Chapter 3. Elections


Published: 2015

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WEST VIRGINIA CODE











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WVC 3-

CHAPTER 3. ELECTIONS.

WVC -3-

ARTICLE 3. VOTING BY ABSENTEES.







WVC 3 - 3 - 1

§3-3-1. Persons eligible to vote absentee ballots.

     (a) All registered and other qualified voters of the county

may vote an absentee ballot during the period of early voting in

person.

     (b) 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 disability or immobility due to extreme advanced

age; or

     (C) Incarceration or home detention: Provided, That the

underlying conviction is not for a crime which is a felony or a

violation of section 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 at a college, university or other place of

education or training; or

     (C) 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, including members of the uniformed services on active duty,

members of the merchant marine, spouses and dependents of those

members on active duty and persons who reside outside the United

States and are qualified to vote in the last place in which the

person was domiciled before leaving the United States;

     (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 in any other documented employment assignment of

specific duration of four years or less;

     (5) Any voter for whom the designated area for absentee voting

within the county courthouse or annex of the courthouse and the

voter's assigned polling place are inaccessible because of his or

her physical disability; and

     (6) Any voter who is participating in the Address

Confidentiality Program as established by section one hundred

three, article twenty-eight-a, chapter forty-eight of this code.

     (c) 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 confined or expects to be confined in a

hospital or other duly licensed health care facility within the

county of residence or other authorized area, as provided in this article, on the day of the election;

     (2) 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 the services if the

voter has resided in the nursing home for a period of less than

thirty days; and

     (3) 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.







WVC 3 - 3 - 2

§3-3-2. Authority to conduct absentee voting; absentee voting

application; form.

     (a) Absentee voting 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) 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; 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 "clerk of the county commission" or "official designated to

supervise and conduct absentee voting" used elsewhere in this

article means municipal recorder or other officer in the case of

municipal elections.

     (b) A person authorized and desiring to vote a mail-in

absentee ballot in any primary, general or special election is to

make application in writing in the proper form to the proper

official as follows:

     (1) The completed application is to be on a form prescribed by

the Secretary of State and 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, the completed

application may be on the federal postcard application for absentee

ballot form issued under authority of that act, submitted by mail

or electronically;

     (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; or

     (4) A person authorized to vote an absentee ballot who is

participating in the Address Confidentiality Program as established

by section one hundred three, article twenty-eight-a, chapter

forty-eight of this code, may apply to the program manager within

the office of the Secretary of State to vote a mail-in absentee ballot. The program manager will notify the designated county

contact to coordinate the application and the provision of an

absentee ballot to the program participant.







WVC 3 - 3 - 2 A

§3-3-2a. Early voting areas; prohibition against display of

campaign material.

     (a) The county commission shall designate the courthouse or

annex to the courthouse as the primary location for early voting

and in addition, the commission may designate other locations as

provided in subsection (b).

     (b) The county commission may, with the approval of the county

clerk or other official charged with the administration of

elections, designate community voting locations for early voting,

other than the county courthouse or courthouse annex by a majority

of the members of the county commission voting to adopt the same at

a public meeting called for that purpose.

     (1) The county commission shall publish a notice of its intent

to designate community voting location at least thirty days prior

to the designation. Notice shall be by publication as a Class II-0

legal advertisement in compliance with provisions of article three,

chapter fifty-nine of this code. The publication area is the

county in which the community voting locations are designated;

     (2) Community voting locations shall comply with requirements

of this article for early in-person voting, criteria prescribed by

the Secretary of State and the following criteria:

     (A) can be scheduled for use during the early voting period;

     (B) has the physical facilities necessary to accommodate early

voting requirements;

     (C) has adequate space for voting equipment, poll workers, and voters; and

     (D) has adequate security, public accessibility, and parking.

