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WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Introduced
Senate Bill 631
By Senator Queen
[Introduced February 15, 2023; referred
to the Committee on the Judiciary]
A BILL to amend and reenact §3-1-48 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-2-6 and §3-2-18 of said code; to amend and reenact §3-7-3, §3-7-6, and §3-7-7 of said code; and to amend and reenact §3-10-3 of said code, all relating to elections in general and specifically expenditures of federal appropriations from Congress to the Secretary of State for purposes that further the administration of federal elections held in the state, payable from the County Assistance Voting Equipment Fund; clarifying the uniform statewide deadline for electronically submitted voter registration applications; changing the deadline by which county clerks must report voter participation history after an election into the statewide voter registration system; making contested elections procedure update; making procedures for election contests before a special court applicable to contested elections of certain judges; changing jurisdiction of election contests for county, district, and municipal elections to the circuit courts; requiring a recount proceeding to be completed before filing certain election contests; providing certain procedural requirements for election contests before circuit courts; providing for appeals of a decision made by a circuit court in an election contest be made to the Supreme Court of Appeals, and granting rulemaking authority to the Supreme Court of Appeals regarding election contests before circuit courts; providing when vacancies in the office of magistrate shall be filled by election or appointment; clarifying that when a vacancy in the office of magistrate creates an unexpired term of more than three years the vacancy shall be filled by election; and clarifying that when a vacancy in the office of magistrate creates an unexpired term of less than three years the vacancy shall be filled by appointment.
Be it enacted by the Legislature of West Virginia:
(a) Legislative findings. — The Help America Vote Act of 2002, PL 107-252, 42 U.S.C. §15301, et seq., provides funding so that all states will be able to implement some form of electronic voting system to replace punch card and lever machines by 2006. The new voting systems must meet several requirements including notifying the voter of over votes and permitting each voter to review his or her ballot and correct errors before casting the vote. The limited, finite funding available to the state will not be sufficient to meet current and future needs for equipment and services as equipment needs to be obtained, repaired, or replaced as technology changes. It is the intent of the Legislature to maximize the available funds by establishing a no-interest loan program to assist any county, regardless of its current voting system, in purchasing necessary electronic voting equipment and services. As the loans are repaid funds will continue to be available to meet future needs. It is not the intent of the Legislature to mandate any technology for voting systems to be utilized in this state and this section is intended only to establish terms and conditions for providing loan assistance to counties in accordance with the provisions of this section.
(b) State Election Fund. — The special revenue account created in the State Treasury and known as the State Election Fund account is continued. Expenditures from the account shall be used by the Secretary of State for the administration of this chapter in accordance with the provisions of 42 U.S.C. §15301, et seq., the Help America Vote Act of 2002, PL 107-252, in accordance with the provisions of §4-11-1 et seq. of this code.
(c) Establishment of special revenue account. — There is created in the State Treasury a special revenue revolving fund account known as the County Assistance Voting Equipment Fund which shall be an interest-bearing account. The fund shall consist of an initial transfer not to exceed $8,500,000 from the State Election Fund established under §3-1-48(b) of this code pursuant to legislative appropriation; any future funds received from the federal government under the Help America Vote Act of 2002, PL 107-252, 42 U.S.C. §15301, et seq., or subsequent acts providing funds to states to obtain, modify, or improve voting equipment and obtain necessary related services including voting systems, technology, and methods for casting and counting votes; any funds appropriated by the Legislature or transferred by any public agency as contemplated or permitted by applicable federal or state law; and any accrued interest or other return on the moneys in the fund. The balance remaining in the fund at the end of each fiscal year shall remain in the fund and not revert to the State General Revenue Fund.
(d) Use of funds. — The money in the fund shall be used only in the manner and for the purposes prescribed in this section. Notwithstanding any provision of law to the contrary, funds in the County Assistance Voting Equipment Fund may not be designated or transferred for any purpose other than those set forth in this section.
(e) Administration of the fund. — The Secretary of State shall administer the fund with the approval of the State Election Commission.
