WEST virginia Legislature
2016 regular session
Senate Bill 5
By Senators Gaunch, Ferns, Karnes, Leonhardt, Trump, Carmichael, Blair, Sypolt and Takubo
Referred to the Committee on the Judiciary.]
A BILL to amend and reenact §3-1-34 and §3-1-41 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §3-1-51; and to amend and reenact §17B-2-1 of said code, all relating to voting procedures; requiring a person desiring to vote to present documentation identifying the voter to one of the poll clerks; setting forth requirements for that documentation; identifying acceptable documentation; exempting from disclosure the address of individuals in the Address Confidentiality Program; directing Secretary of State to educate voters about the identification requirement and develop a program to help ensure that all eligible voters obtain identification; providing for casting of provisional ballot by a person without adequate proof of identification; providing certain exemptions from requirement to present a photo identification card; modifying provisional ballot procedures; and providing for issuance of identification cards at no charge.
Be it enacted by the Legislature of West Virginia:
That §3-1-34 and §3-1-41 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §3-1-51; and that §17B-2-1 of said code be amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-34. Voting procedures generally; identification; assistance to voters; voting records; penalties.
person desiring to vote in an election shall, upon entering the election room,
clearly state his or her name and residence to one of the poll clerks who shall
thereupon announce the same in a clear and distinct tone of voice. The person desiring to vote shall present to one of
the poll clerks an identifying document meeting the requirements of subdivision
(1) of this subsection. The poll clerk shall inspect and confirm that the name
on the identifying document conforms to the name in the individual's voter
registration record and that the image displayed is truly an image of the
person presenting the document. If that person is found to be duly registered as a
voter at that precinct, he or she shall sign his or her name in the designated
location provided at the precinct. If that person is physically or otherwise
unable to sign his or her name, his or her mark shall be affixed by one of the
poll clerks in the presence of the other and the name of the poll clerk
affixing the voter's mark shall be indicated immediately under the affixation.
No ballot may be given to the person until he or she signs his or her name on
the designated location or his or her signature is affixed thereon.
(1) A valid identifying document must:
(A) Have been issued either by the State of West Virginia, or one of its subsidiaries, or by the United States Government; and
(B) Must contain the name and a photograph of the person desiring to vote; and
(C) Must either be currently valid or have expired no more than six months before the date of the primary or general election in which the person desires to vote.
(2) A person desiring to vote may produce any of the following documents:
(A) A valid West Virginia driver’s license or valid West Virginia identification card issued by the West Virginia Division of Motor Vehicles;
(B) A valid driver’s license issued by a state other than the State of West Virginia;
(C) A valid United States passport or passport card;
(D) A valid employee identification card with a photograph of the eligible voter issued by any branch, department, agency, or entity of the United States Government or of the State of West Virginia, or by any county, municipality, board, authority, or other political subdivision of West Virginia;
(E) A valid student identification card with a photograph of the eligible voter issued by a state institution of higher education in West Virginia, as defined in section two, article one, chapter eighteen-b of this code; or
(F) A valid military identification card issued by the United States with a photograph of the person desiring to vote.
(3) If the person desiring to vote is unable to furnish an identifying document which contains his or her name and a photograph, or, if the poll clerk determines that the proof of identification presented by the voter does not qualify as proof of identification under the above listed criteria, the person desiring to vote shall be allowed to cast a provisional ballot after executing an affidavit affirming his or her identity pursuant to paragraph (b) of this subdivision.
(A) The provisional ballot is entitled to be counted once the election authority verifies the identity of the individual by comparing that individual's signature to the current signature on file with the election authority and determines that the individual was otherwise eligible to cast a ballot at the polling place where the ballot was cast.
(B) The affidavit to be used for voting shall be substantially in the following form:
“State of West Virginia
County of .....................................
I do solemnly swear (or affirm) that my name is .................................................; that I reside at.............................; and that I am the person listed in the precinct register under this name and at this address.
I understand that knowingly providing false information is a violation of law and subjects me to possible criminal prosecution.
Signature of voter
Subscribed and affirmed before me this ........... day of ....................., 20....
Name of Election Official
Signature of Election Official”.
(4) A voter who votes in person at a precinct polling place that is located at a state licensed care facility where the voter is a resident is not required to provide proof of identification as a condition before voting in an election.
(5) If the voter objects to the photograph requirement because of religious beliefs, he or she may execute an affidavit of religious exemption that shall be in the following form:
“State of West Virginia
County of .....................................
I,........................, residing at ...................................., do hereby swear or affirm that because of my religious beliefs, I object to having my photograph taken and that I do not possess a form of identification that meets the requirements of the election laws of this state showing my photograph.
