WEST VIRGINIA CODE
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WVC 3-
CHAPTER 3. ELECTIONS.
WVC 3 - 1 -
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
WVC 3 - 1 - 1
§3-1-1. Short title; purpose.
This chapter shall constitute and may be cited as the "West
Virginia Election Code" and contemplates and comprehends a code of
laws for the establishment, administration and regulation of
elections and election procedures in the state of West Virginia.
WVC 3-1-2
§3-1-2. Scope of chapter; definitions.
Unless restricted by the context, the provisions of this
chapter shall apply to every general, primary and special election
in which candidates are nominated or elected or in which voters
pass upon any public question submitted to them, except that the
provisions hereof shall be construed to be operative in municipal
elections only in those instances in which they are made expressly
so applicable.
Unless the context clearly requires a different meaning, as
herein used:
"Voter" shall mean any person who possesses the statutory and
constitutional qualifications for voting;
"Election" shall mean the procedure whereby the voters of this
state or any subdivision thereof elect persons to fill public
offices, or elect members of a constitutional convention, or vote
on public questions;
"Any election" or "all elections" shall include every general,
primary, or special election held in this state, or in any of its
subdivisions, for the purpose of nominating or electing federal or
state officers, or county, city, town or village officers of any
subdivision now existing or hereafter created, or for the purpose
of electing members of a constitutional convention, or for voting
upon any public question submitted to the people of the state or
any of the aforesaid subdivisions;
"Office" shall be construed to mean "public office" which shall include (1) any elective office provided for by the
constitution or laws of the United States or of this state to which
a salary or other compensation attaches, and (2) membership in a
constitutional convention;
"Candidate" shall mean any person to be voted for at an
election;
"Public question" shall mean any issue or proposition, now or
hereafter required by the governing body of this state or any of
its subdivisions to be submitted to the voters of the state or
subdivision for decision at elections;
The term "minor" as used in article four, section one of the
state constitution and as used in this chapter shall mean a person
who has not become eighteen years of age.
WVC 3 - 1 - 2 A
§3-1-2a. Municipal elections.
(a) Notwithstanding other provisions of this code or of any
special legislative or home rule city charter, the provisions of:
(1) Articles eight and nine of this chapter; (2) any rules
promulgated under authority granted in articles eight and nine of
this chapter; and (3) any provisions of this chapter making a
practice or conduct unlawful shall apply to every municipal
election held for any purpose.
(b) For purposes of:
(1) This section;
(2) The application of articles eight and nine of this
chapter;
(3) The application of the rules mentioned in this section;
and
(4) The application of provisions of this chapter making a
practice or conduct unlawful, the provisions of law which impose
any duty upon or define any offense or prohibition with respect to
the duty or authority of a county officer or county election
officer or body of county election officers shall be construed to
and shall apply with equal force and effect to the person or
persons in a municipal election upon whom this code or the city
charter or ordinance imposes such duty or vests the same or similar
authority.
(c) Every municipality shall by charter or ordinance designate
the persons in the municipality who perform the same duties as any officer in a county election. The designated persons shall attend
a biannual election training held and conducted by the office of
the Secretary of State.
(d) This section shall not be construed to abrogate the
applicability of other provisions of this chapter to municipal
elections.
WVC 3 - 1 - 3
§3-1-3. Persons entitled to vote.
Citizens of the state shall be entitled to vote at all
elections held within the precincts of the counties and
municipalities in which they respectively reside. But no person
who has not been registered as a voter as required by law, or who
is a minor, or who has been declared mentally incompetent by a
court of competent jurisdiction, or who is under conviction of
treason, felony or bribery in an election, or who is not a bona
fide resident of the state, county or municipality in which he or
she offers to vote, shall be permitted to vote at such election
while such disability continues, unless otherwise specifically
provided by federal or state code. Subject to the qualifications
otherwise prescribed in this section, however, a minor shall be
permitted to vote only in a primary election if he or she will have
reached the age of eighteen years on the date of the general
election next to be held after such primary election.
WVC 3-1-3a
§3-1-3a. Persons entitled to vote under federal Voting Rights Act
Amendments of 1970; authority of secretary of state.
(1) Any citizen of the United States who is a resident of the
state and who applies, not later than thirty days immediately prior
to any presidential election for registration or qualification to
vote for the choice of electors for president and vice-president,
or for president and vice-president, in such election, and who is
otherwise qualified to vote, may register to vote, and vote, for
the choice of electors for president and vice-president, or for
president and vice-president, in such election, as provided by the
federal Voting Rights Act Amendments of 1970.
(2) Any citizen of the United States who has moved his
residence from this state within thirty days next preceding any
election for president and vice-president, and who was otherwise
qualified to vote in this state as of the date of his change of
residence and who has not satisfied the registration requirements
of the state to which he has moved, may vote for the choice of
electors for president and vice-president, or for president and
vice-president, in such election, as provided by the federal Voting
Rights Act Amendments of 1970.
(3) Any citizen of the United States who has attained the age
of eighteen years but who has not attained the age of twenty-one
years by the time of the next ensuing primary or election in which
he may vote under section 302 of the federal Voting Rights Act
Amendments of 1970, as interpreted and limited by the United States supreme court, and who is otherwise qualified to vote, may vote in
any primary or election for those candidates for whom he is
entitled to vote under said section 302 of the federal Voting
Rights Act Amendments of 1970, as interpreted and limited by the
United States supreme court.
(4) The secretary of state shall have authority to make, amend
and rescind such rules, regulations, orders and instructions, and
prescribe such registration and voting procedures, forms (including
registration, ballot and ballot label forms), lists and records, as
may be necessary in order for this state to fully implement, and
comply with, the federal Voting Rights Act Amendments of 1970, as
interpreted and limited by the United States supreme court, and it
shall be the duty of all public officers, election officers, boards
and commissioners having any authority or responsibility in
connection with any election, to comply with all such rules,
regulations, orders and instructions, and use, make, follow or
comply with all such registration and voting procedures, forms
(including registration, ballot and ballot label forms), lists and
records as have been prescribed by the secretary of state under the
foregoing authority vested in that office.
WVC 3-1-4
§3-1-4. Manner of voting.
In all elections the mode of voting shall be by ballot, but
the voter shall be left free to vote by either open, sealed, or
secret ballot, as he may elect. Voting by ballot may be
accomplished as provided in articles three, four, five and six of
this chapter.
WVC 3 - 1 - 5
§3-1-5. Voting precincts and places established; number of voters
in precincts; precinct map; municipal map.
(a) The precinct is the basic territorial election unit. The
county commission shall divide each magisterial district of the
county into election precincts, shall number the precincts, shall
determine and establish the boundaries thereof and shall designate
one voting place in each precinct, which place shall be established
as nearly as possible at the point most convenient for the voters
of the precinct. Each magisterial district shall contain at least
one voting precinct and each precinct shall have but one voting
place therein.
