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


Published: 2015

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WEST VIRGINIA CODE











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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.


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

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