I understand that knowingly providing false information is a violation of law and subjects me to a fine of up to $1,000 and/or confinement in jail for up to one year.
I hereby swear or affirm, under the penalties for providing false information, that I am the identical person whom I represent myself to be and that to the best of my knowledge and belief the information above is true and correct.
Signature of voter
Subscribed and affirmed before me this ........... day of ....................., 20.... ................................
Name of Election Official
Signature of Election Official”.
(6) The person entering voter information into the centralized voter registration database shall cause the records to indicate when a voter has not presented a valid photo identification and has executed a voter identity affidavit.
(7) If a voter participating in the Address Confidentiality Program established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code, executes a voter identity affidavit, the program participant's residential or mailing address is subject to the confidentiality provisions of section one hundred eight, article twenty-eight (a), chapter forty-eight of this code and shall be used only for those statutory and administrative purposes authorized by this section.
(8) Prior to the next primary or general election following the effective date of this section, the Secretary of State shall educate voters about the identification requirement and develop a program to help ensure that all eligible voters are able to obtain an identifying document.
(b) The clerk of the county
commission is authorized, upon verification that the precinct at which a
handicapped person is registered to vote is not handicap accessible, to
transfer that person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person for a transfer
of registration must be received by the county clerk no later than thirty days
prior to the date of the election.
handicapped person who has not made a request for a transfer of registration at
least thirty days prior to the date of the election may vote a provisional
ballot at a handicap accessible polling place in the county of his or her
registration. If during the canvass the county commission determines that the
person had been registered in a precinct that is not handicap accessible, the
voted ballot, if otherwise valid, shall be counted. The handicapped person may
vote in the precinct to which the registration was transferred only as long as
the disability exists or the precinct from which the handicapped person was
transferred remains inaccessible to the handicapped. To ensure confidentiality
of the transferred ballot, the county clerk processing the ballot shall provide
the voter with an unmarked envelope and an outer envelope designated “provisional
ballot/handicapped voter”. After validation of the ballot at the canvass, the
outer envelope shall be destroyed and the handicapped voter's ballot shall be
placed with other approved provisional ballots prior to removal of the ballot
from the unmarked envelope.
(c) When the voter's signature is properly marked and the voter has presented a valid identifying document, the two poll clerks shall sign their names in the places indicated on the back of the official ballot and deliver the ballot to the voter to be voted by him or her without leaving the election room. If he or she returns the ballot spoiled to the clerks, they shall immediately mark the ballot “spoiled” and it shall be preserved and placed in a spoiled ballot envelope together with other spoiled ballots to be delivered to the board of canvassers and deliver to the voter another official ballot, signed by the clerks on the reverse side. The voter shall thereupon retire alone to the booth or compartment prepared within the election room for voting purposes and there prepare his or her ballot. In voting for candidates in general and special elections, the voter shall comply with the rules and procedures prescribed in section five, article six of this chapter.
(d) It is the duty of a
poll clerk, in the presence of the other poll clerk, to indicate by a check
mark, or by other means, inserted in the appropriate place on the registration
record of each voter the fact that the voter voted in the election. In primary
elections the clerk shall also insert
on the registration record of each voter a
distinguishing initial or initials of the political party for whose candidates
the voter voted. If a person is challenged at the polls, the challenge shall be
indicated by the poll clerks on the registration record, together with the name
of the challenger. The subsequent removal of the challenge shall be recorded on
the registration record by the clerk of the county commission.
(1) No voter may receive any assistance in voting unless, by reason of
blindness, disability, advanced age or inability to read and write, that voter
is unable to vote without assistance. Any
voter so qualified to receive assistance in voting
provisions of this section may:
(A) Declare his or her
choice of candidates to an Election Commissioner of each political party who,
in the presence of the voter and in the presence of each other, shall prepare the ballot for voting in the manner
provided in this section and, on request, shall read to the voter the
names of the candidates selected on the ballot;
(B) Require the Election
Commissioners to indicate to him or her the relative position of the names of
the candidates on the ballot,
whereupon the voter shall then
retire to one of the booths or compartments to prepare his or her ballot in the
manner hereinbefore provided in this section;
(C) Be assisted by any person of the voter's choice, other than the voter's present or former employer or agent of that employer, the officer or agent of a labor union of which the voter is a past or present member or a candidate on the ballot or an official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile outside the polling place or precinct by the absentee balloting method provided in subsection (e), section five, article three of this chapter in the presence of an Election Commissioner of each political party if all of the following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the polling place.
