COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 315
(By Senators Minard, Bailey, Sharpe, Claypole and Wagner)
__________
[Originating in the Committee on the Judiciary;
reported March 31, 1993.]
__________
A BILL to amend and reenact sections twenty-eight, twenty-nine,
thirty and forty-six, article one, chapter three of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; to further amend said article by adding thereto a
new section, designated section thirty-a; to amend article
one-a of said chapter by adding thereto a new section,
designated section eight; to amend and reenact section
forty-one, article two of said chapter; to amend and reenact
sections one, two, two-a, two-b, three, five, five-a, five-
b, five-c, seven and twelve, article three of said chapter;
to amend and reenact sections thirteen, fourteen and twenty-
four, article four of said chapter; to amend and reenact
sections eleven, eleven-a, fourteen fifteen and twenty-
seven, article four-a of said chapter; to amend and reenact
sections ten, fifteen and sixteen, article five of said
chapter; to amend and reenact sections three, five, six and
eight, article six of said chapter; and to further amend
said article by adding thereto a new section, designated
section four-a, all relating to the eligibility, nomination,
appointment, substitution and oaths and training of election
officials and the composition of election boards; the
authority of investigators for the secretary of state;
requirements and procedures for absentee voting; write-in
candidates; the construction and counting of ballots;
procedures for closing the polls and ascertaining and
certifying the result in all voting systems; and the
requirements for legal publication of primary and general
election ballots.
Be it enacted by the Legislature of West Virginia:
That sections twenty-eight, twenty-nine, thirty, and forty-
six, article one, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section thirty-a; that article one-a of
said chapter be amended by adding thereto a new section,
designated section eight; that section forty-one, article two of
said chapter be amended and reenacted; that sections one, two,
two-a, two-b, three, five, five-a, five-b, five-c, seven and
twelve, article three of said chapter be amended and reenacted;
that sections thirteen, fourteen and twenty-four, article four of
said chapter be amended and reenacted; that sections eleven,
eleven-a, fourteen, fifteen and twenty-seven, article four-a of
said chapter be amended and reenacted; that sections ten, fifteen
and sixteen, article five of said chapter be amended and
reenacted; that sections three, five, six and eight, article sixof said chapter be amended and reenacted; and that said article
be further amended by adding thereto a new section, designated
section four-a, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-28. Election officials; eligibility, suspension of
eligibility.
(a) To be eligible to be appointed or serve as an election
official in any state, county or municipal election held in West
Virginia, a person:
(1) Must be a registered voter of the county for elections
held throughout the county, and a registered voter of the
municipality for elections held within the municipality;
(2) Must be registered as affiliated with the political
party for which appointed; except that, persons registered
without party affiliation or as adherents to a political group
other than the two majority political parties then recognized are
eligible to serve in nonpartisan elections;
(3) Must be able to read and write;
(4) May not be a candidate on the ballot in the election;
(5) May not be the parent, child, sibling or spouse of a
candidate on the ballot in the precinct where the official
serves;
(6) May not be a person prohibited from serving as an
election official pursuant to any other federal or state statute;
(7) May not have been previously convicted of a violation of
any election law; and
(8) May not be a person who has served as deputy sheriff
within six months prior to the election.
(b) The county commission may, upon majority vote, suspend
the eligibility to serve as election official in any election for
four years, for the following reasons:
(1) Failure to appear at the polling place at the designated
time without proper notice and just cause;
(2) Failure to perform the duties of an election official as
required by law;
(3) Improper interference with a voter casting a ballot, or
violating the secrecy of the voter's ballot;
(4) Being under the influence of alcohol or drugs while
serving as election official; or
(5) Having anything wagered or bet on an election.
(c) The county commission may, upon majority vote, suspend
the eligibility to serve as an election official in any election
for two years, upon petition of twenty-five registered voters of
the precinct where the official last served and upon presentation
of evidence of any of the grounds set forth in subsection (b)
hereof, providing the petition requesting the suspension of the
election official is filed with the county commission at least
ninety days prior to an election date. The names of those
persons signing such petition shall be kept confidential.
§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 andone additional election commissioner;
(2) The term "expanded receiving board" means a standard
receiving board as defined in subdivision (1) hereof 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;
and
(4) The term "team of poll clerks" or "team of election
commissioners" means two persons of opposite political parties
appointed to perform the specific functions of the office.
(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 shall have one standard receiving board;
(2) In presidential primary and presidential general
elections, each election precinct shall have one receiving board,
as follows:
(A) For precincts of less than five hundred registered
voters, one standard receiving board;
(B) For precincts of five hundred to seven hundred
registered voters, one standard receiving board or, at the
discretion of the county commission, one expanded receiving
board; and
(C) For precincts of more than seven hundred registered
voters, 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
counting board may be allowed;
(B) In a statewide primary or general election, one counting
board shall be 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 such 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.
§3-1-30. Nomination and appointment of election officials and
alternates; notice of appointment; appointment to fill
vacancies in election boards.
(a) For any primary, general or special election held
throughout a county, poll clerks and election commissioners may
be nominated as follows:
(1) The county executive committee for each of the two major
political parties may, by a majority vote of the committee at a
duly called meeting, nominate one qualified person for each team
of poll clerks and one qualified person for each team of election
commissioners to be appointed for the election;
(2) The appointing body shall select one qualified person as
the additional election commissioner for each board of election
officials;
(3) Each county executive committee may also nominate as
many qualified persons as alternates as there are precincts in
the county, which alternates may be called upon to serve in the
event any of the persons originally appointed fail to accept
appointment or fail to appear for the required training or for
the preparation or execution of their duties;
(4) When an executive committee nominates qualified persons
as poll clerks, election commissioners or alternates, the
committee, or its chairman or secretary on their behalf, shall
file in writing with the appointing body, no later than the
fifty-sixth day before the election, a list of those persons
nominated and the positions for which they are designated.
(b) For any municipal primary, general or special election,
the poll clerks and election commissioners may be nominated as
follows:
(1) In municipalities which have municipal executive
committees for the two major political parties in themunicipality, each such committee may nominate election officials
in the manner provided for the nomination of election officials
by county executive committees in subsection (a) of this section;
(2) In municipalities which do not have executive
committees, the governing body shall provide by ordinance for a
method of nominating election officials; or shall nominate as
many eligible persons as are required, giving due consideration
to any recommendations made by voters of the municipality or by
candidates on the ballot.
(c) The governing body responsible for appointing election
officials shall be:
(1) The county commission for any primary, general or
special election ordered by the county commission and any joint
county and municipal election;
(2) The board of education for any special election ordered
by the board of education conducted apart from any other
election;
(3) The municipal governing body for any primary, general or
special municipal election ordered by the governing body.
(d) The appropriate governing body shall appoint the
election officials for each designated election board no later
than the forty-ninth day before the election as follows:
(1) Those eligible persons whose nominations for poll clerk
and election commissioner were timely filed by the executive
committees and those additional persons selected to serve as an
election commissioner shall be appointed;
(2) The governing body shall fill any positions for which no
nominations were filed.
(e) At the same time as the appointment of election
officials, or at a subsequent meeting, the governing body shall
appoint persons as alternates:
Provided, That no alternate may
be eligible for compensation for election training unless the
alternate is subsequently appointed as an election official, or
is instructed to attend and actually attends training as an
alternate and, if called to do so, also serves at the polls on
election day. Alternatives shall be appointed and serve as
follows:
(1) Those alternates nominated by the executive committees,
shall be appointed;
(2) The governing body may appoint additional alternates,
who may be called upon to fill vacancies after all alternates
designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons
who may be instructed to attend training as alternates.
(f) The clerk of the county commission shall appoint
qualified persons to fill all vacancies existing after all
previously appointed alternates have been assigned, have declined
to serve or have failed to attend training.
(g) Within seven days following appointment, the clerk of
the county commission shall notify, by first-class mail, all
election commissioners, poll clerks and alternates of the fact of
their appointment, and include with such notice a response notice
form for the appointed person to return indicating whether or not
he or she agrees to serve in the specified capacity in the
election.
(h) The position of any person so notified of appointment
who fails to return the response notice or otherwise confirm to
the clerk of the county commission his or her agreement to serve
within fourteen days following the date of appointment shall be
considered vacant and the clerk shall proceed to fill the
vacancies according to the provisions of this section.
(i) If an appointed election official fails to appear at the
polling place by forty-five minutes past five o'clock a. m. on
election day, the election officials present shall contact the
office of the clerk of the county commission for assistance in
filling the vacancy and the clerk shall proceed as follows:
(1) The clerk may attempt to contact the person originally
appointed, may assign an alternate of the same political party as
the person absent if one is available or, if no alternate is
available, may appoint another eligible person of the same
political party;
(2) If the election officials present are unable to contact
the clerk within a reasonable time, they shall diligently attempt
to fill the position with an eligible person of the same
political party as the person absent until a qualified person has
agreed to serve;
(3) If two teams of election officials, as defined in
section twenty-nine of this article, are present at the polling
place, the person appointed to fill a vacancy in the position of
the additional commissioner may be of either political party.
(j) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of thecounty commission as provided in this section.
§3-1-30a. Oaths of election commissioners and poll clerks,
substitution of persons.
(a) Each commissioner of election and poll clerk, as defined
in this article, before entering upon his or her duties, shall
take orally and subscribe to the appropriate oath, as prescribed
herein. Such oath may be taken before and administered by one of
the election commissioners or poll clerks, who in turn may take
the same before another election commissioner or poll clerk. For
the purposes of this article, all election commissioners and poll
clerks, having first been sworn, are authorized to administer
oaths.
(1) The oath for members of the receiving board shall be as
follows:
State of West Virginia
............... County
I, ......................., a qualified and registered voter
of the county affiliated with the .................... Party, do
solemnly swear that I will faithfully and honestly discharge my
duties as ..................... (poll clerk or election
commissioner) of the receiving board according to the
requirements of law in this election; that I will not knowingly
permit any person to vote an unchallenged ballot who is not a
resident of the precinct and a properly registered voter
qualified to vote the ballot provided; that I will not challenge
a ballot without just cause; that I will not cause any
unnecessary delay in voting; that I will not disclose to any
person how any voter has voted, nor how any ballot has beenfolded, marked, printed or stamped; that I do not have any
agreement, understanding or arrangement that I will receive any
money, position or other benefit for service in the election
apart from my official pay; that I do not have any agreement,
understanding or arrangement that I will perform any act for the
benefit of any candidate in the election; and that I have nothing
wagered or bet on the result of this election.
Subscribed and sworn to before me this ............... day
of .........., 19....
.................................
Signature and official title of
person before whom sworn
(2) The oath for the members of the counting board shall be
as follows:
State of West Virginia
............... County
I, ..................., a qualified and registered voter of
the county affiliated with the ........................ Party, do
solemnly swear that I will faithfully and honestly discharge my
duties as .....................(poll clerk or election
commissioner) of the counting board according to the requirements
of law in this election; that I will carefully and accurately
read and record the votes cast on each ballot voted in the
election which contains the signatures of both poll clerks; that
I will not disclose to any person how any voter has voted, nor
how any ballot has been folded, marked, printed or stamped; that
I will not disclose the votes cast for any candidate or any other
information about the result of the election prior to the posting
of the precinct returns on the door of the polling place; that Ido not have any agreement, understanding or arrangement that I
will receive any money, position or other benefit for service in
the election apart from my official pay; that I do not have any
agreement, understanding or arrangement that I will perform any
act for the benefit of any candidate in the election; and that I
have nothing wagered or bet on the result of this election.
..............................
Subscribed and sworn to before me this .......... day
of ........, 19....
..............................