Each precinct within any urban center shall contain not less
than three hundred nor more than one thousand five hundred
registered voters. Each precinct in a rural or less thickly
settled area shall contain not less than two hundred nor more than
seven hundred registered voters. A county commission may permit
the establishment or retention of a precinct less than the minimum
numbers allowed in this subsection upon making a written finding
that to do otherwise would cause undue hardship to the voters. If,
at any time the number of registered voters exceeds the maximum
number specified, the county commission shall rearrange the
precincts within the political division so that the new precincts
each contain a number of registered voters within the designated
limits: Provided, That any precincts with polling places that are within a one mile radius of each other on or after July 1, 2014,
may be consolidated, at the discretion of the county clerk and
county commission into one or more new precincts that contain not
more than three thousand registered voters in any urban center, nor
more than one thousand five hundred registered voters in a rural or
less thickly settled area: Provided, however, That no precincts may
be consolidated pursuant to this section if the consolidation would
create a geographical barrier or path of travel between voters in
a precinct and their proposed new polling place that would create
an undue hardship to voters of any current precinct.
If a county commission fails to rearrange the precincts as
required, any qualified voter of the county may apply for a writ of
mandamus to compel the performance of this duty: Provided, That
when in the discretion of the county commission, there is only one
place convenient to vote within the precinct and when there are
more than seven hundred registered voters within the existing
precinct, the county commission may designate two or more precincts
with the same geographic boundaries and which have voting places
located within the same building. The county commission shall
designate alphabetically the voters who are eligible to vote in
each precinct so created. Each precinct shall be operated
separately and independently with separate voting booths, ballot
boxes, election commissioners and clerks, and whenever possible, in
separate rooms. No two of the precincts may use the same counting board.
(b) In order to facilitate the conduct of local and special
elections and the use of election registration records therein,
precinct boundaries shall be established to coincide with the
boundaries of any municipality of the county and with the wards or
other geographical districts of the municipality except in
instances where found by the county commission to be wholly
impracticable so to do. Governing bodies of all municipalities
shall provide accurate and current maps of their boundaries to the
clerk of any county commission of a county in which any portion of
the municipality is located.
(c) To facilitate the federal and state redistricting process,
precinct boundaries shall be comprised of intersecting geographic
physical features or municipal boundaries recognized by the U. S.
Census Bureau. For purposes of this subsection, geographic
physical features include streets, roads, streams, creeks, rivers,
railroad tracks and mountain ridge lines. The county commission of
every county shall modify precinct boundaries to follow geographic
physical features or municipal boundaries and submit changes to the
Joint Committee on Government and Finance by June 30, 2007, and by
June 30, every ten calendar years thereafter. The county
commission shall also submit precinct boundary details to the U.S.
Census Bureau upon request.
(d) The county commission shall keep available at all times during business hours in the courthouse at a place convenient for
public inspection a map or maps of the county and municipalities
with the current boundaries of all precincts.
WVC 3-1-6
§3-1-6. Municipal voting precincts.
The governing bodies of all municipalities shall, for the
purpose of municipal elections, provide by ordinance for making the
voting precincts in the respective municipalities coincide, as
nearly as possible, to the boundaries of the voting precincts fixed
by the county court for all state and county elections.
WVC 3 - 1 - 7
§3-1-7. Precinct changes; procedure; precinct record.
(a) Subject to the provisions and limitations of section five
of this article, the county commission of any county may change the
boundaries of any precinct within the county, or divide any
precinct into two or more precincts, or consolidate two or more
precincts into one, or change the location of any polling place
whenever the public convenience may require it.
(b) No order effecting the change, division or consolidation
shall be made by the county commission within ninety days prior to
an election nor without giving notice at least one month before the
change, division or consolidation by publication of the notice as
a Class II-0 legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code. The publication
area is the county in which the precinct or precincts are located.
The county commission shall also, within fifteen days after the
date of the order, publish the order in the manner required for
publication of the notice.
(c) The county commission shall also, before the next
succeeding election, cause the voters in the several precincts
affected by the order to be duly registered in the proper precinct
or precincts and shall mail written notification to all registered
voters affected by the change.
(d) The county commission shall keep in a well-bound book,
marked "election precinct record", a complete record of all their
proceedings hereunder and of every order made creating a precinct or precincts or establishing a place of voting therein. The
"election precinct record" shall be kept by the county commission
clerk in his or her office and shall, at all reasonable hours, when
not actually in use by the county commission, be open to inspection
by any citizen of the county.
(e) When the county commission establishes a polling place at
a location other than the location used for holding the preceding
primary, general or special election in that precinct, the
commission shall cause a notice to be posted on election day on the
door of the previous polling place describing the location of the
newly established polling place and shall mail written notification
to all registered voters affected by the change.
(f) If for any reason the election cannot be held at the
designated polling place in a precinct and no provision has been
made by the county commission for holding the election at another
place, the commissioners of election for that precinct may hold the
election at the nearest place which they can secure for the
purpose. They shall make known by proclamation to voters present
at the time for opening the polls, and by posting a notice at or
near the entrance of the first named polling place, the location at
which the election will be held. The county commission shall
establish another place of voting for that precinct as soon
thereafter as practicable.
(g) Notwithstanding any provision herein to the contrary, in
the case of an emergency, the county commission may make the precinct change no later than sixty days prior to an election in
accordance with the requirements herein with the approval of the
secretary of state. A change, if made however, shall not cause any
voter to be moved to a different district.
WVC 3-1-8
§3-1-8. Political party defined; parties or groups that may
participate in municipal primary elections.
Any affiliation of voters representing any principle or
organization which, at the last preceding general election, polled
for its candidate for governor at least one per cent of the total
number of votes cast for all candidates for that office in the
state, shall be a political party, within the meaning and for the
purpose of this chapter: Provided, That notwithstanding the
foregoing provisions of this section, the governing body of any
municipality may, by ordinance adopted by the affirmative vote of
at least three fourths of the members of such governing body by
recorded vote, provide that municipal political parties or groups
within such municipality that do not meet the requirements of this
section for classification as a political party may participate in
the primary elections of any such municipality. Any such ordinance
shall contain provisions implementing the foregoing proviso, which
implementing provisions shall conform as nearly as practicable to
any general provisions of law relating to municipal primary
elections.
WVC 3 - 1 - 9
§3-1-9. Political party committees; how composed; organization.
(a) Every fourth year at the primary election, the voters of
each political party in each state senatorial district shall elect
four members consisting of two male members and two female members
of the state executive committee of the party. In state senatorial
districts containing two or more counties, not more than two
elected committee members shall be residents of the same county:
Provided, That at each election the votes shall be tallied from
highest to lowest without regard to gender or county of residence.
