H. B. 3066
(By Delegates Manuel, Mahan, Coleman, Craig,
R. White and Smirl)
[Introduced March 29, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two, two-a, two-b,
three, four, five, five-a, five-b, five-c, seven, nine, ten,
eleven and twelve, article three, chapter three of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to absentee voting; eliminating the
conditions limiting voters from voting during the regular
absentee in person voting period; allowing any person
confined in a hospital on election day to vote by emergency
absentee ballot; requiring the clerk of the county
commission to supervise and conduct absentee voting in
certain elections; requiring the clerk of the circuit court
to supervise and conduct absentee voting in certain
elections; requiring the county commission to provide an
area for absentee in person voting under certain
circumstances; restricting in person absentee voting to
locations which may be accessed without passing through
security devices; requiring regular absentee voting in
person continue through the day before an election;
requiring regular absentee voting be available during certain hours on the Saturday before a Tuesday election;
allowing absentee ballots which are received by the clerk no
later than the day after the election to be accepted;
requiring that a set of emergency absentee ballot
commissioners be persons of different registered party
affiliations; eliminating the requirement that a person who
voted by absentee ballot vote on election day at the polls
if able; and eliminating the ability to challenge an
absentee ballot because the voter was able to vote at the
polls on election day.
Be it enacted by the Legislature of West Virginia:
That sections one, two, two-a, two-b, three, four, five,
five-a, five-b, five-c, seven, nine, ten, eleven and twelve,
article three, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a)
Duly registered Registered and
otherwise other qualified
voters of the county
who for authorized reasons as provided in
this article are unable to vote in person at the polling place on
the day of a primary, general or special election may vote an
absentee ballot
according to pursuant to the provisions of this
article.
(b)
Voters in the following circumstances shall be
authorized to
and shall be required to vote
that absentee ballot in person in the office of the clerk of the
circuit court during the period of regular absentee voting in
person:
(1) Any voter who is within the county and physically able
to vote in person during regular business hours of the clerk's
office during the prescribed period for absentee voting but is
unable to vote in person on election day because of: (A)
Anticipated or scheduled commitment to a hospital, institution or
other confinement for medical reasons; (B) absence from the
county during the entire time the polls are open; (C) appointment
as an election official in a precinct other than the one in which
the voter is registered; or (D) the inaccessibility of the
polling place to the voter because of his or her physical
disability; and
(2) Any voter who is a member of a religious denomination
with an established history of observing Saturday as the Sabbath,
when the election is scheduled to be held on Saturday.
(c) Voters in the following circumstances shall be
authorized to
Any registered voter or other qualified voter of
the county who will be absent from the county throughout the
regular period and available hours for voting in person because
of personal or business travel or employment and who will be
unable to receive an absentee ballot by mail at an address
outside the county during that absence
may vote an absentee
ballot under special affidavit and shall be required to vote that absentee ballot in person in the office of the clerk of the
circuit court during the period of special absentee voting in
person:
Any voter who will be absent from the county throughout the
regular period and available hours for voting in person at the
polls or at the clerk's office because of personal or business
travel or employment, who will be unable to receive an absentee
ballot by mail at an address outside the county during that
absence, and who will be present within the county between the
forty-second day before the election and the fifteenth day before
the election.
(d) Voters
in the following circumstances shall be
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) Illness, injury or other medical reason;
(B) physical
Physical
disability or immobility due to
extreme advanced age; or
(C) incarceration Incarceration or home detention when not
under: Provided, That the underlying conviction of is not for a
crime which is a felony, treason or a violation of sections
twelve, thirteen or sixteen, article nine of this chapter,
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 Attendance at a college, university or other
place of education or training; or
(C) employment 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 (Public Law 99-410, 42 U.S.C. 1973,
et seq.)
. Members
are included in the above definition;
(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 Serving in any other documented employment
assignment of specific duration of four years or less; and
(5) Any voter for whom both the office of the circuit clerk county courthouse or judicial annex facility and the polling
place are inaccessible to the voter because of his or her
physical disability.
(e) Voters in the following circumstances shall be
authorized to
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 admitted for emergency medical
treatment on or after the seventh day next preceding the election
and who anticipates continued confinement in a hospital or other
duly licensed health care within the county of residence or other
authorized area, as provided in this article;
(2) Any voter who is admitted and confined in a hospital or
other duly licensed health care within the county of residence or
other authorized area, as provided in this article, on the day of
the election;
(3) Any voter who resides in a nursing home within the
county of residence and would be otherwise unable to vote in
person, providing the county commission has authorized such the
services; and
(3) (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.
§3-3-2. Authority to conduct absentee voting; absentee voting application; form.
(a) Absentee voting shall is to be supervised and conducted
by the proper official for the political division in which the
election is held, in conjunction with the ballot commissioners
appointed from each political party, as follows:
(1) The clerk of the circuit court, for any election held
throughout the county, within a political subdivision or
territory other than a municipality, or within a municipality
when the municipal election is conducted in conjunction with a
county election For any election held throughout the county,
within a political subdivision or territory other than a
municipality, or within a municipality when the municipal
election is conducted in conjunction with a county election, the
clerk of the county commission: Provided, That if the clerk of
the county commission and the clerk of the circuit court certify
to the county commission their agreement that the clerk of the
circuit court supervise and conduct the absentee voting the clerk
of the circuit court is to supervise and conduct the absentee
voting; or
(2) The municipal recorder or other officer authorized by
charter or ordinance provisions to conduct absentee voting, for
any election held entirely within the municipality, or in the
case of annexation elections, within the area affected. The
terms "clerk" or "circuit clerk" used elsewhere in this article
shall be taken to refer to such recorder or other officer in the
case of municipal elections.
