Senate Bill No. 361
(By Senator Whitlow)
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[Introduced February 16, 1994;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections two and nineteen, article
four-a, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact section two, article six of said chapter, all
relating to elections and ballots; defining secrecy
envelopes and secure ballot transfer cases; tightening
ballot transfer procedures; and color coding secrecy
envelopes containing write-in ballots.
Be it enacted by the Legislature of West Virginia:
That sections two and nineteen, article four-a, chapter
three of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that
section two, article six of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-2. Definitions.
As used in this article, unless otherwise specified:
(a) "Automatic tabulating equipment" means all apparatus
necessary to electronically count votes recorded on ballots and
tabulate the results;
(b) "Ballot" means a tabulating card or paper on which votes
may be recorded by means of perforating or marking with
electronically sensible ink or pencil;
(c) "Ballot labels" means the cards, papers, booklet, pages
or other material showing the names of offices and candidates and
the statements of measures to be voted on, which are placed on
the vote recording device used for recording votes by means of
perforating;
(d) "Ballot secrecy envelope" means an envelope used to
enclose a completed ballot to ensure secrecy;
(e) "Ballot transfer case" means a security box used by
election commissioners to transfer ballots from the precinct to
the clerk of the county commission at the central counting
center;
(d) (f) "Central counting center" means a facility equipped
with suitable and necessary automatic tabulating equipment,
selected by the county commission, for the electronic counting of
votes recorded on ballots;
(e) (g) "Electronic voting system" is a means of conducting
an election whereby votes are recorded on ballots by means of an
electronically sensible marking ink or by perforating, and such
votes are subsequently counted by automatic tabulating equipment
at the central counting center;
(f) (h) "Program deck" means the actual punch card deck or
decks, or a computer program disk, diskette, tape or other
programming media, containing the program for counting and
tabulating the votes, including the "application program deck";
(g) (i) "Application program deck" means the punch card deck
or equivalent capacity in other program medias as provided,
containing specific options used and necessary to modify the
program of general application, to conduct and tabulate a
specific election according to applicable law;
(h) (j) "Standard validation test deck" means a group of
ballots wherein all voting possibilities which can occur in an
election are represented; and
(i) (k) "Vote recording device" means equipment in which
ballot labels and ballots are placed to allow a voter to record
his vote by perforating.
§3-4A-19. Conducting electronic voting system elections
generally; duties of election officers.
(1) The election officers shall constantly and diligently
maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.
(2) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing
the party to which the voter belongs shall direct the voter to
the vote recording device or supply the voter with a ballot, as
may be appropriate, which will allow the voter to vote only forthe candidates who are seeking nomination on the ticket of the
party with which the voter is affiliated.
(3) The poll clerk shall issue to each voter when he
or she
signs the pollbook a card or ticket numbered to correspond to the
number on the pollbook of such voter, and in the case of a
primary election, indicating the party affiliation of such voter,
which numbered card or ticket shall be presented to the election
commissioner in charge of the voting booth.
(4) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set
up the voting booths so that they will be in clear view of the
election commissioners. Where applicable, they shall open the
vote recording devices, place them in the voting booths, examine
them to see that they have the correct ballots or ballot labels
by comparing them with the sample ballots, and determine whether
they are in proper working order. They shall open and check the
ballots, supplies, records and forms, and post the sample ballots
or ballot labels and instructions to voters. Upon ascertaining
that all ballots, supplies, records and forms arrived intact, the
election commissioners shall so certify in writing their findings
upon forms provided and collected by the clerk of the county
commission over their signatures to the clerk of the county
commission. Any discrepancies shall be so noted and reported
immediately to the clerk of the county commission. The election
commissioners shall then number in sequential order the ballot
stub of each ballot in their possession and report in writing tothe clerk of the county commission the number of ballots
received. They shall issue such ballots in sequential order to
each voter.
(5) Where applicable, each voter shall be instructed how to
operate the vote recording device before he or she enters the
voting booth.
(6) Any voter who
shall spoil spoils,
deface defaces or
mutilate mutilates the ballot delivered to him
or her, on
returning the same to the poll clerks, shall receive another in
place thereof. Every person who does not vote any ballot
delivered to him shall, before leaving the election room, return
such ballot to the poll clerks. When a spoiled or defaced ballot
is returned, the poll clerks shall make a minute of the fact on
the pollbooks, at the time, and the word "spoiled" shall be
written across the face of the ballot and it shall be placed in
an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the pollbooks the number
of persons who voted and shall report, in writing signed by them
to the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused.
All unused ballots shall at the same time be returned to the
clerk of the county commission who shall count them and recordthe number. If there is no discrepancy, the unused ballots shall
be destroyed forthwith, before a representative of each party on
the ballot, by fire or otherwise, by the clerk of the county
commission or a duly designated deputy clerk. If there is a
discrepancy, the unused ballots shall be impounded and secured
under double locks until the discrepancy is resolved. The county
clerk and the president or president pro tempore of the county
commission shall each have a key. Upon resolution of the
discrepancy, the unused ballots shall forthwith, before a
representative of each party on the ballot, be destroyed by fire
or otherwise, by the clerk of the county commission or a duly
designated deputy clerk.
