ENROLLED
Senate Bill No. 236
(By Senators Kessler, Hunter, Oliverio, Plymale, White and Love)
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[Passed March 5, 2008; in effect ninety days from passage.]
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AN ACT to amend and reenact §3-5-15 and §3-5-16 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §3-6-8
and §3-6-9 of said code, all relating to removing obsolete
language relating to the role of circuit clerks in elections.
Be it enacted by the Legislature of West Virginia:
That §3-5-15 and §3-5-16 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §3-6-8 and §3-6-9 of
said code be amended and reenacted, all to read as follows:
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-15. Ascertaining and certifying primary election results.
When the polls are closed in an election precinct where only
a single election board has served, the receiving board shall
perform all of the duties prescribed in this section. When the
polls are closed in an election precinct where two election boards
have served, both the receiving and counting boards shall together conclude the counting of the votes cast, the tabulating and
summarizing of the number of the votes cast, unite in certifying
and attesting to the returns of the election and join in making out
the certificates of the result of the election provided in this
article. They shall not adjourn until the work is completed.
In all election precincts, as soon as the polls are closed and
the last voter has voted, the receiving board shall first process
the absentee ballots according to the provisions of section eight,
article three of this chapter. After the absentee ballots to be
counted have been deposited in the ballot box, the election
officers shall proceed to ascertain the result of the election in
the following manner:
(a) The receiving board shall ascertain from the poll books
and record separately on the proper form the total number of voters
of each party and nonpartisan voters who have voted.
(1) The number of provisional ballots of each party shall be
counted and subtracted from the number of voters of the same party,
which result should equal the number of ballots of that party
deposited in the ballot box.
(2) The total of all voters, including both partisan and
nonpartisan voters, minus the total of all provisional ballots,
should equal the number of nonpartisan ballots deposited in the
ballot box.
(3) The commissioners and clerks shall also report, over their
signatures, the number of each type of ballots spoiled and the number of each type of ballots not voted.
(b) The procedure for counting ballots, whether performed
throughout the day by the counting board, as provided in section
thirty-three, article one of this chapter, or after the close of
the polls by the receiving board or by the two boards together,
shall be as follows:
(1) The ballot box shall be opened and all votes shall be
tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the
box at a time and shall determine if the ballot is properly signed
by the two poll clerks of the receiving board. If not properly
signed, the ballot shall be placed in an envelope for the purpose
without unfolding it. If properly signed, the commissioner shall
announce which type of ballot it is and hand the ballot to a team
of commissioners of opposite politics, who shall together read the
votes marked on the ballot for each office. Write-in votes for
nomination for any office and write-in votes for election for any
person other than an official write-in candidate shall be
disregarded;
(3) The commissioner responsible for removing the ballots from
the box shall keep a tally of the number of ballots of each party
and any nonpartisan ballot as they are removed and whenever the
number of ballots of a particular party shall equal the number of
voters entered on the poll book for that party minus the number of
provisional ballots of that party, as determined according to subsection (a) of this section, any other ballot found in the
ballot box shall be placed in the same envelope with unsigned
ballots not counted, without unfolding the same, or allowing anyone
to examine or know the contents thereof, and the number of excess
ballots of each party shall be recorded on the envelope;
(4) Each poll clerk shall keep an accurate tally of the votes
cast by marking in ink on tally sheets, which shall be provided for
the purpose so as to show the number of votes received by each
candidate for each office;
(5) When the votes have been read from a ballot, the ballot
shall be immediately strung on a thread, with separate threads for
each party's ballots and for nonpartisan ballots.
(c) As soon as the results at the precinct are ascertained,
the commissioners and clerks shall make out and sign three
certificates of result, for each party represented, of the vote for
all candidates of each party represented, on a form prescribed by
the Secretary of State, giving the complete returns of the election
at the polling place, which form shall include the following oath:
We, the undersigned commissioners and poll clerks of the
primary election held at precinct No. .......... of ..........
district of .......... County, W.Va., on the .......... day of
.........., 20..., do hereby certify that having been first duly
sworn, we have carefully and impartially ascertained the result of
said election at said precinct for the candidates on the official
ballot of the .......... party, and the same is as follows:
The election officers shall enter the name of each office and
the full name of each candidate on the ballot and the number of
votes, in words and numbers, received by each. The election
officers shall also enter the full name of every official write-in
candidate for election to offices to be filled in the primary,
except delegate to national convention, and the number of votes for
each. Two of the certificates of result of election, for each
party, shall be sealed in separately addressed envelopes, furnished
for that purpose, and shall be disposed of by the precinct
commissioners as follows: Two of the sealed envelopes containing
the returns of each party shall be delivered to the clerk of the
county commission who shall, within forty-eight hours, mail one of
the sealed returns for each precinct by certified mail to the
Secretary of State. The one unsealed certificate shall be posted
on the outside of the front door of the polling place.
(d) All ballots voted for candidates of each party shall be
sealed in separate envelopes and the commissioners and clerks shall
each sign across the seal.
§
3-5-16. Return of supplies and certificates.
Immediately after completion of the count, tabulation and the
posting of the certificate of result of the primary election in
each precinct, one of the commissioners or poll clerks of each
party at the precinct, designated for that purpose, shall return to
the clerk of the county commission the ballot boxes, registration
books and the several packages of ballots, poll books, tally sheets, certificates and all other election supplies and returns.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-8. Precinct returns; certificates; procedures.
