ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 494
(Senators Kessler, Oliverio, White, Plymale and Jenkins, original
sponsors)
____________
[Passed March 5, 2008; in effect from passage.]
____________
A BILL to amend and reenact §3-4A-2, §3-4A-10, §3-4A-13, §3-4A-16,
§3-4A-17, §3-4A-19, §3-4A-28 and §3-4A-33 of the Code of West
Virginia, 1931, as amended, all relating to allowing election
officials to use an electronic poll book containing voter
registration information to verify that registered voters are
eligible to vote in an election; defining terms; providing for
storage, protection and maintenance of electronic poll books
by county clerk; providing for use of electronic poll book to
verify eligibility of voter; requiring election official to
notify person not shown in electronic poll book to eligible to
vote of the correct precinct; requiring preelection
examination of electronic poll books; and requiring use of
printed poll book if electronic poll book is not in working
order.
Be it enacted by the Legislature of West Virginia:
That §3-4A-2, §3-4A-10, §3-4A-13, §3-4A-16, §3-4A-17,
§3-4A-19, §3-4A-28 and §3-4A-33 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-2. Definitions.
As used in this article, unless otherwise specified:
(1) "Automatic tabulating equipment" means all apparatus
necessary to electronically count votes recorded on ballots and
tabulate the results;
(2) "Ballot" means a tabulating card or paper on which votes
may be recorded by means of perforating or marking with
electronically sensible ink or pencil or a screen upon which votes
may be recorded by means of a stylus or by means of touch;
(3) "Central counting center" means a facility equipped with
suitable and necessary automatic tabulating equipment, selected by
the county commission, for the electronic counting of votes
recorded on ballots;
(4) "Electronic poll book" means an electronic device
containing the same voter registration information maintained by
the county clerk in a printed poll book.
(5) "Electronic voting system" is a means of conducting an
election whereby votes are recorded on ballots by means of an
electronically sensible marking ink, by perforating or are recorded
on equipment that registers votes on a computer disk, or by
touching a screen with a stylus or by means of touch, and votes are subsequently counted by automatic tabulating equipment at the
central counting center;
(6) "Program deck" means the actual punch card deck or decks,
or a computer program disk, diskette, tape or other programming
media, containing the program for counting and tabulating the
votes, including the "application program deck";
(7) "Application program deck" means the punch card deck or
equivalent capacity in other program medias as provided, containing
specific options used and necessary to modify the program of
general application, to conduct and tabulate a specific election
according to applicable law;
(8) "Standard validation test deck" means a group of ballots
wherein all voting possibilities which can occur in an election are
represented; and
(9) "Vote-recording device" means equipment in which ballot
labels and ballots are placed to allow a voter to record his or her
vote by perforating or equipment with a screen upon which votes may
be recorded by means of a stylus or by means of touch.
§3-4A-10. County clerk to be custodian of vote-recording devices,
tabulating equipment and electronic poll books;
duties.
(a) When an electronic voting system is acquired by any county
commission, the vote-recording devices, where applicable, and the
tabulating equipment shall be immediately placed in the custody of
the county clerk and shall remain in his or her custody at all times except when in use at an election or when in custody of a
court or court officers during contest proceedings. The clerk
shall see that the vote-recording devices and the tabulating
equipment are properly protected and preserved from damage or
unnecessary deterioration and shall not permit any unauthorized
person to tamper with them. The clerk shall also keep the vote-
recording devices and tabulating equipment in repair and of
preparing the same for voting.
(b) When a county commission elects to acquire and use
electronic poll books in lieu of printed poll books, the clerk of
the county commission shall immediately take custody of the
electronic poll books, which shall remain in his or her custody at
all times except when in use at an election or when in the custody
of a court or court officers during contest proceedings. The clerk
shall ensure that the electronic poll books are properly protected
and preserved from damage or unnecessary deteriorations and the
clerk shall not permit any unauthorized person to tamper with the
electronic poll books. The clerk shall also keep the electronic
poll books in good repair and the clerk shall prepare the
electronic poll books for election day.