     (3) The county executive committees of the two major political

parties may nominate sites to be used as community voting locations

during the early voting period;

     (4) Upon the designation of a community voting location, the

county clerk shall, not less than thirty days prior to an election,

give notice of the dates, times, and place of community voting

locations by publication as a Class II-0 legal advertisement in

compliance with provisions of article three, chapter fifty-nine of

this code;

     (5) Voting shall be conducted at each designated community

voting site for a period of not less than five consecutive days

during early in-person voting authorized by section three of this

article, but need not be conducted at each location for the entire

period of early in-person voting;

     (6) The county commission, with the approval of the county

clerk, may authorize community voting locations on a rotating

basis, wherein a community voting location may be utilized for less

than the full period of early in-person voting; and

     (7) If more than one community voting location is designated,

each location shall be utilized for an equal number of voting days

and permit voting for the same number of hours per day.

     (c) The Secretary of State shall propose legislative and

emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as may be necessary to implement

the provisions of this section. The rules shall include

establishment of criteria to assure neutrality and security in the

selection of community voting locations.

     (d) Throughout the period of early in-person voting, the

official designated to supervise and conduct absentee voting shall

make the following provisions for voting:

     (1) The 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 are to be in an

area separate from but within clear view of the public entrance

area of the official's office or other area designated by the

county commission for absentee voting and are to be arranged to

ensure the voter complete privacy in casting the ballot.

     (2) The 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 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, may enter

the area or room set aside for voting.

     (3) The official designated to supervise and conduct absentee voting shall request the county commission designate another area

within the county courthouse, any annex of the courthouse or any

other designated as early in-person voting locations within the

county, as a portion of the official's office, for the purpose of

absentee in-person voting in the following circumstances:

     (A) If the voting area is not accessible to voters with

physical disabilities;

     (B) If the voting area is not within clear view of the public

entrance of the office of the official designated to supervise and

conduct absentee voting; or

     (C) If there is no suitable area for absentee in-person voting

within the office.

      Any designated area is subject to the same requirements as

the regular absentee voting area.

     (4) The official designated to supervise and conduct absentee

voting shall have at least two representatives to assist with

absentee voting: Provided, That the two representatives may not be

registered with the same political party affiliation or two persons

registered with no political party affiliation. The

representatives may be full-time employees, temporary employees

hired for the period of absentee voting in person or volunteers.

     (5) 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, any

annex facilities, or any other designated early voting locations

within the county, during the entire period of regular in-person

absentee voting. The official designated to supervise and conduct

absentee voting is authorized to remove the material and to direct

the sheriff of the county to enforce the prohibition.







WVC 3 - 3 - 2 B

§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 official designated to supervise and conduct absentee voting

for placement on the special absentee voting list.

     (b) Any person who is registered and otherwise qualified to

vote and who is participating in the Address Confidentiality

Program as established by section one hundred three, article

twenty-eight-a, chapter forty-eight of this code, may apply to the

program manager within the office of the Secretary of State for

placement on the special absentee voting list. The program manager

will notify the designated county contact to coordinate the

provision of an absentee ballot to the program participant.

     (c) The application is to be on a form prescribed by the

Secretary of State which is to include:

     (1) The voter's name and signature,

     (2) Residence address unless the applicant is a participant in

the Address Confidentiality Program as established by section one

hundred three, article twenty-eight-a, chapter forty-eight of this

code; and

     (3) (A) 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;

or

     (B) A statement that the voter is a program participant in the Address Confidentiality Program.

     (d) Upon receipt of a properly completed application, the

official designated to supervise and conduct absentee voting shall

enter the name on the special absentee voting list, which is to be

maintained in a secure and permanent record. The person's name will

remain active on the list until: (1) The person requests in writing

that his or her name be removed; (2) 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 ballot mailed

to the address provided on the application is returned

undeliverable by the United States postal service; (4) the death of

the person; or (5) in the case of a Address Confidentiality Program

participant, withdrawal or removal from that program.

     (e) The official designated to supervise and conduct absentee

voting shall mail an absentee ballot by mail to each person active

on the special absentee voting list due to disability not later

than forty-six days before each election. The Address

Confidentiality Program manager shall, in coordination with the

designated county contact, mail to each person on the special

absentee voting list due to participation in the Address

Confidentiality Program an absentee ballot by mail not later than

forty-six days before each election.