(b) A person authorized and desiring to vote an absentee
ballot in any primary, general or special election shall is to
make application in writing in the proper form to the proper
official. as follows:
(1) The completed application shall is to be on a form
prescribed by the secretary of state, and shall is to contain the
name, date of birth and political affiliation of the voter,
residence address within the county, the address to which the
ballot is to be mailed, the authorized reason, if any, for which
the absentee ballot is requested, and, if the reason is illness
or hospitalization, the name and telephone number of the
attending physician, the signature of the voter to a declaration
made under the penalties for false swearing as provided in
section three, article nine of this chapter that the statements
and declarations contained in the application are true, any
additional information which the voter is required to supply, any
affidavit which may be required, and an indication as to whether
it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot
under the provisions of 42 U.S.C. § 1973, et seq.,
the Uniformed
and Overseas Citizens Absentee Voting Act of 1986 (Public Law 99-
410, 42 U.S.C. 1973, et seq.
), the completed application may be
on the federal postcard application for absentee ballot form
issued under authority of that act; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received
by the proper official, the completed application may be in a
form set out by the voter, provided all information required to
meet the provisions of this article is set forth and the
application is signed by the voter requesting the ballot.
§3-3-2a. Voting booths within public view to be provided;
prohibition against display of campaign material.
Throughout the period of absentee voting in person in the
clerk's office as provided in this article, the circuit clerk
official designated to supervise and conduct absentee voting
shall make the following provisions for voting:
(a) (1) The clerk official shall provide a sufficient number
of voting booths or devices appropriate to the voting system at
which voters may prepare their ballots. The booths or devices
shall are to be in an area separate from but within clear view of
the public entrance area of the clerk's official's office, and
shall are to be arranged to ensure the voter complete privacy in
casting the ballot.
(b) (2) The clerk official shall make the voting area secure
from interference with the voter and shall ensure that voted and
unvoted ballots are at all times secure from tampering. No
person, other than a person lawfully assisting the voter
according to the provisions of this chapter, may be permitted to
come within five feet of the voting booth while the voter is
voting. No person, other than the clerk or deputy clerks
officials or employees of the official designated to supervise and conduct absentee voting or members of the board of ballot
commissioners assigned to conduct absentee voting, shall may
enter the area or room set aside for voting.
(c) (3) When the voting area of the office of the clerk
official designated to supervise and conduct absentee voting
is
not fully accessible to voters with physical disabilities or if
the office of the official designated to supervise and conduct
absentee voting or the area within clear view of the public
entrance of the office, the clerk official shall request the
county commission to designate an accessible room within the same
building as a portion of the clerk's official's office for the
purpose of absentee voting only by persons unable to use the
regular area. Upon request by the official, the county
commission shall designate an accessible area for absentee
voting. The area shall be is subject to the same requirements as
the regular absentee voting area.
(d) (4) No person may do any electioneering, nor may any
person display or distribute in any manner, or authorize the
display or distribution of, any literature, posters or material
of any kind which tends to influence the voting for or against
any candidate or any public question on the property of the
county courthouse or any judicial annex facilities thereof during
the entire period of regular in person absentee voting. The
clerk official designated to supervise and conduct absentee
voting
is hereby authorized to remove such the material and to
direct the sheriff of the county to enforce the prohibition.
(5) Notwithstanding any other provision of this code to the
contrary, no absentee voting may occur in a location accessed
only by way of a security device, including metal detectors.
§3-3-2b. Special absentee voting list.
(a) Any person who is registered and otherwise qualified to
vote and who is permanently and totally physically disabled and
who is unable to vote in person at the polls in an election may
apply to the clerk of the circuit court
official designated to
supervise and conduct absentee voting
for placement on the
special absentee voting list.
(b) The application shall is to be on a form prescribed by
the secretary of state which shall is to include the voter's name
and signature, residence address, a statement that the voter is
permanently and totally physically disabled and would be unable
to vote in person at the polls in any election, a description of
the nature of that disability, and a statement signed by a
physician to that effect.
(c) Upon receipt of a properly completed application, the
circuit clerk
official designated to supervise and conduct
absentee voting
shall enter the name on the special absentee
voting list, which shall is to be maintained in a secure and
permanent record. The person's name shall will remain active on
such the list until: (1) The person requests in writing that his
or her name be removed; (2) the The person removes his or her
residence from the county, is purged from the voter registration
books or otherwise becomes ineligible to vote; (3) a A ballot mailed to the address provided on the application is returned
undeliverable by the United State postal service; or (4) the The
death of the person.
(d) The clerk
official designated to supervise and conduct
absentee voting
shall mail an application for an absentee ballot
by mail to each person active on the special absentee voting list
not later than forty-two days before each election.
§3-3-3. Voting an absentee ballot in person.
(a) Regular absentee voting in person shall is to be
conducted during regular business hours in the office of the
clerk of the circuit court beginning on the fifteenth day before
the election and continuing through the Saturday Monday before
the election for any election held on a Tuesday, or continuing
through the third day before the election for any election held
on another day. For any election held on a Tuesday, regular
absentee voting
in person is to be available from nine a.m. to
five p.m. on the Saturday before the election.
(b) Special absentee voting in person for persons eligible
to vote an absentee ballot under the provisions of subsection
(c), section one of this article shall is to be conducted during
regular business hours in the office of the clerk of the circuit
court beginning on the forty-second day before the election and
continuing until the first day when regular absentee voting in
person begins. Any person seeking to vote absentee under this
subsection shall is to first give an affidavit, on a form
prescribed by the secretary of state, stating under oath the specific circumstances which prevent voting absentee during the
period for regular absentee voting in person or by mail.
