Senate Bill No. 610
(By Senators Kessler and Hunter)
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[Introduced February 16, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §3-4A-1, §3-4A-8, §3-4A-23, §3-4A-26
and §3-4A-28 of the Code of West Virginia, 1931, as amended,
all relating to electronic voting systems generally; requiring
each county to develop a policy for securing electronic voting
equipment; requiring vendor of electronic voting equipment to
provide an annual report of any difficulties with electronic
voting machines; restricting certain recording and electronic
devices from the voting booth; providing for additional
testing of electronic voting machines in certain
circumstances; providing for testing a set of preaudited group
of ballots; and allowing qualified individuals to demand
recount.
Be it enacted by the Legislature of West Virginia:
That §3-4A-1, §3-4A-8, §3-4A-23, §3-4A-26 and §3-4A-28 of the
Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEM.
§3-4A-1. Use of electronic voting systems authorized.
(a) Electronic voting systems may be used for the purpose of
registering or recording and computing votes cast in general,
special and primary elections:
Provided, That the use thereof
shall be governed by the terms, conditions, restrictions and
limitations imposed by this article.
(b)
Notwithstanding any other provision of this code, no
electronic voting system which utilizes a ballot or any vote
recording device by which votes are cast by means of perforating
may be purchased for use in any election conducted subsequent to
the general election in the year two thousand. Each county which
is authorized to use electronic voting systems in any statewide
election must establish a written policy for securing the
electronic voting equipment. The policy must outline how the
equipment is secured from tampering and under what circumstances
county personnel are authorized to have access. The clerk of the
county commission shall submit a copy of the policy to the
Secretary of State by the first day of February in each
even-numbered year. The clerk shall also submit a copy of any
change to the policy within thirty days after its adoption.
§3-4A-8. Approval of electronic voting system by State Election
Commission; expenses; compensation of persons
examining system.
(a) Any person or corporation owning or being interested in
any electronic voting system may apply to the State Election
Commission
to the end so that
such the system may be examined and
a report be made on its accuracy, efficiency, capacity and safety.
Upon the written application of any vendor tendered to the
Secretary of State or to any clerks in his
or her office in charge
of receiving filings for any purpose, it shall be the nondelegable,
nondiscretionary duty of the Secretary of State to fix a date, time
and place, not more than thirty days after the receipt of
such the
application, for a meeting of the State Election Commission for
mutual consideration of
such the application.
and to The Secretary
of State shall mail notice
thereof of the hearing by certified mail
to each member of the commission.
(b) The State Election Commission shall appoint two qualified
computer experts who are not members of the same political party to
examine the system and make full reports thereon to the commission
within thirty days from the date of the application. They shall
state in the report whether
or not the system so examined complies
with the requirements of this article and can be safely used by
voters at elections under the conditions prescribed in this
article. If the report
be is in the affirmative on said question, the
commission may approve the system
may be approved by the
commission and
if approved by the commission, adopt a system of its
make and design
may be adopted for use at elections as
herein
provided
in this article: Provided, That under no circumstances
shall may a system be approved that is not capable of accurately
tabulating returns based upon all possible combinations of voting
patterns including, but not limited to, crossover voting and in
accordance with section five, article six of this chapter.
The
vendor of the approved system must provide the State Election
Commission with a report, due on the first day of January of each
even-numbered year, that outlines any problem that has been
experienced with the equipment by any jurisdiction in the state or
in any jurisdiction outside the state that uses the same or a
similar version of the equipment that has been certified for use in
this state.
(c) No electronic voting system
shall may be used at any
election unless it has
heretofore or hereafter been approved under
this section or its former provisions
and by the appropriate agency
of the federal government whose purpose is to review and issue a
certificate of approval. Each of the two qualified computer
experts appointed by the commission shall be entitled to reasonable
compensation and expenses in making such examination and report,
and such compensation shall to be paid
in advance of the
examination required by subsection (b) of this section by the person or corporation applying for
such the examination.
which sum
shall be paid in advance of making the examination and which This
sum shall be the sole compensation to be received by any such
expert for
his any work
hereunder performed pursuant to this
section.
§3-4A-23. Persons prohibited about voting booths; penalties.