WVC 3 - 3 - 3

§3-3-3. Early voting in person.

     (a) The voting period for early in-person voting is to be

conducted during regular business hours beginning on the thirteenth

day before the election and continuing through the third day before

the election. Additionally, early in-person voting is to be

available from 9:00 a.m. to 5:00 p.m. on Saturdays during the

early voting period.

     (b) Any person desiring to vote during the period of early in-

person voting shall, upon entering the election room, clearly state

his or her name and residence to the official or representative

designated to supervise and conduct absentee voting. If that

person is found to be duly registered as a voter in the precinct of

his or her residence, he or she is required to sign his or her name

in the space marked "signature of voter" on the pollbook. If the

voter is unable to sign his or her name due to 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. No ballot may be given to the person until he or she

signs his or her name on the pollbook.

     (c) When the voter's signature or mark is properly on the

pollbook, two qualified representatives of the official designated

to supervise and conduct absentee voting shall sign their names in

the places indicated on the back of the official ballot.

     (d) If the official designated to supervise and conduct

absentee voting determines that the voter is not properly registered in the precinct where he or she resides, the clerk or

his or her representative shall challenge the voter's absentee

ballot as provided in this article.

     (e) The official designated to supervise and conduct absentee

voting shall provide each person voting an absentee ballot in

person the following items to be printed as prescribed by the

Secretary of State:

     (1) In counties using paper ballots, one of each type of

official absentee ballot the voter is eligible to vote, prepared

according to law;

     (2) In counties using punch card systems, one of each type of

official absentee ballot the voter is eligible to vote, prepared

according to law, and a gray secrecy envelope;

     (3) In counties using optical scan systems, one of each type

of official absentee ballot the voter is eligible to vote, prepared

according to law, and a secrecy sleeve; or

     (4) For direct recording election systems, access to the

voting equipment in the voting booth.

     (f) 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 absentee voter

shall: Place the ballot or ballots in the gray secrecy envelope and

return the ballot or ballots to the official designated to

supervise and conduct the absentee voting: Provided, however, That in direct recording election systems, once the voter has cast his

or her ballot, the voter shall exit the polling place.

     (g) Upon receipt of the voted ballot, representatives of the

official designated to supervise and conduct the absentee voting

shall:

     (1) Remove the ballot stub;

     (2) Place punch card ballots and paper ballots into one

envelope which shall not have any marks except the precinct number

and seal the envelope; and

     (3) Place ballots for all voting systems into a ballot box

that is secured by two locks with a key to one lock kept by the

president of the county commission and a key to the other lock kept

by the county clerk.







WVC 3-3-3a

§3-3-3a. Voting absent voter's ballot by personal appearance in

Saturday elections for religious reasons.

(a) In addition to the persons declared eligible to vote

absent voters' ballots pursuant to the provisions of section one of

this article, duly registered and otherwise qualified voters who

are members of a religious denomination with an established history

of observing Saturday as the sabbath may vote absentee by personal

appearance in any election to be held on a Saturday.

(b) Application for an absent voter's ballot authorized by the

provisions of this section shall be made on a form prescribed by

the secretary of state. The procedures for voting by personal

appearance set forth in section three of this article, to the

extent not in conflict with the provisions of this section, shall

otherwise govern the procedures herein.







WVC 3 - 3 - 4

§3-3-4. Assistance to voter in voting an absent voter's ballot by

personal appearance; penalties.

(a) Any 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 the assistance may not be given by the

voter's present or former employer or agent of that employer, by

the officer or agent of a labor union of which the voter is a past

or present member or by a candidate on the ballot.

(b) Any voter who requests assistance in voting an absent

voter's ballot but who is determined by the official designated to

supervise and conduct absentee voting not to be qualified for

assistance under the provisions of this section and section

thirty-four, article one of this chapter may vote a challenged

absent voter's ballot with the assistance of any person authorized

to render assistance pursuant to this section. The official

designated to supervise and conduct absentee voting shall in this

case challenge the absent voter's ballot on the basis of 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 the ballot on the ground that the voter 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 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 a challenge shall enter the

challenge and reason 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 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 the matter in a judicial proceeding.