(c) Upon oral request, the clerk of the circuit court
official designated to supervise and conduct absentee voting
shall provide the voter with the appropriate application for
voting absentee in person, as provided in this article. The
voter shall complete and sign the application in his or her own
handwriting or, if the voter is unable to complete the
application because of illiteracy or physical disability, the
person assisting the voter and witnessing the mark of the voter
shall sign his or her name in the space provided.
(d) Upon completion, the application shall is to be
immediately returned to the clerk official, who shall determine:
(1) Whether the application has been completed as required
by law;
(2) Whether the applicant is duly registered to vote in the
precinct of his or her residence, and, in a primary election, is
qualified to vote the ballot of the political party requested;
and
(3) Whether the applicant is authorized for the reasons
given in the application to vote an absentee ballot by personal
appearance during the special absentee voting period at the time
of the application.
(e) If the clerk determines the above conditions provided in
subsection (d) of this section have not been met, or has evidence
that any of the information contained in the application is not true, the clerk shall challenge the voter's absentee ballot as
provided in this article.
(d) (f) The clerk shall provide each person voting an
absentee ballot in person the following items to be printed as
prescribed by the secretary of state
:
(1) One of each type of official absentee ballot the voter
is eligible to vote, prepared according to law;
(2) one One envelope, unsealed, which shall may have no
marks except the designation "Absent Voter's Ballot Envelope No.
1" and printed instructions to the voter; and
(3) one One envelope, unsealed, designated "Absent Voter's
Ballot Envelope No. 2" and printed as prescribed by the secretary
of state.
(e) (g) The voter shall enter the voting booth alone and
there mark the ballot: Provided, That the voter may have
assistance in voting according to the provisions of section four
of this article. After the voter has voted the ballot or
ballots, the voter shall: (1) Place the ballot or ballots in
envelope No. 1 and seal that envelope; (2) place Place the sealed
envelope No. 1 in envelope No. 2 and seal that envelope; (3)
complete Complete and sign the forms on envelope No. 2; and (4)
return Return that envelope to the circuit clerk official
designated to supervise and conduct the absentee voting.
(f) (h) Upon receipt of the sealed envelope, the circuit
clerk official designated to supervise and conduct the absentee
voting
shall:
(1) Enter onto the envelope any other required information;
(2) enter Enter the challenge, if any, to the ballot;
(3) enter Enter the required information into the permanent
record of persons applying for and voting an absentee ballot in
person; and
(4) place Place the sealed envelope in a secure location in
the clerk's official's office, to remain until delivered to the
polling place or, in the case of a challenged ballot, to the
board of canvassers.
§3-3-4. Assistance to voter in voting an absent voter's ballot
by personal appearance.
(a) Any duly registered voter, who requires assistance to
vote by reason of blindness, disability, advanced age, or
inability to read and write, may be given assistance by a person
of the voter's choice: Provided, That such the assistance may
not be given by the voter's present or former employer or agent
of that employer or by the officer or agent of a labor union of
which the voter is a past or present member.
(b) Any voter who requests assistance in voting an absent
voter's ballot but who is determined by the clerk of the circuit
court
official designated to supervise and conduct absentee
voting
not to be qualified for such assistance under the
provisions of this section and section thirty-four, article one,
of this chapter shall nevertheless be permitted to may vote a
challenged absent voter's ballot with the assistance of any
person herein authorized to render assistance pursuant to this section. The clerk of the circuit court
official designated to
supervise and conduct absentee voting
shall in such this case
challenge the absent voter's ballot on the basis of such his or
her determination that the voter is not qualified for assistance.
(c) Any one or more of the election commissioners or poll
clerks in the precinct to which an absent voter's ballot has been
sent may challenge such the ballot on the ground that the voter
thereof received assistance in voting it when in his or their
opinion (1) the person who received the assistance in voting the
absent voter's ballot did not require such assistance, or (2) the
person who provided the assistance in voting did not make an
affidavit as required by this section. The election commissioner
or poll clerk or commissioners or poll clerks making such a
challenge shall enter the challenge and reason therefor for the
challenge on the form and in the manner prescribed or authorized
by this article.
(d) Before entering the voting booth or compartment, the
person who intends to provide a voter assistance in voting shall
make an affidavit, the form of which shall is to be prescribed by
the secretary of state, that he or she will 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 that he or she will not keep or
make any memorandum or entry of anything occurring within the
voting booth or compartment, and that he or she will 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 such the matter in a judicial proceeding.
(e) In accordance with instructions issued by the secretary
of state, the clerk of the circuit court
official designated to
supervise and conduct absentee voting
shall provide a form
entitled "List of Assisted Voters," the form of which list shall
likewise be prescribed by the secretary of state, which list
shall is to be divided into two parts. Part A shall is to be
entitled "Unchallenged Assisted Voters" and Part B shall is to be
entitled "Challenged Assisted Voters." Under Part A the clerk
official designated to supervise and conduct absentee voting
shall enter the name of each voter receiving unchallenged
assistance in voting an absent voter's ballot, the address of the
voter assisted, the nature of the disability which qualified the
voter for assistance in voting an absent voter's ballot, the name
of the person providing the voter with assistance in voting an
absent voter's ballot, the fact that the person rendering the
assistance in voting made and subscribed to the oath required by
this section, and the signature of the clerk of the circuit court
official designated to supervise and conduct absentee voting
certifying to the fact that he or she had determined that the
voter who received assistance in voting an absent voter's ballot
was qualified to receive such the assistance under the provisions of this section. Under Part B the clerk
official designated to
supervise and conduct absentee voting
shall enter the name of
each voter receiving challenged assistance in voting, the address
of the voter receiving such challenged assistance, the reason for
the challenge, and the name of the person providing the
challenged voter with assistance in voting. At the close of the
period provided for voting an absent voter's ballot by personal
appearance, the clerk of the circuit court
official designated to
supervise and conduct absentee voting
shall make and subscribe to
an oath on such the list that the list is correct in all
particulars; if no voter shall have has been assisted in voting
an absent voter's ballot as herein provided in this section, the
clerk of the circuit court
official designated to supervise and
conduct absentee voting
shall likewise make and subscribe to an
oath of that fact on such the list. The "List of Assisted
Voters" shall is to be available for public inspection in the
office of the clerk of the circuit court
official designated to
supervise and conduct absentee voting
during regular business
hours throughout the period provided for voting an absent voter's
ballot by personal appearance, and unless otherwise directed by
the secretary of state, the clerk of the circuit court official
shall transmit such the list, together with the affidavits,
applications and absent voters' ballots, to the precincts on
election day.
