COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 507
(By Senators Kessler, Hunter, Plymale, White and Minard)
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[Originating in the Committee on the Judiciary;
reported February 20, 2008.]
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A BILL to amend and reenact §3-1-20, §3-1-22, §3-1-29, §3-1-34 and
§3-1-41 of the Code of West Virginia, 1931, as amended, all
relating to general provisions and definitions for elections;
requiring cards of instructions to voters to include notice as
to effect of voting provisional ballot and right to request
location of correct precinct; requiring posting of cards of
instruction at voting places; requiring board of ballot
commissioners to provide election officials with a list of
county precincts and a voter registration list; eliminating
provisions requiring election official trainees to be
volunteers receiving credits for high school diploma and to be
appointed by county commission or municipality where the
election is held; clarifying that prohibition against using
counting board in special elections is discretionary with the
county commission; requiring poll clerk to notify prospective
voter of effect of voting provisional ballot and of correct
precinct in which to vote; and updating language relating to
signatures to reflect use of electronic poll books and other
electronic devices.
Be it enacted by the Legislature of West Virginia:
That §3-1-20, §3-1-22, §3-1-29, §3-1-34 and §3-1-41 of the
Code of West Virginia, 1931, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall
provide cards of general information which will include:
(1) The date of the election and the hours during which
polling places will be open;
(2) Instruction for mail-in registrants and first-time voters;
(3) Voters' rights; and
(4) Prohibitions against fraud and misrepresentation.
The board of ballot commissioners shall also provide cards of
instruction for voters in preparing their ballots and casting a
provisional ballot as prescribed by the Secretary of State.
The
provisional ballot notice shall include a notification to voters of
their rights as a provisional voter to inquire as to the correct
precinct to cast a ballot and notification that if a ballot is cast
in the incorrect precinct the ballot may not be counted at the
canvass for that election. The board of ballot commissioners shall
furnish a sufficient number of cards to the commissioners of
election at the same time they deliver the ballots for the
precinct.
The instructions regarding a provisional ballot shall be
posted in the precinct in a highly visible location for voters to
review.
(b) The commissioners of election shall post one instruction
card in each voting booth giving instructions to the voters on how to prepare the ballots for deposit in the ballot boxes and how to
obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other
cards of general information at places inside and outside of the
voting place where voters pass or wait to vote. The commissioners
shall also post the official write-in candidates in the same
locations inside and outside of the voting place.
(d) The ballot commissioners shall have printed, on a
different color paper than the official ballot, two or more copies
of sample ballots for each voting place for each election. Sample
ballots shall be furnished and posted with the cards of general
information at each voting place.
(e) During the period of early in-person voting, the clerk of
the county commission shall post the cards of general information,
a list of official write-in candidates and sample ballots within
the area where absentee voting is conducted.
§3-1-22. County court clerks to provide election supplies;
requirements for poll books and ballot boxes.
The clerk of the county court of each county shall provide
poll books,
a list of all precincts within the county, tally
sheets, ballot boxes, voting booths,
registration records a county
voter registration list and forms, strong and durable envelopes
upon which to make returns, blank forms for certifying returns and
whatever further supplies are needed for holding the elections and
making the returns thereof. The poll books shall bear upon each
page the following heading: "Names of persons voting at precinct
No...... in the District of ....................... in the county
of ...................... on this (the) ................. day of ................. in the year ........" Such poll books shall have
columns headed respectively: "Number of Voters," "Signature of
Voter" and "Challenge of Voter", and shall have under the heading
"Number of Voters" numbers in consecutive order to the bottom of
each page. Forms for oaths of commissioners of election and poll
clerks shall be written or printed on the poll books. Each ballot
box shall be provided with two locks with different keys so that
the key for one lock will not open the other and shall be so
constructed as to be safely and securely closed and locked, with an
opening in the lid of the box sufficient only for the passage of a
single ballot.
§3-1-29. Boards of election officials; definitions, composition of
boards, determination of number and type.
(a) For the purpose of this article:
(1) The term "standard receiving board" means those election
officials charged with conducting the process of voting within a
precinct and consists of five persons, including one team of poll
clerks, one team of election commissioners for the ballot box and
one additional election commissioner:
Provided, That if a
municipal election is held at a time when there is no county or
state election, the standard receiving board is to consist of four
persons, including one team of poll clerks and one team of election
commissioners for the ballot box;
(2) The term "expanded receiving board" means a standard
receiving board as defined in subdivision (1) of this subsection
and one additional team of poll clerks;
(3) The term "counting board" means those election officials
charged with counting the ballots at the precinct in counties using paper ballots and includes one team of poll clerks, one team of
election commissioners and one additional commissioner;
(4) The term "team of poll clerks" or "team of election
commissioners" means two persons appointed by opposite political
parties to perform the specific functions of the office:
Provided,
That no team of poll clerks or team of election commissioners may
consist of two persons with the same registered political party
affiliation or two persons registered with no political party
affiliation; and
(5) The term "election official trainee" means an individual
who is sixteen or seventeen years of age who meets the requirements
of subdivisions (2), (3), (4), (5) and (6), subsection (a), section
twenty-eight of this article.
who serves as a trainee to the
standard receiving board on a volunteer basis by assisting the
standard receiving board in performing its official duties and who
receives credits for an official community service program as may
be required to obtain a high school diploma
(b) The composition of boards of election officials shall be
as follows:
(1) In any primary, general or special election other than a
presidential primary or presidential general election, each
election precinct is to have one standard receiving board;
(2) In presidential primary and presidential general
elections, each election precinct is to have one receiving board as
follows:
(A) For precincts of less than five hundred registered voters,
one standard receiving board; and
(B) For precincts of more than five hundred registered voters, one standard receiving board or, at the discretion of the county
commission, one expanded receiving board.