(f) Investment of fund. — The moneys of the fund shall be invested pursuant to §12-6-1 et seq. of this code and in such a manner that sufficient moneys are available as needed for loans authorized under this section.
(g) Loans to counties. — The county assistance voting equipment fund shall be used to make no-interest loans to counties to obtain, modify, or replace voting equipment, software, and necessary related services including voting systems, technology, and methods for casting and counting votes: Provided, That any county commission that purchased an electronic voting system prior to November 13, 2004, is eligible to apply for matching funds under this section to upgrade the system: Provided, however, That matching funds available for an upgrade shall not exceed the amount available under §3-1-48(g)(1) of this code for the purchase of a new electronic voting system under the Secretary of State’s authorized contract. The loans shall be made under the following terms and conditions:
(1) The State Election Commission shall, subject to availability of funds, loan no more than 50 percent of the cost of the voting equipment or services to any county commission: Provided, That a portion or all of the county matching requirement may be waived in limited circumstances as determined by the State Election Commission pursuant to this section.
(2) The county commission shall provide sufficient documentation to establish to the satisfaction of the State Election Commission that the county commission has at least 50 percent of the money necessary to obtain the voting equipment, software, or services for which the loan is sought.
(3) The county commission shall enter into a contract with the State Election Commission for the repayment of the loan over a period not to exceed five years or the length of the contract to obtain the equipment, software, or services, whichever is less.
(4) The county commission shall use the loan for voting equipment and services certified by the State Election Commission pursuant to the provisions of §3-4a-1 et seq. of this code and authorized for use by the Secretary of State.
(5) A county commission may apply for a loan on a form provided by the Secretary of State. The form shall, in addition to requesting information necessary for processing the application, state the deadline for submitting the application and the eligibility requirements for obtaining a loan.
(6) The State Election Commission may waive a portion or all of the matching money required by this subsection for a county commission that can establish that it has exercised due diligence in raising its share of the costs but has been unable to do so. On forms provided by the Secretary of State the county commission shall request a waiver and shall make a full financial disclosure of its assets and liabilities as well as potential for future income when applying for a waiver. The county commission shall demonstrate, to the satisfaction of the State Election Commission, its inability to meet the matching requirements of this subsection and its ability to repay the loan in a timely manner. Notwithstanding the provisions of §3-1-48(g)(3) of this code, the State Election Commission may extend the repayment period on a year-to-year basis for a repayment period not to exceed five additional years.
(h) Application. — An application for a loan shall be approved by the State Election Commission if the requirements of this section have been met.
(i) Rulemaking. — The Secretary of State shall propose for promulgation in accordance with §29A-3-1 et seq. of this code emergency and legislative rules necessary to effectuate the purposes of this section.
(j) Availability of loans. — The State Election Commission may not approve a loan under this section until final standards for electronic voting equipment with a voter verified paper ballot have been established by the Secretary of State or the national institute for standards and technology. The State Election Commission may not approve a loan for the purchase, lease, rental, or other similar transaction to obtain electronic voting equipment, software, or necessary related services unless obtained under a contract authorized by the Secretary of State pursuant to rules promulgated under this section.
(k) Repayment of loans. — The Secretary of State may, by civil action, mandamus, or other judicial or administrative proceeding, compel performance by a county commission of all the terms and conditions of the loan agreement between the state and that county commission including periodic reduction of any moneys due the county from the state.
(l) Notwithstanding the provisions of this section relating to loan procedures, the State Election Commission may, with a recommendation from the HAVA Grant Board, and consistent with the legislative rules of the program, approve a grant to a county for the purchase of election systems, or election system upgrades, payable from the County Assistance Voting Equipment Fund: Provided, That the Secretary of State shall issue emergency rules setting forth the criteria for the issuance of grants to the counties.
(m) Notwithstanding the provisions of this section relating to loan or grant procedures, the State Election Commission may, with a recommendation from the HAVA Grant Board, and consistent with the legislative rules of the program, approve expenditures by the Secretary of State, payable from the County Assistance Voting Equipment Fund, upon application, for the purchase of election equipment or security upgrades that further the administration of federal elections held in the state, which expenditures are limited to election equipment, systems, infrastructure, physical and cyber security upgrades, and any other lawful purpose permitted by the appropriation from Congress: Provided, The State Election Commission shall issue emergency rules setting forth the criteria for the application and approval of these expenditures by the Secretary of State.