(f) Following the election, the affidavits required by this
section from persons providing assistance in voting, together with the "List of Assisted Voters," shall are to be returned by
the election commissioners to the clerk of the county commission
along with the election supplies, records and returns, who shall
make such the oaths and list available for public inspection and
who shall preserve the same the oaths and list for twenty-two
months or, if under order of the court, until their destruction
or other disposition is authorized or directed by the court.
(g) Any person making an affidavit required under the
provisions of this section who shall therein knowingly swear
swears falsely in the affidavit, or any person who shall counsel,
counsels or advise, aid advises, aids or abet abets another in
the commission of false swearing under this section, shall be is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than one thousand dollars or imprisoned in the
county or regional jail for a period of not more than one year,
or both such fine and imprisonment.
(h) Any person who provides a voter assistance in voting an
absent voter's ballot in the office of the clerk of the circuit
court
official designated to supervise and conduct absentee
voting
who is not qualified or permitted by this section to
provide such assistance shall be is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not more than one
thousand dollars or imprisoned in the county or regional jail for
a period of not more than one year, or both such fine and
imprisonment.
(i) Any clerk of the circuit court
official designated to supervise and conduct absentee voting
, election commissioner or
poll clerk who authorizes or allows a voter to receive or to have
received unchallenged assistance in voting an absent voter's
ballot when such the voter is known to the clerk of the circuit
court
official designated to supervise and conduct absentee
voting
or election commissioner or poll clerk not to be or have
been authorized by the provisions of this section to receive or
to have received assistance in voting shall be is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars or imprisoned in the county or
regional jail for a period of not more than one year, or both
such fine and imprisonment.
(j) The term "physical disability" as used in this section
shall mean means only blindness or such a degree of blindness as
will prevent the voter from seeing the names on the ballot, or
amputation of both hands, or such a disability of both hands that
neither can be used to make cross marks on the absent voter's
ballot.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the clerk of the circuit
court
clerk official has access to
facsimile equipment, the appropriate application for voting
absentee by mail, as provided in this article. The voter shall
complete and sign the application in his or her own handwriting or, if the voter is unable to complete the application because of
illiteracy or physical disability, the person assisting the voter
and witnessing the mark of the voter shall sign his or her name
in the space provided.
(b) Completed applications for voting an absentee ballot by
mail shall is to be accepted when received by the clerk official
designated to supervise and conduct absentee voting in person, by
mail or by facsimile, if the clerk official has access to
facsimile equipment, within the following times:
(1) For persons eligible to vote an absentee ballot under
the provisions of subdivision (3), subsection (d), section one of
this article, relating to absent uniformed services and overseas
voters, not earlier than the first day of January of an election
year, or eighty-four days preceding the election, whichever is
earlier, and not later than the sixth day preceding the election,
which application shall 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, not earlier than eighty-four days preceding the
election and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the circuit
clerk
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;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by
mail under the provisions of subdivision (2), (3) or (4),
subsection (d), section one of this article;
(5) The applicant is not making his or her first vote after
having registered by postcard registration under the provisions
of section forty-one, article two of this chapter or, if the
applicant is making the his or her first vote under these
provisions after having registered by postcard registration, the
applicant is exempt from these requirements; 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) If the clerk
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 clerk 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.
(d) (e) Within one day after the clerk
official designated
to supervise and conduct absentee voting
has both the completed
application and the ballot, the clerk official shall mail to the
voter at the address given on the application the following items
as prescribed by the secretary of state:
(1) One of each type of official absentee ballot the voter
is eligible to vote, prepared according to law;
(2) one One envelope, unsealed, which shall may have no
marks except the designation "Absent Voter's Ballot Envelope No.
1" and printed instructions to the voter;
(3) one One postage paid envelope, unsealed, designated
"Absent Voter's Ballot Envelope No. 2" and printed as prescribed
by the secretary of state;
(4) instructions Instructions for voting absentee by mail;
and
(5) any Any other supplies required for voting in the
particular voting system.
(e) (f) The voter shall mark the ballot alone: Provided,
That the voter may have assistance in voting according to the
provisions of section six of this article. After the voter has
voted the ballot or ballots, the voter shall: (1) Place the
ballot or ballots in envelope no. 1 and seal that envelope; (2)
place Place the sealed envelope no. 1 in envelope no. 2 and seal
that envelope; (3) complete Complete and sign the forms on
envelope no. 2; and (4) return Return that envelope to the
official designated to supervise and conduct absentee voting
.
(f) (g) Absentee ballots returned by United States mail or
other express shipping service shall are to be accepted if: (1)
The ballot is received by the clerk no later than the close of
the polls on day after the election day; or (2) the ballot bears
a postmark of the United States postal service dated no later
than election day and the ballot is received by the clerk no
later than the hour at which the board of canvassers convenes to
begin the canvass.
(h) Ballots received after the proper time which cannot be
accepted shall are to be placed unopened in an envelope marked
for the purpose and kept secure for twenty-two months following
the election, after which time they shall are to be destroyed
without being opened.
