ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 619
(Senators Kessler, Edgell, Minard and Hunter, original sponsors)
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[Passed March 7, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §3-1-34 of the Code of West Virginia,
1931, as amended; and to amend and reenact §3-4A-16 and §3-4A-
30 of said code, all relating to election day procedures and
preparation; providing for handicapped individuals to vote on
election day; providing that clerks must assure voter privacy
by placement of voting devices and/or booths; and providing
for sufficient space and notice of precinct consolidation.
Be it enacted by the Legislature of West Virginia:
That §3-1-34 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §3-4A-16 and §3-4A-30 of said
code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall sign his or her name in the space marked "signature of voter"
on the pollbook provided for the precinct. If that person is
physically or otherwise unable to sign his or her name, his or her
mark shall be affixed by one of the poll clerks in the presence of
the other, and the name of the poll clerk affixing the voter's mark
shall be indicated immediately under the affixation. No ballot may
be given to the person until he or she signs his or her name on the
pollbook or his or her signature is affixed thereon.
(b) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person
for a transfer of registration must be received by the county clerk
no later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of
registration at least thirty days prior to the date of the election
may vote a provisional ballot at a handicap accessible polling
place in the county of his or her registration. If during the
canvass the county commission determines that the person had been
registered in a precinct that is not handicap accessible, the voted
ballot, if otherwise valid, shall be counted. The handicapped
person may vote in the precinct to which the registration was transferred only as long as the disability exists or the precinct
from which the handicapped person was transferred remains
inaccessible to the handicapped. To ensure confidentiality of the
transferred ballot, the county clerk processing the ballot shall
provide the voter with an unmarked envelope and an outer envelope
designated "provisional ballot/handicapped voter". After
validation of the ballot at the canvass, the outer envelope shall
be destroyed and the handicapped voter's ballot shall be placed
with other approved provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) When the voter's signature is properly on the pollbook,
the two poll clerks shall sign their names in the places indicated
on the back of the official ballot and deliver the ballot to the
voter to be voted by him or her without leaving the election room.
If he or she returns the ballot spoiled to the clerks, they shall
immediately mark the ballot "spoiled" and it shall be preserved and
placed in a spoiled ballot envelope together with other spoiled
ballots to be delivered to the board of canvassers and deliver to
the voter another official ballot, signed by the clerks on the
reverse side. The voter shall thereupon retire alone to the booth
or compartment prepared within the election room for voting
purposes and there prepare his or her ballot. In voting for
candidates in general and special elections, the voter shall comply
with the rules and procedures prescribed in section five, article
six of this chapter.
(d) It is the duty of a poll clerk, in the presence of the other poll clerk, to indicate by a check mark inserted in the
appropriate place on the registration record of each voter the fact
that the voter voted in the election. In primary elections the
clerk shall also insert thereon a distinguishing initial or
initials of the political party for whose candidates the voter
voted. If a person is challenged at the polls, the challenge shall
be indicated by the poll clerks on the registration record,
together with the name of the challenger. The subsequent removal
of the challenge shall be recorded on the registration record by
the clerk of the county commission.
(e) (1) No voter may receive any assistance in voting unless,
by reason of blindness, disability, advanced age or inability to
read and write, that voter is unable to vote without assistance.
Any voter qualified to receive assistance in voting under the
provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request,
shall read to the voter the names of the candidates selected on the
ballot;
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner
hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter
is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct by the absentee balloting
method provided in subsection (e), section five, article three of
this chapter in the presence of an election commissioner of each
political party if all of the following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
The voted ballot shall then be returned to the precinct
officials and secured in a sealed envelope to be returned to the
clerk of the county commission with all other election materials.
The ballot shall then be tabulated using the appropriate method
provided in section eight of this chapter as it relates to the
specific voting system in use.
(2) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(3) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that the voter thereof received assistance in voting it when in his, her
or their opinion the person who received assistance in voting is
not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the
form and in the manner prescribed or authorized by article three of
this chapter.
