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SB565 SUB1 Senate Bill 565 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2021 regular session

Committee Substitute

for

Senate Bill 565

By Senator Roberts, Takubo, and Rucker

[Originating in the Committee on the Judiciary; reported on March 19, 2021]

 

 

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §3-1A-9; to amend and reenact §3-2-6, §3-2-11, §3-2-23, and §3-2-25 of said code; to amend and reenact §3-3-1, §3-3-3, §3-3-5, and §3-3-5c of said code; to amend and reenact §3-6-9 of said code; to amend and reenact §3-7-3, §3-7-6, and §3-7-7 of said code; to amend and reenact §3-8-2b of said code; and to amend said code by adding thereto a new section, designated §3-9-21, all relating to elections; prohibiting nonpublic funding sources for election administration and related expenses without prior written approval by the State Election Commission; clarifying the deadline for electronically submitted voter registration applications; requiring certain optional questions regarding updating or transferring voter registration or registering to vote to be presented by the Division of Motor Vehicles as part of application for motor vehicles driver’s license or other official identification card; authorizing the Secretary of State to revise questions in legislative rules to conform to federal law; requiring the Division of Motor Vehicles to release certain information to the Secretary of State; requiring cancellation of voter registration upon receipt of certain official notices from a state or federal court; changing the time period for county clerks to initiate the confirmation notice mailing process in the systematic purging program for removal of ineligible voters from registration files to each odd-numbered year following a federal election; changing the time period of inactivity required for county clerks to initiate the confirmation notice mailing process in the systematic purging program for removal of ineligible voters from registration files from four years to two years; extending an electronic absentee ballot transmission option to certain voters eligible to vote an emergency absentee ballot and certain first responders; changing deadline for certain voters to become eligible to vote an emergency absentee ballot; changing the start and end date for early in-person voting; removing requirements pertaining to punch card systems and gray envelopes; changing the deadline by which voters may submit their absentee-by-mail and emergency absentee ballot requests effective January 1, 2022; changing deadlines applicable to emergency absentee voting procedures which may be extended to certain voters by a county commission effective January 1, 2022; requiring boards of canvassers to transmit certain information electronically to the Secretary of State; making procedures for election contests before a special court applicable to contested elections of certain judges; changing jurisdiction of election contests for county, district, and municipal elections to the circuit courts; requiring a recount proceeding to be completed before filing certain election contests; providing certain procedural requirements for election contests before circuit courts; providing for appeals of a decision made by a circuit court in an election contest be made to the Supreme Court of Appeals; granting rulemaking authority to the Supreme Court of Appeals regarding election contests before circuit courts; requiring certain disclosures on certain political push-polls and prerecorded political telephone messages; providing for civil penalties for violations of requirements for disclosure of electioneering communications and disclaimers on telephone political messaging and polling; authorizing an action for equitable relief by a person injured by a violation of requirements for electioneering communications and disclaimers on telephone political messaging and polling; providing for award of costs and fees to prevailing plaintiffs in certain actions for equitable relief; defining the term “bona fide survey and opinion research”; prohibiting certain intentional actions obstructing or interfering with a voter during hours that polls are open for in-person voting in an election; and creating misdemeanor crime of certain intentional actions obstructing or interfering with a voter during hours that polls are open for in-person voting in an election and establishing penalties therefor.

Be it enacted by the Legislature of West Virginia:

ARTICLE 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.

§3-1A-9. Nonpublic funding sources for election administration and related expenses.


Notwithstanding any other provision of this code, the Secretary of State, county commissions, clerks of county commissions, municipal governing bodies, and all other public officials and bodies responsible for overseeing, administering, or regulating an election held within the State of West Virginia may not receive, accept, or expend gifts, donations, or funding from private individuals, corporations, partnerships, trusts, or any third party not provided through ordinary state or county appropriations without prior written approval by the State Election Commission.

ARTICLE 2. REGISTRATION OF VOTERS.

§3-2-6. Time of registration application before an election.


(a) Voter registration before an election closes on the 21st day before the election or on the first day thereafter which is not a Saturday, Sunday, or legal holiday.

(b) An application for voter registration, transfer of registration, change of name, or change of political party affiliation submitted by an eligible voter by the close of voter registration is effective for any subsequent primary, general, or special election if the following conditions are met:

(1) The application contains the information required by §3-2-5 (c) of this code.  Incomplete applications for registration containing information which are submitted within the required time may be corrected within four business days after the close of registration if the applicant provides the required information; and

(2) The application is received by the appropriate clerk of the county commission no later than the hour of the close of registration or is otherwise submitted by the following deadlines:

(A) If mailed, the application shall be addressed to the appropriate clerk of the county commission and is postmarked by the postal service no later than the date of the close of registration. If the postmark is missing or illegible, the application is presumed to have been mailed no later than the close of registration if it is received by the appropriate clerk of the county commission no later than the third day following the close of registration;

(B) If accepted by a designated agency or motor vehicle licensing office, the application is received by that agency or office no later than the close of registration;

(C) If accepted through a registration outreach program, the application is received by the clerk, deputy clerk, or registrar no later than the close of registration;

(D) If accepted through an approved electronic voter registration system, the application is received by the clerk of the county commission or other entity designated by the Secretary of State no later than the close of business by 11:59 p.m. on the final day of registration; and

(3) The verification notice required by the provisions of §3-2-16 of this code mailed to the voter at the residence indicated on the application is not returned as undeliverable.

§3-2-11. Registration in conjunction with driver licensing.


(a) The Division of Motor Vehicles or other division or department that may be established by law to perform motor vehicle driver licensing services shall obtain as an integral and simultaneous part of every process of application for the issuance, renewal, or change of address of a motor vehicle driver’s license, or official identification card pursuant to the provisions of §17B-2-1 et seq. of this code, when the division’s regional offices are open for regular business, the following information from each qualified registrant:

(1) Full name, including first, middle, last, and any premarital names;

(2) Date of birth;

(3) Residence address and mailing address, if different;

(4) The applicant’s electronic signature;

(5) Telephone number, if available;

(6) Email address, if available;

(7) Political party membership, if any;

(8) Driver’s license number and last four digits of Social Security number;

(9) A notation that the applicant has attested that he or she meets all voter eligibility requirements;

(10) United States citizenship status;

(11) Whether the applicant affirmatively declined agreed to become registered to vote during the transaction with the Division of Motor Vehicles, by presenting questions, in substantively the following form, under the heading “Optional Questions”:

“[  ] Check this box if you are currently registered to vote in West Virginia and want to update your voter information.”

“[  ] Check this box if you are currently registered to vote in another state and want to transfer your voter information.”

“[  ] Check this box if you are currently not registered to vote in West Virginia and want to register to vote in West Virginia.”