Signature and official title
of person before whom sworn
(3) The secretary of state may prescribe the form of such
oaths.
(b) When any election official is unable to perform the
duties for which he or she was appointed, a substitution may be
made, as follows:
(1) An eligible person of the same political party shall
assume the duties after taking the oath. One of the election
commissioners shall make an entry in the space provided on the
oath form, indicating the name of the official being replaced,
the reason for the change, the name of the person assuming the
duties, the time at which the change occurred and the poll slip
number of the last voter who signed a poll slip before the change
occurred;
(2) If it is necessary for a poll clerk of one political
party to exchange duties with an election commissioner of the
same political party, the change of duties for each person shall
be recorded in the same manner;
(3) If an election commissioner or poll clerk is unable or
fails to perform the duties of the office adequately and
according to the requirements of law to the extent such failure
interferes with the conduct of the election, the clerk of the
county commission may order the exchange of duties with another
official of the same party, or if necessary, remove the official.
The fact of that order shall be entered on the record, along with
the information required in subdivision (1) of this subsection.
(c) In a municipal election, the recorder of other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of the
county commission specified in this section.
§3-1-46. Training program for election officials.
(a) The secretary of state in conjunction with the state
election commission shall produce one or more audio-visual
programs which shall explain and illustrate the procedures for
conducting elections, the duties of the various election
officials and the methods of voting on each voting system in use
in the state.
(b) One copy of the appropriate training program shall be
distributed to and kept and preserved by the clerk of the county
commission of each county. The program shall be shown to all
election officials before each election as part of their
instructional program. The clerk of the county commission shall
conduct an adequate number of sessions to train all election
officials and shall schedule the regular sessions not less than
seven days before each election and shall notify all election
officials of the exact date, time and place such instructionalprogram will be conducted.
(c) No person shall serve as an election commissioner or
poll clerk in any election unless he or she has attended such
instructional program. A person to replace any election official
who fails to attend the instructional program shall be appointed
in the same manner as persons are appointed under the provisions
of section thirty of this article to replace election officials
refusing to serve, and the clerk of the county commission shall
conduct an additional instructional program within the seven days
prior to the election for any such person or persons so
appointed:
Provided, That in cases of emergency when no person
who has attended the instructional program for that election is
available to fill a vacancy on the election board, the clerk of
the county commission may appoint such person as a commissioner
or poll clerk notwithstanding that such person has not received
the instruction.
(d) The requirements of this section shall apply to all
elections conducted by municipalities, except that the recorder
or municipal clerk responsible for the election shall perform the
duties of the clerk of the county commission defined herein. The
clerk of the county commission may assist the recorder or
municipal clerk in conducting the instructional program.
(e) While such program is not being used by the clerk for
instructional purposes, it shall be available to any duly
organized civic, religious, educational or charitable group
without charge, except that the clerk shall require a cash
deposit on such use in an amount to be determined by the
secretary of state.
(f) The secretary of state shall cause such program to be
amended, edited or reproduced whenever he or she is of the
opinion such revision is necessary in light of changes in the
election laws of this state.
(g) No elected official shall appear in such program either
in person or by visual image or by name.
ARTICLE 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.
§3-1A-8. Investigators for the secretary of state.
An employee of the secretary of state, who has attended a
course of instruction at the state police academy or its
equivalent, has all the lawful powers delegated to members of the
department of public safety to enforce the provisions of this
chapter and the criminal laws of the state in any county or
municipality of this state. An employee shall, before entering
upon the discharge of his or her duties, execute a bond with
security in the sum of three thousand five hundred dollars,
payable to the state of West Virginia, conditioned for the
faithful performance of his or her duties, as such, and such bond
shall be approved as to form by the attorney general, and the
bond shall be filed with the secretary of state and preserved in
his or her office. The department of public safety, and any
county sheriff or deputy sheriff or any municipal police officer,
upon request by the secretary of state or his or her appointee,
is authorized to assist the secretary of state or his appointee
in enforcing the provisions of this chapter and the criminal laws
of the state.
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-41. Registration and transfer of registration by mail; form
to be required and distribution thereof; receipt by clerk
thirty days prior to election before applicant entitled to
vote therein; clerk to forward application if applicant
outside jurisdiction, but resident of state; application
forms to be made widely available by clerk; form of
application and information required.
(a) In addition to any procedures which may be used in
effecting the biennial checkup as provided under section twenty-
one of this article, central registration and transfer as
provided under sections twenty-two and twenty-seven of this
article, and the provision with respect to registration of
absentee voters under section twenty-three of this article, any
qualified person may register or transfer his or her registration
by mail.
(b) Completed applications, when received by any clerk of
the county commission not later than thirty-five days and by the
appropriate clerk of the county commission not later than thirty
days before the following primary, general or special election,
entitle the applicant to vote in such election if he or she is
otherwise qualified. Any clerk receiving an application from a
person who does not reside in his county but who does reside
elsewhere in the state shall forthwith forward such application
to the proper clerk. Each clerk shall make an entry on such
application of the date it is received by such clerk, and the
application shall remain on file in the office of the clerk for
at least two years from the date it was received.
(c) Applications for use pursuant to this section shall be
made available by the clerk of the county commission to everyadult person of the county, not registered, and to any registered
voter of the county upon request. The application for use
pursuant to this section shall be a uniform statewide application
in a form to be prescribed by the secretary of state and shall
include the information required under the form provisions of
section nineteen of this article. The form, which shall be self-
addressed, is to be as widely and freely distributed as possible
and shall be a bifold self-mailer which shall be compatible with
local systems of voter registration data collection and storage.
(d) In addition to the information required under the form
provisions of section nineteen of this article, the form shall
contain such other information as the secretary of state may
reasonably require and shall also include the following
information:
(1) Notice that those currently registered do not need to
reregister unless they have moved or failed to vote at least once
during a period covering two statewide primary and two general
elections as indicated by their registration records;
(2) Instructions on how to fill out and submit the form and
that the form must be received by the appropriate county clerk at
least thirty days prior to the election at which the applicant
may vote;
(3) Notice that registration or transfer is not complete
until the form is received by the appropriate clerk of the county
commission;
(4) Notice of a voter's right to register centrally;
(5) A warning to the voter that it is a crime to procure a
false registration and notice of the felony offenses provided forin section forty-two of this article;
(6) Notice that political party enrollment is optional but,
in order to vote in a primary election of a political party, a
voter must enroll in that political party;
(7) Notice that the applicant must be a citizen of the
United States, at least seventeen years old and will be eighteen
years old on or before the next general election, and a resident
of the county to which application is made;
(8) Notice that a voter notification form will be mailed to
those applicants whose complete form is received;
(9) A space for the applicant to indicate whether or not he
has ever been registered before and, if so, his or her name and
address at the time of prior registration;
(10) A space for the applicant to indicate his or her choice
of party, if any, in which space the names of all parties are
provided so that the applicant can check one with a clear
alternative provided for an applicant to decline to affiliate
with any party;
(11) A space for the applicant to indicate his or her social
security number; and
(12) A place for the applicant to execute the application on
a line which is clearly labeled "signature of applicant" and
contained in the following specific form of oath or affirmation:
"I do solemnly swear or affirm that the information provided in
the preceding uniform statewide application is true to the best
of my knowledge, information and belief, and I understand that if
I willingly provide false information concerning a material
matter or thing therein, I shall be deemed guilty of the felonyoffense of perjury and shall be subject to the penalties for
perjury.
____________________________
Signature of Applicant
Subscribed and sworn (or affirmed) to before me, this ______ day
of ______________, 19____" which oath or affirmation shall be
administered by a person authorized to perform notarial acts
under the provisions of article one or one-a, chapter thirty-nine
of this code. The person administering the oath or affirmation
shall not charge a fee for such act and the uniform statewide
application shall inform the person administering such oath or
affirmation that no fee is to be charged.
(e) Any person who has registered or reregistered pursuant
to this section shall be required to make his or her first vote
in person at the poll or appear in person at the office of the
clerk of the circuit court to vote an absentee ballot during a
period covering two statewide primary elections and two general
elections in order to make such registration valid:
Provided,
That any person who has registered or reregistered pursuant to
this section and who has qualified for placement on the special
absentee voting list pursuant to section two-b, article three of
this chapter, who has qualified to vote an absentee ballot by
mail pursuant to subdivision (1), paragraph (B) of subdivision
(2), or subdivision (3), subsection (d), or subsection (e),
section one, article three of this chapter, shall not have his or
her ballot in that election challenged for failure to present
identification.
Any such person required by this section to make his or her
first vote in person in order to make the registration valid
shall present valid identification and proof of age to the clerks
at the poll or the clerk in the office of the circuit clerk of
the county in which he or she is registered before casting his or
her first ballot.
(f) The uniform statewide application prescribed in this
section may refer to various public officials by title or
official position (e.g., clerk of the county commission,
secretary of state), but in no case may the actual name of the
officeholder be printed or otherwise appear on such form:
Provided, That nothing contained in this subsection shall
prohibit a public official, otherwise qualified, from
administering the oath or affirmation in accordance with the
provisions of subdivision (12), subsection (d) of this section,
and affixing his or her signature thereto.
(g) It shall be the duty of the secretary of state to create
and commence distribution of the forms for the uniform statewide
application within six months following the effective date of
this section.
(h) Notwithstanding any other provision of this section,
persons specified in subdivision (2), subsection (d), section
one, article three of this chapter may register by mail using the
federal post card application issued pursuant to the authority of
the Uniformed and Overseas Citizens Absentee Voting Act of 1986,
(Public Law 99-410, 42 U.S.C. 1973, et seq.).
The oath of the applicant using the federal postcard
application shall not be required to be administered by a personauthorized to perform notarial acts. Any federal postcard
application received by the county clerk or circuit clerk which
has been designated by the applicant as both an application for
registration and a request for an absentee ballot shall be
accepted for both purposes if all legal requirements are met.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a) Duly registered and otherwise qualified voters of the
county who for authorized reasons as provided in this article are
unable to vote in person at the polling place on the day of a
primary, general or special election day may vote an absentee
ballot according to the provisions of this article.
(b) Voters in the following circumstances shall be
authorized to vote an absentee ballot and shall be required to
vote that absentee ballot in person in the office of the clerk of
the circuit court during the period of regular absentee voting in
person:
(1) Any voter who is within the county and physically able
to vote in person during regular business hours of the clerk's
office during the prescribed period for absentee voting but is
unable to vote in person on election day because of: (A)
Anticipated or scheduled commitment to a hospital, institution or
other confinement for medical reasons; (B) absence from the
county during the entire time the polls are open; (C) appointment
as an election official in a precinct other than the one in which
the voter is registered; or (D) the inaccessibility of the
polling place to the voter because of his or her physical
disability; and
(2) Any voter who is a member of a religious denomination
with an established history of observing Saturday as the Sabbath,
when the election is scheduled to be held on Saturday.
(c) Voters in the following circumstances shall be
authorized to vote an absentee ballot under special affidavit and
shall be required to vote that absentee ballot in person in the
office of the clerk of the circuit court during the period of
special absentee voting in person:
(1) Any voter who will be absent from the county throughout
the regular period and available hours for voting in person at
the polls or at the clerk's office because of personal or
business travel or employment, who will be unable to receive an
absentee ballot by mail at an address outside the county during
that absence, and who will be present within the county between
the forty-second day before the election and the fifteenth day
before the election.