(e) In accordance with instructions issued by the secretary of

state, the official designated to supervise and conduct absentee voting shall provide a form entitled "List of Assisted Voters",

prescribed by the secretary of state, which list is to be divided

into two parts. Part A is to be entitled "Unchallenged Assisted

Voters" and Part B is to be entitled "Challenged Assisted Voters".

Under Part A, the 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 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 the assistance under the provisions of this section. Under

Part B, the 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 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 official designated to supervise and

conduct absentee voting shall make and subscribe to an oath on the

list that the list is correct in all particulars; if no voter has

been assisted in voting an absent voter's ballot as provided in

this section, the official designated to supervise and conduct

absentee voting shall make and subscribe to an oath of that fact on

the list. The "List of Assisted Voters" is to be available for

public inspection in the office of the 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 official shall transmit 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", 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 the oaths

and list available for public inspection and who shall preserve 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 knowingly swears falsely in the

affidavit or any person who counsels or advises, aids or abets

another in the commission of false swearing under this section is

guilty of a misdemeanor and, upon conviction thereof, shall be

fined not more than one thousand dollars or confined in the county

or regional jail for a period of not more than one year, or both.

(h) Any person who provides a voter assistance in voting an

absent voter's ballot in the office of the official designated to

supervise and conduct absentee voting who is not qualified or

permitted by this section to provide assistance 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.

(i) Any 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 the voter is

known to the 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 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.

(j) The term "physical disability" as used in this section

means blindness or a degree of blindness as will prevent the voter

from seeing the names on the ballot or amputation of both hands or

a disability of both hands that neither can be used to make cross

marks on the absent voter's ballot.







WVC 3 - 3 - 5

§3-3-5. Voting an absentee ballot by mail or electronically;

penalties.

(a) Upon oral or written request, the official designated to

supervise and conduct absentee voting shall provide to any voter of

the county, in person, by mail, or electronically 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 are to be accepted when received by the official designated to

supervise and conduct absentee voting in person, by mail, or

electronically within the following times:

(1) For persons eligible to vote an absentee ballot under the

provisions of subdivision (3), subsection (b), section one of this

article, relating to absent uniformed services and overseas voters,

not earlier than January 1 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 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 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 paragraph (A) or (B), subdivision (2),

subsection (b), section one of this article; or subdivision (3) or

(4) of said subsection;

(5) The applicant is not making his or her first vote after

having registered by postcard registration or, if the applicant is

making his or her first vote 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 official designated to supervise and conduct

absentee voting determines that the required conditions have been met, two representatives that are registered to vote with different

political party affiliations shall sign their names in the places

indicated on the back of the official ballot. If the 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

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.

(e) (1) Within one day after the official designated to

supervise and conduct absentee voting has both the completed

application and the ballot, the official shall mail to the voter at

the address given on the application the following items as

required and as prescribed by the Secretary of State:

(A) One of each type of official absentee ballot the voter is

eligible to vote, prepared according to law;

(B) One envelope, unsealed, which may have no marks except the

designation "Absent Voter's Ballot Envelope No. 1" and printed

instructions to the voter;

(C) One postage paid envelope, unsealed, designated "Absent

Voter's Ballot Envelope No. 2";

(D) Instructions for voting absentee by mail;

(E) For electronic systems, a device for marking by

electronically sensible pen or ink, as may be appropriate;

(F) Notice that a list of write-in candidates is available upon request; and

(G) Any other supplies required for voting in the particular

voting system.