(3) In any election conducted using paper ballots, counting
boards may be allowed
disallowed or required as follows:
(A) For any state, county or municipal special election,
no a
counting board may be allowed
at the discretion of the county
commission;
(B) In a statewide primary or general election, one counting
board is required for any precinct of more than four hundred
registered voters and one counting board may be allowed, at the
discretion of the county commission, for any precinct of at least
two hundred but no more than four hundred registered voters; and
(C) In a municipal primary or general election, one counting
board may be allowed, at the discretion of the municipal governing
body, for any precinct of more than two hundred registered voters.
(c) For each primary and general election in the county, the
county commission shall designate the number and type of election
boards for the various precincts according to the provisions of
this section. At least eighty-four days before each primary and
general election the county commission shall notify the county
executive committees of the two major political parties in writing
of the number of nominations which may be made for poll clerks and
election commissioners.
(d) For each municipal election, the governing body of the
municipality shall perform the duties of the county commission as
provided in this section.
(e) For each primary, general or special election in the
county, the county commission, and for each municipal election, the governing body of the municipality, may appoint one or two election
official trainees for each precinct.
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and
residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall sign his or her name in the
space marked "signature of voter"
on the pollbook designated location provided
for at the precinct.
If that person is physically or otherwise unable to sign his or her
name, his or her mark shall be affixed by one of the poll clerks in
the presence of the other and the name of the poll clerk affixing
the voter's mark shall be indicated immediately under the
affixation. No ballot may be given to the person until he or she
signs his or her name on the
pollbook designated location or his or
her signature is affixed thereon.
(b) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person
for a transfer of registration must be received by the county clerk
no later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of
registration at least thirty days prior to the date of the election
may vote a provisional ballot at a handicap accessible polling place in the county of his or her registration. If during the
canvass the county commission determines that the person had been
registered in a precinct that is not handicap accessible, the voted
ballot, if otherwise valid, shall be counted. The handicapped
person may vote in the precinct to which the registration was
transferred only as long as the disability exists or the precinct
from which the handicapped person was transferred remains
inaccessible to the handicapped. To ensure confidentiality of the
transferred ballot, the county clerk processing the ballot shall
provide the voter with an unmarked envelope and an outer envelope
designated "provisional ballot/handicapped voter". After
validation of the ballot at the canvass, the outer envelope shall
be destroyed and the handicapped voter's ballot shall be placed
with other approved provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) When the voter's signature is properly
on the pollbook
marked, the two poll clerks shall sign their names in the places
indicated on the back of the official ballot and deliver the ballot
to the voter to be voted by him or her without leaving the election
room. If he or she returns the ballot spoiled to the clerks, they
shall immediately mark the ballot "spoiled" and it shall be
preserved and placed in a spoiled ballot envelope together with
other spoiled ballots to be delivered to the board of canvassers
and deliver to the voter another official ballot, signed by the
clerks on the reverse side. The voter shall thereupon retire alone
to the booth or compartment prepared within the election room for
voting purposes and there prepare his or her ballot. In voting for
candidates in general and special elections, the voter shall comply with the rules and procedures prescribed in section five, article
six of this chapter.
(d) It is the duty of a poll clerk, in the presence of the
other poll clerk, to indicate by a check mark,
or by other means,
inserted in the appropriate place on the registration record of
each voter the fact that the voter voted in the election. In
primary elections the clerk shall also insert thereon a
distinguishing initial or initials of the political party for whose
candidates the voter voted. If a person is challenged at the
polls, the challenge shall be indicated by the poll clerks on the
registration record, together with the name of the challenger. The
subsequent removal of the challenge shall be recorded on the
registration record by the clerk of the county commission.
(e)(1) No voter may receive any assistance in voting unless,
by reason of blindness, disability, advanced age or inability to
read and write, that voter is unable to vote without assistance.
Any voter qualified to receive assistance in voting under the
provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request,
shall read to the voter the names of the candidates selected on the
ballot;
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter
is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct by the absentee balloting
method provided in subsection (e), section five, article three of
this chapter in the presence of an election commissioner of each
political party if all of the following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
(2) The voted ballot shall then be returned to the precinct
officials and secured in a sealed envelope to be returned to the
clerk of the county commission with all other election materials.
The ballot shall then be tabulated using the appropriate method
provided in section eight of this chapter as it relates to the
specific voting system in use.
(2) (3) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(3) (4) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that
the voter thereof received assistance in voting it when in his, her or their opinion the person who received assistance in voting is
not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the
form and in the manner prescribed or authorized by article three of
this chapter.