(d) Voters in the following circumstances shall be
authorized to vote an absentee ballot by mail:
(1) Any voter who is confined to a specific location and
prevented from voting in person throughout the period of voting
in person because of: (A) Illness, injury, or other medical
reason; (B) physical disability or immobility due to extreme
advanced age; or (C) incarceration or home detention when not
under conviction of a felony, treason or bribery in an election;
and
(2) Any voter who is absent from the county throughout the
period and available hours for voting in person because of: (A)
Personal or business travel; (B) attendance at a college,university or other place of education or training; or (C)
employment which because of hours worked and distance from the
county seat make voting in person impossible; and
(3) Any voter absent from the county throughout the period
and available hours for voting in person and who is an absent
uniformed services voter or overseas voter, as defined by the
Uniformed and Overseas Citizens Absentee Voting Act of 1986,
(Public Law 99-410, 42 U.S.C. 1973, et seq.). Members of the
uniformed services on active duty, members of the merchant
marine, spouses and dependents of those members on active duty,
and persons who reside outside the United States and are
qualified to vote in the last place in which the person was
domiciled before leaving the United States are included in the
above definition; and
(4) Any voter who is required to dwell temporarily outside
the county and is absent from the county throughout the time for
voting in person because of: (A) Serving as an elected or
appointed federal or state officer; or (B) serving in any other
documented employment assignment of specific duration of four
years or less; and
(5) Any voter for whom both the office of the circuit clerk
and the polling place are inaccessible to the voter because of
his or her physical disability.
(e) Voters in the following circumstances shall be
authorized to vote an emergency absentee ballot, subject to the
availability of the services as provided in this article:
(1) Any voter who is admitted for emergency medical
treatment on or after the seventh day next preceding the electionand who anticipates continued confinement in a hospital or other
duly licensed health care with the county of residence or other
authorized area, as provided in this article; and
(2) Any voter who resides in a nursing home within the
county of residence and would be otherwise unable to vote in
person, providing the county commission has authorized such
services.
§3-3-2. Authority to conduct absentee voting; absentee voting
application; form.
(a) Absentee voting shall be supervised and conducted by the
proper official for the political division in which the election
is held, in conjunction with the ballot commissioners appointed
from each political party, as follows:
(1) The clerk of the circuit court, for any election held
throughout the county, within a political subdivision or
territory other than a municipality, or within a municipality
when the municipal election is conducted in conjunction with a
county election; or
(2) The municipal recorder or other officer authorized by
charter or ordinance provisions to conduct absentee voting, for
any election held entirely within the municipality, or in the
case of annexation elections, within the area affected. The
terms "clerk" or "circuit clerk" used elsewhere in this article
shall be taken to refer to such recorder or other officer in the
case of municipal elections.
(b) A person authorized and desiring to vote an absentee
ballot in any primary, general or special election shall make
application in writing in the proper form to the proper official.
(1) The completed application shall be on a form prescribed
by the secretary of state, and shall contain the name, date of
birth and political affiliation of the voter, his or her
residence address within the county, the address to which the
ballot is to be mailed, the authorized reason for which the
absentee ballot is requested, and, if the reason is illness or
hospitalization, the name and telephone number of the attending
physician, the signature of the voter to a declaration made under
the penalties for false swearing as provided in section three,
article nine of this chapter that the statements and declarations
contained in the application are true, any additional information
which the voter is required to supply, any affidavit which may be
required, and an indication as to whether it is an application
for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot
under the provisions of the Uniformed and Overseas Citizens
Absentee Voting Act of 1986, (Public Law 99-410, 42 U.S.C. 1973,
et seq.), the completed application may be on the federal post
card application for absentee ballot form issued under authority
of that act; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for
an application for an absentee ballot by mail to be received by
the proper official, the completed application may be in a form
set out by the voter, provided all information required to meet
the provisions of this article is set forth and the application
is signed by the voter requesting the ballot.
§3-3-2a. Voting booths within public view to be provided by
clerk; prohibition against display of campaign material.
Throughout the period of absentee voting in person in the
clerk's office as provided in this article, the circuit clerk
shall make the following provisions for voting:
(a) The clerk shall provide a sufficient number of voting
booths or devices appropriate to the voting system at which
voters may prepare their ballots. The booths or devices shall be
in an area separate from but within clear view of the public
entrance area of the clerk's office, and shall be arranged to
insure the voter complete privacy in casting the ballot.
(b) The clerk shall make the voting area secure from
interference with the voter and shall insure that voted and
unvoted ballots are at all times secure from tampering. No
person, other than a person lawfully assisting the voter
according to the provisions of this chapter, may be permitted to
come within five feet of voting booth while the voter is voting.
No person, other than the clerk or deputy clerks or members of
the board of ballot commissioners assigned to conduct absentee
voting shall enter the area or room set aside for voting.
(c) When the voting area of the office of the clerk is not
fully accessible to voters with physical disabilities, the clerk
shall request the county commission to designate an accessible
room within the same building as a portion of the clerk's office
for the purpose of absentee voting only by persons unable to use
the regular area. The area shall be subject to the same
requirements as the regular voting area.
(d) No person may do any electioneering, nor may any person
display or distribute in any manner, or authorize the display ordistribution of, any literature, posters or material of any kind
which tends to influence the voting for or against any candidate
or any public question within the whole area of the clerk's
office or within three hundred feet thereof during the entire
period of absentee voting. The clerk is hereby authorized to
remove such material and to direct the sheriff of the county to
enforce the prohibition.
§3-3-2b. Special absentee voting list.
(a) Any person who is registered and otherwise qualified to
vote and who is permanently and totally physically disabled and
who is unable to vote in person at the polls in an election, may
apply to the clerk of the circuit court for placement on the
special absentee voting list.
(b) The application shall be on a form prescribed by the
secretary of state which shall include the voter's name and
signature, residence address, a statement that the voter is
permanently and totally physically disabled and would be unable
to vote in person at the polls in any election, a description of
the nature of that disability, and a statement signed by a
physician to that effect.
(c) Upon receipt of a properly completed application, the
circuit clerk shall enter the name on the special absentee voting
list, which shall be maintained in a secure and permanent record.
The person's name shall remain active on such list until: (1) The
person requests in writing that his or her name be removed; (2)
the person removes his or her residence from the county, is
purged from the voter registration books or otherwise becomes
ineligible to vote; (3) a ballot mailed to the address providedon the application is returned undeliverable by the United State
postal service; or (4) the death of the person.
(d) The clerk shall mail an application for an absentee
ballot by mail to each person active on the special absentee
voting list not later than forty-two days before each election.
§3-3-3. Voting an absentee ballot in person.
(a) Regular absentee voting in person shall be conducted
during regular business hours in the office of the clerk of the
circuit court beginning on the fifteenth day before the election
and continuing through the Saturday before the election for any
election held on a Tuesday, or continuing through the third day
before the election for any election held on another day.
(b) Special absentee voting in person for persons eligible
to vote an absentee ballot under the provisions of subsection
(c), section one of this article shall be conducted during
regular business hours in the office of the clerk of the circuit
court beginning on the forty-second day before the election and
continuing until the first day when regular absentee voting in
person begins. Any person seeking to vote absentee under this
subsection shall first give an affidavit, on a form prescribed by
the secretary of state, stating under oath the specific
circumstances which prevent voting absentee during the period for
regular absentee voting in person or by mail.
(c) Upon oral request, the clerk of the circuit court shall
provide the voter with the appropriate application for voting
absentee in person, as provided in this article. The voter shall
complete and sign the application in his or her own handwriting
or, if the voter is unable to complete the application because ofilliteracy or physical disability, the person assisting the voter
and witnessing the mark of the voter shall sign his or her name
in the space provided. Upon completion, the application shall be
immediately returned to the clerk, who shall determine:
(1) Whether the application has been completed as required
by law;
(2) Whether the applicant is duly registered to vote in the
precinct of his or her residence, and, in a primary election, is
qualified to vote the ballot of the political party requested;
and
(3) Whether the applicant is authorized for the reasons
given in the application to vote an absentee ballot by personal
appearance at the time of the application.
If the clerk determines the above conditions have not been
met, or has evidence that any of the information contained in the
application is not true, the clerk shall challenge the voter's
absentee ballot as provided in this article.
(d) The clerk shall provide each person voting an absentee
ballot in person the following: (1) One of each type of official
absentee ballot the voter is eligible to vote, prepared according
to law; (2) one envelope, unsealed, which shall have no marks
except the designation "Absent Voter's Ballot Envelope No. 1" and
printed instructions to the voter; and (3) one envelope,
unsealed, designated "Absent Voter's Ballot Envelope No. 2" and
printed as prescribed by the secretary of state.
(e) The voter shall enter the voting booth alone and there
mark the ballot:
Provided, That the voter may have assistance in
voting according to the provisions of section four of thisarticle. After the voter has voted the ballot or ballots, the
voter shall: (1) Place the ballot or ballots in envelope No. 1
and seal that envelope; (2) place the sealed envelope No. 1 in
envelope No. 2 and seal that envelope; (3) complete and sign the
forms on envelope No. 2; and (4) return that envelope to the
circuit clerk.
(f) Upon receipt of the sealed envelope, the circuit clerk
shall: (1) Enter onto the envelope any other required
information; (2) enter the challenge, if any, to the ballot; (3)
enter the required information into the permanent record of
persons applying for and voting an absentee ballot in person; and
(4) place the sealed envelope in a secure location in the clerk's
office, to remain until delivered to the polling place or, in the
case of a challenged ballot, to the board of canvassers.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the clerk of the circuit
court shall provide to any voter of the county, in person or by
mail, the appropriate application for voting absentee by mail, as
provided in this article. The voter shall complete and sign the
application in his or her own handwriting or, if the voter is
unable to complete the application because of illiteracy or
physical disability, the person assisting the voter and
witnessing the mark of the voter shall sign his or her name in
the space provided.
(b) Completed applications for voting an absentee ballot by
mail shall be accepted when received by the clerk within the
following times:
(1) For persons eligible to vote an absentee ballot underthe provisions of subdivision (3), subsection (d), section one of
this article, relating to absent uniformed services and overseas
voters, not earlier than the first day of January of an election
year, or eighty-four days preceding the election, whichever is
earlier, and not later than the sixth day preceding the election,
which application shall, upon the voter's request, be accepted as
an application for the ballots for all elections in the calendar
year;
(2) For all other persons eligible to vote an absentee
ballot by mail, not earlier than eighty-four days preceding the
election and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the circuit
clerk shall determine whether the following requirements have
been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified
to vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by
mail under the provisions of subdivision (2), (3) or (4),
subsection, of section one of this article;
(5) The applicant is not making his or her first vote after
having registered by post card registration under the provisions
of section forty-one, article two of this chapter or, if the
applicant is making the first vote under these provisions, theapplicant is exempt from this requirements;
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest
that the applicant is no longer a resident of the county.
If the clerk determines the required conditions have not
been met, or has evidence that any of the information contained
in the application is not true, the clerk shall give notice to
the voter that the voter's absentee ballot will be challenged as
provided in this article, and shall enter that challenge.
(d) Within one day after the clerk has both the completed
application and the ballot, the clerk shall mail to the voter at
the address given on the application the following: (1) One of
each type of official absentee ballot the voter is eligible to
vote, prepared according to law; (2) one envelope, unsealed,
which shall have no marks except the designation "Absent Voter's
Ballot Envelope No. 1" and printed instructions to the voter; (3)
one postage paid envelope, unsealed, designated "Absent Voter's
Ballot Envelope No. 2" and printed as prescribed by the secretary
of state; (4) instructions for voting absentee by mail; and (5)
any other supplies required for voting in the particular voting
system.