Provided, That the Secretary of State is authorized by legislative rule to revise the questions as may be necessary to conform to federal law;

(12) Date of application; and

(13) Any other information specified in rules adopted to implement this section.

(b) Unless the applicant affirmatively declines to become registered to vote or update their voter registration during the transaction with the Division of Motor Vehicles, If an applicant answered any of the optional questions presented pursuant to subdivision (11), subsection (a) of this section in the affirmative by checking the corresponding box, the Division of Motor Vehicles shall release all of the information obtained pursuant to subsection (a) of this section for such applicant to the Secretary of State, who shall forward the information to the county clerk for the relevant county to process the newly registered voter or updated information for the already-registered voter pursuant to law. The Division of Motor Vehicles shall notify the applicant that by submitting his or her signature, the applicant grants written consent for the submission of the information obtained and required to be submitted to the Secretary of State pursuant to this section.

(c) By no later than January 1, 2020, the Division of Motor Vehicles shall create a regular process that allows the Secretary of State to fulfill his or her duties as provided by §3-2-3 of this code to confirm that persons who are noncitizens of the United States have not and cannot register to vote via the Online Voter Registration portal.

(d) Information regarding a person’s failure to sign the voter registration application is confidential and may not be used for any purpose other than to determine voter registration.

(e) A qualified voter who submits the required information or update to his or her voter registration, pursuant to the provisions of subsection (a) of this section, in person at a driver licensing facility at the time of applying for, obtaining, renewing, or transferring his or her driver’s license or official identification card and who presents identification and proof of age at that time is not required to make his or her first vote in person or to again present identification in order to make that registration valid.

(f) A qualified voter, who submits by mail or by delivery by a third party an application for registration on the form used in conjunction with driver licensing, is required to make his or her first vote in person and present identification as required for other mail registration in accordance with the provisions of §3-2-10(g) of this code. If the applicant has been previously registered in the jurisdiction and the application is for a change of address, change of name, change of political party affiliation, or other correction, the presentation of identification and first vote in person is not required.

(g) An application for voter registration submitted pursuant to the provisions of this section updates a previous voter registration by the applicant and authorizes the cancellation of registration in any other county or state in which the applicant was previously registered.

(h) A change of address from one residence to another within the same county which is submitted for driver licensing or nonoperator’s identification purposes in accordance with applicable law serves as a notice of change of address for voter registration purposes if requested by the applicant after notice and written consent of the applicant.

(i) Completed applications for voter registration or change of address for voting purposes received by an office providing driver licensing services shall be forwarded to the Secretary of State within five days of receipt unless other means are available for a more expedited transmission. The Secretary of State shall remove and file any forms which have not been signed by the applicant and shall forward completed, signed applications to the clerk of the appropriate county commission within five days of receipt.

(j) Voter registration application forms containing voter information which are returned to a driver licensing office unsigned shall be collected by the Division of Motor Vehicles, submitted to the Secretary of State, and maintained by the Secretary of State’s office according to the retention policy adopted by the Secretary of State.

(k) The Secretary of State shall establish procedures to protect the confidentiality of the information obtained from the Division of Motor Vehicles, including any information otherwise required to be confidential by other provisions of this code.

(l) A person registered to vote pursuant to this section may cancel his or her voter registration at any time by any method available to any other registered voter.

(m) This section does not require the Division of Motor Vehicles to determine eligibility for voter registration and voting.

(n) Except for the changes made to subsection (b) of this section during the 2017 regular legislative session, the changes made to this section during the 2016 regular legislative session become effective on July 1, 2021, and any costs associated therewith shall be paid by the Division of Motor Vehicles. The Commissioner of the Division of Motor Vehicles, the Secretary of the Department of Transportation, and the Secretary of State shall each appear before the Joint Committee on Government and Finance and the Joint Standing Committee on the Judiciary, during the first interim meetings of such committees occurring after September 1, 2019, to present written reports containing a full and complete list of any infrastructure each agency requires to achieve the purposes of this section. Along with the report required by this subsection, the Division of Motor Vehicles shall submit a written schedule to both committees outlining how the division will implement the requirements of this section by July 1, 2021.

(o) The Secretary of State shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the requirements of this section.

§3-2-23. Cancellation of registration of deceased or ineligible voters.


The clerk of the county commission shall cancel the registration of a voter:

(1) Upon the voter’s death as verified by:

(A) A death certificate from the Registrar of Vital Statistics or a notice from the Secretary of State that a comparison of the records of the registrar with the county voter registration records show the person to be deceased;

(B) The publication of an obituary or other writing clearly identifying the deceased person by name, residence, and age corresponding to the voter record; or

(C) An affidavit signed by the parent, legal guardian, child, sibling, or spouse of the voter giving the name and birth date of the voter, and date and place of death;

(2) Upon receipt of an official notice from a state or federal court that the person has been:

(A) Has been excused from jury duty based on the person’s legal residence or citizenship in a jurisdiction that is not West Virginia;

(B) Is deceased; or

(C) Has been convicted of a felony, of treason, or bribery in an election;

(3) Upon receipt of a notice from the appropriate court of competent jurisdiction of a determination of a voter’s mental incompetence;

(4) Upon receipt from the voter of a written request to cancel the voter’s registration, upon confirmation by the voter of a change of address to an address outside the county, upon notice from a voter registrar of another jurisdiction outside the county or state of the receipt of an application for voter registration in that jurisdiction, or upon notice from the Secretary of State that a voter registration application was accepted in another county of the state subsequent to the last registration date in the first county, as determined from a comparison of voter records; or

(5) Upon failure to respond and produce evidence of continued eligibility to register following the challenge of the voter’s registration pursuant to the provisions of §3-2-28 of this code.

§3-2-25. Systematic purging program for removal of ineligible voters from active voter registration files; comparison of data records; confirmation notices; public inspection list.


(a) The systematic purging program provided in this section shall begin no earlier than October 1 of each odd-numbered year and shall be completed no later than February 1 of the following year. The clerk of the county commission shall transmit or mail to the Secretary of State a certification that the systematic purging program has been completed and all voters identified as no longer eligible to vote have been canceled in the statewide voter registration database in accordance with the law no later than February 15 in the year in which the purging program is completed.

(b) The Secretary of State shall provide for the comparison of data records of all counties. The Secretary of State shall, based on the comparison, prepare a list for each county which shall include the voter registration record for each voter shown on that county’s list who appears to have registered or to have updated a voter registration in another county at a subsequent date. The resulting lists shall be returned to the appropriate county and the clerk of the county commission shall proceed with the confirmation procedure for those voters as prescribed in §3-2-26 of this code.