(a) Voter registration before an election closes on the 21st day before the election or on the first day thereafter which is not a Saturday, Sunday, or legal holiday.
(b) An application for voter registration, transfer of registration, change of name, or change of political party affiliation submitted by an eligible voter by the close of voter registration is effective for any subsequent primary, general, or special election if the following conditions are met:
(1) The application contains the information required by §3-2-5(c) of this code. Incomplete applications for registration containing information which are submitted within the required time may be corrected within four business days after the close of registration if the applicant provides the required information; and
(2) The application is received by the appropriate clerk of the county commission no later than the hour of the close of registration or is otherwise submitted by the following deadlines:
(A) If mailed, the application shall be addressed to the appropriate clerk of the county commission and is postmarked by the postal service no later than the date of the close of registration. If the postmark is missing or illegible, the application is presumed to have been mailed no later than the close of registration if it is received by the appropriate clerk of the county commission no later than the third day following the close of registration;
(B) If accepted by a designated agency or motor vehicle licensing office, the application is received by that agency or office no later than the close of registration;
(C) If accepted through a registration outreach program, the application is received by the clerk, deputy clerk, or registrar no later than the close of registration;
(D) If accepted through an approved electronic voter registration system, the application is received by the clerk of the county commission or other entity designated by the Secretary of State no later than the close of business by 11:59 p.m. on the final day of registration; and
(3) The verification notice required by the provisions of §3-2-16 of this code mailed to the voter at the residence indicated on the application is not returned as undeliverable.
(a) For the purposes of this article:
(1) "Original voter registration record" means all records submitted or entered in writing or electronically, where permitted by law, for voter registration purposes, including:
(A) Any original application or notice submitted by any person for registration or reinstatement, change of address, change of name, change of party affiliation, correction of records, cancellation, confirmation of voter information or other request or notice for voter registration purposes; and
(B) Any original entry made on any voters registration record at the polling place, or made or received by the clerk of the county commission relating to any voters registration, such as records of voting, presentation of identification and proof of age, challenge of registration, notice of death or obituary notice, notice of disqualifying conviction or ruling of mental incompetence or other original document which may affect the status of any person’s voter registration.
(2) "Active voter registration records" means the registration records, whether on paper or in electronic format, containing the names, addresses, birth dates and other required information for all persons within a county who are registered to vote and whose registration has not been designated as inactive or canceled pursuant to the provisions of this article.
(3) "Inactive voter registration records" means the registration records, whether on paper or in electronic format, containing the names, addresses, birth dates and other required information for all persons designated inactive pursuant to the provisions of §3-2-27 of this code following the return of the prescribed notices as undeliverable at the address provided by the United States Postal Service or entered on the voter registration, or for failure of the contacted voter to return a completed confirmation notice within thirty days of the mailing.
(4) "Canceled voter registration records" means the records containing all required information for all persons who have been removed from the active and inactive voter registration records and who are no longer registered to vote within the county.
(5) "Pending application records" means the temporary records containing all information submitted on a voter registration application, pending the expiration of the verification period.
(6) "Rejected application records" means the records containing all information submitted on a voter registration application which was rejected for reasons as described in this article.
(7) "Confirmation pending records" means the records containing all required information for persons who have been identified to be included in the next succeeding mailing of address confirmation notices as set forth by the National Voter Registration Act of 1993 (42 U.S. C. §1973gg et seq.).
(b) For the purposes of this chapter or of any other provisions of this code relating to elections conducted under the provisions of this chapter, whenever a requirement is based on the number of registered voters, including, but not limited to, the number of ballots to be printed, the limitations on the size of a precinct, or the number of petition signatures required for election purposes, only those registrations included on the active voter registration files shall be counted and voter registrations included on the inactive voter registration files, as defined in this subdivision, shall may not be counted.