§3-4A-13. Inspection of ballots, electronic poll books and vote-
recording devices; duties of county commission,
ballot commissioners and election commissioners;
records relating to ballots and vote-recording
devices; receipt of election materials by ballot commissioners.
When the clerk of the county commission has completed the
preparation of the ballots and of any electronic poll books and
vote-recording devices as provided in sections eleven-a and twelve-
a of this article and as provided in section twenty-one, article
one of this chapter, and not later than seven days before the day
of the election, he or she shall notify the members of the county
commission and the ballot commissioners that the ballots and any
electronic poll books and devices are ready for use.
(b) The members of the county commission and the ballot
commissioners shall convene at the office of the clerk or at such
other place at which any vote-recording devices or electronic poll
books and the ballots are stored, not later than five days before
the day of the election, and shall inspect the devices, electronic
poll books and the ballots to determine whether the requirements of
this article have been met. Notice of the place and time of the
inspection shall be published, no less than three days in advance,
as a Class I-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code. The
publication area is the county involved.
(c) Any candidate and one representative of each political
party on the ballot may be present during the examination. If the
devices and electronic poll books and ballots are found to be in
proper order, the members of the county commission and the ballot
commissioners shall endorse their approval in the book in which the
clerk entered the numbers of the devices opposite the numbers of the precincts.
(d) The vote-recording devices, the electronic poll books and
the ballots shall then be secured in double lock rooms. The clerk
and the president or president pro tempore of the county commission
shall each have a key. The rooms shall be unlocked only in their
presence and only for the removal of the devices, electronic poll
books and the ballots for transportation to the polls. Upon
removal of the devices, the electronic poll books and the ballots,
the clerk and president or president pro tempore of the county
commission shall certify in writing signed by them that the
devices, the electronic poll books and packages of ballots were
found to be sealed when removed for transportation to the polls.
(e) Vote-recording devices used during the early voting period
may be used on election day if retested in accordance with all the
provisions of this section, including public notice between the
close of early voting and prior to precinct placement for election
day. Vote-recording devices containing a personal electronic
ballot (PEB), a programable memory chip and a printed paper trail
must comply with the applicable requirements of section twenty-six
of this article.
(f) Not later than one day before the election, the election
commissioner of each precinct previously designated by the ballot
commissioners shall attend at the office of the clerk of the county
commission to receive the necessary election records, books and
supplies required by law. The election commissioners shall receive
the per diem mileage rate prescribed by law for this service. The election commissioners shall give the ballot commissioners a
sequentially numbered written receipt, on a printed form, provided
by the clerk of the county commission, for such records, books and
supplies. The receipt shall be prepared in duplicate. One copy of
the receipt shall remain with the clerk of the county commission
and one copy shall be delivered to the president or president pro
tempore of the county commission.
§3-4A-16. Delivery of vote-recording devices and electronic poll
books; time, arrangement for voting.
The clerk of the county commission shall deliver or cause to
be delivered each vote-recording device, electronic poll book and
the package of ballots to the polling place where they are to be
employed. The delivery shall be made not less than one hour prior
to the opening of the polls and in the presence of the precinct
election commissioners. At the time of the delivery the device and
electronic poll books are to be sealed to prevent any use prior to
the opening of the polls and the ballots are to be packaged and
sealed to prevent any tampering with the ballots. Immediately
prior to the opening of the polls on election day, the sealed
packages of ballots are to be opened, where applicable, and the
seal of the vote-recording device and the seal of the electronic
poll book is to be broken in the presence of the precinct election
commissioners, who shall certify in writing signed by them to the
clerk of the county commission that the devices, where applicable,
and the ballots have been delivered in their presence, that the devices and packages of ballots were found to be sealed upon
delivery and that the seals have been broken and the devices opened
in their presence, as may be appropriate. The election
commissioners shall then cause the vote-recording device and booth
to be arranged so that the front of the vote-recording device will
not be visible, when the vote-recording device is being operated,
to any person other than the voter. The poll clerks shall ensure
that the vote-recording device is placed in a location that
maintains voter privacy through the entire period of voting.