Excepting
the election officials acting under authority of
sections nineteen, twenty, twenty-one and twenty-two of this
article in the conduct of the election, and qualified persons
assisting voters pursuant to section twenty-two of this article, no
person other than the voter
alone may be in, about or within five
feet of the voting booth during the time
such the voter is
in the
process of voting at any election.
and, during such time, While
the voter is voting, no person may communicate
with the voter in
any manner,
with the voter and the voter may not communicate with
any other person or persons.
No person may enter a voting booth
with any recording or electronic device in order to record or
interfere with the voting process. Any conduct or action of an
election official about or around the voting booth while the voter
is in the process of voting,
in excess of the authority vested in
such official by provisions of except as expressly provided in this
article,
shall constitute is a violation of
the provisions hereof
this section. Any person violating
any provision or the provisions
of this section
shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not
exceeding more than one
thousand dollars or be sentenced to imprisonment in the county jail
for a period not
exceeding more than twelve months, or, in the
discretion of the court, shall be subject to both such fine and
imprisonment.
§3-4A-26. Test of automatic tabulating equipment.
(a) One week prior to the start of the count of the votes
recorded on ballots
or ballot cards or screens, the clerk of the
county commission shall have the automatic tabulating equipment
tested to ascertain that it will accurately count the votes cast
for all offices and on all measures.
This test shall consist of
a test of the entire voting system, including removal of data from
a vote recording device and its transferral to automatic tabulating
equipment. Public notice of the time and place of the test
is to
shall be given not less than forty-eight hours nor more than two
weeks prior to the test by publication of a notice as a class I-0
legal advertisement in the county involved, in compliance with the
provisions of article three, chapter fifty-nine of this code.
(b) (1) Vote recording devices used and tested for early
voting may also be used on election day upon compliance with all of
the following requirements:
(A)
That Following the close of early voting, the personal
electronic ballot
(PEB) and the programable memory chip
is shall be
removed and replaced with
a another personal electronic ballot
(PEB) and
a programable memory chip prepared for, but unused
during, the current election period;
(B)
That The printed paper trail used during the early voting
period
is shall be removed and replaced with a new paper trail; and
(C)
That The vote recording device
is shall be retested prior
to
the device being used on election day.
(2) Any personal electronic ballot
(PEB), programable memory
chip and printed paper trail removed from a vote recording device
used for early voting shall be securely stored by the county clerk
until such time as it is used to tally the votes on election day in
accordance with section twenty-seven of this article.
(c) (1) A test performed pursuant to this section shall be
open to representatives of the political parties, candidates, the
press and the public. It is to be conducted
five times by
processing
two separate sets of a
set of preaudited
group of
ballots
or ballot cards as appropriate, punched or marked
as to
record a predetermined number of valid votes for each candidate or
each measure.
It includes For each multicandidate office,
the test
shall include one or more
ballot cards ballots which have
cross-over votes in order to test the ability of the automatic
tabulating equipment to record those votes in accordance with the
provisions of this article and
any other applicable law.
and it
includes For each office,
the test shall include one or more
ballot
cards ballots which have votes in excess of the number allowed by law in order to test the ability of the automatic tabulating
equipment to reject votes. If, in the process of any of the test
counts, any error is detected, the cause of the error is to be
ascertained and corrective action promptly taken. After the
completion of the corrective action, the test counts are to
continue, including a retesting of those precincts previously test
counted. Prior to the continuation of the testing, the county
commission shall certify in writing, signed by
them each
commissioner, the nature of the error,
the its cause
thereof and
the type of corrective action taken. The certification
is to shall
be recorded in the office of the clerk of the county commission in
the
miscellaneous record book. Immediately after conclusion of
this completed test,
a certified duplicate copy of the program deck
test results is to shall be sent by certified mail to the offices
of the State Election Commission, where it is to be preserved and
secured for one year and made available for comparison or analysis
by order of a circuit court or the Supreme Court of Appeals.
(2) The
program deck tabulating equipment to be used in the
election
is to immediately shall be
immediately certified by the
county commission to be free from error as determined by the test.
All testing material is to shall be placed with the certification
in a sealed container and kept under individual multiple locks with
individual keys for each lock. The number of locks and keys
are
shall be the same as the number of county commissioners together with the county clerk, with each commissioner and the county clerk
having a single key in his or her possession. The sealed container
is to be opened to conduct the test required
to be conducted
immediately before the start of the official count.