Each commissioner who is a member of an election board which
fails to account for every ballot delivered to it shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be fined
not more than one thousand dollars or confined in the county jail
for not more than one year, or both.
The board of ballot commissioners of each county, or the
chairman chairperson thereof, shall preserve the ballots that are
left over in their hands, after supplying the precincts as
provided, until the close of the polls on the day of election,
and such ballots shall then be destroyed by such board, or the
chairman thereof, by fire or otherwise.
(7) Where ballots are used, the
voter voters, after
he has
they have marked
his ballot their ballots shall, before leaving
the voting booth, place the ballot inside the
secrecy envelopeprovided for this purpose, with the stub extending outside
said
the secrecy envelope, and return it to an election commissioner
who shall remove the stub and deposit the
secrecy envelope with
the ballot inside in the ballot box. No ballot from which the
stub has been detached shall be accepted by the officer in charge
of the ballot box, but such ballot shall be marked "spoiled" and
placed with the spoiled ballots.
(8) The precinct election commissioners shall prepare a
report in quadruplicate of the number of voters who have voted,
as indicated by the pollbooks, and shall place two copies of this
report
along with the secrecy envelopes containing voted ballots
in the ballot
box, to which thereupon transfer case as defined
in section two, article four-a of this chapter. The ballot
transfer case shall be sealed with a uniquely numbered seal
supplied by the clerk of the county commission and shall be
sealed with a paper seal signed by the election commissioners so
that no additional ballots may be deposited or removed from the
ballot
box transfer case. Two election commissioners of
different political parties shall forthwith deliver the ballot
box transfer case to the clerk of the county commission at the
central counting center and receive a signed numbered receipt
therefor, which receipt shall carefully set forth in detail any
and all irregularities pertaining to the ballot
boxes transfer
cases and noted by the precinct election officers.
The receipt shall be prepared in duplicate, a copy of which
shall remain with the clerk of the county commission who shallhave any and all irregularities noted. The time
of their
departure that the election commissioners depart from the polling
place shall be noted on the two remaining copies of the report,
which shall be immediately mailed to the clerk of the county
commission.
(9) The pollbooks, register of voters, unused ballots,
spoiled ballots and other records and supplies shall be delivered
to the clerk of the county commission, all in conformity with the
provisions of this section.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-2. Preparation and form of general election ballots.
(a) All ballots prepared under the provisions of this
section shall contain:
(1) The name and ticket of each party which is a political
party under the provisions of section eight, article one of this
chapter;
(2) The name chosen as the party name by each group of
citizens which has secured nomination for two or more candidates
by petition under the provisions of section twenty-three of
this
article
five;
(3) The names of every candidate for any office to be voted
for at the election whose nomination in the primary election,
nomination by petition or nomination by appointment to fill a
vacancy on the ballot has been certified and filed according to
law, and no others.
(b) The provisions of subsections (b) (3), (c), (d) (1), (d)(2), (g), (h), (i), (j) and (k), section thirteen of article five
pertaining to the preparation and form of primary election
ballots shall likewise apply to general election ballots.
(c) (1) For all ballot systems, the ballot heading shall be
in display type and shall contain the words, "Official Ballot,
General Election" and the name of the county and the month, day
and year of the election.
(2) After the heading, each ballot shall contain, laid out
in parallel columns, rows or pages as required by the particular
voting system, the party emblem, the position for straight party
voting for each party and the name of each party as prescribed in
subsection (a) of this section. On paper ballots, the position
for straight party voting shall be a heavy circle, three-fourths
inch in diameter, surrounded by the words "For a straight ticket
mark within this circle" printed in bold six point type. On all
other ballots or ballot labels, the positions for straight party
voting shall be marked "Straight Party Ticket." For ballots
tabulated electronically, the secretary of state shall prescribe
a uniform number for the straight ticket position for each party.
(3) The party whose candidate for president received the
highest number of votes at the last preceding presidential
election shall be placed in the left, or first column, row or
page, as is appropriate to the voting system. The party which
received the second highest vote shall be next, and so on. Any
groups or third parties which did not have a candidate for
president on the ballot in the previous presidential electionshall be placed in the sequence in which the final certificates
of nomination by petition were filed.
(4) (A) Except for lever machine ballot labels, the
following general instructions for straight party voters shall be
printed in no smaller than eight point bold type: "IF YOU MARKED
A STRAIGHT TICKET: When you mark any individual candidate in a
different party, that vote will override your straight party vote
for that office. When you mark any individual candidate in a
different party for an office where more than one will be
elected, YOU MUST MARK EACH OF YOUR CHOICES FOR THAT OFFICE
because your straight ticket vote will not be counted for that
office." The last sentence of the above instructions shall not
be included on any ballot which does not contain any office or
division where more than one candidate will be elected.
