon of
election day, shall supply to the emergency absentee ballot
commissioners the application for voting an emergency absentee
ballot and the balloting materials. The emergency absentee ballot
application is to be prescribed by the Secretary of State and is to include the name, residence address, and political party affiliation
of the voter, the date location and reason for confinement in the
case of an emergency, and the name of the attending physician. and
location of the voter.
(e) The application for an emergency absentee ballot is to be
signed by the person applying. If the person applying for an
emergency absentee ballot is unable to sign his or her application
because of illiteracy or physical disability, he or she is to make
his or her mark on the signature line provided for an illiterate or
disabled applicant. The mark is to be witnessed. The person
assisting the voter and witnessing the mark of the voter shall sign
his or her name in the space provided.
(f) A declaration is to be completed and signed by each of the
emergency absentee ballot commissioners stating their names and the
date on which they appeared at the place of confinement of the
person applying for an emergency absentee. ballot and the
particulars of the confinement.
(g) At least one of the emergency absentee ballot commissioners
receiving the balloting materials shall sign a receipt which is to
be attached to the application form. Each of the emergency absentee
ballot commissioners shall deliver the materials to the absent
voter, await his or her completion of the application and ballot and
return the application and the ballot ballot in a sealed envelope
and the application to the official designated to supervise and conduct absentee voting. Upon delivering the application and the
voted ballot to the official, the emergency absentee ballot
commissioners shall sign an oath that no person other than the
absent voter voted the ballot. The application and the voted ballot
are to be returned to the official designated to supervise and
conduct absentee voting prior to the close of the polls on election
day. Any Ballots received by the official after the time that
delivery may reasonably be made but before the closing of the polls
are to be delivered to the canvassing board along with the absentee
ballots challenged in accordance with the provisions of section ten
of this article.
(h) Upon receiving the application and emergency absentee
ballot, the official designated to supervise and conduct absentee
voting shall ascertain whether the application is complete, whether
the voter appears to be eligible to vote an emergency absentee
ballot, and whether the voter is properly registered to vote with
the office of the clerk of the county commission. If the voter is
found to be properly registered in the precinct shown on the
application, the ballot is to be delivered to the precinct election
commissioner pursuant to section seven of this article. If the
voter is found not to be registered or is otherwise ineligible to
vote an emergency ballot, the ballot is to be challenged for the
appropriate reason provided for in section ten of this article.
(i) If either or both of the emergency absentee ballot commissioners refuse to sign any an application for voting an
emergency absentee ballot, the voter may vote as an emergency
absentee and the ballot will be challenged in accordance with the
provisions of section ten of this article in addition to those
absentee ballots subject to challenge as provided in that section.
(j) Any A voter who receives assistance in voting an emergency
absentee ballot shall comply with the provisions of section six of
this article. Any Other provisions of this chapter relating to
absentee ballots not altered by the provisions of this section are
to govern the treatment of emergency absentee ballots.
§3-3-8. Disposition and counting of absent voters' ballots.
(a) In counties using paper ballots instead of electronic
voting systems, all absentee ballots shall be processed as follows:
(1) The ballot boxes containing the absentee ballots shall be
opened in the presence of the clerk of the county commission and two
representatives of opposite political parties;
(2) The ballots shall be separated by precincts as stated on
the sealed envelopes containing the ballots; and
(3) Absentee ballots shall be delivered to the polls to be
opened and counted in accordance with section thirty-three, article
one of this chapter, section fifteen, article five of this chapter;
and section six, article six of this chapter. Disclosure of any
results before the voting has been closed and the precinct returns
posted on the door of the polling place shall be is a per se violation of the oath taken by the counting board. In all other
counties, counting is to begin immediately after closing of the
polls.
_____(4) Except as otherwise provided in this article, in counties
using paper ballots instead of electronic voting systems, the
absentee ballots of each precinct and forms, lists and records as
designated by the Secretary of State, are to be delivered in a
sealed carrier envelope to the election commissioner of the precinct
at the time he or she picks up the official ballots and other
election supplies as provided in section twenty-four, article one
of this chapter.
_____(5) Absentee ballots received after the election commissioner
has retrieved the official ballots and other election supplies for
the precinct are to be delivered to the election commissioner of the
precinct who has been designated, pursuant to section twenty-four,
article one of this chapter, as the official to supervise and
conduct absentee voting in person or by messenger before the closing
of the polls if the ballots are received by the official in time to
make the delivery. Ballots received by the official after the time
that delivery may reasonably be made but within the time required
as provided in subsection (g), section five of this article are to
be delivered to the board of canvassers along with the provisional
ballots.
(b) In counties using optical scan systems, paper based electronic voting systems, the absentee ballots shall be processed
as follows:
(1) On election day, the ballot boxes containing the absentee
ballots shall be delivered to the central counting center and opened
in the presence of the clerk of the county commission and two
representatives of opposite political parties; and
(2) The absentee ballots shall be counted in accordance with
section twenty-seven, article four-a of this chapter.