(2) If the voter is an absent uniformed services voter or

overseas voter, as defined by 42 U.S.C. §1973, et seq., the

official designated to supervise and conduct absentee voting shall

transmit the ballot to the voter via mail, or electronically as

requested by the voter. If the voter does not designate a

preference for transmittal, the clerk may select either method of

transmittal for the ballot. If the ballot is transmitted

electronically pursuant to this subdivision, the official

designated to supervise and conduct absentee voting shall also

transmit electronically:

(A) A waiver of privacy form, to be promulgated by the

Secretary of State;

(B) Instructions for voting absentee utilizing a federally

approved system for voting by mail or electronically;

(C) Notice that a list of write-in candidates is available

upon request; and

(D) Statement of the voter affirming the voter's current name

and address and whether or not he or she received assistance in

voting.

(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.

(1) After the voter has voted the ballot or ballots to be

returned by mail, the voter shall:

(A) Place the ballot or ballots in envelope no. 1 and seal

that envelope;

(B) Place the sealed envelope no. 1 in envelope no. 2 and seal

that envelope;

(C) Complete and sign the forms on envelope no. 2; and

(D) Return that envelope to the official designated to

supervise and conduct absentee voting.

(2) If the ballot was transmitted electronically as provided

in subdivision (2), subsection (e) of this section, the voter shall

return the ballot in the same manner the ballot was received, or

the voter may return the ballot by United States mail, along with

a signed privacy waiver form.

(g) Except as provided in subsection (h) of this section,

absentee ballots returned by United States mail or other express

shipping service are to be accepted if:

(1) The ballot is received by the official designated to

supervise and conduct absentee voting no later than the day after

the election; 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 official designated to supervise and conduct absentee voting

no later than the hour at which the board of canvassers convenes to

begin the canvass.

(h) Absentee ballots received through the United States mail

from persons eligible to vote an absentee ballot under the

provisions of subdivision (3), subsection (b), section one of this

article, relating to uniform services and overseas voters, are to

be accepted if the ballot is received by the official designated to

supervise and conduct absentee voting no later than the hour at

which the board of canvassers convenes to begin the canvass.

(i) Voted ballots submitted electronically pursuant to

subdivision (2), subsection (f) of this section are to be accepted

if the ballot is received by the official designated to supervise

and conduct absentee voting no later than the close of polls on

election day: Provided, That the Secretary of State's office shall

enter into an agreement with the Federal Voting Assistance Program

of the United States Department of Defense to transmit the ballots

to the county clerks at a time when two individuals of opposite

political parties are available to process the received ballots.

(j) Ballots received after the proper time which cannot be

accepted 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 are to be destroyed without being

opened.

(k) Absentee ballots which are hand delivered are to be

accepted if they are received by the official designated to

supervise and conduct absentee voting 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 is required to certify that he or she

has not examined or altered the ballot. Any person who makes a

false certification violates the provisions of article nine of this

chapter and is subject to those provisions.

(l) Upon receipt of the sealed envelope, the official

designated to supervise and conduct absentee voting shall:

(1) Enter onto the envelope any other required information;

(2) Enter the challenge, if any, to the ballot;

(3) Enter the required information into the permanent record

of persons applying for and voting an absentee ballot in person;

and

(4) Place the sealed envelope into a ballot box that is

secured by two locks with a key to one lock kept by the president

of the county commission and a key to the other lock kept by the

county clerk.

(m) Upon receipt of a ballot submitted electronically pursuant

to subdivision (2), subsection (f) of this section, the official

designated to supervise and conduct absentee voting shall place the

ballot in an envelope marked "Absentee by Electronic Means" with

the completed waiver: Provided, That no ballots are to be

processed without the presence of two individuals of opposite

political parties.

(n) All ballots received electronically prior to the close of

the polls on election day are to be tabulated in the manner prescribed for tabulating absentee ballots submitted by mail to the

extent that those procedures are appropriate for the applicable

voting system. The clerk of the county commission shall keep a

record of absentee ballots sent and received electronically.



WVC 3 - 3 - 5 A

§3-3-5a. Processing federal postcard applications.