(e) The voter shall mark the ballot alone:
Provided, That
the voter may have assistance in voting according to the
provisions of section six of this article. After the voter has
voted the ballot or ballots, the voter shall: (1) Place the
ballot or ballots in envelope No. 1 and seal that envelope; (2)
place the sealed envelope No. 1 in envelope No. 2 and seal thatenvelope; (3) complete and sign the forms on envelope No. 2; and
(4) return that envelope to the clerk.
(f) Absentee ballots returned by United States Mail or other
express shipping service shall be accepted if: (1) The ballot is
received by the clerk no later than the close of the polls on
election day; or (2) the ballot bears a postmark of the United
States Postal Service dated no later than election day and the
ballot is received by the clerk no later than the hour at which
the board of canvassers convenes to begin the canvass.
Ballots received after the proper time which cannot be
accepted shall be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they shall be destroyed without being
opened.
(g) Absentee ballots which are hand delivered to the clerk
shall be accepted if they are received by the circuit clerk no
later than the day preceding the election:
Provided, That no
person may hand deliver more than two absentee ballots in any
election, and any person hand delivering an absentee ballot shall
be required to certify that he or she has not examined or altered
the ballot. Any person who makes a false certification shall be
in violation of the penalty provisions of article nine of this
chapter and subject to those provisions.
(h) Upon receipt of the sealed envelope, the clerk shall:
(1) Enter onto the envelope any other required information; (2)
enter the challenge, if any, to the ballot; (3) enter the
required information into the permanent record of persons
applying for and voting an absentee ballot in person; and (4)place the sealed envelope in a secure location in the clerk's
office, to remain until delivered to the polling place or, in the
case of a challenged ballot, to the board of canvassers.
§3-3-5a. Processing federal post card applications.
(a) When a Federal Post Card Registration and Absentee
Ballot Request (FPCA), as defined in subdivision (2), subsection
(b), section two of this article, is received by the clerk of the
circuit court, the clerk shall examine the application and take
the following steps:
(1) The clerk shall first enter the name of the applicant in
the permanent absentee voter's record for each election for which
a ballot is requested, make a photocopy of the application for
each such election and place the separate copies in secure files
to be maintained for use in the various elections.
(2) The clerk shall then determine if the applicant is
registered to vote at the residence address listed in the voting
residence section of the application. If the applicant is
properly registered, the clerk shall maintain the original
application. If the applicant is not registered, or not
registered at the address given, the clerk shall deliver the
original FPCA to the clerk of the county commission for
processing as an application for registration and, if such
application is received after the close of voter registration for
the next succeeding election, the clerk of the circuit court
shall challenge the absentee ballot for that election.
(3) Except as provided herein, the federal application for
an absentee ballot received from a person qualified to use the
application as provided in section two of this article shall beprocessed as all other applications and the ballot or ballots for
each election for which ballots are requested by the applicant
shall be mailed to the voter on the first day on which both the
application and the ballot are available.
(b) When a Federal Post Card Registration and Absentee
Ballot Request (FPCA) is received by the clerk of the county
commission, the clerk of the county commission shall examine the
application and take the following steps:
(1) The clerk shall determine if the applicant is registered
to vote at the residence address listed in the voting residence
section of the application. If the applicant is properly
registered, the clerk shall deliver the original FPCA to the
clerk of the circuit court for processing as an application for
absentee voting. If the applicant is not registered, or not
registered at the address given, the clerk of the county
commission shall make a photocopy of such application and deliver
the photocopy to the clerk of the circuit court for processing as
an application for absentee voting, and shall register the voter
and maintain the original copy in the registration files. If the
application for registration is received after the close of
registration for the next succeeding election, the clerk of the
county commission shall hold the application to be entered into
the registration records after that election and shall forward a
copy of the application to the clerk of the circuit court, along
with a notice that the absentee ballot for that election shall be
challenged.
(2) Upon receiving the original or the photocopy of the
application from the clerk of the county commission, the clerk ofthe circuit court shall process the application as prescribed in
subsection (a) of this section.
§3-3-5b. Procedures for voting a special write-in absentee
ballot by qualified persons.
(a) Notwithstanding any other provisions of this chapter, a
person qualified to vote an absentee ballot in accordance with
subdivision (3), subsection (d), section one of this article, may
apply not earlier than the first day of January of an election
year for a special write-in absentee ballot for a primary or
general election, in conjunction with the application for a
regular absentee ballot or ballots. If the application is
received after the forty-ninth day preceding the election, the
clerk of the circuit court shall honor only the application for
the regular ballot. The special write-in ballot shall be for
presidential preference or nomination of members of congress in
a primary election and for the election of presidential electors,
United States senator and representative in Congress in a general
election.
(b) The application for a special write-in absentee ballot
may be made on the federal postcard application form.
(c) In order to qualify for a special write-in absentee
ballot, the voter must state that he or she is unable to vote by
regular absentee ballot or in person due to requirements of
military service or due to living in isolated areas or extremely
remote areas of the world. This statement may be made on the
federal postcard application or on a form prepared by the
secretary of state and supplied and returned with the special
write-in absentee ballot.
(d) Upon receipt of said application within the time
required, the clerk shall issue the special write-in absentee
ballot which shall be the same ballot issued under the provisions
of the Uniformed and Overseas Citizens Absentee Voting Act of
1986, (Public Law 99-410, 42 U.S.C. 1973, et seq.). Such ballot
shall permit the elector to vote in a primary election by
indicating his or her political party affiliation and the names
of the specific candidates for each office, and in a general
election by writing in a party preference for each office, the
names of specific candidates for each office, or the name of the
person whom the voter prefers for each office.
(e) When a special federal write-in ballot is received by
the clerk from a voter: (1) Who mailed the write-in ballot from
any location within the United States; (2) who did not apply for
a regular absentee ballot; (3) who did not apply for a regular
absentee ballot by mail; or (4) whose application for a regular
absentee ballot by mail was received less than thirty days before
the election, the write-in ballot shall not be counted.
(f) Any write-in absentee ballot must be received by the
clerk prior to the close of the polls on election day or it may
not be counted.
§3-3-5c. Procedures for voting an emergency absentee ballot by
qualified voters.
(a) Notwithstanding any other provision of this chapter, a
person qualified to vote an emergency absentee ballot, as
provided in subsection (e), section one of this article may vote
an emergency absentee ballot under the procedures established in
this section. The county commission may adopt a policy extendingthe emergency absentee voting procedures to: (1) Hospitals or
other duly licensed health care facilities within an adjacent
county or within thirty-five miles of the county seat; or (2)
nursing homes within the county:
Provided, That the policy shall
be adopted by the county commission at least ninety days prior to
the election that will be affected and a copy of such policy
shall be filed with the secretary of state.
(b) On or before the fifty-sixth day preceding the date on
which any election is to be held the clerk of the circuit court
of each county shall notify the county commission of the number
of sets of emergency absentee ballot commissioners which he or
she deems necessary to perform the duties and functions
hereinafter set forth.
(c) A set of emergency absentee ballot commissioners at-
large shall consist of two persons, appointed by the county
commission in accordance with the procedure prescribed for the
appointment of election commissioners under the provisions of
article one of this chapter. Emergency absentee ballot
commissioners shall have the same qualifications and rights and
take the same oath required under the provisions of this chapter
for commissioners of elections. Such commissioners shall be
compensated for services and expenses in the same manner as
commissioners of election obtaining and delivering election
supplies under the provisions of section forty-four, article one
of this chapter.
(d) Upon request of the voter or a member of the voter's
immediate family or, when the county commission has adopted a
policy to provide emergency absentee voting services to nursinghome residents within the county, upon request of a staff member
of the nursing home, the clerk of the circuit court, upon
receiving a proper request for voting an emergency absentee
ballot no earlier than the seventh day next preceding the
election and no later than noon of election day, shall supply to
the emergency absentee ballot commissioners the application for
voting an emergency absentee ballot and the balloting materials.
The emergency absentee ballot application shall be prescribed by
the secretary of state and shall include the name, residence
address and political party affiliation of the voter, the date,
location and reason for confinement in the case of an emergency,
and the name of the attending physician.
If the person applying for an emergency absentee ballot is
unable to sign his or her application because of illiteracy, he
or she shall make his or her mark on the signature line above
provided for an illiterate applicant which mark shall be
witnessed.
A declaration is to be completed and signed by each of the
emergency absentee ballot commissioners, stating their names, the
date on which they appeared at the place of confinement, and the
particulars of the confinement.
(e) At least one of the emergency absentee ballot
commissioners receiving the balloting materials shall sign a
receipt which shall be attached to the application form. Each of
the emergency absentee ballot commissioners shall deliver the
materials to the absent voter, await his or her completion of the
application and then the ballot and return the same to the
circuit clerk and, upon delivering the application and the votedballot to the clerk of the court, sign an oath that no person
other than the absent voter voted the ballot. The application
and the voted ballot shall be returned to the clerk of the
circuit court prior to the close of the polls on election day.
Any ballots received by the clerk after the time that delivery
may reasonably be made but before the closing of the polls shall
delivered to the canvassing board along with the absentee ballots
challenged in accordance with the provisions of section ten of
this article.
(f) Upon receiving the application and emergency absentee
ballot, the clerk of the circuit court shall ascertain whether
the application is complete, whether the voter appears to be
eligible to vote an emergency absentee ballot, and whether the
voter is properly registered to vote with the office of the clerk
of the county commission. If the voter is found to be properly
registered in the precinct shown on the application, the ballot
shall be delivered to the precinct election commissioner pursuant
to section seven of this article. If the voter is found not to
be registered or is otherwise ineligible to vote an emergency
ballot, then the ballot shall be challenged for the appropriate
reason provided for in section ten of this article.
(g) If either or both of the emergency absentee ballot
commissioners should refuse to sign any application for voting an
emergency absentee ballot, then the voter shall be permitted to
vote as an emergency absentee and any such ballot shall be
challenged in accordance with the provisions of section ten of
this article, in addition to those absentee ballots subject to
challenge as enumerated therein.
(h) Any voter who receives assistance in voting an emergency
absentee ballot shall comply with the provisions of section six
of this article. Any other provisions of this chapter relating
to absentee ballots not altered by the provisions of this section
shall govern the treatment of emergency absentee ballots.
§3-3-7. Delivery of absentee ballots to polling places.
(a) Except as otherwise provided in this article, the
absentee ballots of each precinct, together with the applications
therefor, the affidavits made in connection with assistance in
voting, and such forms, lists and records as may be designated by
the secretary of state, shall be delivered in a sealed carrier
envelope to the election commissioner of the precinct at the time
he picks up the official ballots and other election supplies as
provided in section twenty-four, article one of this chapter.
(b) Absentee ballots received after the election
commissioner has picked up the official ballots and other
election supplies for the precinct shall be delivered to the
election commissioner of the precinct who has been so designated
pursuant to section twenty-four, article one of this chapter, by
the clerk in person, or by messenger, before the closing of the
polls, provided such ballots are received by the clerk in time to
make such delivery. Any ballots received by the clerk after the
time that delivery may reasonably be made but within the time
required as provided in the subsection (f), section five of this
article, shall be delivered to the board of canvassers along with
the challenged ballots.
§3-3-12. Rules, regulations, orders, instructions, forms, lists
and records pertaining to absentee voting.
The secretary of state shall make, amend and rescind such
rules, regulations, orders and instructions, and prescribe such
forms, lists and records, and consolidation of such forms, lists
and records as may be necessary to carry out the policy of the
Legislature as contained in this article and as may be necessary
to provide for an effective, efficient and orderly administration
of the absentee voter law of this state. In the case of West
Virginia voters residing outside the continental United States,
the secretary of state shall promulgate rules and regulations
necessary to implement procedures relating to absentee voters
contained in the Uniformed and Overseas Citizens Absentee Voting
Act of 1986 (P.L. 99-410, 42 U.S.C. 1973, et seq.) and shall
forward a copy of the act to all clerks of the circuit courts and
clerks of the county commissions before the first day of January
of each even-numbered year.