(2) The voted ballot shall then be returned to the precinct officials and secured in a sealed envelope to be returned to the clerk of the county commission with all other election materials. The ballot shall then be tabulated using the appropriate method provided in section eight of this chapter as it relates to the specific voting system in use.
voter who requests assistance in voting
but who is believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional ballot with
the assistance of any person herein authorized to render assistance.
Any One or
more of the Election Commissioners or poll clerks in the precinct may challenge
the ballot on the ground that the voter thereof received assistance in
voting it when in his, her or their opinion the person who received assistance
in voting is not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The Election Commissioner or poll
clerk or commissioners or poll clerks making the challenge shall enter the
challenge and reason therefor the reason for such challenge on
the form and in the manner prescribed or authorized by article three of this
(5) An Election Commissioner or other person who assists a voter in voting:
(A) May 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 public question and must
not keep or make any memorandum or entry of anything occurring within the
voting booth or compartment and must 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 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; and
(B) Shall sign a written
oath or affirmation before assisting the voter on a form prescribed by the
Secretary of State stating that he or she will not override the actual
preference of the voter being assisted, attempt to influence the voter's choice
or mislead the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or affirm that
he or she believes that the voter is voting free of intimidation or
Provided, That No person providing
assistance to a voter is required to sign an oath or affirmation where the
reason for requesting assistance is the voter's inability to vote without
assistance because of blindness as defined in section three, article fifteen,
chapter five of this code and the inability to vote without assistance because
of blindness is certified in writing by a physician of the voter's choice and
is on file in the office of the clerk of the county commission.
In accordance with instructions issued by the Secretary of State, the clerk of
the county commission shall provide a form entitled “list of assisted voters”,
form of which list shall likewise be on a form as prescribed by the
Secretary of State. The commissioners shall enter the name of each voter
receiving assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner from each
party who assisted the voter. If no voter has been assisted in voting, the
commissioners shall likewise make and subscribe to an oath of that fact
on the list.
After preparing the ballot, the voter shall fold the ballot so that the face is
not exposed and
so that the names of the poll clerks thereon on
it are seen. The voter shall announce his or her name and present his or
her ballot to one of the commissioners who shall hand the same to another
commissioner, of a different political party, who shall deposit it in the
ballot box if the ballot is the official one and properly signed. The
commissioner of election may inspect every ballot before it is deposited in the
ballot box to ascertain whether it is single; but without unfolding or
unrolling it so as to disclose its content. When the voter has voted, he or
she shall retire immediately from the election room and beyond the sixty-foot
limit thereof and may and not return except by permission of the
Following the election, the oaths or affirmations required by this section from
those assisting voters, together with the “list of assisted voters”, shall be
returned by the Election Commissioners to the clerk of the county commission
along with the election supplies, records and returns. The clerk of the county
commission shall make the oaths, affirmations and list available for public
shall preserve them for a period of twenty-two months or
until disposition is authorized or directed by the Secretary of State or court
of record. Provided, That The clerk may use these records
to update the voter registration records in accordance with subsection (d),
section eighteen, article two of this chapter.
(h) Any person making an oath or affirmation required under the provisions of this section who knowingly swears falsely or any person who counsels, 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 jail for a period of not more than one year, or both fined and confined.
(i) Any Election Commissioner or poll clerk who authorizes or provides unchallenged assistance to a voter when the voter is known to the Election Commissioner or poll clerk not to require assistance in voting, is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a state correctional facility for a period of not less than one year nor more than five years, or both fined and imprisoned.
§3-1-41. Challenged and provisional voter procedures; counting of provisional voters' ballots; ballots of election officials.
(a) It is the duty of the members of the receiving board, jointly or severally, to challenge the right of any person requesting a ballot to vote in any election:
(1) If the person's registration record is not available at the time of the election;
(2) If the signature written by the person in the poll book does not correspond with the signature purported to be his or hers on the registration record;
If the registration record of the person indicates any other legal
(4) If the person fails to present a valid identifying document pursuant to section thirty-four of this article; or
If any other valid challenge exists against the voter pursuant to section ten,
article three of this chapter.
(b) Any person challenged shall nevertheless be permitted to vote in the election. He or she shall be furnished an official ballot not endorsed by the poll clerks. In lieu of the endorsements, the poll clerks shall complete and sign an appropriate form indicating the challenge, the reason thereof and the name or names of the challengers. The form shall be securely attached to the voter's ballot and deposited together with the ballot in a separate box or envelope marked “provisional ballots”.