(g) (i) Absentee ballots which are hand delivered to the
clerk shall are to be accepted if they are received by the
circuit clerk no later than the day preceding the election:
Provided, That no person may hand deliver more than two absentee
ballots in any election, and any person hand delivering an
absentee ballot shall be is required to certify that he or she
has not examined or altered the ballot. Any person who makes a
false certification shall be in violation of the penalty violates
the provisions of article nine of this chapter and is subject to
those provisions.
(h) (j) Upon receipt of the sealed envelope, the clerk
official designated to supervise and conduct absentee voting
shall:
(1) Enter onto the envelope any other required information;
(2) enter Enter the challenge, if any, to the ballot;
(3) enter Enter the required information into the permanent
record of persons applying for and voting an absentee ballot in
person; and
(4) place Place the sealed envelope in a secure location in
the clerk's official's office, to remain until delivered to the
polling place or, in the case of a challenged ballot, to the
board of canvassers.
§3-3-5a. Processing federal postcard applications.
(a) When a federal postcard registration and absentee ballot
request (FPCA), as defined in subdivision (2), subsection (b),
section two of this article, is received by the clerk of the
circuit court, the clerk
official designated to supervise and
conduct absentee voting, the official
shall examine the
application and take the following steps:
(1) The clerk official shall first enter the name of the
applicant in the permanent absentee voter's record for each
election for which a ballot is requested, make a photocopy of the
application for each such election for which a ballot is
requested and place the separate copies in secure files to be
maintained for use in the various elections.
(2) The clerk
official designated to supervise and conduct
absentee voting
shall then determine if the applicant is registered to vote at the residence address listed in the voting
residence section of the application. If the applicant is
properly registered, the clerk shall maintain the original
application. If the applicant is not registered, or not
registered at the address given, the clerk official shall deliver
the original FPCA to the clerk of the county commission for
processing, and the clerk of the county commission shall process
the application as an application for registration and, if such
the application is received after the close of voter registration
for the next succeeding election, the clerk of the circuit court
official shall challenge the absentee ballot for that election.
(3) Except as provided herein subdivision (2) of this
section, the federal application for an absentee ballot received
from a person qualified to use the application as provided in
section two of this article shall is to be processed as all other
applications and the ballot or ballots for each election for
which ballots are requested by the applicant shall is to be
mailed to the voter on the first day on which both the
application and the ballot are available.
(b) When a federal postcard registration and absentee ballot
request (FPCA) is received by the clerk of the county commission,
the clerk of the county commission
shall examine the application
and take the following steps:
(1) The clerk shall determine if the applicant is registered
to vote at the residence address listed in the voting residence
section of the application. If the applicant is properly registered, the clerk shall deliver the original FPCA to the
clerk of the circuit court for processing as an application for
absentee voting. If the applicant is not registered, or not
registered at the address given, the clerk of the county
commission shall make a photocopy of such application and deliver
the photocopy to the clerk of the circuit court for processing as
an application for absentee voting, and shall register the voter
and maintain the original copy in the registration files. If the
application for registration is received after the close of
registration for the next succeeding election, the clerk of the
county commission shall hold the application to be entered into
the registration records after that election and shall forward a
copy of the application to the clerk of the circuit court, along
with a notice that the absentee ballot for that election shall be
challenged.
(2) Upon receiving the original or the photocopy of the
application from the clerk of the county commission, the clerk of
the circuit court shall process the application as prescribed in
subsection (a) of this section.
§3-3-5b. Procedures for voting a special write-in absentee
ballot by qualified persons.
(a) Notwithstanding any other provisions of this chapter, a
person qualified to vote an absentee ballot in accordance with
subdivision (3), subsection (d), section one of this article may
apply not earlier than the first day of January of an election
year for a special write-in absentee ballot for a primary or general election, in conjunction with the application for a
regular absentee ballot or ballots. If the application is
received after the forty-ninth day preceding the election, the
clerk of the circuit court
official designated to supervise and
conduct absentee voting
shall honor only the application for
local, state and federal offices in general, special and primary
elections.
(b) The application for a special write-in absentee ballot
may be made on the federal postcard application form.
(c) In order to qualify for a special write-in absentee
ballot, the voter must state that he or she is unable to vote by
regular absentee ballot or in person due to requirements of
military service or due to living in isolated areas or extremely
remote areas of the world. This statement may be made on the
federal postcard application or on a form prepared by the
secretary of state and supplied and returned with the special
write-in absentee ballot.
(d) Upon receipt of said the application within the time
required, the clerk
official designated to supervise and conduct
absentee voting
shall issue the special write-in absentee ballot
which shall is to be the same ballot issued under the provisions
of 42 U.S.C. § 1973, et seq.,
the Uniformed and Overseas Citizens
Absentee Voting Act of 1986 (Public Law 99-410, 42 U.S.C. § 1973,
et seq.
). Such The ballot shall is to permit the elector to vote
in a primary election by indicating his or her political party
affiliation and the names of the specific candidates for each office, and in a general election by writing in a party
preference for each office, the names of specific candidates for
each office, or the name of the person whom the voter prefers for
each office.
(e) When a special federal write-in ballot is received by
the clerk
official designated to supervise and conduct absentee
voting
from a voter: (1) Who mailed the write-in ballot from any
location within the United States; (2) who Who did not apply for
a regular absentee ballot; (3) who Who did not apply for a
regular absentee ballot by mail; or (4) whose Whose application
for a regular absentee ballot by mail was received less than
thirty days before the election, the write-in ballot shall may
not be counted.
(f) Any write-in absentee ballot must be received by the
clerk
official designated to supervise and conduct absentee
voting
prior to the close of the polls on election day or it may
not be counted.
§3-3-5c. Procedures for voting an emergency absentee ballot by
qualified voters.