The secretary of state may establish special procedures to
allow absentee voting for those categories of registered voters
who, because of special circumstances, would otherwise be unable
to vote in the election.
It shall be the duty of all clerks of the circuit court,
other county officers, and all election commissioners and poll
clerks to abide by such rules, regulations, orders and
instructions and to use such forms, lists and records which,
without limiting the foregoing, may include or relate to:
(a) The consolidation of the two application forms provided
for herein into one form;
(b) The size and form of Absent Voter's Ballot Envelope Nos.
1 and 2, and carrier envelopes;
(c) The information which shall be placed on Absent Voter's
Ballot Envelope No. 1 and the forms and information which shall
be placed on Absent Voter's Ballot Envelope No. 2;
(d) The forms and manner of making the challenges to
absentee ballots authorized by this article;
(e) The forms of, information to be contained in, and
consolidation of lists and records pertaining to applications
for, and voting of, absentee ballots and assistance to persons
voting absentee ballots;
(f) The supplying of application forms, envelopes, challenge
forms, lists, records and other forms;
(g) The keeping and security of voted absentee ballots in
the office of the clerk of the circuit court.
ARTICLE 4. VOTING MACHINES.
§3-4-13. Election boards where voting machines used.
One receiving board, as defined in article one of this
chapter, shall conduct the election in each precinct in which
voting machines are used. The provisions of article one of this
chapter relating to the qualifications, appointment,
substitution, training and compensation of election officers, and
to the procedure for filling vacancies, shall apply.
§3-4-14. Instructions and help to voters; voting machine models;
facsimile diagrams; sample ballots; legal ballot
advertisements.
For the instruction of the voters on any election day there
shall be provided for each polling place one instruction model
for each voting machine. Each such instruction model shall be
constructed so as to provide a replica of a portion of the faceof the voting machine, and shall contain the arrangement of the
ballot labels, party columns or rows, office columns or rows and
questions. Fictitious names shall be inserted in the ballot
labels of the models. Such models shall be located on the
election officers' tables or in some other place in which the
voter must pass to reach the voting machine. Each voter, upon
request, before voting, shall be offered instruction by the
election officers in the operation of the voting machine by use
of the instruction model and each voter shall be given ample
opportunity to operate the model himself.
The ballot commissioners shall also provide facsimile
diagrams, at least two of which shall be posted on the walls of
each polling place. The facsimile diagrams shall be exact
diagrams of the face of the voting machines to the end that the
voter may become familiar with the location of the parties,
offices, candidates and questions as they appear on the voting
machine to be used in his precinct. Ballot labels may be affixed
to the diagrams to insure that the position of the names of the
candidates in each office division shall appear accurately on the
diagrams of each precinct.
The ballot commissioners may, with the consent of the county
commission, or the county commission may prepare and mail to each
qualified voter at his or her address as shown on the
registration books a facsimile sample of the ballot for his or
her precinct.
In counties where voting machines have been adopted, the
legal ballot advertisements required by articles five and six of
this chapter which specify the publication of a facsimile sampleballot, shall consist of a facsimile of the face of the voting
machine with the names of the candidates and the offices for
which they are running shown in their proper positions.
§3-4-24. Closing polls; counting and reporting returns; duties
and procedures.
(a) As soon as the polls are closed, and the last voter has
voted, the election officers shall first process the absentee
ballots according to the provisions of section eight, article
three of this chapter. After the absentee ballots to be counted
have been entered on the voting machine, the election officers
shall
immediately lock and seal the operating lever or mechanism
of the machine so that the voting and counting mechanism will be
prevented from operation, and shall then compare the number of
voters, as shown by the public counter of the machine, with the
number of those who have voted, as shown by the protective or
accumulative counter or device. The election officers of each
precinct shall then sign a certificate stating: (1) That the
machine has been locked against voting and sealed; (2) the number
of voters, as shown by the public counters; (3) the number
registered on the protective or accumulative counter or device,
if any; and (4) the number or other designation of the voting
machine; and such certificate shall be returned by the precinct
election officers to the ballot commissioners.
(b) Before proceeding, the election officers shall admit the
following persons who may witness and check the recording of the
votes shown on the counters:
(1) Any candidate, or any one person representing a
candidate who presents a written authorization signed by thecandidate for the purpose;
(2) Any one person representing a registered political
committee formed for the purpose of advocating or opposing an
issue on the ballot who presents a written authorization signed
by the committee treasurer; and
(3) Any one member of the county executive committee of an
established political party.
(c) The election officers shall then make visible the
registering counters, and for that purpose shall unlock and open
the doors or other covering concealing the same, giving full view
to all witnesses of all the counter numbers.
(1) The election officers shall, under the scrutiny of such
representatives, if any, and in the order of the offices as their
titles are arranged on the machine, read and announce, in
distinct tones, the results as shown by the counter numbers for
each candidate and for and against each question voted on. The
counters shall not be read consecutively along the party rows or
columns but shall always be read along the office columns or
rows, completing the canvass for each office or question before
proceeding to the next.
(2) The election officers shall also open the doors covering
the paper roll and shall proceed to read and record the votes
entered thereon for any official write-in candidate for election
to the office represented by the position on the paper roll,
except delegate to national convention. Official write-in
candidates are those who have filed a write-in candidate's
certificate of announcement and have been certified according to
the provisions of section four-a, article six of this chapter. Write-in votes for nomination to any office or for any person
other than an official write-in candidate shall be disregarded.
(3) The vote as registered shall be entered by the election
officers, in ink, on triplicate return sheets, and also on a
general return sheet and statement, all of which, after the count
is completed, shall be signed by the election officers. The
total vote cast for each candidate, and for and against each
question, shall then be computed and entered on the general and
triplicate return sheets and statement. There shall also be
entered on the general return sheet and statement the number of
voters who have voted, as shown by the poll books, and the number
who have voted on each machine, as shown by the public counters,
and also the number registered on the protective counter on each
machine immediately prior to the opening of the polls and
immediately after the closing thereof and sealing of the machine.
The number or other designation of each machine used shall also
be entered thereon. In the case of primary elections, triplicate
return sheets shall be prepared for each party. The registering
counters of the voting machine shall remain exposed to view until
the returns and all other reports have been fully completed.
(d) The proclamation of the results of the votes cast shall
be announced distinctly and audibly by one of the election
officers, who shall read the name of and votes cast for each
candidate, and the votes cast for and against each question
submitted. During such proclamation, ample opportunity shall be
given to any person lawfully present to compare the results so
announced with the counter dials of the machine, and any
necessary corrections shall then and there be made by electionofficers, after which the doors or other cover of the voting
machine shall be closed and locked and the return sheets shall be
signed by each of the election officers. If any election officer
shall decline to sign such return, he or she shall state the
reason in writing, and enclose the statement with the return.
Each of the return sheets shall be enclosed in a separate
envelope, which shall be securely sealed, and each of the
election officers shall write his or her name across the fold of
the envelope. One of the sealed envelopes containing the returns
shall be delivered to the clerk of the circuit court and two
shall be delivered to the clerk of the county commission who
shall within forty-eight hours mail one of the sealed returns for
each precinct by certified mail to the secretary of state. The
general return sheet and statement shall be directed and
immediately delivered to the clerk of the county commission. The
envelope shall have endorsed thereon a certificate of the
election officers, stating the number of the machine, the
precinct where it has been used, the number of the seal and the
number registered on the protective counter at the close of the
polls.
(e) As soon as possible after the completion of the count,
the election officers shall return to the county commission and
the ballot commissioners the keys to the voting machine received
and receipted for by them, and the clerk of the county commission
shall have the voting machine properly boxed or securely covered
and removed from the polling place to a proper and secure place
of storage.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS
§3-4A-11. Ballot labels, instructions and other supplies;
procedure and requirements.
The ballot commissioners of any county in which an
electronic voting system utilizing voting devices for registering
the voter's choices is to be used in any election shall cause to
be printed for use in such election the ballot cards and ballot
labels, as appropriate, for the electronic voting system.
(a) The ballot labels shall be clearly printed in black ink
on clear white material of such size as will fit the vote
recording devices. Arrows shall be printed on the ballot labels
to indicate the place to punch the ballot card, which may be to
the right or left of the name or proposition.
(b) The ballot labels shall contain the party emblem and
shall clearly indicate the party designation of each candidate.
The titles of offices may be arranged on the ballot labels in
vertical columns or in a series of separate pages, and shall be
printed above or at the side of the names of candidates so as to
indicate clearly the candidates for each office and the number to
be elected. The names of candidates for each office shall be
printed in vertical columns or on separate pages, grouped by the
offices which they seek.
(c) For the primary election, the heading of the ballot, the
type faces, the names and arrangement of offices and the printing
of names and arrangement of candidates within each office shall
conform as nearly as possible to the provisions of sections
thirteen and thirteen-a, article five of this chapter.
(d) For the general election, the heading of the ballot, the
straight ticket positions, the instructions to straight ticketvoters, the type faces, the names and arrangement of offices and
the printing of names and the arrangement of candidates within
each office shall conform as nearly as possible to the provisions
of section two, article six of this chapter, except as otherwise
provided in this article. The secretary of state shall assign
uniform numbers which shall be used by all counties using
electronic voting for all straight party tickets and for all
candidates running for offices to be voted upon by all of the
voters of the state. After taking into account the numbers so
assigned by the secretary of state, the clerk of the circuit
court shall arrange the offices and the candidates within each
office as prescribed by said section, and shall assign the
appropriate number for each candidate. When one candidate is to
be elected and only two parties are on the ballot, the ballot
label and the arrangement of the ballot shall conform as nearly
as practical to the following example:
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
Democratic TicketRepublican Ticket
For GovernorFor Governor
(Vote for One)(Vote for One)
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
(candidate's name) 10 ---
(residence, county)
--- 11(candidate's name)
(residence, county)
When more than two parties are on the ballot for an office,
the arrangement of the ballot shall be specified by the secretary
of state, and may conform to the following example if practical:
- - - - - - - - - - - - - - - - - - - - - - - -
For Governor
(Vote for One)
- - - - - - - - - - - - - - - - - - - - - - - -
Democrat(candidate's name)10 ---
(residence, county)
Republican(candidate's name)11 ---
(residence, county)
People's(candidate's name)12 ---
(residence, county)
The ballot label and the arrangement of the ballot for
multi-candidate offices shall conform as nearly as practical to
the following example:
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -
Democratic TicketRepublican Ticket
For House of DelegatesFor House of Delegates
First Delegate DistrictFirst Delegate District
(Vote For Not More Than Two)(Vote For Not More Than Two)
[If you marked a straight[If you marked a straight
ticket and you mark anyticket and you mark any
candidate in a differentcandidate in a different
party for this office, youparty for this office, you
must mark all your choicesmust mark all your choices
because your straight ticketbecause your straight ticket
vote will not be countedvote will not be counted
for this office.]for this office.]
- - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -
(candidate's name) 69 ---
(residence, county)
--- 70(candidate's name)
(residence, county)
(candidate's name) 71 ---
(residence, county)
--- 72(candidate's name)
(residence, county)
(e) Any nonpartisan office such as board of education and
any question to be voted on shall be placed on a separate page or
otherwise separated from the partisan ballots, which separate
page shall constitute a separate ballot where required.