§3-4A-17. Check of vote-recording devices and electronic poll
books before use; corrections; reserve vote-recording
devices.
(a) In counties utilizing an electronic voting system where
votes are to be recorded by means of perforating or by touching a
screen with a stylus or by means of touch before permitting the
first voter to vote, the election commissioners shall examine the
vote-recording devices to ascertain whether the ballot labels are
arranged as specified on the facsimile diagram furnished to the
precinct. If the ballot labels are arranged incorrectly, the
commissioners shall immediately notify the clerk of the county
commission of the foregoing facts in writing, indicating the number
of the device, and obtain from the clerk a reserve vote-recording
device and thereafter proceed to conduct the election.
(b) Any reserve vote-recording device so used is to be
prepared for use by the clerk or his or her duly appointed deputy and the reserve vote-recording device is to be prepared, inspected
and sealed and delivered to the polling place wherein the seal is
to be broken and the device opened in the presence of the precinct
election commissioners who shall certify in writing signed by them
to the clerk of the county commission, that the reserve vote-
recording device was found to be sealed upon delivery to the
polling place, that the seal was broken and the device opened in
their presence at the polling place. The vote-recording device
found to have been with incorrect ballot labels is to be returned
immediately to the custody of the clerk who shall then promptly
cause the vote-recording device to be repaired, prepared and
resealed in order that it may be used as a reserve vote-recording
device if needed.
(c) In counties using electronic poll books, the election
commissioners shall examine the electronic poll books to ascertain
whether the poll books are in working order before allowing any
voters to enter the polling location. If the electronic poll books
are not in working order, the election commissioners shall contact
the county clerk who shall immediately authorize a printed poll
book to serve in place of the electronic poll book for that
election. A printed poll book shall accompany the electronic poll
book to each precinct.
§3-4A-19. Conducting electronic voting system elections generally;
duties of election officers; penalties.
(a) The election officers shall constantly and diligently maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.
(b) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing the
party to which the voter belongs shall direct the voter to the
vote-recording device or supply the voter with a ballot, as may be
appropriate, which will allow the voter to vote only for the
candidates who are seeking nomination on the ticket of the party
with which the voter is affiliated or for unaffiliated voters in
accordance with section thirty-one, article two of this chapter.
(c) The poll clerk shall issue to each voter when he or she
signs the poll book a printed card or ticket numbered to correspond
to the number on the poll book of the voter and in the case of a
primary election, indicating the party affiliation of the voter,
which numbered card or ticket is to be presented to the election
commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set up
the voting booths in clear view of the election commissioners.
Where applicable, they shall open the vote-recording devices, place
them in the voting booths, examine them to see that they have the
correct ballots or ballot labels, where applicable by comparing
them with the sample ballots, and determine whether they are in
proper working order. They shall open and check the ballots, the
electronic poll books, if applicable, supplies, records and forms and post the sample ballots or ballot labels and instructions to
voters. Upon ascertaining that all ballots, supplies, electronic
poll books, if applicable, records and forms arrived intact, the
election commissioners shall certify their findings in writing upon
forms provided and collected by the clerk of the county commission
over their signatures to the clerk of the county commission. Any
discrepancies are to be noted and reported immediately to the clerk
of the county commission. The election commissioners shall then
number in sequential order the ballot stub of each ballot in their
possession and report in writing to the clerk of the county
commission the number of ballots received. They shall issue the
ballots in sequential order to each voter.
(e) Upon entering a precinct which is using an electronic poll
book, each voter shall be verified by use of the electronic poll
book to be a registered voter. If the voter is not registered
according to the electronic poll book within that precinct, the
poll clerk is to inform the voter of the proper precinct in which
the voter is registered.
(f) Where applicable, each voter shall be instructed how to
operate the vote-recording device before he or she enters the
voting booth.
(g) Where applicable, any voter who spoils, defaces or
mutilates the ballot delivered to him or her, on returning the
ballot to the poll clerks, shall receive another in its place.
