COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 696
(By Senators Oliverio and Tomblin, Mr. President)
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[Originating in the Committee on the Judiciary;
reported March 2, 2004.]
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A BILL to amend and reenact §3-1A-6 of the code of West Virginia,
1931, as amended; and to amend and reenact §3-3-8
of said
code, all relating to election law generally; requiring
rulemaking
in certain circumstances; providing that counties
using voting machines may count absentee ballots at the
courthouse on election day; and prohibiting disclosure or
posting of results prior to closing of the polls.
Be it enacted by the Legislature of West Virginia:
That § 3-1A-6 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §3-3-8
of said code be amended
and reenacted, all to read as follows:
ARTICLE 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.
§3-1A-6. Powers and duties of secretary of state; exercise of
powers by appointees.
The secretary of state shall be the chief election official of
the state. Except for those rules required by the provisions of
section five of this article to be promulgated by the commission,
the secretary of state shall have the authority, after consultation with the state election commission, of which he is a member, to
make, amend and rescind such orders and to promulgate such
legislative rules, in accordance with the provisions of chapter
twenty-nine-a of this code, as may be necessary to standardize and
make effective the provisions of this chapter. Any rule proposed
for promulgation by the secretary of state pursuant to the
provisions of this section, and all rules heretofore adopted or in
any way represented to govern the administration or enforcement of
the provisions of this chapter by the secretary of state, shall be
submitted on or before the first day of August, one thousand nine
hundred ninety-five, to the Legislature for review by the
legislative rule-making review committee and approval by the
Legislature. All rules which have not been submitted and approved
as aforesaid shall be of no further force and effect as of the
first day of April, one thousand nine hundred ninety-six. On or
before the first day of May, two thousand four, the secretary shall
propose for promulgation emergency and legislative rules to
establish requirements prohibiting nondisclosure of election or
voting results by any person by any means before the voting has
been closed and the precinct returns have been posted. It shall be
the duty of all election officials, county commissions, clerks of
county commissions, clerks of circuit courts, boards of ballot
commissioners, election commissioners and poll clerks to abide by
such orders as may be issued and such the legislative rules as may
be promulgated by the secretary of state and the commission.
The secretary of state also shall have authority to require
collection and report of statistical information and to require
other reports by county commissions, clerks of county commissions and clerks of circuit courts.
It shall be his or her further duty to advise with election
officials; to furnish to the election officials a sufficient number
of indexed copies of the current election laws of West Virginia and
the administrative orders and rules issued or promulgated
thereunder; to investigate the administration of election laws,
frauds and irregularities in any registration or election; to
report violations of election laws to the appropriate prosecuting
officials; and to prepare an annual report.
The secretary of state shall also have the power to administer
oaths and affirmations, issue subpoenas for the attendance of
witnesses, issue subpoena duces tecum to compel the production of
books, papers, records, registration records and other evidence and
fix the time and place for hearing any matters relating to the
administration and enforcement of this chapter, or the rules
promulgated by the state election commission or by the secretary of
state as the chief election official of the state. In case of
disobedience to a subpoena or subpoena duces tecum, he may invoke
the aid of any circuit court in requiring the attendance, evidence
and testimony of witnesses and the production of papers, books,
records, registration records and other evidence.
All powers and duties vested in the secretary of state
pursuant to the provisions of this article may be exercised by
appointees of the secretary of state at his discretion, but the
secretary of state shall be responsible for their acts.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-8. Disposition and counting of absent voters' ballots.
(a) In counties using paper ballots, 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 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.
(b) In the counties using punch card 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;
(2) The ballots shall be separated by precincts as stated on
the sealed envelopes containing the ballots; and
(3) The absentee ballots shall be counted in accordance with
section twenty-seven, article four-a of this chapter.
(c) In counties using optical scan 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.
(d) In counties using direct recording elections systems, the
absentee ballots shall be counted in accordance with section
twenty-seven, article four-a of this chapter.
(e) In counties using voting machines as provided for in
section twenty-four, article four of this chapter, that use paper
ballots for early in-person voting and mail-in absentee voting, the
ballots shall be processed as follows:
(1) The ballot boxes containing the early in person and
absentee paper ballots shall be opened at the courthouse in the
presence of the clerk of the county commission and two
representatives of opposite political parties;
(2) The early in person and absentee paper ballots shall be
separated by precincts as stated on the sealed envelopes containing
the ballots; and
(3) The paper early in person and absentee ballots shall be
counted at the courthouse by absentee ballot counting
commissioners. The counting commissioners shall be the same
combination of election officials as the counting board provided
for in subdivision (3), subsection (a), section twenty-nine,
article one of this chapter. The ballot counting commissioners may
begin counting the early in person and absentee ballots no sooner
than nine o'clock a. m. on the day of the election.
(4) Disclosure of any results before the voting has been
closed and the precinct returns posted on the door of the courthouse shall be a per se violation of the oath taken by the
counting board.
Disclosure of any results by any person, other
than the voluntary disclosure of his or her vote, before the voting
has been closed and the precinct returns posted on the door of the
courthouse shall be a per se violation
of section twenty-three,
article nine of this chapter.
(e) (f) The provisional ballots shall be deposited in a
provisional ballot envelope and delivered to the board of
canvassers.
(f) (g) Any 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.
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(NOTE: The purpose of this bill is to bring equality to
counties using voting machines and paper ballots in counting
absentee ballots on election day. Current law allows paper ballot
counties to take the absentee ballots to the various precincts to
be counted throughout the day. This bill allows the 3 lever
machine counties to count absentee ballots at the court house at 5
o'clock p.m. on election day.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)