The two candidates with the highest votes shall be elected first
and the other candidates shall be qualified based on vote tallies,
gender and county of residence. Upon completion of the canvass,
the clerk of the county commission from each county shall send the
results of the election of members of each state executive
committee and certificates of announcement, if any, to the
Secretary of State. Upon certification of the election results,
the Secretary of State shall make known to each state executive
committee the members elected to such committee and the vacancies,
if any. The committee, when convened and organized as herein
provided, shall appoint three additional members of the committee
from the state at large which shall constitute the entire voting
membership of the state executive committee: Provided, however,
That if it chooses to do so, the committee may by motion or
resolution and in accordance with party rules, may expand the
voting membership of the committee. When senatorial districts are realigned following a decennial census, members of the state
executive committee previously elected or appointed shall continue
in office until the expiration of their terms. Appointments made
to fill vacancies on the committee until the next election of
executive committee members shall be selected from the previously
established districts. At the first election of executive
committee members following the realignment of senatorial
districts, members shall be elected from the newly established
districts.
(b) At the primary election, the voters of each political
party in each county shall elect one male and one female member of
the party's executive committee of the congressional district, of
the state senatorial district and of the delegate district in which
the county is situated, if the county is situated in a multicounty
state senatorial or delegate district. Upon completion of the
canvass, the clerk of the county commission from each county shall
send the results of the election of members of each congressional
district, state senatorial district and delegate district executive
committee of each party to the Secretary of State. Upon
certification of the election results, the Secretary of State shall
make known to each state executive committee the members elected to
each congressional district, state senatorial district and delegate
district executive committee and the vacancies, if any. Upon
receipt, the state executive committee shall make known any
vacancies to the applicable county executive committee for the purpose of filling said vacancies as provided in subsection (f) of
this section. When districts are realigned following a decennial
census, members of an executive committee previously elected in a
county to represent that county in a congressional or multicounty
senatorial or delegate district executive committee shall continue
to represent that county in the appropriate newly constituted
multicounty district until the expiration of their terms:
Provided, That the county executive committee of the political
party shall determine which previously elected members will
represent the county if the number of multicounty state senatorial
or delegate districts in the county is decreased; and shall appoint
members to complete the remainder of the term if the number of
districts is increased.
(c) At the same time the voters of the county in each
magisterial district or executive committee district, as the case
may be, shall elect one male and one female member of the party's
county executive committee except that in counties having three
executive committee districts, there shall be elected two male and
two female members of the party's executive committee from each
magisterial or executive committee district. Upon completion of
the canvass, the clerk of the county commission from each county
shall send the results of the election of members of the county
executive committee of each party along with the certificates of
announcement to the Secretary of State. Upon certification of the
election results, the Secretary of State shall make known to each state executive committee the members elected to the county
committee and the vacancies, if any. Upon receipt, the state
executive committee shall make known any vacancies to the
applicable county executive committee for the purpose of filling
said vacancies as provided in subsection (f) of this section.
(d) For the purpose of complying with the provisions of this
section, the county commission shall create the executive committee
districts. The districts shall not be fewer than the number of
magisterial districts in the county, nor shall they exceed in
number the following: Forty for counties having a population of
one hundred thousand persons or more; thirty for counties having a
population of fifty thousand to one hundred thousand; twenty for
counties having a population of twenty thousand to fifty thousand;
and the districts in counties having a population of less than
twenty thousand persons shall be coextensive with the magisterial
districts.
(e) The executive committee districts shall be as nearly equal
in population as practicable and shall each be composed of compact,
contiguous territory. The county commissions shall change the
territorial boundaries of the districts as required by the increase
or decrease in the population of the districts as determined by a
decennial census. The changes must be made within two years
following the census.
(f) All members of executive committees, selected for each
political division as herein provided, shall reside within the county or district from which chosen. The term of office of all
members of executive committees elected at the primary election in
the year two thousand ten will begin on the first day of July,
following the primary election and continue for four years
thereafter, except as provided in subsection (g) of this section.
Vacancies in the state executive committee shall be filled by the
members of the committee for the unexpired term. Vacancies in the
party's executive committee of a congressional district, state
senatorial district, delegate district or county shall be filled by
the party's executive committee of the county in which the vacancy
exists for the unexpired term.
(g) As soon as possible after the certification of the
election of the new executive committees, as herein provided, the
newly elected executive committee shall convene an organizational
meeting within their respective political divisions, on the call of
the chair of the corresponding outgoing executive committee or by
any member of the new executive committee in the event there is no
corresponding outgoing executive committee. During the first
meeting the new executive committee shall select a chair, a
treasurer and a secretary and other officers as they may desire.
Each of the officers shall, for their respective committees,
perform the duties that usually appertain to his or her office.
The organizational meeting may be conducted prior to the first day
of July, but must occur after the certification of the election of
the new executive committees. If the organizational meeting is conducted prior to the first day of July, the new committee shall
serve out the remainder of the outgoing committee's term and is
authorized to conduct official business. A current listing of all
executive committees' members shall be filed with the Secretary of
State by the end of July of each year. Vacancies in any executive
committee shall be filled by the appropriate executive committee as
provided in subsection (f) of this section no later than sixty days
after the vacancy occurs. The chair of each executive committee
shall submit an updated committee list to the Secretary of State
within ten days of a change occurring. Executive committee
membership lists shall include at least the member's name, full
address, employer, telephone number and term information. An
appointment to fill a vacancy does not take effect if the executive
committee does not submit the updated list to the Secretary of
State within the allotted time period. If the executive committee
fails to submit the updated list within the allotted time period,
it must make another appointment pursuant to the provisions of this
section and resubmit the updated list in a timely manner. If a
vacancy on an executive committee is not filled within the
sixty-day period prescribed by this section, the chair of the
appropriate executive committee, as provided in subsection (f) of
this section, shall name someone to fill the vacancy. If the chair
of a county executive committee fails to fill a vacancy in a
congressional district, state senatorial district or delegate
district executive committee, and the failure to fill such vacancy prohibits said committee from conducting official business, the
chair of the party's state executive committee shall fill such
vacancy.
(h) Any meeting of any political party executive committee
shall be held only after public notice and notice to each member is
given according to party rules and shall be open to all members
affiliated with the party. Meetings shall be conducted according
to party rules, all official actions shall be made by voice vote
and minutes shall be maintained and shall be open to inspection by
members affiliated with the party.
WVC 3 - 1 - 10
§3-1-10. Party committees in office.
The members of all state, congressional, senatorial, and
county executive committees for political parties in office at the
time this section becomes effective, and the various officers of
such committees, shall hold their several offices and discharge the
duties thereof until their successors are chosen and installed in
accordance with the provisions of section nine of this article
effective simultaneously herewith and other applicable provisions
of this article, the prior provisions of section nine having become
effective after the election of such members and officers for terms
ending in the year one thousand nine hundred eighty-two. The
Legislature finds and declares that the prior provisions of section
nine of this article should not operate to limit the terms of such
members and officers before the expiration thereof as contemplated
by law effective at the time of the primary election held May, one
thousand nine hundred seventy-eight.
