WEST VIRGINIA CODE











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WVC 3 - 4 A- 26

§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 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. The

county commission shall give public notice of the time and place of

the test 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) Following the close of early voting, the personal

electronic ballot and the programable memory chip shall be removed

and replaced with another personal electronic ballot and

programable memory chip prepared for, but unused during, the

current election period;

(B) The printed paper trail used during the early voting

period shall be removed and replaced with a new paper trail; and

(C) The vote-recording device shall be retested prior to being

used on election day.

(2) Any personal electronic ballot 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 by processing a set of

preaudited ballots marked to record a predetermined number of valid

votes for each candidate or each measure. For each multicandidate

office, the test shall include one or more 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. For each

office, the test shall include one or more 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 each

commissioner, the nature of the error, its cause and the type of

corrective action taken. The certification shall be recorded in the office of the clerk of the county commission in the record

book. Immediately after conclusion of this completed test, a

certified duplicate copy of the test results 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 tabulating equipment to be used in the election shall

be immediately certified by the county commission to be free from

error as determined by the test. All testing material 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 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 shall be opened to conduct the

test required immediately before the start of the official count.

(3) The test shall be repeated immediately before the start of

the official count 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, filed in the office of the

clerk of the county commission and immediately recorded in the

record book. On completion of the count, the test materials and 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. The number of locks and keys 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.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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