(f) In elections in which voters are authorized to vote for
official write-in candidates whose names do not appear on the
ballot label, there shall be provided, as described herein, a
write-in position on the ballot label for the voter to indicate
his or her preference for a write-in candidate and a form on the
inside of the secrecy envelope to permit a voter to enter the
title of the office and the names of official write-in
candidates, for whom he or she wishes to vote.
For an office to be filled by election in a primary, except
delegate to national convention, and for each office in a general
election, the ballot label shall include, following all
candidates for the office, a single numbered position with an
arrow indicating the location to punch the ballot card to
indicate a preference for a write-in candidate. The following
instructions shall be printed beside the arrow in at least 10-
point type. "TO WRITE-IN FOR THIS OFFICE: Punch here and put
name of office and candidate on inside of secrecy envelope. DO
NOT put name here."
(g) In addition to all other equipment and supplies required
by the provisions of this article, the ballot commissioners shall
cause to be printed a supply of instruction cards, sampleballots, facsimile diagrams of the vote recording device ballot
and official printed ballots or ballot cards adequate for the
orderly conduct of the election in each precinct in their county.
In addition they shall provide all other materials and equipment
necessary to the conduct of the election, including voting
booths, appropriate facilities for the reception and safekeeping
of ballot cards, the ballots of absentee and of challenged voters
and of such "independent" voters who shall, in primary elections
cast their votes on nonpartisan candidates and public questions
submitted to the voters.
§3-4A-11a. Ballots tabulated electronically; arrangement,
quantity to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using
ballots upon which votes may be recorded by means of marking with
electronically sensible ink or pencil and which marks are
tabulated electronically shall cause the ballots to be printed
for use in elections.
(b) (1) The heading of the ballot, the arrangement of
offices in columns, the spaces for marking votes, the printing of
offices, instructions and candidates names shall conform as
nearly as possible to that prescribed in this chapter for paper
ballots, except that the secretary of state may prescribe
necessary modifications to accommodate the tabulating system.
Nonpartisan elections for board of education and any question to
be voted upon shall be separated from the partisan ballot and
separately headed in display type with a title clearly
identifying the purpose of the election, and such separate
section shall constitute a separate ballot wherever a separateballot is required under the provisions of this chapter.
(2) Both the face and the reverse side of the ballot may
contain the names of candidates, only if means to ensure the
secrecy of the ballot are provided and lines for the signatures
of the poll clerks on the ballot are printed on a portion of the
ballot which is deposited in the ballot box and upon which marks
do not interfere with the proper tabulation of the votes.
(3) The arrangement of candidates within each office shall
be determined in the same manner as for other electronic voting
systems, as prescribed in this chapter. On the general election
ballot for all offices, and on the primary election ballot only
for those offices to be filled by election, except delegate to
national convention, lines for entering write-in votes shall be
provided below the names of candidates for each office, and the
number of lines provided for any office shall equal the number of
persons to be elected, or three, whichever is fewer. The words
"WRITE-IN, IF ANY" shall be printed directly under each line for
write-ins. Such lines shall be opposite a position to mark the
vote.
(c) The ballot shall be printed in black ink on paper
suitable for automatic tabulation and in the color specified by
the secretary of state, and shall contain a perforated stub at
the top or bottom of the ballot which shall be numbered
sequentially in the same manner as provided in this article for
ballots upon which votes are recorded by means of perforating.
The number of ballots printed and the packaging of ballots for
the precincts shall conform to the requirements for paper ballots
as provided in this chapter.
(d) In addition to the official ballots, the ballot
commissioners shall provide all other materials and equipment
necessary to the proper conduct of the election.
§3-4A-14. Election boards where electronic voting systems used.
One receiving board, as defined in article one of this
chapter, shall conduct the election in each precinct in which
electronic voting systems are used. The provisions of article
one of this chapter relating to the qualifications, appointment,
substitution, training and compensation of election officers and
to the procedure for filling vacancies, shall apply.
§3-4A-15. Instructions and help to voters; vote recording device
models; facsimile diagrams; sample ballots; legal ballot
advertisements.
(a) For the instruction of the voters on any election day in
counties utilizing an electronic voting system where votes are to
be recorded by means of perforating, there shall be provided for
each polling place one instruction model for each vote recording
device. Each such instruction model shall be constructed so as
to provide a replica of a vote recording device, and shall
contain the arrangement of the ballot labels, party columns or
rows, office columns or rows, and questions. Fictitious names
shall be inserted in the ballot labels of the models. Such
models shall be located on the election officers' tables or in
some other place in which the voter must pass to reach the vote
recording device. Each voter, upon request, before voting, shall
be offered instruction by the election officers in the operation
of the vote recording device by use of the instruction model, and
each voter shall be given ample opportunity to operate the modelhimself.
(b) The ballot commissioners shall also provide facsimile
ballots or ballot labels, as may be appropriate, at least two of
which, or complete sets of which, shall be posted on the walls of
each polling place. The facsimile diagrams shall be exact
diagrams of the ballots or ballot labels or paper ballots to the
end that the voter may become familiar with the location of the
parties, offices, candidates and questions as they appear on the
ballot to be used in his or her precinct.
(c) The ballot commissioners may, with the consent of the
county commission, or the county commission may, prepare and mail
to each qualified voter at the address shown on the registration
books a facsimile sample of the ballot or ballot labels for his
or her precinct.
(d) In counties where an electronic voting system has been
adopted, the legal ballot advertisements required by articles
five and six of this chapter which specify the publication of a
facsimile sample ballot, shall consist of a facsimile of the
ballot or ballot labels with the names of the candidates and the
offices for which they are running shown in their proper
positions.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center shall be
under the supervision of the clerk of the county commission, and
shall be conducted under circumstances which allow observation
from a designated area by all persons entitled to be present.
The proceedings shall take place in a room of sufficient size and
satisfactory arrangement to permit such observation. Thosepersons entitled to be present shall include all candidates whose
names appear on the ballots being counted, or if such candidate
be absent, a representative of such candidate who presents a
written authorization signed by the candidate for the purpose,
and two representatives of each political party on such ballot,
who shall be chosen by the county executive committee
chairperson. A reasonable number of the general public shall
also be freely admitted to the room. In the event all members of
the general public desiring admission to the room cannot be
admitted at one time, the county commission shall provide for a
periodic and convenient rotation of admission to the room for
observation, to the end that each member of the general public
desiring admission shall, during the proceedings at the central
counting center, be granted such admission for reasonable periods
of time for observation:
Provided, That no person except those
authorized for the purpose shall touch any ballot or ballot card
or other official records and papers utilized in the election
during such observation.
(b) All persons who are engaged in processing and counting
of the ballots shall work in teams consisting of two persons of
opposite political parties, and shall be deputized in writing and
take an oath that they will faithfully perform their assigned
duties. Such deputies shall be issued an official badge or
identification card which shall be assigned an identity control
number, and such deputies shall prominently wear on his or her
outer garments the issued badge or identification card. Upon
completion of the deputies' duties, the badges or identification
cards shall be returned to the county clerk.
(c) Ballots shall be handled and tabulated and the write-in
votes tallied according to procedures established by the
secretary of state, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards
and secrecy envelopes for a precinct shall be removed from the
box and examined for write-in votes before being separated and
stacked for delivery to the tabulator. Immediately after valid
write-in votes are tallied, the ballot cards shall be delivered
to the tabulator. No write-in vote shall be counted for an
office unless the voter has punched the write-in voting position
for that office and entered the name of that office and the name
of an official write-in candidate for that office on the inside
of the secrecy envelope, either by writing, affixing a sticker or
label or placing an ink-stamped impression thereon;
(2) In systems using ballots marked with electronically
sensible ink, ballots shall be removed from the boxes and stacked
for the tabulator, which shall separate ballots containing marks
for a write-in position. Immediate after tabulation, the valid
write-in votes shall be tallied. No write-in vote shall be
counted for an office unless the voter has marked the write-in
voting position for that office and entered the name of an
official write-in candidate for that office on the line provided,
either by writing, affixing a sticker or placing an ink-stamped
impression thereon;
(3) When more than one person is to be elected to an office
and the voter desires to cast write-in votes for more than one
official write-in candidate for that office, a single punch or
mark, as appropriate for the voting system, in the write-inlocation for that office shall be sufficient for all write-in
choices. When there are multiple write-in votes for the same
office and the combination of choices for candidates on the
ballot and write-in choices for the same office exceed the number
of candidates to be elected, the ballot shall be duplicated or
hand counted, with all votes for that office rejected;
(4) Write-in votes for nomination for any office and write-
in votes for any person other than an official write-in candidate
shall be disregarded;
(5) When a voter casts a straight ticket vote and also
punches or marks the location for a write-in vote for an office,
the straight ticket vote for that office shall be rejected,
whether or not a vote can be counted for a write-in candidate;
and
(6) Official write-in candidates are those who have filed a
write-in candidate's certificate of announcement and have been
certified according to the provisions of section four-a, article
six.
(d) If any ballot card is damaged or defective so that it
cannot properly be counted by the automatic tabulating equipment,
a true duplicate copy shall be made of the damaged ballot card in
the presence of representatives of each political party on the
ballot and substituted for the damaged ballot card. All
duplicate ballot cards shall be clearly labeled "duplicate" and
shall bear a serial number which shall be recorded on the damaged
or defective ballot card and on the replacement ballot card.
(e) The returns printed by the automatic tabulating
equipment at the central counting center, to which have beenadded write-in and other valid votes, shall, when certified by
the clerk of the county commission, constitute the official
preliminary return of each precinct or election district.
Further, all such returns shall be printed on a precinct basis.
Periodically throughout and upon completion of the count, the
returns shall be open to the public by posting such returns as
have been tabulated precinct by precinct at the central counting
center. Upon completion of the canvass, the returns shall be
posted in the same manner.
(f) If for any reason it becomes impracticable to count all
or a part of the ballots with tabulating equipment, the county
commission may direct that they be counted manually, following as
far as practicable the provisions governing the counting of paper
ballots.
(g) As soon as possible after the completion of the count,
the clerk of the county commission shall have the vote recording
devices properly boxed or securely covered and removed to a
proper and secure place of storage.
§3-5-10. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official primary ballot for each party, and, as the case
may be, for the nonpartisan candidates to be voted for at the
primary election, according to the provisions of articles four,
four-a and five, chapter three, as appropriate to the voting
system. If any ballot issue is to be voted on in the primary
election, the ballot commissioners shall likewise prepare a
sample official ballot for that issue according to the provisions
of law authorizing such election.
(b) The facsimile sample ballot for each political party and
for nonpartisan candidates or ballot issues shall be published as
follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, not more than fourteen nor less than
eight days preceding the primary election, the ballot
commissioners shall publish each sample official primary election
ballot as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions
of article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish
weekly, not more than fourteen nor less than eight days preceding
the primary election, the ballot commissioners shall publish the
sample official primary election ballot as a Class I legal
advertisement in the qualified newspaper within the county having
the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages, and
shall be printed in a size no less than eighty percent of the
actual size of the ballot, at the discretion of the ballot
commissioners:
Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards,
the facsimile shall be altered to include each of the variousdistricts in the appropriate order. If, in order to accommodate
the size of each ballot, the ballot or ballot pages must be
divided onto more than one page, the arrangement and order shall
be made to conform as nearly as possible to the arrangement of
the ballot. The publisher of the newspaper shall submit a proof
of the ballot and the arrangement to the ballot commissioners for
approval prior to publication.
