ENGROSSED
Senate Bill No. 648
(By Senators Oliverio, Kessler, Browning, Jenkins, Minard,
Snyder, Stollings, Williams, Yost, Barnes, Caruth, Deem and Hall
)
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[Originating in the Committee on the Judiciary;
reported March 19, 2009.]
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A BILL to amend and reenact §3-4A-28 of the Code of West Virginia,
1931, as amended, relating to
requiring manual count of
selected precinct during the canvas in counties using
electronic voting systems; requiring county commission to
select a precinct to be manually counted; and providing for
full manual count under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That §3-4A-28 of the Code of West Virginia, 1931, as amended,
be amended and reenacted, to read as follows:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-28. Post-election custody and inspection of vote-recording
devices and electronic poll books; canvass and
recounts.
(a) The vote-recording devices, electronic poll books,
tabulating programs and standard validation test 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 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 sealed
materials.
Provided, That A notice of the time and place of the
examination shall 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 the seven-day period has
expired, the vote-recording devices, test results and standard
validation test ballots are to be sealed for one year.
Provided,
however, That However, the vote-recording devices, electronic poll
books 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 or
electronic poll books 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
section, all of the vote-recording devices, electronic poll books,
the automatic tabulating equipment used in the election and those voter-verified paper ballots generated by direct recording
electronic vote machines 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 qualified individual demands a recount of the votes
cast at an election, the voter-verified paper ballot shall be used
according to the same rules that are used 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 the
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 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 is the vote of record.
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 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 is the vote of record.
(e)
In each county there shall be a manual count of the voter-
verified paper ballots cast in one precinct randomly selected from
all precincts by a lottery process conducted by each county
commission.
Whenever the vote total obtained from the manual count
of the voter-verified
paper ballots for all votes cast in the
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 the
selected precinct for any contest or ballot issue.
Then, the discrepancies shall immediately be disclosed to the
public and the voter-verified
paper ballots in
five percent
of the
precincts shall be manually counted and the requirements in
subsection (d) of this section shall be followed. In every case
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 is
the vote of record.