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 official designated

to supervise and conduct absentee voting, the official shall

examine the application and take the following steps:

(1) The 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 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 official designated to supervise and conduct absentee

voting 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 not registered, or not registered

at the address given, the 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 the application is received

after the close of voter registration for the next succeeding

election, the official shall challenge the absentee ballot for that

election.

(3) Except as provided in 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 is to be processed as all other applications and the ballot

or ballots for each election for which ballots are requested by the

applicant is to be mailed to the voter on the first day on which

both the application and the ballot are available.







WVC 3 - 3 - 5 B

§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 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 the application within the time required,

the official designated to supervise and conduct absentee voting shall issue the special write-in absentee ballot which 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. The ballot 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

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 did not apply for a regular

absentee ballot; (3) who did not apply for a regular absentee

ballot by mail; or (4) whose application for a regular absentee

ballot by mail was received less than thirty days before the

election, the write-in ballot may not be counted.

(f) Any write-in absentee ballot must be received by the

official designated to supervise and conduct absentee voting prior

to the close of the polls on election day or it may not be counted.







WVC 3 - 3 - 5 C

§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 (c), 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 is to be adopted by

the county commission at least ninety days prior to the election

that will be affected and a copy of the policy 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 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 determines necessary to perform the

duties and functions pursuant to this section.

(c) A set of emergency absentee ballot commissioners at-large

shall consist of two persons with different political 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 have the same

qualifications and rights and take the same oath required under the

provisions of this chapter for commissioners of elections.

Emergency absentee ballot commissioners are to be compensated for

services and expenses in the same manner as commissioners of

election or poll clerks 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 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 is

to be prescribed by the secretary of state and 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 or physical disability, he or she is to make

his or her mark on the signature line provided for an illiterate or

disabled applicant, the mark is to be witnessed. The person

assisting the voter and witnessing the mark of the voter shall sign

his or her name in the space provided.

(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.

(g) At least one of the emergency absentee ballot

commissioners receiving the balloting materials shall sign a

receipt which 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 ballot and return the application and the ballot to

the official designated to supervise and conduct absentee voting.

Upon delivering the application and the voted ballot to the

official, the emergency absentee ballot commissioners shall sign an

oath that no person other than the absent voter voted the ballot.

The application and the voted ballot are to be returned to the

official designated to supervise and conduct absentee voting prior

to the close of the polls on election day. Any ballots received by

the official after the time that delivery may reasonably be made but before the closing of the polls 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.

(h) Upon receiving the application and emergency absentee

ballot, the official designated to supervise and conduct absentee

voting 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 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, the ballot is to be challenged for the

appropriate reason provided for in section ten of this article.

(i) If either or both of the emergency absentee ballot

commissioners refuse to sign any application for voting an

emergency absentee ballot, the voter may vote as an emergency

absentee and the ballot will be challenged in accordance with the

provisions of section ten of this article, in addition to those

absentee ballots subject to challenge as provided in that section.

(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 are to govern the treatment of emergency absentee ballots.







WVC 3-3-6

§3-3-6. Assistance to voter in voting an absent voter's ballot by

mail.

No voter shall receive any assistance in voting an absent

voter's ballot by mail unless he or she shall make a declaration at

the time he or she makes application for an absent voter's ballot

that because of blindness, disability, advanced age or inability to

read or write he or she requires assistance in voting an absent

voter's ballot.

Upon receipt of an absent voter's ballot by mail, the voter

who requires assistance in voting such ballot and who has indicated

he or she requires such assistance and the reasons therefor on the

application may select any eligible person to assist him or her in

voting.

The person providing assistance in voting an absent voter's

ballot by mail shall make an affidavit on a form as may be

prescribed by the secretary of state, that he 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 will not keep or make any

memorandum or entry of anything occurring within the voting booth

or compartment, and that he will not, directly or indirectly,

reveal to any person the name of any candidate voted for by the

voter, or which ticket he had voted, or how he 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 matter in a judicial

proceeding.

The term "assistance in voting" as used in this section shall

mean assistance in physically marking the official absent voter's

ballot for a voter, or reading or directing the voter's attention

to any part of the official absent voter's ballot.