(c) Active voter registration records, confirmation pending records and inactive voter registration records may be maintained in the same physical location, providing the records are coded, marked or arranged in such a way as to make the status of the registration immediately obvious. Canceled voter registration records, pending application records and rejected application records may be maintained in separate physical locations. However, all such records shall be maintained in the statewide voter registration database, subject to this article.
(d) The effective date of any action affecting any voter's registration status shall be entered on the voter record, including the effective date of registration, change of name, address or party affiliation or correction of the record, effective date of transfer to inactive status, return to active status or cancellation. When any registration is designated inactive or is canceled, the reason for the designation or cancellation and any reference notation necessary to locate the original documentation related to the change shall be entered on the voter record.
(e) Within one hundred twenty 80 days after each primary, general, municipal or special election, the clerk of the county commission shall enter the voting records into the statewide voter registration database.
(a) Where the election of Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, or of a judge a justice of the Supreme Court of Appeals, a judge of the Intermediate Court of Appeals, or a judge of a circuit court, or a judge of a family court is contested, the case shall be heard and decided by a special court constituted as follows:
(1) The contestee shall select one, the contestant another, and the Governor a third person, who shall preside in said court; and the three, or any two of them, shall meet at a time and place within the state to be appointed by the Governor, and, being first duly sworn impartially to decide according to law and the truth upon the petition, returns and evidence to be submitted to them, shall proceed to hear, and determine the case and certify their decision thereon to the Governor. They shall be entitled to $10 a day each, and the same mileage as members of the Legislature, to be paid out of the treasury of the state, and such the special court is hereby given authority to may employ a stenographer at a reasonable compensation, to be also paid out of the treasury of the state.
(2) In all hearings or proceedings before such the special court, the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing by such the special court, or any member thereof.
(3) and In case of If there is disobedience to a subpoena or other process of such the special court, or any member thereof, such the special court, or any member thereof, or either of the parties to such the contest, may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books, and documents. And such the circuit court, in case of a refusal to obey the subpoena issued to any person, shall issue an order requiring such that person to appear before such the special court and produce all books and papers, if so ordered, and give evidence touching the matter in question. Any failure to obey such the order of the circuit court may be punished by such the court as a contempt thereof. A written record shall be kept of all testimony and other proceedings before such the special court.
(4) Either party to such the contest feeling aggrieved by the final decision of such the special court may present his or her petition in writing to the Supreme Court of Appeals, or a judge thereof in vacation, within 30 days after such the final decision is certified to the Governor, as hereinbefore provided, praying for the suspension, setting aside, or vacation of such the final decision. The applicant shall deliver, or cause to be delivered, a copy of such the petition to the other party to such the contest, or, in case of his or her absence from the state or from his or her usual place of abode, he the applicant shall mail, or cause to be mailed a copy of such the petition addressed to his or her last known post-office address, before presenting the same petition to the court, or the judge. The court, or the judge, shall fix a time for the hearing on the application, but such the hearing shall may not be held sooner than five days, unless by agreement of the parties, after the presentation of such the petition, and notice of the time and place of such the hearing shall be forthwith delivered to the other party to such the contest, or, in case of absence from the state or from his or her usual place of abode, such the notice may be given by mailing, or causing to be mailed, the same notice, or a copy thereof, addressed to him or her at his or her last known post-office address. If the court, or the judge, after such the hearing, be is of the opinion that a suspending order should issue, the court in its, or the judge in his or her, discretion, may suspend such the final decision and may require bond upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner, as are just and reasonable; and the court, or the judge, shall fix a time for the final hearing on the application. The hearing of the matter shall take precedence over all other matters before the court. For such the final hearing, and before the day fixed therefor, the special court shall file with the clerk of the Supreme Court of Appeals all papers, documents, testimony, evidence, and records, or certified copies thereof, which were before it at the hearing resulting in the final decision from which the petitioner appeals, together with a copy in writing of its final decision; and, after argument by counsel, the court shall decide the matter in controversy, both as to the law and the evidence, as may deem determine to it to be just and right.