(4) An election commissioner or other person who assists a
voter in voting:
(A) May not in any manner request or seek to persuade or
induce the voter to vote any particular ticket or for any
particular candidate or for or against any public question and must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must not, directly or
indirectly, reveal to any person the name of any candidate voted
for by the voter or which ticket he or she had voted or how he or
she had voted on any public question or anything occurring within
the voting booth or compartment or voting machine booth except when
required pursuant to law to give testimony as to the matter in a
judicial proceeding; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the Secretary of State stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation:
Provided, That no person providing
assistance to a voter is required to sign an oath or affirmation
where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(5) In accordance with instructions issued by the Secretary of
State, the clerk of the county commission shall provide a form
entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the Secretary of State. The
commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number
of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) After preparing the ballot, the voter shall fold the
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall announce his or her
name and present his or her ballot to one of the commissioners who
shall hand the same to another commissioner, of a different
political party, who shall deposit it in the ballot box if the ballot is the official one and properly signed. The commissioner
of election may inspect every ballot before it is deposited in the
ballot box to ascertain whether it is single, but without unfolding
or unrolling it so as to disclose its content. When the voter has
voted, he or she shall retire immediately from the election room
and beyond the sixty-foot limit thereof and may not return except
by permission of the commissioners.
(g) Following the election, the oaths or affirmations required
by this section from those assisting voters, together with the
"list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the
election supplies, records and returns. The clerk of the county
commission shall make the oaths, affirmations and list available
for public inspection and shall preserve them for a period of
twenty-two months or until disposition is authorized or directed by
the Secretary of State or court of record:
Provided, That the clerk
may use these records to update the voter registration records in
accordance with subsection (d), section eighteen, article two of
this chapter.
(h) Any person making an oath or affirmation required under
the provisions of this section who knowingly swears falsely or any
person who counsels, advises, aids or abets another in the
commission of false swearing under this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or confined in the county or regional
jail for a period of not more than one year, or both fined and confined.(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when the voter is known
to the election commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in a state correctional facility for a period of not
less than one year nor more than five years, or both fined and
imprisoned.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-16. Delivery of vote-recording devices; time, arrangement
for voting.
The clerk of the county commission shall deliver or cause to
be delivered each vote-recording device, where applicable, and the
package of ballots to the polling place where they are to be
employed. The delivery is to be made not less than one hour prior
to the opening of the polls and is to be made in the presence of
the precinct election commissioners. At the time of the delivery
of the vote recording device, where applicable, and the ballots,
the device is to be sealed to prevent its use prior to the opening
of the polls and any tampering with the ballot labels; and the
ballots are to be packaged and sealed to prevent any tampering with
the ballots. Immediately prior to the opening of the polls on
election day, the sealed packages of ballots are to be opened,
where applicable, and the seal of the vote-recording device is to
be broken in the presence of the precinct election commissioners, who shall certify in writing signed by them to the clerk of the
county commission, that the devices, where applicable, and the
ballots have been delivered in their presence, that the devices and
packages of ballots were found to be sealed upon delivery, and that
the seals have been broken and the devices opened in their
presence, as may be appropriate. The election commissioners shall
then cause the vote-recording device and booth to be arranged so
that the front of the vote-recording device will not be visible,
when the vote-recording device is being operated, to any person
other than the voter. The poll clerks shall ensure that the vote-
recording device is placed in a location that maintains voter
privacy through the entire period of voting.
§3-4A-30. Adjustments in voting precincts where electronic voting
system used.
(a) The provisions of section five, article one of this
chapter, relating to the number of registered voters in each
precinct, shall apply to and control in precincts in counties in
which electronic voting systems have been adopted, except that the
maximum number of registered voters shall be one thousand five
hundred per precinct. The county commissions of such counties,
subject to other provisions of this chapter with respect to the
altering or changing of the boundaries of voting precincts, may
change the boundaries of precincts or consolidate precincts as
practicable, to achieve the maximum advantage from the use of
electronic voting systems.
(b) The county commission may, in the urban centers of any county adopting an electronic voting system, designate a voting
place outside the boundaries of a precinct, provided such voting
place is in a public building of sufficient size and in an
adjoining precinct. In such event, more than one precinct may vote
in any such public building. Upon combination of adjoining
precincts pursuant to this subsection, the county commission shall:
(1) Publish its order combining the precincts in the same manner as
an order of consolidation pursuant to section seven, article one of
this chapter; and (2) cause its order to be published with each
sample ballot publication required by this chapter.
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