(c) The Secretary of State may provide for the comparison of data records of counties with the data records of the Division of Motor Vehicles, the registrar of vital statistics, and with the data records of any other state agency which maintains records of residents of the state, if the procedure is practical and the agency agrees to participate. Any resulting information regarding potentially ineligible voters shall be returned to the appropriate county and the clerk of the county commission shall proceed with the confirmation procedure as prescribed in §3-2-26 of this code.

(d) The records of all voters not identified pursuant to the procedures set forth in subsections (b) and (c) of this section shall be combined for comparison with United States Postal Service change of address information, as described in section 8(c)(A) of the National Voter Registration Act of 1993 (42 U.S.C. §1973gg, et seq.). The Secretary of State shall contract with an authorized vendor of the United States Postal Service to perform the comparison. The cost of the change of address comparison procedure shall be paid for from the combined voter registration and licensing fund established in §3-2-12 of this code and the cost of the confirmation notices, labels and postage shall be paid for by the counties.

(e) The Secretary of State shall return to each county the identified matches of the county voter registration records and the postal service change of address records.

(1) When the change of address information indicates the voter has moved to a new address within the county, the clerk of the county commission shall enter the new address on the voter record and assign the proper precinct.

(2) The clerk of the county commission shall then mail to each voter who appears to have moved from the residence address shown on the registration records a confirmation notice pursuant to §3-2-26 of this code and of section 8(d)(2) of the National Voter Registration Act of 1993 (42 U.S.C. §1973gg, et seq.). The notice shall be mailed, no later than December 31, to the new address provided by the postal service records or to the old address if a new address is not available.

(f) The clerk of the county commission shall indicate in the statewide voter registration database the name and address of each voter to whom a confirmation notice was mailed and the date on which the notice was mailed.

(g) Upon receipt of any response or returned mailing sent pursuant to the provisions of subsection (e) of this section, the clerk shall immediately enter the date and type of response received in the statewide voter registration database and shall then proceed in accordance with the provisions of §3-2-26 of this code.

(h) For purposes of complying with the recordkeeping and public inspection requirements of the National Voter Registration Act of 1993 (42 U.S.C. §1973gg, et seq.), and with the provisions of §3-2-27 of this code, the public inspection lists shall be maintained either in printed form kept in a binder prepared for such purpose and available for public inspection during regular business hours at the office of the clerk of the county commission or in read-only data format available for public inspection on computer terminals set aside and available for regular use by the general public. Information concerning whether or not each person has responded to the notice shall be entered into the statewide voter registration database upon receipt and shall be available for public inspection as of the date the information is received.

(i) Any voter to whom a confirmation notice was mailed pursuant to the provisions of subsection (e) of this section who fails to respond to the notice or to update his or her voter registration address by February 1 immediately following the completion of the program, shall be designated inactive in the statewide voter registration database. Any voter designated inactive shall be required to affirm his or her current residence address, on a form prescribed by the Secretary of State, upon appearing at the polls to vote.

(j) In addition to the preceding purging procedures, all counties using the change of address information of the United States Postal Service shall also, once each four years during the period established for systematic purging in the year following a presidential election year each odd-numbered year following a federal election, conduct the same procedure by mailing a confirmation notice to those persons not identified as potentially ineligible through the change of address comparison procedure but who have not updated their voter registration records and have not voted in any election during the preceding four two calendar years. The purpose of this additional systematic confirmation procedure shall be to identify those voters who may have moved without filing a forwarding address, moved with a forwarding address under another name, died in another county or state so that the certificate of death was not returned to the clerk of the county commission, or who otherwise have become ineligible.

ARTICLE 3. VOTING BY ABSENTEES.

§3-3-1. Persons eligible to vote absentee ballots.


(a) All registered and other qualified voters of the county may vote an absentee ballot during the period of early voting in person.

(b) Registered voters and other qualified voters in the county are authorized to vote an absentee ballot by mail in the following circumstances:

(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) Disability, illness, injury, or other medical reason;

(B) Physical disability or immobility due to extreme advanced age; or

(C) Incarceration or home detention: Provided, That the underlying conviction is not for a crime which is a felony or a violation of §3-9-12, §3-9-13, or §3-9-16 of this code involving bribery in an election;

(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;

(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 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including 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;

(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;

(5) Any voter for whom the designated area for absentee voting within the county courthouse or annex of the courthouse and the voter’s assigned polling place are inaccessible because of his or her physical disability; and

(6) Any voter who is participating in the Address Confidentiality Program as established by §48-28A-103 of this code.

(c) Registered voters and other qualified voters in the county are authorized to vote an electronic absentee ballot in the following circumstances:

(1) The voter has a physical disability, as defined in §3-3-1a of this code; or

(2) The voter is absent from the county throughout the period and available hours for voting in person and is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including 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.;

(3) The voter becomes eligible to vote an emergency absentee ballot as set forth in §3-3-1(d) of this code after the deadline to submit an application for an absentee-by-mail ballot; or

(4) The voter is a first responder and is called away unexpectedly to respond to an emergency outside the voter’s county of residence which prevents the voter from participating in the election.

(d) Registered voters and other qualified voters in the county may, in the following circumstances, vote an emergency absentee ballot, subject to the availability of the services as provided in this article:

(1) Any voter who is confined or expects to be confined in a hospital or other duly licensed health care facility within the county of residence or other authorized area, as provided in this article, on the day of the election;

(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 the services if the voter has resided in the nursing home for a period of less than 30 days;

(3) Any voter who becomes confined, on or after the seventh 12th day preceding an election, to a specific location within the county because of illness, injury, physical disability, immobility due to advanced age, or another medical reason: Provided, That the county clerk may require a written confirmation by a licensed physician, physician’s assistant, or advanced practice registered nurse that the voter meets the criteria of this subdivision before permitting such voter to vote an emergency absentee ballot; and

(4) Any voter who is working as a replacement poll worker and is assigned to a precinct out of his or her voting district, if the assignment was made after the period for voting an absentee ballot in person has expired.

§3-3-3. Early voting in person.


(a) The voting period for early in-person voting is to be conducted during regular business hours beginning on the thirteenth 17th day before the election and continuing through the third seventh day before the election. Additionally, early in-person voting is to be available from 9:00 a.m. to 5:00 p.m. on Saturdays during the early voting period.

(b) Any person desiring to vote during the period of early in-person voting shall, upon entering the election room, clearly state his or her name and residence to the official or representative designated to supervise and conduct absentee voting. If that person is found to be duly registered as a voter in the precinct of his or her residence, he or she is required to sign his or her name in the space marked “signature of voter” on the pollbook. If the voter is unable to sign his or her name due to 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. No ballot may be given to the person until he or she signs his or her name on the pollbook.