WVC 3 - 1 - 11
§3-1-11. Powers of state executive committee; central or
subcommittees; party emblems.
The state executive committee of each party may make such
rules for the government of such party, not inconsistent with law,
as may be deemed expedient; and it may also revoke, alter, or
amend, in any manner not inconsistent with law, any present or
future rules of such party. All acts of such state or other
committees may be reviewable by the courts.
Any party executive committee may create and appoint
subcommittees, campaign, or central committees, and delegate to
them such powers and authority in the executive and administrative
work of the committee as they shall deem advisable; but no power or
authority shall be delegated to such subcommittee, campaign
committee, or central committee, in contravention of any law of the
state.
The state executive committee shall adopt a party emblem or
device for the party to distinguish and identify the party ticket,
and shall certify the same to the ballot commissioners, and it
shall be printed on the party ticket. The device or emblem of no
two parties shall be similar or of such a nature as to mislead or
confuse the voter. If two or more parties seek the same device, or
similar devices, preference shall be given to the party polling the
largest number of votes for the candidate for governor at the last
election for such office.
WVC 3 - 1 - 12
§3-1-12. Members of national party committee.
The members of the national party executive committee of any
political party, to which the state is entitled under the national
organization and the rules and regulations of the national
committee of the party, shall be elected by the state executive
committee of such party, unless the rules of the national party
otherwise provide, in which latter event they shall be selected in
all respects as provided for the selection thereof by the rules and
regulations of the national organization of the political party and
the resolutions of the delegated representatives of the political
party passed and adopted by any national convention of such
political party. A vacancy in the membership of a national party
executive committee shall be filled by the state committee of the
party unless the rules of the national party otherwise provide.
WVC 3 - 1 - 13
§3-1-13. Other party or group committees.
The members of any political party which, at the last
preceding general election, polled, for its candidate for governor,
fewer than ten per cent of the total number of votes cast for all
candidates for that office in the state, and groups of citizens,
not constituting a political party, which nominate candidates for
offices to be voted for at any election, may select members of
committees and officers thereof, for such political parties and
such groups of citizens, in such manner as they may devise and
adopt.
WVC 3 - 1 - 14
§3-1-14. Presidential electors; how chosen; duties; vacancies;
compensation.
Electors of president and vice president of the United States
shall be nominated as provided in section twenty-one of article
five of this chapter but their names shall be omitted from the
general election ballot, as provided in section two of article six
of this chapter, to be voted on the Tuesday next after the first
Monday in November in the year nineteen hundred and sixty-four and
every fourth year thereafter.
The presidential electors shall meet in the office of the
governor at the capital of this state, on the day now appointed, or
which shall hereafter be appointed, by the Congress of the United
States and vote for the president and for the vice president of the
United States in the manner prescribed by the constitution and the
laws of the United States. If any of the electors so chosen fail
to attend at the time appointed, the electors present shall appoint
an elector in place of each one so failing to attend, and every
elector so appointed shall be entitled to vote in the same manner
as if he had been originally chosen by the people.
Each presidential elector shall receive as compensation the
sum of ten dollars a day for attending such meeting, including the
time spent in traveling to and from the place of meeting and in
addition thereto the sum of ten cents for every mile necessarily
traveled in going to and returning from the place of meeting, by
the most direct route.
WVC 3 - 1 - 15
§3-1-15. Election of United States senators and congressmen.
At the general election in the year nineteen hundred and
sixty-four and at each general election in every sixth year
thereafter, and at the general election in the year nineteen
hundred and sixty-six, and in each sixth year thereafter, there
shall be elected a member of the United States Senate, and at the
general election in the year nineteen hundred and sixty-four, and
in every second year thereafter, there shall be elected a member of
the House of Representatives in the Congress of the United States
for each congressional district of the state, each for the next
ensuing term.
WVC 3 - 1 - 16
§3-1-16. Election of state officers.
(a) At the general election to be held in 1968, and every
fourth year thereafter, there shall be elected a Governor,
Secretary of State, Treasurer, Auditor, Attorney General and
Commissioner of Agriculture. At the general election in 1968, and
every second year thereafter, there shall be elected a member of
the State Senate for each senatorial district, and a member or
members of the House of Delegates of the state from each county or
each delegate district.
(b) At the time of the primary election to be held in the year
2016, and every twelfth year thereafter, there shall be elected one
justice of the Supreme Court of Appeals, and at the time of the
primary election to be held in 2020, and every twelfth year
thereafter, two justices of the Supreme Court of Appeals and at the
time of the primary election to be held in 2024, and every twelfth
year thereafter, two justices of the Supreme Court of Appeals.
Effective with the primary election held in the year 2016, the
election of justices of the Supreme Court of Appeals shall be on a
nonpartisan basis and by division as set forth more fully in
article five of this chapter.
WVC 3 - 1 - 17
§3-1-17. Election of circuit judges; county and district officers;
magistrates.
(a) There shall be elected, at the time of the primary
election to be held in 2016, and every eighth year thereafter, one
judge of the circuit court of every judicial circuit entitled to
one judge, and one judge for each numbered division of the judicial
circuit in those judicial circuits entitled to two or more circuit
judges; and at the time of the primary election to be held in 2016,
and in every fourth year thereafter, the number of magistrates
prescribed by law for the county. Beginning with the election held
in the year 2016, an election for the purpose of electing judges of
the circuit court, or an election for the purpose of electing
magistrates, shall be upon a nonpartisan ballot printed for the
purpose.
(b) There shall be elected, at the general election to be held
in 1992, and every fourth year thereafter, a sheriff, prosecuting
attorney, surveyor of lands, and the number of assessors prescribed
by law for the county; and at the general election to be held in
1990, and every second year thereafter, a commissioner of the
county commission for each county; and at the general election to
be held in 1992, and every sixth year thereafter, a clerk of the
county commission and a clerk of the circuit court for each county.
(c) Effective with the primary election of 2016, all elections
for judge of the circuit courts in the respective circuits and
magistrates in each county will be elected on a nonpartisan basis and by division as set forth more fully in article five of this
chapter.
WVC 3 - 1 - 18
§3-1-18. Election to fill other offices.
If the Legislature shall hereafter create any elective office,
or make any office now filled by appointment an elective office, in
the state or in any subdivision thereof, the person to fill the
same shall be elected at the general election last preceding the
beginning of the term of such office.
The provisions of this section shall not apply to the office
of member or to the election of members of a constitutional
convention.
WVC 3 - 1 - 19
§3-1-19. Ballot commissioners; selection; duties generally;
vacancies.
(a) In each county in the state, the Board of Ballot
Commissioners shall be comprised of:
(1) The clerk of the county commission while holding office;
and
(2) Two other persons as follows:
(A) One person appointed by the county executive committee of
the political party that cast the largest number of votes in the
state at the last preceding general election; and
(B) One person appointed by the county executive committee of
the political party that cast the second largest number of votes in
the state at the last preceding general election.