(c) At the time that an individual casts a provisional ballot, the poll clerk shall give the individual written information stating that an individual who casts a provisional ballot will be able to ascertain under the free access system established in this section whether the vote was counted and, if the vote was not counted, the reason that the vote was not counted.
(d) Before an individual casts a provisional ballot, the poll clerk shall provide the individual written instructions, supplied by the board of ballot commissioners, stating that if the voter is casting a ballot in the incorrect precinct, the ballot cast may not be counted for that election: Provided, That if the voter is found to be in the incorrect precinct, then the poll worker shall attempt to ascertain the appropriate precinct for the voter to cast a ballot and immediately give the voter the information if ascertainable.
(e) Provisional ballots may not be counted by the election officials. The county commission shall, on its own motion, at the time of canvassing of the election returns, sit in session to determine the validity of any challenges according to the provisions of this chapter. If the county commission determines that the challenges are unfounded, each provisional ballot of each challenged voter, if otherwise valid, shall be counted and tallied together with the regular ballots cast in the election. The county commission, as the board of canvassers, shall protect the privacy of each provisional ballot cast. The county commission shall disregard technical errors, omissions or oversights if it can reasonably be ascertained that the challenged voter was entitled to vote.
(f) Any person duly appointed as an Election Commissioner or clerk under the provisions of section twenty-eight of this article who serves in that capacity in a precinct other than the precinct in which the person is legally entitled to vote may cast a provisional ballot in the precinct in which the person is serving as a commissioner or clerk. The ballot is not invalid for the sole reason of having been cast in a precinct other than the precinct in which the person is legally entitled to vote. The county commission shall record the provisional ballot on the voter's permanent registration record: Provided, That the county commission may count only the votes for the offices that the voter was legally authorized to vote for in his or her own precinct.
(g) The Secretary of State shall establish a free access system, which may include a toll-free telephone number or an Internet website, that may be accessed by any individual who casts a provisional ballot to discover whether his or her vote was counted and, if not, the reason that the vote was not counted.
§3-1-51. Identity Verification of Voters Executing a Voter Identity Affidavit.
(a) The clerk of the county commission shall cause a letter to be mailed by first class mail to each voter who executed a voter identity affidavit pursuant to section thirty-four of this article. The letter shall be mailed within sixty days after the election. The clerk shall mark the envelope with instructions to the United States Post Office not to forward the letter and to provide address correction information. The letter shall notify the addressee that a person who did not present valid photo identification voted using his or her name and address and instruct the addressee to contact the clerk immediately if he or she did not vote. The letter shall also inform the addressee of the procedure for obtaining a nondriver's picture identification card for voting purposes.
(b) The clerk of the county commission shall cause letters mailed pursuant to subsection (a) of this section that are returned as undeliverable by the United States Post Office to be referred to the Secretary of State. The clerk shall also prepare and forward to the Secretary of State a list of all persons who were mailed letters under subsection (a) of this section and who notified the clerk that they did not vote. Upon receipt of notice from a person who receives a letter mailed pursuant to subsection (a) of this section that the person did not vote, or upon receipt of a referral from the clerk, the Secretary of State shall cause an investigation to be made to determine whether fraudulent voting occurred.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-1. Drivers must be licensed; types of licenses; licensees need not obtain local government license; motorcycle driver license; identification cards.
(a) (1) No person, except those hereinafter expressly
exempted, may drive
any a motor vehicle upon a street or highway
in this state or upon any a subdivision street used by the public
generally unless the person has a valid driver's license issued pursuant to
this code for the type or class of vehicle being driven.
Any person licensed to operate a motor vehicle pursuant to this code may
exercise the privilege thereby granted in the manner provided in this code and,
except as otherwise provided by law, is not required to obtain any other
license to exercise the privilege by
any a county, municipality
or local board or body having authority to adopt local police regulations.
(b) The division, upon issuing a driver's license, shall indicate on the license the type or general class or classes of vehicles the licensee may operate in accordance with this code, federal law or rule. Licenses shall be issued in different colors for those drivers under age eighteen, those drivers age eighteen to twenty-one and adult drivers. The commissioner is authorized to select and assign colors to the licenses of the various age groups.
(c) The following drivers licenses classifications are hereby established:
(1) A Class A, B or C license shall be issued to those persons eighteen years of age or older with two years of driving experience who have qualified for the commercial driver's license established by chapter seventeen-e of this code and the federal Motor Carrier Safety and Improvement Act of 1999 and subsequent rules and have paid the required fee.