(a) Notwithstanding any other provision of this chapter, a
person qualified to vote an emergency absentee ballot, as
provided in subsection (e), section one of this article may vote
an emergency absentee ballot under the procedures established in
this section. The county commission may adopt a policy extending
the emergency absentee voting procedures to: (1) Hospitals or
other duly licensed health care facilities within an adjacent county or within thirty-five miles of the county seat; or (2)
nursing homes within the county: Provided, That the policy shall
is to be adopted by the county commission at least ninety days
prior to the election that will be affected and a copy of such
the policy shall is to be filed with the secretary of state.
(b) On or before the fifty-sixth day preceding the date on
which any election is to be held the clerk of the circuit court
of each county 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 deems determines necessary to perform the duties and
functions hereinafter set forth pursuant to this section.
(c) A set of emergency absentee ballot commissioners at-
large shall consist of two persons with different registered
party affiliations, appointed by the county commission in
accordance with the procedure prescribed for the appointment of
election commissioners under the provisions of article one of
this chapter. Emergency absentee ballot commissioners shall have
the same qualifications and rights and take the same oath
required under the provisions of this chapter for commissioners
of elections. Such Emergency absentee ballot commissioners shall
are to be compensated for services and expenses in the same
manner as commissioners of election obtaining and delivering
election supplies under the provisions of section forty-four,
article one of this chapter.
(d) Upon request of the voter or a member of the voter's immediate family or, when the county commission has adopted a
policy to provide emergency absentee voting services to nursing
home residents within the county, upon request of a staff member
of the nursing home, the clerk of the circuit court official
designated to supervise and conduct absentee voting
, upon
receiving a proper request for voting an emergency absentee
ballot no earlier than the seventh day next preceding the
election and no later than noon of election day, shall supply to
the emergency absentee ballot commissioners the application for
voting an emergency absentee ballot and the balloting materials.
The emergency absentee ballot application shall is to be
prescribed by the secretary of state and shall 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, he or she shall is to make his
or her mark on the signature line above provided for an
illiterate applicant which mark shall is to be witnessed.
(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.
(e) (g) At least one of the emergency absentee ballot
commissioners receiving the balloting materials shall sign a
receipt which shall 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 then the ballot and return the same the
application and the ballot to the circuit clerk official
designated to supervise and conduct absentee voting
and, upon
delivering the application and the voted ballot to the clerk of
the court official, sign an oath that no person other than the
absent voter voted the ballot. The application and the voted
ballot shall are to be returned to the clerk of the circuit court
official designated to supervise and conduct absentee voting
prior to the close of the polls on election day. Any ballots
received by the clerk official after the time that delivery may
reasonably be made but before the closing of the polls shall are
to be delivered to the canvassing board along with the absentee
ballots challenged in accordance with the provisions of section
ten of this article.
(f) (h) Upon receiving the application and emergency
absentee ballot, the clerk of the circuit court
shall ascertain
whether the application is complete, whether the voter appears to
be eligible to vote an emergency absentee ballot, and whether the
voter is properly registered to vote with the office of the clerk
of the county commission. If the voter is found to be properly
registered in the precinct shown on the application, the ballot shall is to be delivered to the precinct election commissioner
pursuant to section seven of this article. If the voter is found
not to be registered or is otherwise ineligible to vote an
emergency ballot, then the ballot shall is to be challenged for
the appropriate reason provided for in section ten of this
article.
(g) (i) If either or both of the emergency absentee ballot
commissioners should refuse to sign any application for voting an
emergency absentee ballot, then the voter shall be permitted to
may vote as an emergency absentee and any such the ballot shall
is to be challenged in accordance with the provisions of section
ten of this article, in addition to those absentee ballots
subject to challenge as enumerated therein in that section.
(h) (j) Any voter who receives assistance in voting an
emergency absentee ballot shall comply with the provisions of
section six of this article. Any other provisions of this
chapter relating to absentee ballots not altered by the
provisions of this section shall are to govern the treatment of
emergency absentee ballots.
§3-3-7. Delivery of absentee ballots to polling places.
(a) Except as otherwise provided in this article, the
absentee ballots of each precinct, together with the applications
therefor for the absentee ballots, the affidavits made in
connection with assistance in voting, and such any forms, lists
and records as may be designated by the secretary of state, shall
are to be delivered in a sealed carrier envelope to the election commissioner of the precinct at the time he or she picks up the
official ballots and other election supplies as provided in
section twenty-four, article one of this chapter.
(b) Absentee ballots received after the election
commissioner has picked up the official ballots and other
election supplies for the precinct shall are to be delivered to
the election commissioner of the precinct who has been so
designated pursuant to section twenty-four, article one of this
chapter, by the clerk
official designated to supervise and
conduct absentee voting
in person, or by messenger, before the
closing of the polls, provided such the ballots are received by
the clerk official in time to make such the delivery. Any
ballots received by the clerk official after the time that
delivery may reasonably be made but within the time required as
provided in subsection (f) (g), section five of this article,
shall are to be delivered to the board of canvassers along with
the challenged ballots.
§3-3-9. Voting in person after having received and after having
voted an absent voter's ballot.
(a) Any person who has applied for and received an absent
voter's ballot but has not voted and returned the same to the
clerk of the circuit court official designated to supervise and
conduct absentee voting
may vote in person at the polls on
election day provided he or she returns such the absent voter's
ballot to the election commissioners at the polling place. In
such case Upon return of the absent voter's ballot shall be destroyed by the election commissioners shall destroy the ballot
in the presence of the voter, and one of the poll clerks shall
make a notation of such this fact as directed by instructions
issued by the secretary of state. In the event such the person
does not return the absent voter's ballot, he or she shall will
have his or her vote challenged by one or more of the election
commissioners or poll clerks.