(b) If the county executive committees do not make the
appointments in a timely manner, then the county clerk shall make
the appointments.
(c) The county clerk shall serve as chairman.
(d) It shall be the duty of the county clerk to notify the
chairman of the respective county executive committees of the two
parties, at least five days before the time of the making of the
appointments.
(e) If at any time after notice is given, and before or on the
day so fixed for making appointments, the chairman of each of the
committees shall designate, in writing, a member of his or her
party as ballot commissioner. Each designee shall be appointed if
he or she meets the qualifications of a voter: Provided, That a ballot commissioner cannot be a candidate for any office in any
election held during the time he or she is serving as ballot
commissioner.
(f) Ballot commissioners shall be appointed between the 15th
and 30th days of January, in each year in which a general election
is to be held, for a term of two years beginning on February 1 next
ensuing.
(g) The ballot commissioners shall perform their duties at all
general, special and primary elections held in the county or any
magisterial district thereof during their term of office.
(h) A vacancy shall be filled in the same manner as an
original appointment, but immediate notice of a vacancy shall,
where necessary, be deemed compliance with the five-day notice
provision.
WVC 3 - 1 - 20
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall
provide cards of general information which will include:
(1) The date of the election and the hours during which
polling places will be open;
(2) Instruction for mail-in registrants and first-time voters;
(3) Voters' rights; and
(4) Prohibitions against fraud and misrepresentation.
The board of ballot commissioners shall also provide cards of
instruction for voters in preparing their ballots and casting a
provisional ballot as prescribed by the Secretary of State. The
provisional ballot notice shall include a notification to voters of
their rights as a provisional voter to inquire as to the correct
precinct to cast a ballot and notification that if a ballot is cast
in the incorrect precinct the ballot may not be counted at the
canvass for that election. The board of ballot commissioners shall
furnish a sufficient number of cards to the commissioners of
election at the same time they deliver the ballots for the
precinct. The instructions regarding a provisional ballot shall be
posted in the precinct in a highly visible location for voters to
review.
(b) The commissioners of election shall post one instruction
card in each voting booth giving instructions to the voters on how
to prepare the ballots for deposit in the ballot boxes and how to
obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other
cards of general information at places inside and outside of the
voting place where voters pass or wait to vote. The commissioners
shall also post the official write-in candidates in the same
locations inside and outside of the voting place.
(d) The ballot commissioners shall have printed, on a
different color paper than the official ballot, two or more copies
of sample ballots for each voting place for each election. Sample
ballots shall be furnished and posted with the cards of general
information at each voting place.
(e) During the period of early in-person voting, the clerk of
the county commission shall post the cards of general information,
a list of official write-in candidates and sample ballots within
the area where absentee voting is conducted.
WVC 3 - 1 - 21
§3-1-21. Printing of official and sample ballots; number;
packaging and delivery; correction of ballots.
(a) The board of ballot commissioners for each county shall
provide the ballots and sample ballots necessary for conducting
every election for public officers in which the voters of the
county participate.
(b) The persons required to provide the ballots necessary for
conducting all other elections are:
(1) The Secretary of State, for any statewide special election
ordered by the Legislature;
(2) The board of ballot commissioners, for any countywide
special election ordered by the county commission;
(3) The Board of Education, for any special levy or bond
election ordered by the Board of Education; or
(4) The municipal board of ballot commissioners, for any
election conducted for or within a municipality except an election
in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those
printed by the proper authorities as specified in this section may
not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular
official ballots printed shall equal one and one-twentieth times
the number of registered voters eligible to vote that ballot. When
paper ballots are used in conjunction with or as part of an
electronic voting system, the total number of regular official ballots printed shall equal at a minimum eighty percent of the
number of registered voters eligible to vote that ballot. The
clerk of the county commission shall determine the number of
absentee official ballots.
(d) The number of regular official ballots packaged for each
precinct shall equal at a minimum seventy-five percent of the
number of registered voters of the precinct. The remaining regular
official ballots shall be packaged and delivered to the clerk of
the county commission, who shall retain them unopened until they
are required for an emergency. Each package of ballots shall be
wrapped and sealed in a manner which will immediately make apparent
any attempt to open, alter or tamper with the ballots. Each
package of ballots for a precinct shall be clearly labeled, in a
manner which cannot be altered, with the county name, the precinct
number and the number of ballots contained in each package. If the
packaging material conceals the face of the ballot, a sample ballot
identical to the official ballots contained therein shall be
securely attached to the outside of the package or, in the case of
ballot cards, the type of ballot shall be included in the label.
(e) All absentee ballots necessary for conducting absentee
voting in all voting systems shall be delivered to the clerk of the
county commission of the appropriate county not later than the
forty-second day before the election. All official ballots in
paper ballot systems shall be delivered to the clerk of the county
commission of the appropriate county not later than twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that
an official ballot contains an error which, in the opinion of the
board, is of sufficient magnitude to confuse or mislead the voters,
the board shall cause the error to be corrected either by the
reprinting of the ballots or by the use of stickers printed with
the correction and of suitable size to be placed over the error
without covering any other portion of the ballot.
WVC 3 - 1 - 21 A
§3-1-21a. Vendors authorized to print ballots; eligibility;
application and certification; denial, suspension
and revocation of authorization; appeal.
(a) The printing of ballots for any election to be held
pursuant to the provisions of this chapter shall be contracted for
with a vendor authorized in accordance with the provisions of this
section.
(b) Any vendor authorized to do business in West Virginia and
in good standing may apply for a certificate of authorization to
print ballots for elections in this state: Provided, That any
individual, partnership, association or corporation who does not
qualify as a resident vendor pursuant to the provisions of section
thirty-seven-a, article three, chapter five-a of this code or who
prints the ballots in a state which prohibits that state or any of
its political subdivisions from contracting with West Virginia
resident vendors for the printing of ballots or which prohibits the
printing of ballots outside of such state, is not eligible to
obtain a certificate of authorization.
(c) (1) Every vendor desiring to print ballots for elections
held pursuant to the provisions of this chapter shall, prior to the
execution of any contract for the printing of ballots with any
state, county, or municipal government, obtain a certificate of
authorization to print ballots.
(2) A certificate of authorization may be obtained by
application to the Secretary of State, upon a form prescribed by the Secretary of State. The form shall include a statement that
all printing, packaging and delivery specifications for ballots set
forth in this chapter will be substantially met, and that the
vendor applying for certification is eligible in accordance with
the provisions of this section.