(c) When the voter’s signature or mark is properly on the pollbook, two qualified representatives of the official designated to supervise and conduct absentee voting shall sign their names in the places indicated on the back of the official ballot.

(d) If the official designated to supervise and conduct absentee voting determines that the voter is not properly registered in the precinct where he or she resides, the clerk or his or her representative shall challenge the voter’s absentee ballot as provided in this article.

(e) The official designated to supervise and conduct absentee voting shall provide each person voting an absentee ballot in person the following items to be printed as prescribed by the Secretary of State:

(1) In counties using paper ballots, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law;

(2) In counties using punch card systems, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law, and a gray secrecy envelope

(3)(2) In counties using optical scan systems, one of each type of official absentee ballot the voter is eligible to vote, prepared according to law, and a secrecy sleeve; or

(4)(3) For direct recording election systems, access to the voting equipment in the voting booth.

(f) 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 §3-4-4 of this code. After the voter has voted the ballot or ballots, the absentee voter shall: Place the ballot or ballots in the gray secrecy envelope and return the ballot or ballots to the official designated to supervise and conduct the absentee voting: Provided, however, That in direct recording election systems, once the voter has cast his or her ballot, the voter shall exit the polling place.

(g) Upon receipt of the voted ballot, representatives of the official designated to supervise and conduct the absentee voting shall:

(1) Remove the ballot stub;

(2) Place punch card ballots and the paper ballots into one envelope which shall may not have any marks except the precinct number and seal the envelope; and

(3) Place ballots for all voting systems into a ballot box that is secured by two locks with a key to one lock kept by the president of the county commission and a key to the other lock kept by the county clerk.

§3-3-5. Voting an absentee ballot by mail or electronically; penalties.


(a) Upon oral or written request, the official designated to supervise and conduct absentee voting shall provide to any voter of the county, in person, by mail, or electronically, the appropriate application for voting absentee 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:

(1) The person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided; or

(2) The person, if eligible to vote by electronic absentee ballot due to physical disability, confinement as provided in §3-3-1(d) of this code after the deadline to submit an application for an absentee-by-mail ballot, or is a first responder unexpectedly called away to respond to an emergency outside the voter’s county of residence which prevents the voter from participating in the election, may complete and verify the application by available electronic means prescribed by the Secretary of State.

(b) Completed applications for voting an absentee ballot by mail are to be accepted when received by the official designated to supervise and conduct absentee voting in person, by mail, or electronically within the following times:

(1) For persons eligible to vote an absentee ballot under the provisions of §3-3-1(b)(3) of this code, relating to absent uniformed services and overseas voters, not earlier than January 1 of an election year or 84 days preceding the election, whichever is earlier, and not later than the sixth 11th day preceding the election, which application is to, upon the voter’s request, be accepted as an application for the ballots for all elections in the calendar year; and

(2) For all other persons eligible to vote an absentee ballot by mail or electronically, not earlier than January 1 of an election year or 84 days preceding the election, whichever is earlier, and not later than the sixth 11th day preceding the election.

(c) Upon acceptance of a completed application, the official designated to supervise and conduct absentee voting 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 or electronically;

(4) The address to which a ballot is to be mailed is an address outside the county if the voter is applying to vote by mail under the provisions of §3-3-1(b)(2)(A), §3-3-1(b)(2)(B), §3-3-1(b)(3), or §3-3-1(b)(4) of this code;

(5) The applicant is not making his or her first vote after having registered by postcard registration or, if the applicant is making his or her first vote after having registered by postcard registration, the applicant is subject to one of the exceptions provided in §3-2-10 of this code; and

(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.

(d) (1) If the official designated to supervise and conduct absentee voting determines that the required conditions have been met for voting an absentee ballot by mail, two representatives that are registered to vote with different political party affiliations shall sign their names in the places indicated on the back of the official ballot. If the official designated to supervise and conduct absentee voting determines the required conditions have not been met or has evidence that any of the information contained in the application is not true, the official 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.

(2) If the official designated to supervise and conduct electronic voting determines that a voter is eligible to submit an electronic ballot because the voter is an absent uniformed services voter or overseas voter or a person with a physical disability, is confined as provided in §3-3-1(d) of this code after the deadline to submit an application for an absentee-by-mail ballot, or is a first responder unexpectedly called away to respond to an emergency outside the voter’s county of residence which prevents the voter from participating in the election, the official designated to supervise absentee voting shall cause the absentee ballot to be transmitted electronically in the manner required for the electronic ballot marking tool or other electronic means.

(e)(1) Beginning on the 46th day prior to election day, within one day after the official designated to supervise and conduct absentee voting has both the completed application and the ballot, the official shall provide to the voter at the address given on the application, or by the appropriate electronic delivery method, the following items as required and as prescribed by the Secretary of State:

(A) One of each type of official absentee ballot the voter is eligible to vote, prepared according to law;

(B) For persons voting absentee ballot by mail, one envelope, unsealed, which may have no marks except the designation “Absent Voter’s Ballot Envelope No. 1” and printed instructions to the voter;

(C) For persons voting absentee ballot by mail, one postage paid envelope, unsealed, designated “Absent Voter’s Ballot Envelope No. 2”;

(D) Instructions for voting absentee by mail or electronically;

(E) For electronic systems or transmission, an electronic means by which eligible voters with physical disabilities may mark the absentee ballot without assistance, as prescribed by the Secretary of State; and

(F) Notice that a list of write-in candidates is available upon request.

(2) If the voter is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, is confined as provided in §3-3-1(d) of this code, or is a first responder unexpectedly called away to respond to an emergency outside the voter’s county of residence which prevents the voter from participating in the election, the official designated to supervise and conduct absentee voting shall transmit the ballot to the voter via mail, or electronically, as requested by the voter: Provided, That voters confined as provided in §3-3-1(d) of this code may not be provided the option to vote an electronic absentee ballot if the voter is not confined after the deadline to submit an absentee-by-mail application. If the voter does not designate a preference for transmittal, the clerk may select either method of transmittal for the ballot. If the ballot is transmitted electronically pursuant to this subdivision, the official designated to supervise and conduct absentee voting shall also transmit electronically:

(A) A waiver of privacy form, to be promulgated by the Secretary of State;

(B) Instructions for voting absentee by mail or electronically;

(C) Notice that a list of write-in candidates is available upon request; and

(D) A statement of the voter affirming the voter’s current name and address and whether or not he or she received assistance in voting.

(f) The voter shall mark the ballot alone: Provided, That the voter may have assistance in voting according to the provisions of §3-3-6 of this code.

(1) After the voter has voted the ballot or ballots to be returned by mail, the voter shall:

(A) Place the ballot or ballots in envelope no. 1 and seal that envelope;

(B) Place the sealed envelope no. 1 in envelope no. 2 and seal that envelope;

(C) Complete and sign the forms on envelope no. 2; and

(D) Return that envelope to the official designated to supervise and conduct absentee voting.