As soon as the results are ascertained, the election officials
shall make out and sign, under oath as provided in section fifteen,
article five of this chapter, four certificates of result on a form
prescribed by the Secretary of State, giving the complete returns
of the election at the polling place, including the name of each
office and the full name of every candidate on the ballot and the
full name of every official write-in candidate for each office and
the number of votes, in words and numbers, received by each, and
the designation of each issue on the ballot and the number of
votes, in words and numbers, for and against the issue.
The certificates shall be sealed and disposed of as provided
in section fifteen, article five of this chapter for certificates
of result of a primary election.
Immediately after the completion of the tabulation and the
posting of the certificate of result of the general election in
each precinct, the ballots, registration books, poll books, tally
sheets and other election supplies shall be sealed and delivered to
the clerk of the county commission as provided in section sixteen,
article five of this chapter.
§3-6-9. Canvass of returns; declaration of results; recounts;
recordkeeping
.
(a) The commissioners of the county commission shall be ex
officio a board of canvassers and, as such, shall keep in a
well-bound book, marked "election record", a complete record of all
their proceedings in ascertaining and declaring the results of
every election in their respective counties. They shall convene as
the canvassing board at the courthouse on the fifth day (Sundays
excepted) after every election held in their county, or in any
district of the county, and the officers in whose custody the
ballots, pollbooks, registration records, tally sheets and
certificates have been placed shall lay them before the board for
examination. They may, if considered necessary, require the
attendance of any of the commissioners, poll clerks or other
persons present at the election to appear and testify respecting
the election and make other orders as shall seem proper to procure
correct returns and ascertain the true results of the election in
their county; but in this case all the questions to the witnesses
and all the answers to the questions and evidence shall be taken
down in writing and filed and preserved. All orders made shall be
entered upon the record. They may adjourn, from time to time, but
no longer than absolutely necessary. When a majority of the
commissioners are not present, the meeting shall stand adjourned
until the next day and so from day to day, until a quorum is
present. All meetings of the commissioners sitting as a board of
canvassers shall be open to the public. The board shall proceed to
open each sealed package of ballots laid before them and, without unfolding them, count the number in each package and enter the
number upon their record. The ballots shall then be again sealed
carefully in a new envelope and each member of the board shall
write his or her name across the place where the envelope is
sealed. After canvassing the returns of the election, the board
shall publicly declare the results of the election; however, they
shall not enter an order certifying the election results for a
period of forty-eight hours after the declaration.
(b) Within the 48-hour period, a candidate voted for at the
election may demand the board to open and examine any of the sealed
packages of ballots and recount them; but they shall seal the
ballots again, along with the envelope above named, and the clerk
of the county commission and each member of the board shall write
his or her name across the places where it is sealed and endorse in
ink, on the outside: "Ballots of the election held at precinct
No.____, in the district of _______________, and county of
_______________, on the ____________ day of _____________." In
computing the 48-hour period as used in this section, Saturdays,
Sundays and legal holidays shall be excluded: Provided, That at the
end of the 48-hour period, an order shall be entered certifying all
election results except for those offices in which a recount has
been demanded.
(c) If a recount has been demanded, the board shall have an
additional twenty-four hours after the end of the 48-hour period in
which to send notice to all candidates who filed for the office in which a recount has been demanded of the date, time and place where
the board will convene to commence the recount. The notice shall
be served under the provisions of subsection (d) of this section.
The recount shall be set for no sooner than three days after the
serving of the notice: Provided, That after the notice is served,
candidates so served shall have an additional twenty-four hours in
which to notify the board, in writing, of their intention to
preserve their right to demand a recount of precincts not requested
to be recounted by the candidate originally requesting a recount of
ballots cast: Provided, however, That there shall be only one
recount of each precinct, regardless of the number of requests for
a recount of any precinct. A demand for the recount of ballots
cast at any precinct may be made during the recount proceedings
only by the candidate originally requesting the recount and those
candidates who notify the board, pursuant to this subdivision, of
their intention to preserve their right to demand a recount of
additional precincts.
(d) Any sheriff of the county in which the recount is to occur
shall deliver a copy thereof in writing to the candidate in person;
or if the candidate is not found, by delivering the copy at the
usual place of abode of the candidate and giving information of its
purport, to the spouse of the candidate or any other person found
there who is a member of his or her family and above the age of
sixteen years; or if neither the spouse of the candidate nor any
other person be found there and the candidate is not found, by leaving the copy posted at the front door of the place of abode.
Any sheriff, thereto required, shall serve a notice within his or
her county and make return of the manner and time of service; for
a failure so to do, he or she shall forfeit twenty dollars. The
return shall be evidence of the manner and time of service.
(e) Every candidate who demands a recount shall be required to
furnish bond in a reasonable amount with good sufficient surety to
guarantee payment of the costs and the expenses of the recount in
the event the result of the election is not changed by the recount;
but the amount of the bond shall in no case exceed three hundred
dollars.
(f) After the board of canvassers has made their certificates
and declared the results as hereinafter provided, they shall
deposit the sealed packages of ballots, absent voter ballots,
registration records, pollbooks, tally sheets and precinct
certificates with the clerk of the county commission from whom they
were received, who shall carefully preserve them for twenty-two
months: 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. If there is no
contest pending as to any election and their further preservation
is not required by any order of a court, the ballots, pollbooks,
tally sheets and certificates shall be destroyed by fire or
otherwise, without opening the sealed packages of ballots. If
there is a contest pending, they shall be destroyed as soon as the contest is ended.
(g) If the result of the election is not changed by the
recount, the costs and expenses of the recount shall be paid by the
party at whose instance the recount was made.