Every person who does not vote any ballot delivered to him or her
shall, before leaving the election room, return the ballot to the poll clerks. When a spoiled or defaced ballot is returned, the
poll clerks shall make a minute of the fact on the poll books, at
the time, write the word "spoiled" across the face of the ballot
and place it in an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the poll books the number
of persons who voted and shall report, in writing signed by them to
the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused. All
unused ballots are to be returned at the same time to the clerk of
the county commission who shall count them and record the number.
All unused ballots shall be stored with the other election
materials and destroyed at the expiration of twenty-two months.
(h) Each commissioner who is a member of an election board
which fails to account for every ballot delivered to it is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or confined in jail for not more
than one year, or both.
(i) The board of ballot commissioners of each county, or the
chair of the board, shall preserve the ballots that are left over
in their hands, after supplying the precincts as provided, until
the close of the polls on the day of election and shall deliver
them to the clerk of the county commission who shall store them with the other election materials and destroy them at the
expiration of twenty-two months.
(j) Where ballots are used, the voter, after he or she has
marked his or her ballot, shall, before leaving the voting booth,
place the ballot inside the envelope or sleeve provided for this
purpose, with the stub extending outside the envelope, and return
it to an election commissioner who shall remove the stub and
deposit the envelope, if applicable, with the ballot inside in the
ballot box. No ballot from which the stub has been detached may be
accepted by the officer in charge of the ballot box, but the ballot
shall be marked "spoiled" and placed with the spoiled ballots. If
an electronic voting system is used that utilizes a screen on which
votes may be recorded by means of a stylus or by means of touch and
the signal warning that a voter has attempted to cast his or her
ballot has failed to do so properly has been activated and the
voter has departed the polling place and cannot be recalled by a
poll clerk to complete his or her ballot while the voter remains
physically present in the polling place, then two election
commissioners of different registered party affiliations, two poll
clerks of different registered party affiliations or an election
commissioner and a poll clerk of different registered party
affiliations shall spoil the ballot.
(k) The precinct election commissioners shall prepare a report
in quadruplicate of the number of voters who have voted and, where
electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch, the number of ballots that were spoiled, as indicated by the poll
books, and shall place two copies of this report in the ballot box
or where electronic voting systems are used that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, shall place two copies of this report and the electronic
ballot devices in a container provided by the clerk of the county
commission, which thereupon is to be sealed with a paper seal
signed by the election commissioners to ensure that no additional
ballots may be deposited or removed from the ballot box. Two
election commissioners of different registered party affiliations
or two special messengers of different registered party
affiliations appointed by the clerk of the county commission, shall
forthwith deliver the ballot box or container to the clerk of the
county commission at the central counting center and receive a
signed numbered receipt therefor. The receipt must carefully set
forth in detail any and all irregularities pertaining to the ballot
boxes or containers and noted by the precinct election officers.
The receipt is to be prepared in duplicate, a copy of which
remains with the clerk of the county commission who shall have any
and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the
report, which are to be immediately mailed to the clerk of the
county commission.
(l) The poll books, register of voters, unused ballots,
spoiled ballots and other records and supplies are to be delivered
to the clerk of the county commission, all in conformity with the provisions of this section.
§3-4A-28. Post-election custody and inspection of vote-recording
devices and electronic poll books; canvass and
recounts.
(a) The vote-recording devices, electronic poll books,
tabulating programs and standard validation test ballots are to
remain sealed during the canvass of the returns of the election,
except that the equipment may be opened for the canvass and must be
resealed immediately thereafter. During the seven-day period after
the completion of the canvass, any candidate or the local chair of
a political party may be permitted to examine any of the sealed
materials
: Provided, That a notice of the time and place of the
examination shall be posted at the central counting center before
and on the hour of nine o'clock in the morning on the day the
examination is to occur and all persons entitled to be present at
the central counting center may, at their option, be present. Upon
completion of the canvass and after the seven-day period has
expired, the vote-recording devices, test results and standard
validation test ballots are to be sealed for one year
: Provided,
however, That the vote-recording devices, electronic poll books,
and all tabulating equipment may be released for use in any other
lawful election to be held more than ten days after the canvass is
completed and any of the electronic voting equipment or electronic
poll books discussed in this section may be released for inspection
or review by a request of a circuit court or the Supreme Court of Appeals.