(3) Upon receipt of the completed application, the Secretary
of State shall issue a certificate of authorization to print
ballots, which shall remain in effect for two years from the date
of issuance and may be renewed upon application therefor:
Provided, That the Secretary of State may deny the application to
issue or renew the certificate of authorization, or may suspend or
revoke the certificate of authorization upon a determination that
the vendor has not substantially complied with the printing,
packaging and delivery specifications in the printing of ballots
for any state, county or municipal election, or that the vendor is
not eligible or is no longer eligible to print ballots pursuant to
the provisions of this section. The Secretary of State shall give
written notice of any such determination by certified mail, return
receipt requested, to the vendor setting forth the reason for the
suspension, revocation or the denial of the application or the
denial of the renewal thereof. The applicant may, within sixty
days of the receipt of such denial, file a written appeal with the
State Election Commission. The State Election Commission shall
promulgate rules establishing a hearing process for such appeals.
(d) On or before the second Monday of January of each year, the Secretary of State shall provide a list of all vendors
authorized to print ballots for state, county and municipal
elections to the clerk of each county commission of this state.
WVC 3 - 1 - 22
§3-1-22. County court clerks to provide election supplies;
requirements for poll books and ballot boxes.
The clerk of the county court of each county shall provide
poll books, a list of all precincts within the county, tally
sheets, ballot boxes, voting booths, registration records and
forms, strong and durable envelopes upon which to make returns,
blank forms for certifying returns and whatever further supplies
are needed for holding the elections and making the returns
thereof. The poll books shall bear upon each page the following
heading: "Names of persons voting at precinct No. ...... in the
District of ....................... in the county of
...................... on this (the) ................. day of
................. in the year ........" Such poll books shall
have columns headed respectively: "Number of Voters," "Signature
of Voter" and "Challenge of Voter", and shall have under the
heading "Number of Voters" numbers in consecutive order to the
bottom of each page. Forms for oaths of commissioners of election
and poll clerks shall be written or printed on the poll books.
Each ballot box shall be provided with two locks with different
keys so that the key for one lock will not open the other and shall
be so constructed as to be safely and securely closed and locked,
with an opening in the lid of the box sufficient only for the
passage of a single ballot.
WVC 3-1-23
§3-1-23. County commission to arrange polling places and
equipment; requirements.
The county commission in each county, before each election,
shall secure, for each voting precinct in the county, a suitable
room or building in which to hold the election, and shall cause the
same to be suitably provided with heat, drinking water and light
and a sufficient number of booths or compartments, each containing
a table, counter or shelf, and furnished with proper supplies for
preparing ballots, at or in which voters may conveniently prepare
their ballots, so that in the preparation thereof they may be
secure from the observation of others. The number of such booths
or compartments shall not be less than two. Such room or building
shall be located in such precinct: Provided, That upon a
determination of the county commission that a suitable room or
building in which to hold the election is not reasonably available
in such precinct then the county commission may secure a suitable
room or building in which to hold the election for such precinct in
an adjacent precinct in said county, in a location as near as may
be to the territory of the precinct for which such room or building
is provided. At any polling place for which parking spaces are
available nearby, at least one parking space shall be reserved for
handicapped voters and clearly designated as such.
WVC 3 - 1 - 24
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the clerk of the county commission
to appoint one or more of the commissioners of election or poll
clerks at each precinct of the county to attend at the office of
the clerk of the county commission at least one day before each
election to receive the ballots, ballot boxes, poll books,
registration records and forms and all other supplies and materials
for conducting the election at the respective precincts. The clerk
shall take a receipt for the respective materials delivered to the
commissioners of election or poll clerks and shall file the receipt
in his or her office. It shall be the duty of the commissioners or
poll clerks to receive the supplies and materials from the clerk
and to deliver them with the seal of all sealed packages unbroken
at the election precinct in time to open the election.
(b) The commissioners or poll clerks, if they perform the
messenger services, shall receive the per diem and mileage rate
prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals
unbroken. For general and special elections the delivered ballots
shall not be in excess of one and one-twentieth times the number of
registered voters in the precinct. For primary elections the
ballots for each party shall be in a separately sealed package
containing not more than one and one-twentieth times the number of
registered voters of each party in the election precinct.
(d) For primary elections one copy of the poll books, including the written or printed forms for oaths of commissioners
of election and poll clerks, shall be supplied at each voting
precinct for each political party appearing on the primary ballot.
(e) There shall be two ballot boxes for each election precinct
for which a receiving and a counting board of election
commissioners have been appointed.
WVC 3 - 1 - 25
§3-1-25. Supplies by special messenger.
In case any commissioner of election or poll clerk fails to
appear at the offices of the clerk of the county commission by the
close of the clerk's office on the day prior to any election, the
board of ballot commissioners, the chairman or the clerk of the
county commission shall forthwith dispatch a special messenger to
the commissioners of election of each respective precinct with the
ballots, registration records, ballot boxes, poll books and other
supplies for the precinct. The messenger, if not a county
employee, shall be allowed five dollars for this service. The
messenger shall also receive mileage up to the rate of
reimbursement authorized by the travel management rule of the
Department of Administration for each mile necessarily traveled in
the performance of his or her services. The messenger shall
promptly report to the clerk of county commission and file with the
clerk the receipts of the person to whom he or she delivered the
ballots and other supplies and his or her affidavit stating when
and to whom he or she delivered them.
WVC 3-1-26
§3-1-26. Election supplies in emergencies.
If, by any accident or casualty, the ballots or ballot box or
boxes delivered to a commissioner of election, or to any messenger,
shall be lost or destroyed, it shall be the duty of such
commissioner or messenger to report the loss forthwith to the board
of ballot commissioners and clerk of the county court from whom the
same were, or was, obtained, and make affidavit of the
circumstances of the loss; whereupon such board and clerk shall at
once send a new supply by special messenger, as provided in other
cases. If, for any reason, there should be found no ballots, or
ballot box, or other necessary means or contrivances for voting, at
the opening of the polls, it shall be the duty of the commissioners
of election to secure the same as speedily as possible and, if
necessary, the ballot commissioners may have ballots printed or
written, and the election commissioners may have a ballot box or
boxes made.
WVC 3-1-27
§3-1-27. Municipal precinct registration records.
At least one day prior to every municipal election, it shall
be the duty of the appropriate officer designated by the
municipality to procure from the municipal precinct file in the
office of the clerk of the county commission the registration
records necessary for the conduct of such election.
Such records shall, within ten days after the date of the
municipal election, be returned to the office of the clerk of the
county commission by the appropriate officer or officers designated
by the municipality.
In case of a contested municipal election, the registration
record of any challenged voter shall be made available by the clerk
of the county commission to the officer or tribunal empowered to
determine the contest. Such record shall be returned to the office
of the clerk of the county commission within a reasonable time
after the contest shall have been finally decided.
The clerk of the county commission shall acknowledge the
release and return of the registration records under this section
by the issuance of appropriate receipts.
In the event any municipal registration record is lost,
destroyed, defaced or worn in any way as to warrant replacement, it
shall be the duty of the clerk of the county commission to prepare
a duplicate of such record and it shall be the duty of the
municipality to pay for such replacement.