WVC 3 - 3 - 7

§3-3-7. Delivery of absentee ballots to polling places.

(a) Except as otherwise provided in this article, in counties

using paper ballots systems or voting machines, the absentee

ballots of each precinct, together with the applications for the

absentee ballots, the affidavits made in connection with assistance

in voting and any forms, lists and records as may be designated by

the secretary of state, 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 are to be delivered to the election commissioner of

the precinct who has been designated pursuant to section

twenty-four, article one of this chapter, by the official

designated to supervise and conduct absentee voting in person or by

messenger before the closing of the polls, provided the ballots are

received by the official in time to make the delivery. Any ballots

received by the official after the time that delivery may

reasonably be made but within the time required as provided in

subsection (g), section five of this article are to be delivered to

the board of canvassers along with the provisional ballots.







WVC 3 - 3 - 8

§3-3-8. Disposition and counting of absent voters' ballots.

(a) In counties using paper ballots, all absentee ballots

shall be processed as follows:

(1) The ballot boxes containing the absentee ballots shall be

opened in the presence of the clerk of the county commission and

two representatives of opposite political parties;

(2) The ballots shall be separated by precincts as stated on

the sealed envelopes containing the ballots; and

(3) Absentee ballots shall be delivered to the polls to be

opened and counted in accordance with section thirty-three, article

one of this chapter, section fifteen, article five of this chapter;

and section six, article six of this chapter. Disclosure of any

results before the voting has been closed and the precinct returns

posted on the door of the polling place shall be a per se violation

of the oath taken by the counting board. In all other counties,

counting is to begin immediately after closing of the polls.

(b) In counties using optical scan systems, the absentee

ballots shall be processed as follows:

(1) On election day, the ballot boxes containing the absentee

ballots shall be delivered to the central counting center and

opened in the presence of the clerk of the county commission and

two representatives of opposite political parties; and

(2) The absentee ballots shall be counted in accordance with

section twenty-seven, article four-a of this chapter.

(c) In counties using direct recording elections systems, the absentee ballots shall be counted as follows:

(1) On election day, the ballot boxes containing the paper

absentee ballots shall be delivered to the central counting center

and opened in the presence of the clerk of the county commission

and two representatives of opposite political parties; and

(2) Each absentee ballot shall be recorded on a direct

recording voting terminal designated by the clerk of the county

commission as the terminal for absentee tabulations, after being

read aloud by a separate team of two representatives of opposite

political parties; and

(3) The ballot shall be verified by both teams as being

accurately printed on the paper receipt before the ballot is

tabulated; and

(4) The appropriate election officials shall follow the

procedures set out in subsections (a), (b), (d) and (e), section

twenty-seven, article four-a of this chapter and subdivisions (3),

(4), (5) and (6), subsection (c) of said section.

(d) The provisional ballots shall be deposited in a

provisional ballot envelope and delivered to the board of

canvassers.

(e) Any election official who determines a person has voted an

absent voter's ballot and has also voted at the polls on election

day must report the fact to the prosecuting attorney of the county

in which the votes were cast.







WVC 3 - 3 - 9

§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

official designated to supervise and conduct absentee voting may

vote in person at the polls on election day provided he or she

returns the absent voter's ballot to the election commissioners at

the polling place. Upon return of the absent voter's ballot the

election commissioners shall destroy the ballot in the presence of

the voter, and one of the poll clerks shall make a notation of this

fact as directed by instructions issued by the secretary of state.

In the event the person does not return the absent voter's ballot,

he or she will have his or her vote challenged by one or more of

the election commissioners or poll clerks.

(b) No person who has voted an absent voter's ballot may vote

in person on the day of the election.







WVC 3 - 3 - 10

§3-3-10. Challenging of absent voters' ballots.