(2) If the ballot was transmitted electronically as provided in subdivisions (1) or (2), subsection (e) of this section, the voter shall return the ballot electronically, in the manner prescribed by the Secretary of State, or the voter may return the ballot by United States mail, along with a signed privacy waiver form.

(g) Except as provided in subsection (h) of this section, absentee ballots returned by United States mail or other express shipping service are to be accepted if:

(1) The ballot is received by the official designated to supervise and conduct absentee voting no later than the day after the election; 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 official designated to supervise and conduct absentee voting no later than the hour at which the board of canvassers convenes to begin the canvass.

(h) Absentee ballots received through the United States mail from persons eligible to vote an absentee ballot under the provisions of §3-3-1(b)(3) of this code, relating to uniform services and overseas voters, are to be accepted if the ballot is received by the official designated to supervise and conduct absentee voting no later than the hour at which the board of canvassers convenes to begin the canvass.

(i) Voted ballots submitted electronically are to be accepted if the ballot is received by the official designated to supervise and conduct absentee voting no later than the close of polls on election day: Provided, That for uniform services and overseas voters, the Secretary of State’s office shall enter into an agreement with the Federal Voting Assistance Program of the United States Department of Defense to transmit the ballots to the county clerks at a time when two individuals of opposite political parties are available to process the received ballots. For persons casting absentee ballots electronically due to physical disability, confinement as provided in § 3-3-1(d) of this code, or is a first responder unexpectedly called away which prevents the voter from participating in the election, the county clerk shall designate two individuals of opposite political parties to process the received ballots in the manner required by the particular electronic ballot marking tool or other electronic means of returning the electronic absentee ballot.

(j) Ballots received after the proper time which cannot be accepted are to be placed unopened in an envelope marked for the purpose and kept secure for 22 months following the election, after which time they are to be destroyed without being opened.

(k) Absentee ballots which are hand delivered are to be accepted if they are received by the official designated to supervise and conduct absentee voting 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 is required to certify that he or she has not examined or altered the ballot. Any person who makes a false certification violates the provisions of §3-9-1 et seq. of this code and is subject to those provisions.

(l) Upon receipt of the sealed envelope, the official designated to supervise and conduct absentee voting 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 into a ballot box that is secured by two locks with a key to one lock kept by the president of the county commission and a key to the other lock kept by the county clerk.

(m) Upon receipt of a ballot submitted electronically pursuant to subdivision (2), subsection (f) of this section, the official designated to supervise and conduct absentee voting shall place the ballot in an envelope marked “Absentee by Electronic Means” with the completed waiver when appropriate: Provided, That no ballots are to be processed without the presence of two individuals of opposite political parties.

(n) All ballots received electronically prior to the close of the polls on election day are to be tabulated in the manner prescribed for tabulating absentee ballots submitted by mail to the extent that those procedures are appropriate for the applicable voting system. The clerk of the county commission shall keep a record of absentee ballots sent and received electronically.

(o) The changes made to this section during the regular session of the Legislature, 2021, shall be effective January 1, 2022.

§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 §3-3-1(c) of this code, may vote an emergency absentee ballot under the procedures established in this section. The county commission may adopt a policy extending the emergency absentee voting procedures to: (1) Qualified voters in hospitals or other duly licensed health care facilities within an adjacent county or within 35 miles of the county seat; (2) qualified voters in nursing homes within the county; or (3) qualified voters who become confined, on or after the seventh 12th day preceding an election, to a specific location within the county because of illness, injury, physical disability, immobility due to advanced age, or another medical reason: Provided, That the policy is to be adopted by the county commission at least 90 days prior to the election that will be affected and a copy of the policy is to be filed with the Secretary of State.

(b) On or before the 56th day preceding the date on which any election is to be held, the official designated to supervise and conduct absentee voting shall notify the county commission of the number of sets of emergency absentee ballot commissioners which he or she determines necessary to perform the duties and functions pursuant to this section.

(c) A set of emergency absentee ballot commissioners at-large shall consist of two persons with different political party affiliations appointed by the county commission in accordance with the procedure prescribed for the appointment of election commissioners under the provisions of §3-1-1 et seq. of this code. Emergency absentee ballot commissioners have the same qualifications and rights and take the same oath required under the provisions of this chapter for commissioners of elections. Emergency absentee ballot commissioners are to be compensated for services and expenses in the same manner as commissioners of election or poll clerks obtaining and delivering election supplies under §3-1-44 of this code.

(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 nursing home residents within the county, upon request of a staff member of the nursing home, the official designated to supervise and conduct absentee voting, upon receiving a proper request for voting an emergency absentee ballot no earlier than the seventh 12th 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 is to be prescribed by the Secretary of State and is to 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.

(e) The application for an emergency absentee ballot is to be signed by the person applying. If the person applying for an emergency absentee ballot is unable to sign his or her application because of illiteracy or physical disability, he or she is to make his or her mark on the signature line provided for an illiterate or disabled applicant, the mark is to be witnessed. The person assisting the voter and witnessing the mark of the voter shall sign his or her name in the space provided.

(f) 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 of the person applying for an emergency absentee ballot, and the particulars of the confinement.

(g) At least one of the emergency absentee ballot commissioners receiving the balloting materials shall sign a receipt which is to 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 ballot and return the application and the ballot to the official designated to supervise and conduct absentee voting. Upon delivering the application and the voted ballot to the official, the emergency absentee ballot commissioners shall sign an oath that no person other than the absent voter voted the ballot. The application and the voted ballot are to be returned to the official designated to supervise and conduct absentee voting prior to the close of the polls on election day. Any ballots received by the official after the time that delivery may reasonably be made but before the closing of the polls are to be delivered to the canvassing board along with the absentee ballots challenged in accordance with the provisions of §3-3-10 of this code.

(h) Upon receiving the application and emergency absentee ballot, the official designated to supervise and conduct absentee voting 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 is to be delivered to the precinct election commissioner pursuant to §3-3-7 of this code. If the voter is found not to be registered or is otherwise ineligible to vote an emergency ballot, the ballot is to be challenged for the appropriate reason provided for in §3-3-10 of this code.

(i) If either or both of the emergency absentee ballot commissioners refuse to sign any application for voting an emergency absentee ballot, the voter may vote as an emergency absentee and the ballot will be challenged in accordance with the provisions of §3-3-10 of this code, in addition to those absentee ballots subject to challenge as provided in that section.

(j) Any voter who receives assistance in voting an emergency absentee ballot shall comply with the provisions of §3-3-6 of this code. Any other provisions of this chapter relating to absentee ballots not altered by the provisions of this section are to govern the treatment of emergency absentee ballots.