A Class D license shall be issued to those persons eighteen years and older
with one year of driving experience who operate motor vehicles other than those
types of vehicles which require the operator to be licensed under the
provisions of chapter seventeen-e of this code and federal law and rule and
whose primary function or employment is the transportation of persons or
property for compensation or wages and have paid the required fee. For the
purpose of regulating the operation of motor vehicles, wherever the term “chauffeur's
license” is used in this code, it
shall be construed to mean means
the Class A, B, C or D license described in this section or chapter seventeen-e
of this code or federal law or rule: Provided, That anyone not required
to be licensed under the provisions of chapter seventeen-e of this code and
federal law or rule and who operates a motor vehicle registered or required to
be registered as a Class A motor vehicle, as that term is defined in section
one, article ten, chapter seventeen-a of this code, with a gross vehicle weight
rating of less than eight thousand one pounds, is not required to obtain a
Class D license.
A Class E license shall be issued to
those persons who have qualified
for a driver’s license under the provisions of this chapter and who are not
required to obtain a Class A, B, C or D license and who have paid the required
fee. The Class E license may be endorsed under the provisions of section seven-b
of this article for motorcycle operation. The Class E or G license for any
a person under the age of eighteen may also be endorsed with the
appropriate graduated driver license level in accordance with the provisions of
section three-a of this article.
(4) A Class F license shall be issued to those persons who successfully complete the motorcycle examination procedure provided by this chapter and have paid the required fee but who do not possess a Class A, B, C, D or E driver's license.
(5) A Class G driver’s license or instruction permit shall be issued to a person using bioptic telescopic lenses who has successfully completed an approved driver training program and complied with all other requirements of article two-b of this chapter.
All licenses issued under this section may contain information designating the
licensee as a diabetic, organ donor, as deaf or hard-of-hearing,
having any other handicap or disability or that the licensee is an honorably
discharged veteran of any branch of the Armed Forces of the United States,
according to criteria established by the division, if the licensee requests
this information on the license. An honorably discharged veteran may be issued
a replacement license without charge if the request is made before the
expiration date of the current license and the only purpose for receiving the replacement
license is to get the veterans designation placed on the license.
No person, except those hereinafter expressly exempted, may drive
motorcycle upon on a street or highway in this state or upon
any on a subdivision street used by the public generally unless the
person has a valid motorcycle license, a valid license which has been endorsed
under section seven-b of this article for motorcycle operation or a valid
motorcycle instruction permit.
(1) An identification card may be issued to
any a person who:
(A) Is a resident of this state in accordance with the provisions of section one-a, article three, chapter seventeen-a of this code;
Has reached the age of two years
The division may also issue an
identification card to a person under the age of two years,for good cause
shown; or, for good cause shown, under the age of two.
Has paid the required fee of $2.50 per year: Provided, That
is not no fees or charges, including renewal fees, are required if
Is sixty-five years or older;
Is legally blind;
(iii) Will be at least eighteen years of age at the next general, municipal or special election and intends to use this identification card as a form of identification for voting; and
(D) Presents a birth certificate or other proof of age and identity acceptable to the division with a completed application on a form furnished by the division.
(2) The identification card shall contain the same information as a driver's license except that the identification card shall be clearly marked as an identification card. The division may issue an identification card with less information to persons under the age of sixteen. An identification card may be renewed annually on application and payment of the fee required by this section.
(A) Every identification card issued to a person who has attained his or her twenty-first birthday expires on the licensee’s birthday in those years in which the licensee’s age is evenly divisible by five. Except as provided in paragraph (B) of this subdivision, no identification card may be issued for less than three years or for more than seven years and expires on the licensee’s birthday in those years in which the licensee’s age is evenly divisible by five.
(B) Every identification card issued to a person who has not attained his or her twenty-first birthday expires thirty days after the licensee’s twenty-first birthday.
Every identification card issued to persons under the age of sixteen shall be
issued for a period of two years and
shall expire on the last day of the
month in which the applicant's birthday occurs.
(3) The division may issue an identification card to an applicant whose privilege to operate a motor vehicle has been refused, canceled, suspended or revoked under the provisions of this code.
(g) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $500 and, upon a second or subsequent conviction, shall be fined not more than $500 or confined in jail not more than six months, or both fined and confined.
NOTE: The purpose of this bill is to require voters to provide a photo identification when voting, to identify the requirements for those photo identifications, to set forth certain qualifying identification documents, to provide for provisional ballots to be cast by voters who do not possess the required photo identification, to allow for certain exemptions for those who live in nursing care facilities where precincts are located and those with religious objections to having their photograph taken, to update provisional ballot procedures and, additionally, to provide for complimentary photo identification cards to a voter upon request and representation that the photo identification card is requested for the purpose of voting.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.