(b) The Supreme Court of Appeals is hereby given jurisdiction to may enforce the provisions of this section by writ of prohibition, mandamus, and certiorari, as may be appropriate.
(a) In all cases of contested elections, the county commission circuit court shall be the judge of the election, qualifications, and returns of their own members and of all county, and district, and municipal officers. Provided, That a member of the county commission whose election is being contested may not participate in judging the election, qualifications and returns
(b) A person intending to contest the election of another to any county, or district, or municipal office, including a judge of any magistrate court or any office that shall hereafter be created to be filled by the voters of the county or of any magisterial or other district therein, shall, within ten seven days after the result of the election is certified, give the contestee notice in writing of such intention and a list of the votes he or she will dispute, with the objections to each, and of the votes rejected for which he will contend. If the contestant objects to the legality of the election or the qualification of the person returned as elected, the notice shall set forth the facts on which such objection is founded. The person whose election is so contested shall, within 10 days after receiving such notice, deliver to the contestant a like list of the votes he will dispute, with the objections to each, and of the rejected votes for which he will contend; and, if he has any objection to the qualification of the contestant, he or she shall specify in writing the facts on which the objection is founded. Each party shall append to his notice an affidavit that he or she verily believes the matters and things set forth to be true. If new facts be discovered by either party after he or she has given notice as aforesaid, he may, within 10 days after such discovery, give an additional notice to his or her adversary, with the specifications and affidavit prescribed in this section.
The provisions of this section apply to all elections, including municipal elections, except that the governing body of the municipality is the judge of any contest of a municipal election initiate a civil action in the circuit court of a county wherein the election or any part thereof was held.
(c) For an election contest challenging specific votes cast, votes rejected, or voters who participated in the election, a recount proceeding as set forth in §3-6-9 of this code is first required and shall be complete prior to the filing of an election contest on those grounds.
(d) For an election contest challenging an elected candidate’s eligibility, the legality of the election, or fraud, the person intending to contest the election may proceed directly with filing a civil action.
(a) The county circuit court of a county wherein the election or any part thereof was held shall hear and decide election contests initiated pursuant to the provisions of the preceding section §3-7-6 of this code. Subpoenas for witnesses for either party shall be issued by the clerk of the county circuit court, and served as in other cases, and the witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses attending a circuit court in a civil suit. The notice of contest shall be presented to the county court at its first term after the same is delivered to the person whose election is contested, and the same shall be docketed for trial in such court
(b) At the trial of such the contest, the circuit court shall hear all such legal and proper evidence that may be brought before it by either party, and may, if deemed considered necessary, require the production of the poll books, certificates, and ballots deposited with its the county clerk or municipal recorder or clerk, and examine the same. The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from the day of election.
(c) A contestant has the burden of proof in an election contest.
(d) At the final conclusion of the trial of such the contest, the circuit court shall declare the true result of such the election, and cause the same to be entered on the records of the court. When the result of the election is declared, as aforesaid, a certified copy of the order declaring such the result shall, if required, be delivered by the clerk of the circuit court wherein the contest was held to the person declared elected, if such be the result of the trial, and such the copy shall be received in all courts and places as legal evidence of the result of the election therein declared parties. Either the contestant or contestee shall have the right of may appeal to the circuit court of the county from the final order or decision of the county court in such the proceeding, upon the filing of a bond with good personal security, by the party desiring the appeal, to be approved by the county court, in a sum deemed sufficient by such the court, with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him by the circuit court on such appeal. But such the such appeal shall may not be granted unless the party desiring the appeal shall make makes application for such the appeal, and file such the bond, within 30 days from the entering of the final order in such proceeding; and the circuit court may at any time require a new bond or increase the penalty thereof when the court deems it necessary. When such the appeal is taken to the circuit court, as hereinbefore provided, it shall be heard and determined upon the original papers, evidence, depositions and records filed before and considered by the county court, and the circuit court shall decide the contest upon the merits. From the decision of the circuit court, an
(e) An appeal of the decision of the circuit court shall lie to the Supreme Court of Appeals. as in other cases, but such the appeal shall be heard upon the original papers and copies of all orders made, without requiring the same to be printed
(f) The Supreme Court of Appeals, through its rule-making power in §51-1-4 of this code, may promulgate rules and regulations consistent with this article which govern the pleadings, practice, and procedure for the conduct of county, district, and municipal election contests in the courts of this state.