(k) The changes made to this section during the regular session of the Legislature, 2021, shall be effective January 1, 2022.

ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.


§3-6-9. Canvass of returns; declaration of results; recounts; recordkeeping.

(a) The commissioners of the county commission shall be ex officio a board of canvassers and, as such, shall keep in a well-bound book, marked “election record”, a complete record of all their proceedings in ascertaining and declaring the results of every election in their respective counties.

(1) They shall convene as the canvassing board at the courthouse on the fifth day (Sundays excepted) after every election held in their county, or in any district of the county, and the officers in whose custody the ballots, pollbooks, registration records, tally sheets, and certificates have been placed shall lay them before the board for examination.

(2) They may, if considered necessary, require the attendance of any of the commissioners, poll clerks or other persons present at the election to appear and testify respecting the election and make other orders as shall seem proper to procure correct returns and ascertain the true results of the election in their county; but in this case all the questions to the witnesses and all the answers to the questions and evidence shall be taken down in writing and filed and preserved. All orders made shall be entered upon the record.

(3) They may adjourn, from time to time, but no longer than absolutely necessary.

(4) When a majority of the commissioners are not present, the meeting shall stand adjourned until the next day and so from day to day, until a quorum is present.

(5) All meetings of the commissioners sitting as a board of canvassers shall be open to the public.

(6) The board shall proceed to open each sealed package of ballots laid before them and, without unfolding them, count the number in each package and enter the number upon their record.

(7) The ballots shall then be again sealed carefully in a new envelope and each member of the board shall write his or her name across the place where the envelope is sealed.

(8) After canvassing the returns of the election, the board shall publicly declare the results of the election.

(A) For a candidate on the ballot in entirely one county, the board shall not enter an order certifying the election results for a period of 48 hours after the declaration. At the end of the 48-hour period, an order shall be entered certifying all election results except for those offices in which a recount has been demanded.

(B) For a candidate on the ballot in more than one county, the board may not enter an order certifying the election results for a period of 48 hours after the final county's board has publicly declared the results of the election. In such case, each relevant board shall notify the Secretary of State immediately following each relevant board's public declaration of results and shall transmit electronically, on a form prescribed by the Secretary of State, the total ballots cast, counted, and rejected. For offices on the ballot in more than one county, the Secretary of State shall notify the board of each relevant county when the final county has made a public declaration of the results of the election. At the end of the 48-hour period in this section, an order shall be entered by each relevant county certifying all election results except for those offices in which a recount has been demanded.

(b) Within the 48-hour period, a candidate on the ballot in entirely one county may demand the board to open and examine any of the sealed packages of ballots and recount them.

(c) If a candidate is on the ballot in more than one county, then within the 48-hour period after the final county's board has made a public declaration of the results, such candidate may demand the board to open and examine any of the sealed packages of ballots and recount them.

(d) After any recount pursuant to either subsection (b) or (c) of this section the board shall seal the ballots again, along with the envelope above named, and the clerk of the county commission and each member of the board shall write his or her name across the places where it is sealed and endorse in ink, on the outside: "Ballots of the election held at precinct No.____, in the district of _______________, and county of ____________, on the _____day of ______."

(e) In computing the 48-hour period as used in this section, Saturdays, Sundays, and legal holidays shall be excluded. A candidate on the ballot in more than one county shall not be precluded from demanding a recount in any county in which the candidate is on the ballot until the final county in which the candidate is on the ballot has certified the election results.

(f) If a recount has been demanded, the board shall have 48 hours in which to send notice to all candidates who filed for the office in which a recount has been demanded of the date, time, and place where the board will convene to commence the recount. The notice shall be served under the provisions of subsection (g) of this section. The recount shall be set for no sooner than three days after the serving of the notice: Provided, That after the notice is served, candidates so served shall have an additional 24 hours in which to notify the board, in writing, of their intention to preserve their right to demand a recount of precincts not requested to be recounted by the candidate originally requesting a recount of ballots cast: Provided, however, That there shall be only one recount of each precinct, regardless of the number of requests for a recount of any precinct. A demand for the recount of ballots cast at any precinct may be made during the recount proceedings only by the candidate originally requesting the recount and those candidates who notify the board, pursuant to this subsection, of their intention to preserve their right to demand a recount of additional precincts.

(g) Any sheriff of the county in which the recount is to occur shall deliver a copy thereof in writing to the candidate in person; or if the candidate is not found, by delivering the copy at the usual place of abode of the candidate and giving information of its purport, to the spouse of the candidate or any other person found there who is a member of his or her family and above the age of sixteen years; or if neither the spouse of the candidate nor any other person be found there and the candidate is not found, by leaving the copy posted at the front door of the place of abode. Any sheriff, thereto required, shall serve a notice within his or her county and make return of the manner and time of service; for a failure so to do, he or she shall forfeit $20. The return shall be evidence of the manner and time of service.

(h) Every candidate who demands a recount shall be required to furnish bond in a reasonable amount with good sufficient surety to guarantee payment of the costs and the expenses of the recount in the event the result of the election is not changed by the recount; but the amount of the bond shall in no case exceed $300.

(i) After the board of canvassers has made their certificates and declared the results as hereinafter provided, they shall deposit the sealed packages of ballots, absent voter ballots, registration records, pollbooks, tally sheets, and precinct certificates with the clerk of the county commission from whom they were received, who shall carefully preserve them for 22 months: Provided, That the clerk may use these records to update the voter registration records in accordance with §3-2-18(d) of this code. If there is no contest pending as to any election and their further preservation is not required by any order of a court, the ballots, pollbooks, tally sheets, and certificates shall be destroyed by fire or otherwise, without opening the sealed packages of ballots. If there is a contest pending, they shall be destroyed as soon as the contest is ended.

(j) If the result of the election is not changed by the recount, the costs and expenses of the recount shall be paid by the party at whose instance the recount was made.


ARTICLE 7. CONTESTED ELECTIONS.

§3-7-3. Contests before special court; procedure; enforcement.

Where the election of Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, or of a judge a justice of the Supreme Court of Appeals, a judge of the Intermediate Court of Appeals, or a judge of a circuit court, or a judge of a family court is contested, the case shall be heard and decided by a special court constituted as follows: The contestee shall select one, the contestant another, and the Governor a third person, who shall preside in said court; and the three, or any two of them, shall meet at a time and place within the state to be appointed by the Governor, and, being first duly sworn impartially to decide according to law and the truth upon the petition, returns and evidence to be submitted to them, shall proceed to hear and determine the case and certify their decision thereon to the Governor. They shall be entitled to $10 a day each, and the same mileage as members of the Legislature, to be paid out of the treasury of the state, and such special court is hereby given authority to employ a stenographer at a reasonable compensation, to be also paid out of the treasury of the state. In all hearings or proceedings before such special court, the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing by such special court, or any member thereof; and in case of disobedience to a subpoena or other process of such special court, or any member thereof, such special court, or any member thereof, or either of the parties to such contest, may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books and documents. And such circuit court, in case of a refusal to obey the subpoena issued to any person, shall issue an order requiring such person to appear before such special court and produce all books and papers, if so ordered, and give evidence touching the matter in question. Any failure to obey such order of the circuit court may be punished by such court as a contempt thereof. A written record shall be kept of all testimony and other proceedings before such special court.

