ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4489
(By Delegates Morgan, Schadler, Ellem, Amores and Armstead)
[Passed March 10, 2006; in effect ninety days from passage.]
AN ACT to amend and reenact §3-4A-13 and §3-4A-26 of the Code of
West Virginia, 1931, as amended, all relating to the testing
of electronic voting machines used for early voting in order
to allow their use on election day.
Be it enacted by the Legislature of West Virginia:
That §3-4A-13 and §3-4A-26 of the Code of West Virginia, 1931,
as amended, be amended and reenacted to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-13. Inspection of ballots 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 vote recording devices as provided in sections eleven, eleven-a and twelve 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 devices, where applicable, are
ready for use. Thereupon the members of the county commission and
the ballot commissioners shall convene at the office of the clerk
or at such other place wherein the vote recording devices, where
applicable, and ballots are stored, not later than five days before
the day of the election, and shall inspect the devices and the
ballots to determine whether the requirements of this article have
been met. Notice of the place and time of such inspection shall be
published, no less than three days prior thereto, as a Class I-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for the publication shall be the county involved. Any candidate
and one representative of each political party on the ballot may be
present during such examination. If the devices, where applicable,
and ballots are found to be in proper order, the members of the
county commission and the ballot commissioners shall, where
applicable, endorse their approval in the book in which the clerk
entered the numbers of the devices opposite the numbers of the
precincts. The vote recording devices 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, where applicable, and the ballots
for transportation to the polls. Upon such removal of the devices
and ballots, the clerk and president or president pro tempore of
the county commission shall certify in writing signed by them that
the devices, where applicable, and packages of ballots were found
to be sealed when removed for transportation to the polls.
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.
Not later than one day before the election the election
commissioner of each precinct who shall have been 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-26. Test of automatic tabulating equipment.
(a) One week prior to the start of the count of the votes
recorded on ballots or ballot cards or screens, the clerk of the
county commission shall have the automatic tabulating equipment
tested to ascertain that it will accurately count the votes cast
for all offices and on all measures. Public notice of the time and
place of the test is to be given not less than forty-eight hours
nor more than two weeks prior to the test by publication of a
notice as a Class I-0 legal advertisement in the county involved,
in compliance with the provisions of article three, chapter
fifty-nine of this code.
(b)(1) Vote recording devices used and tested for early voting
may also be used on election day upon compliance with all of the
following requirements:
(A) that following the close of early voting the Personal
Electronic Ballot (PEB) and the Programable Memory Chip is removed
and replaced with a Personal Electronic Ballot (PEB) and a
Programable Memory Chip prepared for, but unused, during the
current election period;
(B) that the printed paper trail used during the early voting
period is removed and replaced with a new paper trail; and
(C) that the vote recording device is retested prior to the
device being used on election day.
(2) Any Personal Electronic Ballot (PEB), Programable Memory
Chip and printed paper trail removed from a vote recording device
used for early voting shall be securely stored by the county clerk
until such time as it is used to tally the votes on election day in
accordance with section twenty-seven of this article.
(c)(1) A test performed pursuant to this section shall be open
to representatives of the political parties, candidates, the press
and the public. It is to be conducted five times by processing two
separate sets of a preaudited group of ballots or ballot cards as
appropriate, punched or marked as to record a predetermined number
of valid votes for each candidate
or each measure. It includes for
each multicandidate office one or more ballot cards which have
cross-over votes in order to test the ability of the automatic
tabulating equipment to record those votes in accordance with the
provisions of this article and applicable law, and it includes for
each office one or more ballot cards which have votes in excess of
the number allowed by law in order to test the ability of the
automatic tabulating equipment to reject votes. If, in the process
of any of the test counts, any error is detected, the cause of the
error is to be ascertained and corrective action promptly taken. After the completion of the corrective action, the test counts are
to continue, including a retesting of those precincts previously
test counted. Prior to the continuation of the testing, the county
commission shall certify in writing, signed by them, the nature of
the error, the cause thereof and the type of corrective action
taken. The certification is to be recorded in the office of the
clerk of the county commission in the miscellaneous record book.
Immediately after conclusion of this completed test, a certified
duplicate copy of the program deck is to be sent by certified mail
to the offices of the state election commission, where it is to be
preserved and secured for one year, and made available for
comparison or analysis by order of a circuit court or the supreme
court of appeals.
(2) The program deck to be used in the election is to
immediately be certified by the county commission to be free from
error as determined by the test, is to be placed with the
certification in a sealed container and kept under individual
multiple locks with individual keys for each lock. The number of
locks and keys are the same as the number of county commissioners
together with the county clerk, with each commissioner and the
county clerk having a single key in his or her possession. The
sealed container is to be opened to conduct the test required to be
conducted immediately before the start of the official count.
(3) The test is to be repeated immediately before the start of the official count. The test is to also be conducted at the
conclusion of the official count before the count is approved as
errorless and before the election returns are approved as official.
(4) All results of all of the tests are to be immediately
certified by the county commission and filed in the office of the
clerk of the county commission and immediately recorded in the
miscellaneous record book. On completion of the count, the program
deck, test materials and ballot cards are to be sealed, except for
purposes of the canvass as provided in section twenty-eight of this
article, and retained and kept under individual multiple locks and
individual keys for each lock.
(5) The numbers of locks and keys are the same as the number
of county commissioners together with the county clerk, with each
commissioner and the county clerk having a single key in his or her
possession.
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