Senate Bill No. 514
(By Senators Kessler, Hunter, Minard and Deem)
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[Introduced January 31, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §3-3-5 of the Code of West Virginia,
1931, as amended, relating to voting an absentee ballot by
electronic mail.
Be it enacted by the Legislature of West Virginia:
That §3-3-5 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-5. Voting an absentee ballot by mail, facsimile or electronic
mail; penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of
the county, in person, by mail, by electronic mail or by facsimile
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, by
electronic mail or by facsimile within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official
designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail
under the provisions of paragraph (A) or (B), subdivision (2),
subsection (b), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official
designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of
the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee
ballot will be challenged as provided in this article and shall
enter that challenge.
(e) (1) Within one day after the official designated to
supervise and conduct absentee voting has both the completed application and the ballot, the official shall mail to the voter at
the address given on the application the following items as
required and as prescribed by the Secretary of State:
(A) One of each type of official absentee ballot the voter is
eligible to vote, prepared according to law;
(B) One envelope, unsealed, which may have no marks except the
designation "Absent Voter's Ballot Envelope No. 1" and printed
instructions to the voter;
(C) One postage paid envelope, unsealed, designated "Absent
Voter's Ballot Envelope No. 2";
(D) Instructions for voting absentee by mail;
(E) For electronic systems, a device for marking by
electronically sensible pen or ink, as may be appropriate;
(F) Notice that a list of write-in candidates is available
upon request; and
(G) Any other supplies required for voting in the particular
voting system.
(2) If the voter is an absent uniformed services voter or
overseas voter, as defined by 42 U.S.C. §1973,
et seq., the
official designated to supervise and conduct absentee voting may
voluntarily upon request of the voter transmit the ballot to the
voter via facsimile
or by electronic mail. If the ballot is
transmitted by facsimile
or by electronic mail pursuant to this
subdivision, the official designated to supervise and conduct
absentee voting shall also transmit via facsimile
or by electronic
mail:
(A) A waiver of privacy form, to be promulgated by the
Secretary of State;
(B) Instructions for voting absentee utilizing the Federal
Voting Assistance Program Electronic Transmission System. For the
purposes of this subsection, the "Federal Voting Assistance Program
Electronic Transmission System" is the system established by the
Department of Defense for the explicit purpose of sending and
receiving absentee ballots by military and overseas United States
citizens;
(C) Notice that a list of write-in candidates is available
upon request.
The official designated to supervise and conduct absentee
voting is not required to mail to the voter the materials listed in
paragraphs (B), (C) and (E), subdivision (1) of this subsection.
(f) The voter shall mark the ballot alone
: Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article.
(1) After the voter has voted the ballot or ballots to be
returned by mail, the voter shall:
(A) Place the ballot or ballots in envelope no. 1 and seal
that envelope;
(B) Place the sealed envelope no. 1 in envelope no. 2 and seal
that envelope;
(C) Complete and sign the forms on envelope no. 2; and
(D) Return that envelope to the official designated to
supervise and conduct absentee voting.
(2) If the ballot was transmitted via facsimile
or by
electronic mail as provided in subdivision (2), subsection (e) of
this section, the voter shall return the ballot
via facsimile to
the designated facsimile number of the Federal Voting Assistance
Program Electronic Transmission System 0 in the same manner the
ballot was received, except that the voter may return the ballot by
United States mail, along with a signed privacy waiver form.
(g) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service are to be accepted if:
(1) The ballot is received by the official designated to
supervise and conduct absentee voting no later than the day after
the election; or
(2) The ballot bears a postmark of the United States Postal
Service dated no later than election day and the ballot is received
by the official designated to supervise and conduct absentee voting
no later than the hour at which the board of canvassers convenes to
begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(i) Ballots transmitted via facsimile
or by electronic mail pursuant to subdivision (2), subsection (f) of this section are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the close of
polls on election day:
Provided, That the Secretary of State's
office shall enter into an agreement with the Federal Voting
Assistance Program of the United States Department of Defense to
transmit the ballots to the county clerks at a time when two
individuals of opposite political parties are available to process
the received ballots.
(j) Ballots received after the proper time which cannot be
accepted are to be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they are to be destroyed without being
opened.
(k) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election:
Provided, That no person may hand deliver
more than two absentee ballots in any election and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(l) Upon receipt of the sealed envelope, the official
designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope any other required information; (2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record
of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope into a ballot box that is
secured by two locks with a key to one lock kept by the president
of the county commission and a key to the other lock kept by the
county clerk.
(m) Upon receipt of a ballot submitted via facsimile
or by
electronic mail 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
Facsimile
or by Electronic Mail" with the completed waiver
:
Provided, That no ballots are to be processed without the presence
of two individuals of opposite political parties.
(n) All ballots received by facsimile
or by electronic mail
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 by facsimile
or
by electronic mail.
NOTE: The purpose of this bill is to permit absentee uniformed
services voting by electronic mail.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.