Either party to such contest feeling aggrieved by the final decision of such special court may present his or her petition in writing to the Supreme Court of Appeals, or a judge thereof in vacation, within 30 days after such final decision is certified to the Governor, as hereinbefore provided, praying for the suspension, setting aside, or vacation of such final decision. The applicant shall deliver, or cause to be delivered, a copy of such petition to the other party to such contest, or, in case of his or her absence from the state or from his or her usual place of abode, he the applicant shall mail, or cause to be mailed a copy of such petition addressed to his or her last known post-office address, before presenting the same to the court, or the judge. The court, or the judge, shall fix a time for the hearing on the application, but such hearing shall not be held sooner than five days, unless by agreement of the parties, after the presentation of such petition, and notice of the time and place of such hearing shall be forthwith delivered to the other party to such contest, or, in case of absence from the state or from his or her usual place of abode, such notice may be given by mailing, or causing to be mailed, the same, or a copy thereof, addressed to him or her at his or her last known post-office address. If the court, or the judge, after such hearing, be of the opinion that a suspending order should issue, the court in its, or the judge in his or her, discretion, may suspend such final decision and may require bond upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner, as are just and reasonable; and the court, or the judge, shall fix a time for the final hearing on the application. The hearing of the matter shall take precedence over all other matters before the court. For such final hearing, and before the day fixed therefor, the special court shall file with the clerk of the Supreme Court of Appeals all papers, documents, testimony, evidence, and records, or certified copies thereof, which were before it at the hearing resulting in the final decision from which the petitioner appeals, together with a copy in writing of its final decision; and, after argument by counsel, the court shall decide the matter in controversy, both as to the law and the evidence, as may seem to it to be just and right. The Supreme Court of Appeals is hereby given jurisdiction to enforce the provisions of this section by writ of prohibition, mandamus, and certiorari, as may be appropriate.


§3-7-6. County and district contests; notices; time.


(a) In all cases of contested elections, the county commission circuit court shall be the judge of the election, qualifications, and returns of their own members and of all county, and district, and municipal officers. Provided, That a member of the county commission whose election is being contested may not participate in judging the election, qualifications and returns

(b) A person intending to contest the election of another to any county, or district, or municipal office, including a judge of any magistrate court or any office that shall hereafter be created to be filled by the voters of the county or of any magisterial or other district therein, shall, within ten seven days after the result of the election is certified, give the contestee notice in writing of such intention and a list of the votes he will dispute, with the objections to each, and of the votes rejected for which he will contend. If the contestant objects to the legality of the election or the qualification of the person returned as elected, the notice shall set forth the facts on which such objection is founded. The person whose election is so contested shall, within ten days after receiving such notice, deliver to the contestant a like list of the votes he will dispute, with the objections to each, and of the rejected votes for which he will contend; and, if he has any objection to the qualification of the contestant, he shall specify in writing the facts on which the objection is founded. Each party shall append to his notice an affidavit that he verily believes the matters and things set forth to be true. If new facts be discovered by either party after he has given notice as aforesaid, he may, within ten days after such discovery, give an additional notice to his adversary, with the specifications and affidavit prescribed in this section.

The provisions of this section apply to all elections, including municipal elections, except that the governing body of the municipality is the judge of any contest of a municipal election initiate a civil action in the circuit court of a county wherein the election or any part thereof was held.

(c) For an election contest challenging specific votes cast, votes rejected, or voters who participated in the election, a recount proceeding as set forth in §3-6-9 of this code is first required and shall be complete prior to the filing of an election contest on those grounds.


§3-7-7. County Circuit court to hear county, and district, and municipal contests; procedure; review.

(a) The county circuit court shall hear and decide election contests initiated pursuant to the provisions of the preceding section §3-7-6 of this code. Subpoenas for witnesses for either party shall be issued by the clerk of the county court, and served as in other cases, and the witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses attending a circuit court in a civil suit. The notice of contest shall be presented to the county court at its first term after the same is delivered to the person whose election is contested, and the same shall be docketed for trial in such court.

(b) At the trial of such the contest, the circuit court shall hear all such legal and proper evidence that may be brought before it by either party, and may, if deemed considered necessary, require the production of the poll books, certificates, and ballots deposited with its the county clerk or municipal recorder or clerk, and examine the same. The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from the day of election.

(c) A contestant has the burden of proof in an elections contest.

(d) At the final conclusion of the trial of such contest, the circuit court shall declare the true result of such election, and cause the same to be entered on the records of the court. When the result of the election is declared, as aforesaid, direct that a certified copy of the order declaring such the result shall, if required, be delivered by the clerk of the circuit court wherein the contest was held to the person declared elected, if such be the result of the trial, and such copy shall be received in all courts and places as legal evidence of the result of the election therein declared parties. Either the contestant or contestee shall have the right of appeal to the circuit court of the county from the final order or decision of the county court in such proceeding, upon the filing of a bond with good personal security, by the party desiring the appeal, to be approved by the county court, in a sum deemed sufficient by such court, with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him by the circuit court on such appeal. But such appeal shall not be granted unless the party desiring the appeal shall make application for such appeal, and file such bond, within thirty days from the entering of the final order in such proceeding; and the circuit court may at any time require a new bond or increase the penalty thereof when the court deems it necessary. When such appeal is taken to the circuit court, as hereinbefore provided, it shall be heard and determined upon the original papers, evidence, depositions and records filed before and considered by the county court, and the circuit court shall decide the contest upon the merits. From the decision of the circuit court, an

(e) An appeal of the decision of the circuit court shall lie to the Supreme Court of Appeals, as in other cases, but such appeal shall be heard upon the original papers and copies of all orders made, without requiring the same to be printed.

(f) The Supreme Court of Appeals, through its rule-making power in §51-1-4 of this code, may promulgate rules and regulations consistent with this article which governing the pleadings, practice, and procedure for the conduct of county, district, and municipal election contests in the courts of this state.

ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.

§3-8-2b. Disclosure of electioneering communications; disclaimers on telephone political messaging and polling.