(4) (5) An election commissioner or other person who assists
a voter in voting:
(A) May not in any manner request or seek to persuade or
induce the voter to vote any particular ticket or for any
particular candidate or for or against any public question and must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must not, directly or
indirectly, reveal to any person the name of any candidate voted
for by the voter or which ticket he or she had voted or how he or
she had voted on any public question or anything occurring within
the voting booth or compartment or voting machine booth except when
required pursuant to law to give testimony as to the matter in a
judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the Secretary of State stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation:
Provided, That no person providing assistance to a voter is required to sign an oath or affirmation
where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(5) (6) In accordance with instructions issued by the
Secretary of State, the clerk of the county commission shall
provide a form entitled "list of assisted voters", the form of
which list shall likewise be prescribed by the Secretary of State.
The commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) After preparing the ballot, the voter shall fold the
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall announce his or her
name and present his or her ballot to one of the commissioners who
shall hand the same to another commissioner, of a different
political party, who shall deposit it in the ballot box if the
ballot is the official one and properly signed. The commissioner
of election may inspect every ballot before it is deposited in the
ballot box to ascertain whether it is single, but without unfolding
or unrolling it so as to disclose its content. When the voter has
voted, he or she shall retire immediately from the election room and beyond the sixty-foot limit thereof and may not return except
by permission of the commissioners.
(g) Following the election, the oaths or affirmations required
by this section from those assisting voters, together with the
"list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the
election supplies, records and returns. The clerk of the county
commission shall make the oaths, affirmations and list available
for public inspection and shall preserve them for a period of
twenty-two months or until disposition is authorized or directed by
the Secretary of State or court of record:
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.
(h) Any person making an oath or affirmation required under
the provisions of this section who knowingly swears falsely or any
person who counsels, advises, aids or abets another in the
commission of false swearing under this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or confined in
the county or regional
jail for a period of not more than one year, or both fined and
confined.
(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when the voter is known
to the election commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in a state correctional facility for a period of not less than one year nor more than five years, or both fined and
imprisoned.
§3-1-41. Challenged and provisional voter procedures; counting of
provisional voters' ballots; ballots of election
officials.
(a) It is the duty of the members of the receiving board,
jointly or severally, to challenge the right of any person
requesting a ballot to vote in any election:
(1) If the person's registration record is not available at
the time of the election;
(2) If the signature written by the person in the poll book
does not correspond with the signature purported to be his or hers
on the registration record;
(3) If the registration record of the person indicates any
other legal disqualification; or
(4) If any other valid challenge exists against the voter
pursuant to section ten, article three of this chapter.
(b) Any person challenged shall nevertheless be permitted to
vote in the election. He or she shall be furnished an official
ballot not endorsed by the poll clerks. In lieu of the
endorsements, the poll clerks shall complete and sign an
appropriate form indicating the challenge, the reason thereof and
the name or names of the challengers. The form shall be securely
attached to the voter's ballot and deposited together with the
ballot in a separate box or envelope marked "provisional ballots".
(c) At the time that an individual casts a provisional ballot,
the poll clerk shall give the individual written information
stating that an individual who casts a provisional ballot will be able to ascertain under the free access system established in this
section whether the vote was counted and, if the vote was not
counted, the reason that the vote was not counted.
(d) Before an individual casts a provisional ballot, the poll
clerk shall provide the individual written instructions, supplied
by the board of ballot commissioners, stating that if the voter is
casting a ballot in the incorrect precinct, the ballot cast may not
be counted for that election: Provided, That if the voter is found
to be in the incorrect precinct, then the poll worker shall attempt
to ascertain the appropriate precinct for the voter to cast a
ballot and immediately give the voter the information if
ascertainable.
(d) (e) Provisional ballots may not be counted by the election
officials. The county commission shall, on its own motion, at the
time of canvassing of the election returns, sit in session to
determine the validity of any challenges according to the
provisions of this chapter. If the county commission determines
that the challenges are unfounded, each provisional ballot of each
challenged voter, if otherwise valid, shall be counted and tallied
together with the regular ballots cast in the election. The county
commission, as the board of canvassers, shall protect the privacy
of each provisional ballot cast. The county commission shall
disregard technical errors, omissions or oversights if it can
reasonably be ascertained that the challenged voter was entitled to
vote.
(e) (f) Any person duly appointed as an election commissioner
or clerk under the provisions of section twenty-eight of this
article who serves in that capacity in a precinct other than the precinct in which the person is legally entitled to vote may cast
a provisional ballot in the precinct in which the person is serving
as a commissioner or clerk. The ballot is not invalid for the sole
reason of having been cast in a precinct other than the precinct in
which the person is legally entitled to vote. The county
commission shall record the provisional ballot on the voter's
permanent registration record:
Provided, That the county
commission may count only the votes for the offices that the voter
was legally authorized to vote for in his or her own precinct.
(f) (g) The Secretary of State shall establish a free access
system, which may include a toll-free telephone number or an
internet website, that may be accessed by any individual who casts
a provisional ballot to discover whether his or her vote was
counted and, if not, the reason that the vote was not counted.