(b) Any person who has voted an absent voter's ballot under
authority of subdivision (3) of section one of this article who
is present in the county in which he or she is registered to vote
between the opening and closing of the polls on election day, and
any person who has voted an absent voter's ballot under authority
of subdivision (1) of section one of this article who is or
becomes able to vote in person at the polls on election day,
shall may go to the polling place in the precinct of his or her
residence on election day and vote in person and ask that the
absent voter's ballot voted by him or her be destroyed in his or
her presence. In such case When a person decides to vote in
person at the polls on election day after voting an absent
voter's ballot, one of the poll clerks shall make a notation of
such this fact as directed by instructions issued by the
secretary of state.
(c) In the event a person who has voted an absent voter's
ballot votes in person at the polls on election day and fails to
notify the election commissioners and poll clerks that he or she
had previously voted an absent voter's ballot in such the election and the election commissioners and poll clerks fail to
discover such this fact at the time of voting in person, they
shall, following the closing of the polls, challenge the absent
voter's ballot of such voted by that person.
The absent voter's ballot of any such person described in
the second paragraph of this section who fails to go to the
polling place in the precinct of his residence on election day
and vote in person shall be subject to challenge by any one or
more of the election commissioners or poll clerks or by any
registered voter in the county who has personal knowledge that
such person was either in the county between the opening and
closing of the polls on election day or was able to vote in
person at the polls on election day, as the case may be:
Provided, That any such challenge by a registered voter shall be
made by affidavit, the form of which shall be prescribed by the
secretary of state.
§3-3-10. Challenging of absent voters' ballots.
(a) The clerk of the circuit court official designated to
supervise and conduct absentee voting
may challenge an absent
voter's ballot on any of the following grounds:
(1) That the application for an absent voter's ballot has
not been completed as required by law;
(2) that That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) that That the applicant for an absent voter's ballot is not registered to vote in the precinct of his or her residence as
provided by law;
(4) that That the person voting an absent voter's ballot by
personal appearance in his or her office had assistance in voting
such the ballot when the person was not qualified for such voting
assistance because (a) (A) the affidavit of the person who
received such assistance does not indicate a legally sufficient
reason for such assistance, or (b) (B) the person who received
such assistance did not make an affidavit as required by this
article, or (c) (C) the person who received such assistance is
not so illiterate as to have been unable to read the names on the
ballot or that he is not so physically disabled as to have been
unable to see or mark the absent voter's ballot;
(5) that That the person who voted an absent voter's ballot
by mail and received assistance in voting such the ballot was not
qualified under the provisions of this article for such
assistance; and
(6) that That the person who has voted absentee by mail as
a result of being out of the county more than four consecutive
times: Provided, That the determination as to whether the person
has voted more than four consecutive times shall does not apply
if the person is a citizen residing out of the United States; or
a member, spouse or dependent of a member serving in the
uniformed services; or a college student living outside of his or
her home county.
(b) Any one or more of the election commissioners or poll clerks in a precinct may challenge an absent voter's ballot on
any of the following grounds:
(1) That the application for an absent voter's ballot was
not completed as required by law;
(2) that That any statement or declaration contained in the
application for an absent voter's ballot is not true;
(3) that That the person voting an absent voter's ballot is
not registered to vote in the precinct of his or her residence as
provided by law;
(4) that That the signatures of the person voting an absent
voter's ballot as they appear on his or her registration record,
his or her application for an absent voter's ballot, and the
absent voter's ballot envelope are not in the same handwriting;
(5) that That the absent voter's ballot does not have
thereon the official seal of the clerk of the circuit court
official designated to supervise and conduct absentee voting
and
all signatures of members of the board of ballot commissioners on
it;
(6) that That the person voting an absent voter's ballot by
personal appearance in the office of the clerk of the circuit
court had assistance in voting such the ballot when the person
was not qualified for such assistance because (a) (A) the
affidavit of the person who received such assistance does not
indicate a legally sufficient reason for such assistance, or (b)
(B) the person who received such assistance did not make an
affidavit as required by this article, or (c) (C) the person who received such assistance is not so illiterate as to have been
unable to read the names on the ballot or that he or she was not
so physically disabled as to have been unable to see or mark the
absent voter's ballot;
(7) that That the person voted an absent voter's ballot by
mail and received assistance in voting such the ballot when not
qualified under the provisions of this article for such
assistance;
(8) that That the person who voted the absent voter's ballot
voted in person at the polls on election day;
(9) that the person voted an absent voter's ballot under
authority of subdivision (3) of section one of this article and
is or was present in the county in which he is registered to vote
between the opening and closing of the polls on election day;
(10) that That the person who voted an absent voter's ballot
had died before election day;
(11) that the person voted an absent voter's ballot under
authority of subdivision (1) of section one of this article and
was able to vote at the polls on election day; and
(12) on (10) On any other ground or for any reason on which
or for which the ballot of a voter voting in person at the polls
on election day may be challenged.
Any registered voter in the county may challenge an absent
voter's ballot voted under authority of subdivision (3) of
section one of this article on the ground that the voter of such
ballot is or was in the county in which he is registered to vote between the opening and closing of the polls on election day and
may challenge an absent voter's ballot voted under authority of
subdivision (1) of section one of this article on the ground that
the voter of such ballot was able to vote at the polls on
election day.
(c) Forms for, and the manner of, challenging an absent
voter's ballot under the provisions of this article shall are to
be prescribed by the secretary of state.
(d) Absent voters' ballots challenged by the clerk of the
circuit court official designated to supervise and conduct
absentee voting
under the provisions of this article shall are to
be transmitted by the clerk official directly to the county
commission sitting as a board of canvassers; and the. The
absent
voters' ballots challenged by the election commissioners, and
poll clerks and registered voters of the county under the
provisions of this article shall may not be counted by the
election officials but shall are to be transmitted by them to the
county commission sitting as a board of canvassers. Action by
the board of canvassers on such challenged absent voters' ballots
shall is to be governed by the provisions of section forty-one,
article one of this chapter.