(a) Every person who has spent:

(1) A total of $5,000 or more for the direct costs of purchasing, producing, or disseminating electioneering communications during any calendar year; or

(2) A total of $1,000 or more on or after the 15th day but more than 12 hours before the day of any election for the direct costs of purchasing, producing, or disseminating electioneering communications during any calendar year shall, within 24 hours of each disclosure date, file with the Secretary of State a statement which contains all of the information listed in subsection (b) of this section.

(b)(1) The name of the person making the expenditure, the name of any person sharing or exercising direction or control over the activities of the person making the expenditure and the name of the custodian of the books and accounts of the person making the expenditure;

(2) If the person making the expenditure is not an individual, the principal place of business of the partnership, committee, association, organization, or group which made the expenditure;

(3) The amount of each expenditure of more than $1,000 made for electioneering communications during the period covered by the statement and the name of the person to whom the expenditure was made;

(4) The elections to which the electioneering communications pertain, the names, if known, of the candidates referred to or to be referred to therein, whether the electioneering communication is intended to support or oppose the identified candidates and the amount of the total expenditure reported in subdivision (3) of this subsection spent to support or oppose each of the identified candidates; and

(5) The names and addresses of any contributors who contributed a total of more than $1,000 between the first day of the preceding calendar year and the disclosure date and whose contributions were used to pay for electioneering communications.

(c) With regard to the contributors required to be listed pursuant to subdivision (5), subsection (b) of this section, the statement shall also include:

(1) The month, day, and year that the contributions of any single contributor exceeded $250;

(2) If the contributor is a political action committee, the name and address the political action committee registered with the State Election Commission;

(3) If the contributor is an individual, the name and address of the individual, his or her occupation, the name and address of the individual’s current employer, if any, or, if the individual is self-employed, the name and address of the individual’s business, if any;

(4) A description of the contribution, if other than money;

(5) The value in dollars and cents of the contribution.

(d) (1) Any person who makes a contribution for the purpose of funding the direct costs of purchasing, producing, or disseminating an electioneering communication under this section shall, at the time the contribution is made, provide his or her name and address to the recipient of the contribution;

(2) Any individual who makes contributions totaling $250 or more between the first day of the preceding calendar year and the disclosure date for the purpose of funding the direct costs of purchasing, producing or disseminating electioneering communications shall, at the time the contribution is made, provide the name of his or her occupation and of his or her current employer, if any, or, if the individual is self-employed, the name of his or her business, if any, to the recipient of the contribution.

(e) In each electioneering communication, a statement shall appear or be presented in a clear and conspicuous manner that:

(1) Clearly indicates that the electioneering communication is not authorized by the candidate or the candidate’s committee; and

(2) Clearly identifies the person making the expenditure for the electioneering communication: Provided, That if the electioneering communication appears on or is disseminated by broadcast, cable or satellite transmission, the statement required by this subsection must shall be both spoken clearly and appear in clearly readable writing at the end of the communication.

(f) Within five business days after receiving a disclosure of electioneering communications statement pursuant to this section, the Secretary of State shall make information in the statement available to the public through the Internet.

(g) For the purposes of this section, a person is considered to have made an expenditure when the person has entered into a contract to make the expenditure at a future time.

(h) The Secretary of State is hereby directed to shall propose legislative rules and emergency rules implementing this section for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code.

(i) If any person, including, but not limited to, a political organization (as defined in Section 527(e)(1) of the Internal Revenue Code of 1986) makes, or contracts to make, any expenditure for electioneering communications which is coordinated with and made with the cooperation, consent or prior knowledge of a candidate, candidate’s committee or agent of a candidate, the expenditure shall be treated as a contribution and expenditure by the candidate. If the expenditure is coordinated with and made with the cooperation or consent of a state or local political party or committee, agent or official of that party, the expenditure shall be treated as a contribution to and expenditure by the candidate’s party.

(j) Except for bona fide survey and opinion research as defined in subsection (p) of this section, all prerecorded political audio messages, which content falls under the definition of “electioneering communications” and which messages are delivered via telephone at the direction of a candidate committee, political committee, or any other person or organization, shall contain, or a live operator shall orally provide, before any other information, the following information:

(1) The name of the candidate or of any organization or organizations the person is calling on behalf of;

(2) The name of the person or organization paying for the delivery of the message and the name of the fiscal agent, if applicable; and

(3) Affirmatively state if any actors, events, or other content depicted in the message are fictional.

(k) No person may deliver or knowingly cause to be delivered a prerecorded political message to any telephone number on any federal do not call list.

(l) (1) A violation of subsection (j) of this section shall result in a civil penalty of $5,000 per violation.

(2) Any person injured by another’s violation of this section may bring an action for equitable relief, including an injunction. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney’s fees.

(m) Except for bona fide survey and opinion research, any person who engages in push-polling by calling voters on behalf, in support, or in opposition of any candidate for public office by telephone, which telephone message is an electioneering communication and asks questions relating to any candidate for public office which implies, conveys, or states information about the candidate’s character, status, or political stance, and which is likely to be construed by a voter to be a survey or poll, shall prior to asking any person contacted a question relating to a candidate:

(1) Inform the person that the telephone call is a “paid political telephone call”;

(2) Identify the organization making the call and the organization paying for the call;

(3) Provide a valid, working, current telephone number for the organization making the call;

(4) Identify whether the telephone call is being made on in support of or in opposition to a particular candidate or candidates for public office and identify that candidate or candidates by name; and

(5) Affirmatively state if any events depicted in the questions are fictional.

(n)(1) A violation of subsection (m) of this section shall result in a civil penalty of $5,000 per violation.

(2) Any person injured by another’s violation of this section may bring an action for equitable relief, including an injunction. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney’s fees.

(j)(o) This section does not apply to candidates for federal office. This section is not intended to restrict or to expand any limitations on, obligations of, or prohibitions against any candidate, committee, agent, contributor, or contribution contained in any other provision of this chapter.

(p) For purposes of this section, “bona fide survey and opinion research” means the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences, and behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional, or marketing efforts are involved and through which there is no attempt to influence a participant’s attitudes or behavior. This definition includes a study for research purposes of how individuals reach to positive or negative information on a candidate, elected public official, or ballot proposition.

ARTICLE 9. OFFENSES AND PENALTIES.

§3-9-21. Improper interference with voters’ travel to and from the polls.


(a) During the hours that polls are open for in-person voting in an election, no person may obstruct or interfere with a voter with the intention to delay, hinder, interrupt, harass, or intimidate a voter traveling to or from the polls: Provided, That properly conducted exit polls, as provided by the Secretary of State’s administrative rules, are not prohibited by this section.

(b) Any person who violates the provisions of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or confined in jail not more than one year, or both fined and confined.

 

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