(c) The ballot commissioners of each county shall prepare,
in the form and manner prescribed by the secretary of state, an
official list of offices and candidates for each office which
will appear on the primary election ballot for each party, and,
as the case may be, for the nonpartisan candidates to be voted
for at such primary election. All information which appears on
the ballot, including instructions as to the number of candidates
for whom votes may be cast for the office, any additional
language which will appear on the ballot below the name of the
office, any identifying information relating to the candidates,
such as residence, magisterial district or presidential
preference and the ballot numbers of the candidates for punch
card systems, shall be included in the list, in the same order in
which it appears on the ballot. Following the names of all
candidates, the list shall include the full title, text and
voting positions of any issue to appear on the ballot.
(d) The official list of candidates and issues as provided
in subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper
is published immediately preceding the primary election, theballot commissioners shall publish the official list of
candidates and issues as a Class I-0 legal advertisement in the
two qualified daily newspapers of different political parties
within the county having the largest circulation in compliance
with the provisions of article three, chapter fifty-nine of this
code; and
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish
weekly, on the last day on which a newspaper is published
immediately preceding the primary election, the ballot
commissioners shall publish the sample official primary election
ballot as a Class I legal advertisement in the qualified
newspaper within the county having the largest circulation in
compliance with the provisions of article three, chapter fifty-
nine of this code.
(3) The publication of the official list of candidates for
each party and for nonpartisan candidates shall be in single or
double columns, as required to accommodate the type size
requirements as follows: (A) The words "Official List of
Candidates", the name of the county, the words "Primary
Election", the date of the election, the name of the political
party or the designation of nonpartisan candidates shall be
printed in all capital letters and in bold type no smaller than
fourteen point. The designation of the national, state, district
or other tickets shall be printed in all capital letters in type
no smaller than fourteen point; (B) the title of the office shall
be printed in bold type no smaller than twelve point and any
voting instructions or other language printed below the titleshall be printed in bold type no smaller than ten point; and (C)
the names of the candidates shall be printed in all capital
letters in bold type no smaller than ten point, and the residence
information shall be printed in type no smaller than ten point.
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than fourteen points. The text of the
ballot issue shall appear in no smaller than ten point type. The
ballot commissioners may require the publication of the ballot
issue under this subsection in the facsimile sample ballot format
in lieu of the alternate format.
§3-5-15. Ascertaining and certifying primary election results.
When the polls are closed in an election precinct where only
a single election board has served, the receiving board shall
perform all of the duties prescribed in this section. When the
polls are closed in an election precinct where two election
boards have served, both the receiving and counting boards shall
together conclude the counting of the votes cast, the tabulating
and summarizing of the number of the votes cast, unite in
certifying and attesting to the returns of the election, and join
in making out the certificates of the result of the election
provided for in this article. They shall not adjourn until the
work is completed.
In all election precincts, as soon as the polls are closed
and the last voter has voted, the receiving board shall first
process the absentee ballots according to the provisions of
section eight, article three of this chapter. After the absentee
ballots to be counted have been deposited in the ballot box, theelection officers shall proceed to ascertain the result of the
election in the following manner:
(a) The receiving board shall ascertain from the poll books
and record separately on the proper form the total number of
voters of each party and nonpartisan voters who have voted.
(1) The number of challenged ballots of each party shall be
counted and subtracted from the number of voters of the same
party, which result should equal the number of ballots of that
party deposited in the ballot box.
(2) The total of all voters, including both partisan and
nonpartisan voters, minus the total of all challenged ballots,
should equal the number of nonpartisan ballots deposited in the
ballot box.
(3) The commissioners and clerks shall also report, over
their signatures, the number of each type of ballots spoiled and
the number of each type of ballots not voted.
(b) The procedure for counting ballots, whether performed
throughout the day by the counting board, as provided in section
thirty-three, article one of this chapter, or after the close of
the polls by the receiving board or by the two boards together,
shall be as follows:
(1) The ballot box shall be opened and all votes shall be
tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the
box at a time and shall determine if the ballot is properly
signed by the two poll clerks of the receiving board. If not
properly signed, the ballot shall be placed in an envelope for
the purpose, without unfolding it. If properly signed, thecommissioner shall announce which type of ballot it is, and hand
the ballot to a team of commissioners of opposite politics, who
shall together read the votes marked on the ballot for each
office. Write-in votes for nomination for any office and write-
in votes for election for any person other than an official
write-in candidate shall be disregarded;
(3) The commissioner responsible for removing the ballots
from the box shall keep a tally of the number of ballots of each
party and any nonpartisan ballot as they are removed, and
whenever the number of ballots of a particular party shall equal
the number of voters entered on the poll book for that party
minus the number of challenged ballots of that party, as
determined according to subsection (a) of this section, any other
ballot found in the ballot box shall be placed in the same
envelope with unsigned ballots not counted, without unfolding the
same, or allowing anyone to examine or know the contents thereof,
and the number of excess ballots of each party shall be recorded
on the envelope;
(4) Each poll clerk shall keep an accurate tally of the
votes cast by marking in ink on tally sheets, which shall be
provided for the purpose, so as to show the number of votes
received by each candidate for each office;
(5) When the votes have been read from a ballot, the ballot
shall be immediately strung on a thread, with separate threads
for each party's ballots and for nonpartisan ballots.
(c) As soon as the results at the precinct are ascertained,
the commissioners and clerks shall make out and sign four
certificates of result, for each party represented, of the votefor all candidates of each party represented, on a form
prescribed by the secretary of state, giving the complete returns
of the election at the polling place, which form shall include
the following oath: "We, the undersigned commissioners and poll
clerks of the primary election held at precinct No. ...... of
...........district of ...................County, W. Va., on the
........day of ............, 19...., do hereby certify that
having been first duly sworn, we have carefully and impartially
ascertained the result of said election at said precinct for the
candidates on the official ballot of the ..................
party, and the same is as follows: "The election officers shall
enter the name of each office and the full name of each candidate
on the ballot, and the number of votes, in words and numbers,
received by each. The election officers shall also enter the
full name of every official write-in candidate for election to
offices to be filled in the primary, except delegate to national
convention, and the number of votes for each. Three of such
certificates of result of election, for each party, shall then be
sealed in separately addressed envelopes, furnished for the
purpose, and shall be disposed of by the precinct commissioners
as follows: One of the sealed envelopes containing the returns
of each party shall be delivered to the clerk of the circuit
court and two shall be delivered to the clerk of the county
commission, who shall within forty-eight hours mail one of the
sealed returns for each precinct by certified mail to the
secretary of state. The one not sealed up shall be posted on the
outside of the front door of the polling place.
(d) All ballots voted for candidates of each party shall besealed up in separate envelopes and the commissioners and clerks
shall each sign across the seal.
§3-5-16. Return of supplies and certificates.
Immediately after completion of the count, tabulation and
the posting of the certificate of result of the primary election
in each precinct, one of the commissioners or poll clerks of each
party at such precinct, designated for that purpose, shall return
to the clerk of the county commission the ballot boxes,
registration books and the several packages of ballots, poll
books, tally sheets, certificates and all other election supplies
and returns, except they shall deliver to the clerk of the
circuit court, at the same time, packages containing one tally
sheet and one certificate of result of each political party
prepared and sealed as provided in the next preceding section.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-3. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official general election ballot for all political party
or independent nominees, nonpartisan candidates for election, if
any, and all ballot issues to be voted for at the general
election, according to the provisions of articles four, four-a
and six of this chapter, as appropriate to the voting system, and
for any ballot issue, according to the provisions of law
authorizing such election.
(b) The facsimile sample general election ballot shall be
published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, not more than fourteen nor less thaneight days preceding the general election, the ballot
commissioners shall publish the sample official general election
ballot as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions
of article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish
weekly, not more than fourteen nor less than eight days preceding
the primary election, the ballot commissioners shall publish the
sample official general election ballot as a Class I legal
advertisement in the qualified newspaper within the county having
the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages, and
shall be printed in a size no less than eighty percent of the
actual size of the ballot, at the discretion of the ballot
commissioners:
Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards,
the facsimile shall be altered to include each of the various
districts in the appropriate order. If, in order to accommodate
the size of each ballot, the ballot or ballot pages must be
divided onto more than one page, the arrangement and order shall
be made to conform as nearly as possible to the arrangement of
the ballot. The publisher of the newspaper shall submit a proofof the ballot and the arrangement to the ballot commissioners for
approval prior to publication.
(c) The ballot commissioners of each county shall prepare,
in the form and manner prescribed by the secretary of state, an
official list of offices and nominees for each office which will
appear on the general election ballot for each political party,
or as independent nominees, and, as the case may be, for the
nonpartisan candidates to be voted for at the general election.
(1) All information which appears on the ballot, including
the names of parties for which a straight ticket may be cast,
instructions relating to straight ticket voting, instructions as
to the number of candidates for whom votes may be cast for the
office, any additional language which will appear on the ballot
below the name of the office, any identifying information
relating to the candidates, such as residence, magisterial
district, or presidential preference, and the ballot numbers of
the candidates for punch card systems, shall be included in the
list, in the order specified in subdivision (2) of this
subsection. Following the names of all candidates, the list
shall include the full title, text and voting positions of any
issue to appear on the ballot.
(2) The order of the straight ticket positions, offices and
candidates for each office, and the manner of designating the
parties, shall be as follows: (A) The straight ticket positions
shall be designated "Straight (Party Name) Ticket", with the
parties listed in the order in which they appear on the ballot,
from left to right or from top to bottom, as the case may be; (B)
The offices shall be listed in the same order in which theyappear on the ballot; (C) The candidates within each office for
which one is to be elected shall be listed in the order they
appear on the ballot, from left to right or from top to bottom,
as the case may be, and the candidate's political party
affiliation or independent status shall be indicated by the one
or two letter initial specifying the affiliation, placed in
parenthesis to the right of the candidate's name; and (D) The
candidates within each office for which more than one is to be
elected shall be arranged by political party groups in the order
they appear on the ballot, and the candidate's affiliation shall
be indicated as provided in paragraph (C) of this subdivision.
(d) The official list of candidates and issues as provided
in subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper
is published immediately preceding the general election, the
ballot commissioners shall publish the official list of nominees
and issues as a Class I-0 legal advertisement in the two
qualified daily newspapers of different political parties within
the county having the largest circulation in compliance with the
provisions of article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily paper, or
having only one or more qualified newspapers which publish
weekly, on the last day on which a newspaper is published
immediately preceding the general election, the ballot
commissioners shall publish the sample official primary election
ballot as a Class I legal advertisement in the qualified
newspaper within the county having the largest circulation incompliance with the provisions of article three, chapter fifty-
nine of this code;
(3) The publication of the official list of nominees for
each party and for nonpartisan candidates shall be in single or
double columns, as required to accommodate the type size
requirements as follows: (A) The words "Official List of Nominees
and Issues", the name of the county, the words "General Election"
and the date of the election shall be printed in all capital
letters and in bold type no smaller than fourteen point; (B) The
designation of the straight ticket party positions shall be
printed in all capital letters in bold type no smaller than
twelve point, and the title of the office shall be printed in
bold type no smaller than twelve points, and any voting
instructions or other language printed below the title shall be
printed in bold type no smaller than ten point; and (C) The names
of the candidates and the initial within parenthesis designating
the candidate's affiliation shall be printed in all capital
letters in bold type no smaller than ten point, and the residence
information shall be printed in type no smaller than ten point;
and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than twelve points. The text of the ballot
issue shall appear in no smaller than ten point type. The ballot
commissioners may require the publication of the ballot issue
under this subsection in the facsimile sample ballot format in
lieu of the alternate format.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in
votes to an office, except delegate to national convention, which
is to be filled in a primary, general or special election held
under the provisions of this chapter shall file a write-in
candidate's certificate of announcement and pay a filing fee as
provided in this section. No certificate of announcement may be
accepted and no person may be certified as a write-in candidate
for a political party nomination for any office or for election
as delegate to national convention.