(3) The test
is to shall be repeated immediately before the
start of the official count
The test is to also be conducted and at
the conclusion of the official count before the count is approved
as errorless and before the election returns are approved as
official.
(4) All results of all of the tests are to be immediately
certified by the county commission,
and filed in the office of the
clerk of the county commission and immediately recorded in the
miscellaneous record book. On completion of the count, the
program
deck, test materials and
ballot cards test ballots are to be
sealed, except for purposes of the canvass as provided in section
twenty-eight of this article, and retained and kept under
individual multiple locks and individual keys for each lock.
(5)
The
numbers number of locks and keys
are shall be the same as
the number of county commissioners together with the county clerk,
with each commissioner and the county clerk having a single key in
his or her possession.
§3-4A-28. Post-election custody and inspection of vote recording
devices; canvass and recounts.
(a) The vote recording devices,
the ballot labels, ballot
cards, program, decks tabulating programs and standard validation
test
decks ballots are to remain sealed during the canvass of the
returns of the election, except that the equipment may be opened
for the canvass and must be resealed immediately thereafter.
During
a the seven-day period after the completion of the canvass,
any candidate or the local chair of a political party may be
permitted to examine any of the materials sealed:
Provided, That
a notice of the time and place of the examination is to be posted
at the central counting center before and on the hour of nine
o'clock in the morning on the day the examination is to occur, and
all persons entitled to be present at the central counting center
may, at their option, be present. Upon completion of the canvass
and after
a the seven-day period has expired, the vote recording
devices,
the ballot labels, ballot cards, program decks test
results, and standard validation test
decks ballots are to be
sealed for one year:
Provided, however, That the vote recording
devices and all tabulating equipment may be released for use in any
other lawful election to be held more than ten days after the
canvass is completed, and any of the electronic voting equipment
herein discussed
in this section may be released for inspection or
review by a request of a circuit court or the Supreme Court of
Appeals.
(b) In canvassing the returns of the election, the board of
canvassers shall examine,
as required by subsection (d) of this
article, all of the vote recording devices,
the ballot labels,
ballot cards, the automatic tabulating equipment used in the
election and those voter-verified paper ballots generated by direct
recording electronic vote machines,
as required by subsection (d)
of this section, and shall determine the number of votes cast for
each candidate and for and against each question and, by this
examination, shall procure the correct returns and ascertain the
true results of the election. Any candidate or his or her party
representative may be present at the examination.
(c) If any
candidate qualified individual demands a recount of
the votes cast at an election, the voter-verified paper ballot
shall be used
for requested recounts, according to the same rules
as that are utilized in the original vote count pursuant to section
twenty-seven of this article.
For purposes of this subsection,
"qualified individual" means a person who is a candidate for office
on the ballot or a voter affected by an issue, other than an
individual's candidacy, on the ballot.
(d) During the canvass and any requested recount, at least
five percent of the precincts are to be chosen at random and the
voter-verified paper ballots are to be counted manually. Whenever
the vote total obtained from the manual count of the voter-verified
paper ballots for all votes cast in a randomly selected precinct:(1) Differs by more than one percent from the automated vote
tabulation equipment; or
(2) Results in a different prevailing candidate or outcome,
either passage or defeat, of one or more ballot issues
in such
randomly selected precincts for any contest or ballot issue, then
the discrepancies shall immediately be disclosed to the public and
all of the voter-verified paper ballots shall be manually counted.
In every case
that where there is a difference between the vote
totals obtained from the automated vote tabulation equipment and
the corresponding vote totals obtained from the manual count of the
voter-verified paper ballots, the manual count of the
voter-verified paper ballots shall be the vote of record.
NOTE: The purpose of this bill is to require each county to
develop a policy for securing electronic voting equipment, to
require the state's voting machine vendor to provide an annual
report of any difficulties with machines in or out of state; to
prohibit certain recording devices from the voting booth; to
require additional testing of voting machines in certain
circumstances; to require testing of a preaudited group of ballots;
to allow any qualified individual to demand a recount; and to make
certain technical changes.
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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