On paper ballots, the general instructions shall be placed
below the party name and across the top of all columns, followed
by a heavy line separating them from the rest of the ballot. On
ballots marked with electronically sensible ink and on ballot
labels for voting devices in punch card systems, the general
instructions shall be placed after the position for straight
voting and before any office.
(B) Except for lever machine ballot labels, the following
specific instructions shall be printed on the ballot for any
partisan election for an office or division to which more than
one candidate is to be elected: "If you marked a straight ticket
and you mark any candidate in a different party for this office,you must mark all your choices for this office because your
straight ticket vote will not be counted for this office."
On paper ballots, the specific instructions shall be placed
below the office name of any partisan office where more than one
is to be elected, and across the top of all columns for that
office before the names of any candidates. On all other ballots
and ballot labels, the specific instructions shall be placed
above or to the side of the names of the candidates, as the
voting system requires.
(5) For all ballots, any columns, rows or sections in which
the ticket of one party appears shall be clearly separated from
the other columns, rows or sections by a heavy line or other
clear division. For each party, the offices shall be arranged in
the order prescribed in section thirteen-a, article five of this
chapter, under the appropriate tickets, which shall be headed
"National Ticket," "State Ticket" and "County Ticket." The
number of pages, columns or rows, where applicable, may be
modified to meet the limitations of ballot size and composition
requirements, subject to approval by the secretary of state.
(d) The arrangement of names within each office for all
ballot systems shall be as follows:
(1) In elections for presidential electors, the names of the
candidates for president and vice president of each party shall
be placed beside a brace with a single voting position, so that
a vote for any presidential candidate shall be a vote for the
electors of the party for which such candidates were named.
(2) The order of names of candidates for any office or
division for which more than one is to be elected shall be
determined as prescribed in section thirteen-a, article five of
this chapter:
Provided,
That the drawing by lot shall be
conducted on the seventieth day next preceding the date of the
general election, beginning at nine o'clock a.m.
(3) Except in voting machine systems, in any office where
more than one person is to be elected, the names of the
candidates for the office shall be staggered so that no two
candidates for that office shall appear directly opposite any
other candidate, as shown in the example below:
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 ticket and you mark any candidate
in a different party for this office, you must mark all your
choices for this office because your straight ticket vote will
not be counted for this office.]
SUSAN B. ANTHONY
City (County)
JOHN ADAMS
City (County)
ABRAHAM LINCOLN
City (County)
JAMES MONROE
City (County)
(4) Each voting system shall provide a means for voters to
vote for any person whose name does not appear on the ticket by
writing it with pen or pencil or by using stamps, stickers,tapes, labels or other means of writing in the name of a
candidate which does not interfere with the tabulation of the
ballot. Ballot secrecy envelopes, as defined in section two,
article four-a of this chapter, that are used for the completed
ballots of voters who choose to write in a candidate's name or to
use other methods to vote for a person whose name is not on the
ballot, may be of a different color than the secrecy envelopes
that are used for ballots which do not include votes for write-in
candidates.
(A) In paper ballot systems which allow for write-ins to be
made directly on the ballot, a blank square and a blank line
equal to the space which would be occupied by the name of the
candidate shall be placed under the proper office for each
vacancy in nomination, and for an office for which more than one
is to be elected, any such vacancy shall appear after any other
candidates for the office.
(B) In machine and electronically tabulated ballot systems
in which write-in votes must be made in a place other than on the
ballot label, if there is a vacancy in nomination leaving fewer
candidates in any party than can be elected to that office, the
words "No Candidate Nominated" shall be printed in the space that
would be occupied by the name of the candidate, and for an office
for which more than one is to be elected, any such vacancy shall
appear after any other candidates for the office.
(5) In a general election in any county in which unexpired
terms of the board of education are to be filled by election, aseparate section or page of the ballot shall be set off by means
clearly separating the nonpartisan ballot from the ballot for the
political party candidates, and shall be headed "Nonpartisan
Board of Education."
(e) Any constitutional amendment shall be placed following
all offices, followed by any other issue upon which the voters
shall cast a vote. The heading for each amendment or issue shall
be printed in large, bold type according to the requirements of
the resolution authorizing such election.
(f) The board of ballot commissioners may not place any
issue on the ballot for election which is not specifically
authorized under the West Virginia constitution or statutes, or
which has not been properly ordered by the appropriate
governmental body charged with calling such election.
NOTE: The purpose of this bill is to clarify and streamline
ballot transfer procedures by (1) defining and color-coding
secrecy envelopes which contain completed write-in ballots, (2)
prescribing a secure ballot transfer case, and (3) providing for
a uniquely numbered seal to be placed on the ballot transfer
case.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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