(c) In counties using direct recording elections voting
systems, the absentee ballots shall be counted as follows:
(1) On election day, the ballot boxes containing the paper
absentee ballots shall be delivered to the central counting center
and opened in the presence of the clerk of the county commission and
two representatives of opposite political parties; and
(2) Each absentee ballot shall be recorded on a direct
recording voting terminal designated by the clerk of the county
commission as the terminal for absentee tabulations after being read
aloud by a separate team of two representatives of opposite
political parties; and
(3) The ballot shall be verified by both teams as being
accurately printed on the paper receipt before the ballot is
tabulated; and
(4) The appropriate election officials shall follow the
procedures set out in subsections (a), (b), (d) and (e), section twenty-seven, article four-a of this chapter and subdivisions (3),
(4), (5) and (6), subsection (c) of said section twenty-seven,
article four-a of this chapter.
(d) The provisional ballots shall be deposited in a provisional
ballot envelope and delivered to the board of canvassers.
(e) Any An election official who determines a person has voted
an absent voter's ballot and has also voted at the polls on election
day must report the fact to the prosecuting attorney of the county
in which the votes were cast.
§3-3-10. Challenging of absent voters' ballots.
(a) The official designated to supervise and conduct absentee
voting may challenge an absent voter's ballot on any of the
following grounds:
(1) That the application for an absent voter's ballot has not
been completed as required by law;
(2) That any a statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) That the applicant for an absent voter's ballot is not
registered to vote in the precinct of his or her residence as
provided by law;
(4) That the person voting an absent early in-person voter's
ballot by personal appearance in his or her office had assistance
in voting the ballot when the person was not qualified for voting
assistance because:
(A) The affidavit of the person who received assistance does
not indicate a legally sufficient reason for assistance; or
(B) The person who received assistance did not make an
affidavit as required by this article; or
(C) The person who received assistance is not so illiterate as
to have been unable to read the names on the ballot or that he or
she is not so physically disabled as to have been unable to see or
mark the absent voter's ballot;
(5) That the person who voted an absent voter's ballot by mail
and received assistance in voting the ballot was not qualified under
the provisions of this article for assistance; and
(6) That the person has voted absentee by mail as a result of
being out of the county more than four consecutive times. Provided,
That The determination as to whether the person has voted more than
four consecutive times does not apply if the person is a citizen
residing out of the United States; a member, spouse or dependent of
a member serving in the uniformed services; or a college student
living outside of his or her home county.
(b) Any One or more of the election commissioners or poll
clerks in a precinct may challenge an absent voter's ballot on any
of the following grounds:
(1) That the application for an absent voter's ballot was not
completed as required by law;
(2) That any a statement or declaration contained in the application for an absent voter's ballot is not true;
(3) That the person voting an absent voter's ballot is not
registered to vote in the precinct of his or her residence as
provided by law;
(4) That the signatures of the person voting an absent voter's
ballot as they appear on his or her registration record, his or her
application for an absent voter's ballot and the absent voter's
ballot envelope are not in the same handwriting;
(5) That the person voting an absent voter's ballot by personal
appearance had assistance in voting the ballot when the person was
not qualified for assistance because:
(A) The affidavit of the person who received assistance does
not indicate a legally sufficient reason for assistance; or
(B) The person who received assistance did not make an
affidavit as required by this article; or
(C) The person who received assistance is not so illiterate as
to have been unable to read the names on the ballot or that he or
she was not so physically disabled as to have been unable to see or
mark the absent voter's ballot;
(6) That the person voted an absent voter's ballot by mail and
received assistance in voting the ballot when not qualified under
the provisions of this article for assistance;
(7) That the person who voted the absent voter's ballot voted
in person at the polls on election day;
(8) That the person voted an absent voter's ballot under
authority of subdivision (3), subsection (b), (a), section one of
this article and is or was present in the county in which he or she
is registered to vote between the opening and closing of the polls
on election day; and
(9) On any other ground or for any reason on which or for which
the ballot of a voter voting in person at the polls on election day
may be challenged.
No challenge may be made to any absent voter ballot if the
voter was registered and qualified to vote pursuant to the
provisions of subsection (a), section one of this article.
(c) Forms for, and the manner of, challenging an absent voter's
ballot under the provisions of this article are to be prescribed by
the Secretary of State.
(d) Absent voters' ballots challenged by the official
designated to supervise and conduct absentee voting under the
provisions of this article are to be transmitted by the official
directly to the county commission sitting as a board of canvassers.
The absent voters' ballots challenged by the election commissioners
and poll clerks under the provisions of this article may not be
counted by the election officials but are to be transmitted by them
to the county commission sitting as a board of canvassers. Action
by the board of canvassers on challenged absent voters' ballots is
to be governed by the provisions of section forty-one, article one of this chapter.
§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 eighty-four days before the date on
which any a primary, general or special election is to be held,
unless a lesser number of days is provided in any a 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 a 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 These 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 is responsible for the mailing, transmitting,
receiving, delivering and otherwise handling of all absent voters'
ballots. He or she shall keep a record within the statewide voter
registration system, 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 The official
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.
NOTE: The purpose of this bill is to clean up and update
existing code language concerning absentee and early in-person
voting.
§3-3-3b and §3-3-3c are new; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.