WVC 3 - 1 - 28
§3-1-28. Election officials; eligibility, suspension of
eligibility.
(a) To be eligible to be appointed or serve as an election
official in any state, county or municipal election held in West
Virginia, a person:
(1) Must be a registered voter of the county for elections
held throughout the county and a registered voter of the
municipality for elections held within the municipality: Provided,
That if the required number of persons eligible to serve as
election officials for a municipal election are not available or
are not willing to serve as election officials for a municipal
election, a registered voter of the county in which the
municipality is located may serve as an election official for
elections held within the municipality;
(2) Must be able to read and write the English language;
(3) May not be a candidate on the ballot or an official
write-in candidate in the election;
(4) May not be the parent, child, sibling or spouse of a
candidate on the ballot or an official write-in candidate in the
precinct where the official serves;
(5) May not be a person prohibited from serving as an election
official pursuant to any other federal or state statute; and
(6) May not have been previously convicted of a violation of
any election law.
(b) The county commission may, upon majority vote, suspend the eligibility to serve as an election official in any election for
four years for the following reasons:
(1) Failure to appear at the polling place at the designated
time without proper notice and just cause;
(2) Failure to perform the duties of an election official as
required by law;
(3) Improper interference with a voter casting a ballot or
violating the secrecy of the voter's ballot;
(4) Being under the influence of alcohol or drugs while
serving as an election official; or
(5) Having anything wagered or bet on an election.
(c) The county commission may, upon majority vote, suspend the
eligibility to serve as an election official in any election for
two years upon petition of twenty-five registered voters of the
precinct where the official last served and upon presentation of
evidence of any of the grounds set forth in subsection (b) of this
section: Provided, That the petition requesting the suspension of
the election official is filed with the county commission at least
ninety days prior to an election date. The names of those persons
signing the petition must be kept confidential.
WVC 3 - 1 - 29
§3-1-29. Boards of election officials; definitions, composition of
boards, determination of number and type.
(a) For the purpose of this article:
(1) The term "standard receiving board" means those election
officials charged with conducting the process of voting within a
precinct and consists of no less than five persons, to be comprised
as follows:
(A) Each precinct shall have at least one team of poll clerks,
one team of election commissioners for the ballot box and one
additional election commissioner.
(B) At the discretion of the county clerk and county
commission, any county may add additional teams of poll clerks and
commissioners to any precinct, as necessary to fairly and
efficiently conduct an election;
(2) The term "counting board" means those election officials
charged with counting the ballots at the precinct in counties using
paper ballots and includes one team of poll clerks, one team of
election commissioners and one additional commissioner;
(3) The term "team of poll clerks" or "team of election
commissioners" means two persons appointed by opposite political
parties to perform the specific functions of the office: Provided,
That no team of poll clerks or team of election commissioners may
consist of two persons with the same registered political party
affiliation or two persons registered with no political party affiliation; and
(4) The term "election official trainee" means an individual
who is sixteen or seventeen years of age who meets the requirements
of subdivisions (2), (3), (4), (5) and (6), subsection (a), section
twenty-eight of this article.
(b) For each primary and general election in the county, the
county commission shall designate the number and type of election
boards for the various precincts according to the provisions of
this section. At least eighty-four days before each primary and
general election the county commission shall notify the county
executive committees of the two major political parties in writing
of the number of nominations which may be made for poll clerks and
election commissioners.
(c) For each municipal election held at a time when there is
no county or state election:
(1) The governing body of the municipality shall perform the
duties of the county commission as provided in this section; and
(2) The standard receiving board may, at the discretion of the
official charged with the administration of election, consist of as
few as four persons, including one team of poll clerks and one team
of election commissioners for the ballot box.
WVC 3 - 1 - 30
§3-1-30. Nomination and appointment of election officials and
alternates; notice of appointment; appointment to
fill vacancies in election boards.
(a) For any primary, general or special election held
throughout a county, poll clerks and election commissioners may be
nominated as follows:
(1) The county executive committee for each of the two major
political parties may, by a majority vote of the committee at a
duly called meeting, nominate one qualified person for each team of
poll clerks and one qualified person for each team of election
commissioners to be appointed for the election;
(2) The appointing body shall select one qualified person as
the additional election commissioner for each board of election
officials;
(3) Each county executive committee shall also nominate
qualified persons as alternates for at least ten percent of the
poll clerks and election commissioners to be appointed in the
county and is authorized to nominate as many qualified persons as
alternates as there are precincts in the county to be called upon
to serve in the event any of the persons originally appointed fail
to accept appointment or fail to appear for the required training
or for the preparation or execution of their duties;
(4) When an executive committee nominates qualified persons as
poll clerks, election commissioners or alternates, the committee,
or its chairman or secretary on its behalf, shall file in writing with the appointing body, no later than the seventieth day before
the election, a list of those persons nominated and the positions
for which they are designated.
(b) For any municipal primary, general or special election,
the poll clerks and election commissioners may be nominated as
follows:
(1) In municipalities which have municipal executive
committees for the two major political parties in the municipality,
each committee may nominate election officials in the manner
provided for the nomination of election officials by county
executive committees in subsection (a) of this section;
(2) In municipalities which do not have executive committees,
the governing body shall provide by ordinance for a method of
nominating election officials or shall nominate as many eligible
persons as are required, giving due consideration to any
recommendations made by voters of the municipality or by candidates
on the ballot.
(c) The governing body responsible for appointing election
officials is:
(1) The county commission for any primary, general or special
election ordered by the county commission and any joint county and
municipal election;
(2) The board of education for any special election ordered by
the board of education conducted apart from any other election;
(3) The municipal governing body for any primary, general or special municipal election ordered by the governing body.
(d) The qualifications for persons nominated to serve as
election officials may be confirmed prior to appointment by the
clerk of the county commission for any election ordered by the
county commission or for any joint county and municipal election
and by the official recorder of the municipality for a municipal
election.
(e) The appropriate governing body shall appoint the election
officials for each designated election board no later than the
forty-ninth day before the election as follows:
(1) Those eligible persons whose nominations for poll clerk
and election commissioner were timely filed by the executive
committees and those additional persons selected to serve as an
election commissioner are to be appointed;
(2) The governing body shall fill any positions for which no
nominations were filed.
(f) At the same time as the appointment of election officials
or at a subsequent meeting the governing body shall appoint persons
as alternates. However, no alternate may be eligible for
compensation for election training unless the alternate is
subsequently appointed as an election official or is instructed to
attend and actually attends training as an alternate and is
available to serve on election day. Alternates shall be appointed
and serve as follows:
(1) Those alternates nominated by the executive committees shall be appointed;
(2) The governing body may appoint additional alternates who
may be called upon to fill vacancies after all alternates
designated by the executive committees have been assigned, have
declined to serve or have failed to attend training; and
(3) The governing body may determine the number of persons who
may be instructed to attend training as alternates.