(b) In canvassing the returns of the election, the board of
canvassers shall examine, as required by subsection (d) of this
section, all of the vote-recording devices, electronic poll books,
the automatic tabulating equipment used in the election and those
voter-verified paper ballots generated by direct recording
electronic vote machines, shall determine the number of votes cast
for each candidate and for and against each question and, by this
examination, shall procure the correct returns and ascertain the
true results of the election. Any candidate or his or her party
representative may be present at the examination.
(c) If any qualified individual demands a recount of the votes
cast at an election, the voter-verified paper ballot shall be used
according to the same rules that are used in the original vote
count pursuant to section twenty-seven of this article. For
purposes of this subsection, "qualified individual" means a person
who is a candidate for office on the ballot or a voter affected by
an issue, other than an individual's candidacy, on the ballot.
(d) During the canvass and any requested recount, at least
five percent of the precincts are to be chosen at random and the
voter-verified paper ballots are to be counted manually. Whenever
the vote total obtained from the manual count of the voter-verified
paper ballots for all votes cast in a randomly selected precinct:
(1) Differs by more than one percent from the automated vote
tabulation equipment; or
(2) Results in a different prevailing candidate or outcome, either passage or defeat, of one or more ballot issues in the
randomly selected precincts for any contest or ballot issue, then
the discrepancies shall immediately be disclosed to the public and
all of the voter-verified paper ballots shall be manually counted.
In every case where there is a difference between the vote totals
obtained from the automated vote tabulation equipment and the
corresponding vote totals obtained from the manual count of the
voter-verified paper ballots, the manual count of the
voter-verified paper ballots is the vote of record.
§3-4A-33. Tampering with vote-recording devices, electronic poll
books, ballot labels, ballot or ballot cards, program
decks, standard validation test decks or other
automatic tabulating equipment; other dishonest
practices; attempts; penalty.
(a) Any person not an election officer or other public
official who shall tamper or attempt to tamper with any vote-
recording device, electronic poll book, ballot label, ballot or
ballot card, program deck, standard validation test deck or
automatic tabulating equipment or in any way intentionally impair
or attempt to impair their use and any person who shall be guilty
of or shall attempt any dishonest practice upon any such devices or
equipment, or with or by their use, shall be deemed guilty of a
felony and, upon conviction thereof, shall be confined in a
correctional facility for not less than one year nor more than ten
years or fined not less than five thousand dollars, or both.
(b) Any clerk of a county commission, county commissioner,
ballot commissioner, election commissioner, or poll clerk, or any
custodian, technician or other public official authorized to take
part in the holding of an election or in preparing for an election,
who, with intent to cause or permit any vote-recording device,
electronic poll book, program deck, standard validation test deck
or other automatic tabulating equipment to fail to record, test or
tabulate correctly all votes cast thereon or tabulated therewith,
tampers with or disarranges such device in any way, or any part or
appliance thereof, or who causes or consents to the use of such
device or equipment for vote recording, testing or tabulating at
any election with knowledge of the fact that the same is not in
order, or not perfectly set and adjusted so that it will correctly
record, test or tabulate all votes cast or who, with the purpose of
defrauding or deceiving any voter or of causing it to be doubtful
for what ticket or candidate or candidates or proposition any vote
is cast, or of causing it to appear on said device or devices that
the votes cast for one ticket, candidate or proposition, were cast
for another ticket, candidate or proposition, removes, changes or
mutilates any ballot, ballot card or ballot label on said device or
any part thereof, or does any other thing intended to interfere
with the validity or accuracy of the election, shall be deemed
guilty of a felony and, upon conviction thereof, shall be confined
in a correctional facility for not less than one year nor more than
ten years, or fined not less than five thousand dollars or both.