(a) The 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 any statement or declaration contained in the

application for an absent voter's ballot is not true;

(3) 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 the person voting an absent voter's ballot by

personal appearance in his or her office had assistance in voting

the ballot when the person was not qualified for voting assistance

because: (A) The affidavit of the person who received assistance

does not indicate a legally sufficient reason for assistance; or

(B) the person who received assistance did not make an affidavit as

required by this article; or (C) the person who received assistance

is not so illiterate as to have been unable to read the names on

the ballot or that he or she is not so physically disabled as to

have been unable to see or mark the absent voter's ballot;

(5) That the person who voted an absent voter's ballot by mail

and received assistance in voting the ballot was not qualified

under the provisions of this article for assistance; and

(6) That the person 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 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 any statement or declaration contained in the

application for an absent voter's ballot is not true;

(3) 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 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 the person voting an absent voter's ballot by

personal appearance had assistance in voting the ballot when the

person was not qualified for assistance because: (A) The affidavit

of the person who received assistance does not indicate a legally

sufficient reason for assistance; or (B) the person who received assistance did not make an affidavit as required by this article;

or (C) the person who received 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;

(6) That the person voted an absent voter's ballot by mail and

received assistance in voting the ballot when not qualified under

the provisions of this article for assistance;

(7) That the person who voted the absent voter's ballot voted

in person at the polls on election day;

(8) That the person voted an absent voter's ballot under

authority of subdivision (3), subsection (b), section one of this

article and is or was 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

(9) 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.

No challenge may be made to any absent voter ballot if the

voter was registered and qualified to vote pursuant to the

provisions of subsection (a), section one of this article.

(c) Forms for, and the manner of, challenging an absent

voter's ballot under the provisions of this article are to be

prescribed by the secretary of state.

(d) Absent voters' ballots challenged by the official designated to supervise and conduct absentee voting under the

provisions of this article are to be transmitted by the official

directly to the county commission sitting as a board of canvassers.

The absent voters' ballots challenged by the election commissioners

and poll clerks under the provisions of this article may not be

counted by the election officials but are to be transmitted by them

to the county commission sitting as a board of canvassers. Action

by the board of canvassers on challenged absent voters' ballots is

to be governed by the provisions of section forty-one, article one

of this chapter.







WVC 3 - 3 - 11

§3-3-11. Preparation, number and handling of absent voters'

ballots.

(a) Absent voters' ballots 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 in any specific election law in

which case the lesser number of days applies, the clerks of the

county commissions of the several counties 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, 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 provided

in this chapter and those ballots are to be delivered to the clerk

of the county commission of the county not less than forty-six days

before the day of the election at which they are to be used.

(b) The official designated to supervise and conduct absentee

voting shall be responsible for the mailing, transmitting,

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 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 a

certificate stating the number of ballots delivered, transmitted,

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, transmitted, or mailed or by whom they have been marked,

if marked before him or her.



WVC 3 - 3 - 12

§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

rules, regulations, orders and instructions, and prescribe forms,

lists and records, and consolidation of 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 and shall forward a copy of the act to all 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 is the duty of all officials designated to supervise

and conduct absentee voting, other county officers, and all

election commissioners and poll clerks to abide by the rules,

regulations, orders and instructions and to use the forms, lists

and records which may include or relate to:

(1) The consolidation of the two application forms provided

for in this article into one form;

(2) The size and form of absent voter's ballot envelope nos.

1 and 2, and carrier envelopes;

(3) The information which is to be placed on absent voter's

ballot envelope no. 1 and the forms and information which are to be

placed on absent voter's ballot envelope no. 2;

(4) The forms and manner of making the challenges to absentee

ballots authorized by this article;

(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;

(6) The supplying of application forms, envelopes, challenge

forms, lists, records and other forms; and

(7) The keeping and security of voted absentee ballots in the

office of the official designated to supervise and conduct absentee

voting.







WVC 3-3-13

§3-3-13. Absentee voting in municipal elections.

The provisions of this article relating to absentee voting

shall apply to all municipal elections, except where clearly not

adaptable thereto, and the governing bodies of the several

municipalities of the state shall by ordinance implement the

provisions hereof so as to develop and provide a complete and

satisfactory absentee voting system for municipal elections.





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

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.