(a) Any vacancy occurring in the offices of Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, or in any office created or made elective to be filled by the voters of the entire state, is filled by the Governor of the state by appointment and subsequent election to fill the remainder of the term, if required by §3-10-1 of this code. The Governor shall make the appointment from a list of three legally qualified persons submitted by the party executive committee of the same political party with which the person holding the office immediately preceding the vacancy was affiliated at the time the vacancy occurred. The list of qualified persons to fill the vacancy shall be submitted to the Governor within 15 days after the vacancy occurs, and the Governor shall duly make his or her appointment to fill the vacancy from the list of legally qualified persons within five days after the list is received. If the list is not submitted to the Governor within the 15-day period, the Governor shall appoint, within five days thereafter, a legally qualified person of the same political party with which the person holding the office immediately preceding the vacancy was affiliated at the time the vacancy occurred: Provided, That the provisions of this subsection do not apply to §3-10-3(b), §3-10-3(c), §3-10-3(d), and §3-10-3(e) of this code.
(b) Any vacancy occurring in the offices of Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of a circuit court, or judge of a family court is filled by the Governor of the state by appointment and, if the unexpired term be for a period of more than three years, by a subsequent election to fill the remainder of the term, as required by §3-10-3(d) of this code. If an election is required under §3-10-3(d) of this code, the Governor, circuit court, or the chief judge thereof in vacation, is responsible for the proper proclamation by order and notice required by §3-10-1 of this code. The amendments to this subsection enacted during the regular session of the Legislature in the year 2022 shall be applicable to any vacancy existing at the date of passage of such amendments.
(c) Any vacancy in the office of magistrate is appointed according to the provisions of §50-1-6 of this code, and, if the unexpired term be for a period of more than two three years, by a subsequent election to fill the remainder of the term, as required by §3-10-3(d) of this code.
(d) (1) When the vacancy in the office of Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of the circuit court, judge of a family court, or magistrate occurs after the 84th day before a general election, and the affected term of office ends on December 31 following the succeeding general election two years later, the person appointed to fill the vacancy shall continue in office until the completion of the term.
(2) When the vacancy occurs before the close of the candidate filing period for the primary election, and if the unexpired term be for a period of greater than three years, the vacancy shall be filled by election in the nonpartisan judicial election held concurrently with the primary election and the appointment shall continue until a successor is elected and certified.
(3) When the vacancy occurs after the close of candidate filing for the primary election and not later than 84 days before the general election, and if the unexpired term be for a period of greater than three years, the vacancy shall be filled by election in a nonpartisan judicial election held concurrently with the general election, and the appointment shall continue until a successor is elected and certified.
(e) When an election to fill a vacancy is required to be held at the general election, according to the provisions of §3-10-3(d) of this code, a special candidate filing period shall be established. Candidates seeking election to any unexpired term for Justice of the Supreme Court of Appeals, judge of the Intermediate Court of Appeals, judge of a circuit court, judge of the family court, or magistrate shall file a certificate of announcement and pay the filing fee no earlier than the first Monday in August and no later than 77 days before the general election.
NOTE: The purpose of this bill is to expend federal appropriations from Congress to the Secretary of State for purposes that further the administration of federal elections held in the state, payable from the County Assistance Voting Equipment Fund; clarify the uniform statewide deadline for electronically submitted voter registration applications and change the deadline by which county clerks must report voter participation history after an election into the statewide voter registration system from 120 days to 80 days after an election; make procedures for election contests before a special court applicable to contested elections of certain judges; changing jurisdiction of election contests for county, district, and municipal elections to the circuit courts; requiring a recount proceeding to be completed before filing certain election contests; and clarify the amendments made to §3-10-3 by HB 4785 (2022), which changed the timeframe in subsection (d) for filling vacancies in all judicial offices from two to three years.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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