§3-3-11. Preparation, number and handling of absent voters'
ballots.
(a) Absent voters' ballots shall are to be in all respects
like other ballots. Not less than seventy days before the date
on which any primary, general or special election is to be held, unless a lesser number of days is provided for in any specific
election law in which case the lesser number of days applies, the
clerks of the circuit courts of the several counties
officials
designated to supervise and conduct absentee voting in each
county
shall estimate and determine the number of absent voters'
ballots of all kinds which will be required in their respective
counties for that election. The ballots for the election of all
officers, or the ratification, acceptance or rejection of any
measure, proposition or other public question to be voted on by
the voters, shall are to be prepared and printed under the
direction of the board of ballot commissioners constituted as
provided in article one of this chapter. The several county
boards of ballot commissioners shall prepare and have printed, in
the number they may determine, absent voters' ballots that are to
be printed under their directions as hereinbefore provided in
this chapter, and those ballots shall are to be delivered to the
clerk of the circuit court of the county
official designated to
supervise and conduct absentee voting in the county
not less than
forty-two days before the day of the election at which they are
to be used. Before any ballot is mailed or delivered, the clerk
of the circuit court
official designated to supervise and conduct
absentee voting
shall affix his or her official seal and he or
she and the other members of the board of ballot commissioners
shall place their signatures near the lower left-hand corner on
the back thereof the ballot. The clerks of the circuit courts
officials designated to supervise and conduct absentee voting
are authorized to have their signatures affixed by a facsimile
printed on the back of absentee ballots, by a facsimile signature
stamp, or by signing their original signatures. An absent
voter's ballot not containing the seal and signatures is invalid
and is subject to challenge by any election commissioner or poll
clerk.
(b) The clerk of the circuit court
official designated to
supervise and conduct absentee voting
shall be primarily
responsible for the preparation, mailing, receiving, delivering
and otherwise handling of all absent voters' ballots. He or she
shall keep a record, as may be prescribed by the secretary of
state, of all ballots so delivered for the purpose of absentee
voting, as well as all ballots, if any, marked before him or her,
and shall deliver to the commissioner of election to whom the
ballots for the precinct are delivered and at the time of the
delivery of those ballots a certificate stating the number of
ballots delivered or mailed to absent voters, and those marked
before him or her, if any, and the names of the voters to whom
those ballots have been delivered or mailed, or by whom they have
been marked, if marked before him or her.
§3-3-12. Rules, regulations, orders, instructions, forms, lists
and records pertaining to absentee voting.
(a) The secretary of state shall make, amend and rescind
such rules, regulations, orders and instructions, and prescribe
such forms, lists and records, and consolidation of such forms,
lists and records as may be necessary to carry out the policy of the Legislature as contained in this article and as may be
necessary to provide for an effective, efficient and orderly
administration of the absentee voter law of this state. In the
case of West Virginia voters residing outside the continental
United States, the secretary of state shall promulgate rules and
regulations necessary to implement procedures relating to
absentee voters contained in 42 U.S.C. § 1973, et seq.,
the
Uniformed and Overseas Citizens Absentee Voting Act of 1986 (P.L.
99-410, 42 U.S.C. 1973, et seq.) and shall forward a copy of the
act to all clerks of the circuit courts and clerks of the county
commissions
officials designated to supervise and conduct
absentee voting
before the first day of January of each even-
numbered year.
(b) The secretary of state may establish special procedures
to allow absentee voting for those categories of registered
voters who, because of special circumstances, would otherwise be
unable to vote in the election.
(c) It shall be is the duty of all clerks of the circuit
court
officials designated to supervise and conduct absentee
voting
, other county officers, and all election commissioners and
poll clerks to abide by such the rules, regulations, orders and
instructions and to use such the forms, lists and records which,
without limiting the foregoing, may include or relate to:
(a) (1) The consolidation of the two application forms
provided for herein in this article into one form;
(b) (2) The size and form of Absent Voter's Ballot Envelope Nos. 1 and 2, and carrier envelopes;
(c) (3) The information which shall is to be placed on
Absent Voter's Ballot Envelope No. 1 and the forms and
information which shall are to be placed on Absent Voter's Ballot
Envelope No. 2;
(d) (4) The forms and manner of making the challenges to
absentee ballots authorized by this article;
(e) (5) The forms of, information to be contained in, and
consolidation of lists and records pertaining to applications
for, and voting of, absentee ballots and assistance to persons
voting absentee ballots;
(f) (6) The supplying of application forms, envelopes,
challenge forms, lists, records and other forms; and
(g) (7) The keeping and security of voted absentee ballots
in the office of the clerk of the circuit court
official
designated to supervise and conduct absentee voting
.
NOTE: The purpose of this bill is to allow absentee in
person voting for any purpose; to
allow any person confined in a
hospital on election day to vote by emergency absentee ballot; to
require the clerk of the county commission to supervise and
conduct absentee voting in certain elections; to require the
clerk of the circuit court to supervise and conduct absentee
voting in certain elections; to restrict in person absentee
voting to locations which may be accessed without passing through
security devices; to require regular absentee voting in person
continue through the day before an election; to require regular
absentee voting be available during certain hours on the Saturday
before a Tuesday election; to allow absentee ballots which are
received by the clerk no later than the day after the election to
be accepted; to require that a set of emergency absentee ballot
commissioners be persons of different registered party
affiliations; to eliminate the requirement that a person who
voted by absentee ballot vote on election day at the polls if
able; and to eliminate the ability to challenge an absentee
ballot because the voter was able to vote at the polls on
election day.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.
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