(a) The write-in candidate's certificate of announcement
shall be in a form prescribed by the secretary of state on which
the candidate shall make a sworn statement before a notary public
or other officer authorized to give oaths, containing the
following information:
(1) The name of the office sought and the district and
division, if any;
(2) The legal name of the candidate, and the first and last
name by which the candidate may be identified in seeking the
office;
(3) The specific address designating the location at which
the candidate resides at the time of filing, including number and
street or rural route and box number, and city, state and zip
code;
(4) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith; and
(5) The words "subscribed and sworn to before me this ___
day of ______, ____" and a space for the signature of the officer
giving the oath.
(b) Any person who seeks to become an official write-in
candidate shall pay a filing fee, which shall be the fee
prescribed for the office in section eight, article five, or
other section of code, as the case may be.
The provisions of section eight-a, article five of this
chapter relating to the waiver of filing fees shall apply, and
the petition for waiver of the fee shall be due no later than the
time of filing the certificate of announcement. The filing fees
shall be distributed to the counties as provided in section
eight, article five of this chapter.
(c) The certificate of announcement shall be filed with the
filing officer for the political division of the office as
prescribed in section seven, article five of this chapter.
(d) The certificate of announcement shall be filed with and
received by the proper filing officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this
subsection, the certificate of announcement for any office shall
be received no later than the close of business on the fourteenth
day before the election at which the office is to be filled;
(2) When a vacancy occurs in the nomination of candidates
for an office on the ballot resulting from the death of the
nominee or from the disqualification or removal of a nominee from
the ballot by a court of competent jurisdiction not earlier than
the twenty-first day nor later than the fifth day before the
general election, the certificate shall be received no later than
the close of business on the fifth day before the election, or
the close of business on the day following the occurrence of the
vacancy, whichever is later;
(3) When a vacancy occurs in an elective office which would
not otherwise appear on the ballot in the election, but which
creates an unexpired term of one or more years which, according
to the provisions of this chapter, is to be filled by election in
the next ensuing election, and such vacancy occurs no earlier
than the twenty-first day and no later than the fifth day before
the general election, the certificate shall be received no later
than the close of business on the fifth day before the election,
or the close of business on the day following the occurrence of
the vacancy, whichever is later.
(e) Any eligible person who files a completed write-in
candidate's certificate of announcement and the required filing
fee with the proper filing officer within the required time shall
be certified by that filing officer as an official write-in
candidate.
(1) The secretary of state shall, immediately following the
filing deadline, post the names of all official write-in
candidates for offices on the ballot in more than one county and
certify the name of each official write-in candidate to the
clerks of the circuit court of the appropriate counties.
(2) The clerk of the circuit court shall, immediately
following the filing deadline, post the names of all official
write-in candidates for offices on the ballot in one county, and
certify and deliver to the election officials of the appropriate
precincts the name of all official write-in candidates and the
office sought by each for statewide, district and county offices
on the ballot in the precinct for which valid write-in votes will
be counted.
§3-6-5. Rules and procedures in election other than primaries.
The provisions of article one of this chapter relating to
elections generally shall govern and control arrangements and
election officials for the conduct of elections under this
article. The following rules and procedures shall govern the
voting for candidates in general and special elections:
(a) If the voter desires to vote a straight ticket, or in
other words, for each and every candidate for one party for
whatever office nominated, the voter shall either:
(1) Mark the position designated for a straight ticket in
the manner appropriate to the voting system; or
(2) Mark the voting position for each and every candidate of
the chosen party in the manner appropriate to the voting system.
(b) If the voter desires to vote a mixed ticket, or in other
words, for candidates of different parties, the voter shall
either:
(1) Omit marking any straight ticket voting position and
mark, in the manner appropriate to the voting system, the name of
each candidate for whom he or she desires to vote on whatever
ticket the name may be; or
(2) Mark the position designated for a straight ticket for
the party for some of whose candidates he or she desires to vote,
and then mark the name of any candidate of any other party for
whom he or she may desire to vote, in which case the cross mark
in the circular space above the name of the party straight ticket
mark will cast his vote for every candidate on the ticket of such
party except for offices for which candidates are marked on other
party tickets, and the marks for such candidates will cast a votefor them; or
(3) Write with ink or other means or affix a sticker or
label or place an ink-stamped impression of the name of an
official write-in candidate for an office for whom he or she
desires to vote in the space designated for write-in votes for
the particular voting system and mark that voting position as
required in this chapter; or for paper ballot systems, write or
place the name and office designation in any position on the face
of the ballot which makes the intention of the voter clear as to
both the office and the candidate chosen.
(c) If in marking either a straight or mixed ticket as above
defined, a straight ticket voting position is marked, and also
one or more marks are made for candidates on the same ticket for
offices for which candidates on other party tickets are not
individually marked, such marks before the name of candidate on
the ticket so marked shall be treated as surplusage and ignored.
(d) When a voter casts a straight ticket vote and also
writes in any name for an office and, in electronic voting
systems, punches or marks the voting position for that write-in,
the straight ticket vote for that office shall be rejected,
whether or not a vote can be counted for a write-in candidate.
(e) The secretary of state may proscribe devices for casting
write-in votes which would cause mechanical difficulty with
voting machines or electronic devices or which would obliterate
or deface a paper ballot or any portion thereof, but the
secretary of state shall preserve the right to vote by a write-in
vote for those candidates who have filed and have been certified
as official write-in candidates under the provisions of sectionfour-a of this article.
(f) If the voter marks more names than there are persons to
be elected to an office, or if, for any reason, it is impossible
to determine the voter's choice, for an office to be filled, the
ballot shall not be counted for such office. The intention of
the voter shall be deemed to be clear if the write-in vote cast
for an office contains both the first and last name of an
official write-in candidate for that office; and, if no two
official write-in candidates for that office share a first or
last name, either the first name or last name alone shall be
deemed to express the clear intention of the voter.
(g) Except as otherwise specifically provided in this
chapter, no ballot shall be rejected for any technical error
which does not make it impossible to determine the voter's
choice.
§3-6-6. Ballot counting procedures in paper ballot systems.
When the polls are closed in an election precinct where only
a single election board has served, the receiving board shall
perform all of the duties prescribed in this section. When the
polls are closed in an election precinct where two election
boards have served, both the receiving and counting boards shall
together conclude the counting of the votes cast, the tabulating
and summarizing of the number of the votes cast, unite in
certifying and attesting to the returns of the election, and join
in making out the certificates of the result of the election
provided for in this article. They shall not adjourn until the
work is completed.
In all election precincts, as soon as the polls are closedand the last voter has voted, the receiving board shall first
process the absentee ballots according to the provisions of
section eight, article three of this chapter. After the absentee
ballots to be counted have been deposited in the ballot box, the
election officers shall proceed to ascertain the result of the
election in the following manner:
(a) The receiving board shall ascertain from the poll books
and record on the proper form the total number of voters who have
voted. The number of ballots challenged shall be counted and
subtracted from the total, which result should equal the number
of ballots deposited in the ballot box. The commissioners and
clerks shall also report, over their signatures, the number of
ballots spoiled and the number of ballots not voted.
(b) The procedure for counting ballots, whether performed
throughout the day by the counting board as provided in section
thirty-three, article one of this chapter, or after the close of
the polls by the receiving board or by the two boards together,
shall be as follows:
(1) The ballot box shall be opened and all votes shall be
tallied in the presence of the entire election board;
(2) One of the commissioners shall take one ballot from the
box at a time and shall determine if the ballot is properly
signed by the two poll clerks of the receiving board. If not
properly signed, the ballot shall be placed in an envelope for
the purpose, without unfolding it. If properly signed, the
commissioner shall hand the ballot to a team of commissioners of
opposite politics, who shall together read the votes marked on
the ballot for each office. Write-in votes for election for anyperson other than an official write-in candidate shall be
disregarded. When a voter casts a straight ticket vote and also
casts write-in vote for an office, the straight ticket vote for
that office shall be rejected, whether or not a vote can be
counted for a write-in candidate;
(3) The commissioner responsible for removing the ballots
from the box shall keep a tally of the number of ballots as they
are removed, and whenever the number shall equal the number of
voters entered on the poll book minus the number of challenged
ballots, as determined according to subsection (a) of this
section, any other ballot found in the ballot box shall be placed
in the same envelope with unsigned ballots not counted, without
unfolding the same, or allowing anyone to examine or know the
contents thereof, and the number of excess ballots shall be
recorded on the envelope;
(4) Each poll clerk shall keep an accurate tally of the
votes cast by marking in ink on tally sheets, which shall be
provided for the purpose, so as to show the number of votes
received by each candidate for each office and for and against
each issue on the ballot; and
(5) When the reading of the votes is completed, the ballot
shall be immediately strung on a thread.
§3-6-8. Precinct returns; certificates; procedures.
As soon as the results are ascertained, the election
officials shall make out and sign, under oath as provided in
section fifteen, article five of this chapter, four certificates
of result on a form prescribed by the secretary of state, giving
the complete returns of the election at the polling place,including the name of each office and the full name of every
candidate on the ballot and the full name of every official
write-in candidate for each office, and the number of votes, in
words and numbers, received by each, and the designation of each
issue on the ballot and the number of votes, in words and
numbers, for and against such issue.
The certificates shall be sealed up and disposed of as
provided in section fifteen, article five of this chapter for
certificates of result of a primary election.
Immediately after the completion of the tabulation and the
posting of the certificate of result of the general election in
each precinct, the ballots, registration books, poll books, tally
sheets and other election supplies shall be sealed up and
delivered to the clerks of the county commission and the circuit
court as provided in section sixteen, article five of this
chapter.
_________
(NOTE: The purpose of this bill is to provide additional
poll clerks for large precincts in presidential primary and
general elections to eliminate delays in voting, to clarify and
make practical the eligibility requirements, methods of
nominating, appointing and training election officials and
alternates and to provide for the replacement of election
officials when necessary.
Additionally, the purpose is to authorize a properly trained
investigator of the secretary of state to have access to criminal
records by authorizing the same powers now assigned to
investigators of the tax department and the ABCC.
Additionally, the purpose is to simplify absentee voting
procedures and forms, clarify the eligibility to vote absentee in
person or by mail, exempt college students from the requirement
of showing ID before voting absentee after registering bypostcard, eliminate the requirement for a physician's affidavit
for hospitalization, provide additional absentee voting times in
person for persons who cannot receive a ballot by mail, extend
application period for military and overseas voters, move the
deadline for accepting applications for mail ballot forward two
days, accept ballots postmarked on or before election day if
received by canvass, allow counties option of providing emergency
absentee balloting services to nursing homes, and permit write-in
absentee ballot for federal candidates in primary election for
overseas voters in remote areas.
Additionally, the purpose is to allow the counting of write-
in votes only for candidates for election who have filed, shortly
before the election, a certificate of announcement for the
office, and to provide procedures and requirements for counting
those votes which will preserve the write-in voting process for
candidates in good faith while preventing the delays, confusion
and expense of tabulation experienced in recent elections. The
bill also revises those sections affected to achieve consistency
between voting systems, to clarify procedures involved in
handling and counting ballots and certifying returns, and to
eliminate archaic and inefficient practices.
Additionally, the purpose is reduce the cost of ballot
publication to counties by requiring a Class I or Class I-0 legal
publication of the official sample ballot for primary and general
election, and a Class I or Class I-0 legal publication of an
official list of candidates and issues. Class I-0 publications
would be required in counties having two qualified newspapers
publishing daily; Class I publications would be required in
counties having only one qualified newspaper publishing daily or
one or more qualified newspapers publishing weekly.)
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