(g) The clerk of the county commission shall appoint qualified
persons to fill all vacancies existing after all previously
appointed alternates have been assigned, have declined to serve or
have failed to attend training.
(h) Within seven days following appointment, the clerk of the
county commission shall notify, by first-class mail, all election
commissioners, poll clerks and alternates of the fact of their
appointment and include with the notice a response notice form for
the appointed person to return indicating whether or not he or she
agrees to serve in the specified capacity in the election.
(i) The position of any person notified of appointment who
fails to return the response notice or otherwise confirm to the
clerk of the county commission his or her agreement to serve within
fourteen days following the date of appointment is considered
vacant and the clerk shall proceed to fill the vacancies according
to the provisions of this section.
(j) If an appointed election official fails to appear at the
polling place by forty-five minutes past five o'clock a.m. on election day, the election officials present shall contact the
office of the clerk of the county commission for assistance in
filling the vacancy. The clerk shall proceed as follows:
(1) The clerk may attempt to contact the person originally
appointed, may assign an alternate nominated by the same political
party as the person absent if one is available or, if no alternate
is available, may appoint another eligible person;
(2) If the election officials present are unable to contact
the clerk within a reasonable time, they shall diligently attempt
to fill the position with an eligible person of the same political
party as the party that nominated the person absent until a
qualified person has agreed to serve;
(3) If two teams of election officials, as defined in section
twenty-nine of this article, are present at the polling place, the
person appointed to fill a vacancy in the position of the
additional commissioner may be of either political party.
(k) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of the
county commission as provided in this section.
WVC 3-1-30a
§3-1-30a. Oaths of election commissioners and poll clerks,
substitution of persons.
(a) Each commissioner of election and poll clerk, as defined
in this article, before entering upon his or her duties, shall take
orally and subscribe to the appropriate oath, as prescribed herein.
Such oath may be taken before and administered by one of the
election commissioners or poll clerks, who in turn may take the
same before another election commissioner or poll clerk. For the
purposes of this article, all election commissioners and poll
clerks, having first been sworn, are authorized to administer
oaths.
(1) The oath for members of the receiving board shall be as
follows:
State of West Virginia
............... County
I, ........................, a qualified and registered voter
of the county affiliated with the ..................... Party, do
solemnly swear that I will faithfully and honestly discharge my
duties as ............................... (poll clerk or election
commissioner) of the receiving board according to the requirements
of law in this election; that I will not knowingly permit any
person to vote an unchallenged ballot who is not a resident of the
precinct and a properly registered voter qualified to vote the
ballot provided; that I will not challenge a ballot without just
cause; that I will not cause any unnecessary delay in voting; that I will not disclose to any person how any voter has voted, nor how
any ballot has been folded, marked, printed or stamped; that I do
not have any agreement, understanding or arrangement that I will
receive any money, position or other benefit for service in the
election apart from my official pay; that I do not have any
agreement, understanding or arrangement that I will perform any act
for the benefit of any candidate in the election; and that I have
nothing wagered or bet on the result of this election.
Subscribed and sworn to before me this ............. day of
............., 19....
..............................
Signature and official title
of person before whom sworn
(2) The oath for the members of the counting board shall be as
follows:
State of West Virginia
............... County
I, ...................., a qualified and registered voter of
the county affiliated with the ........................ Party, do
solemnly swear that I will faithfully and honestly discharge my
duties as .............................(poll clerk or election
commissioner) of the counting board according to the requirements
of law in this election; that I will carefully and accurately read
and record the votes cast on each ballot voted in the election
which contains the signatures of both poll clerks; that I will not disclose to any person how any voter has voted, nor how any ballot
has been folded, marked, printed or stamped; that I will not
disclose the votes cast for any candidate or any other information
about the result of the election prior to the posting of the
precinct returns on the door of the polling place; that I do not
have any agreement, understanding or arrangement that I will
receive any money, position or other benefit for service in the
election apart from my official pay; that I do not have any
agreement, understanding or arrangement that I will perform any act
for the benefit of any candidate in the election; and that I have
nothing wagered or bet on the result of this election.
..............................
Subscribed and sworn to before me this .............. day of
............., 19....
..............................
Signature and official title
of person before whom sworn
(3) The secretary of state may prescribe the form of such
oaths.
(b) When any election official is unable to perform the duties
for which he or she was appointed, a substitution may be made, as
follows:
(1) An eligible person of the same political party shall
assume the duties after taking the oath. One of the election
commissioners shall make an entry in the space provided on the oath form, indicating the name of the official being replaced, the
reason for the change, the name of the person assuming the duties,
the time at which the change occurred and the poll slip number of
the last voter who signed a poll slip before the change occurred;
(2) If it is necessary for a poll clerk of one political party
to exchange duties with an election commissioner of the same
political party, the change of duties for each person shall be
recorded in the same manner;
(3) If an election commissioner or poll clerk is unable or
fails to perform the duties of the office adequately and according
to the requirements of law to the extent such failure interferes
with the conduct of the election, the clerk of the county
commission may order the exchange of duties with another official
of the same party, or if necessary, remove the official. The fact
of that order shall be entered on the record, along with the
information required in subdivision (1) of this subsection.
(c) In a municipal election, the recorder or other official
designated by charter or ordinance to perform election
responsibilities shall perform the duties of the clerk of the
county commission specified in this section.
WVC 3-1-31
§3-1-31. Days and hours of elections.
General elections shall be held in the several election
precincts of the state on the Tuesday next after the first Monday
in November of each even year. Primary and special elections shall
be held on the days provided by law therefor.
At every primary, general or special election the polls shall
be opened in each precinct on the day of such election at
six-thirty o'clock in the forenoon and be closed at seven-thirty
o'clock in the evening.
WVC 3-1-32
§3-1-32. Opening and closing polls; procedure.
At the time of opening the polls in all precincts wherein
voting machines are not to be used, the election commissioners
shall examine the ballot box and ascertain that there are no
ballots in the same, and they shall thereupon securely lock the box
and give one key to one of the commissioners and one to a
commissioner of the opposite political party, who shall hold the
same, and such boxes shall not be again opened until the time to
begin counting the votes arrives and for that purpose. At or
before opening the polls, the commissioners of election shall open
the package containing the ballots in such manner as to preserve
the seals intact and thereupon deliver all of the ballots to the
poll clerk. Before any voter is permitted to vote, the
commissioners of election shall proclaim that such election is
opened. When the polls are closed, proclamation must be made of
the fact by one of the commissioners of election to the people
outside, in a loud and audible tone of voice, and a minute of such
proclamation and of the time when it was made must be entered on
the pollbooks by the clerks. The election commissioner shall
permit those electors to vote who are present at the polling place
prior to the hour specified for the closing of the polls:
Provided, That at that time they are in a line awaiting their turn
to vote within the voting room itself or, if the line extends
outside of the voting room itself, within that line. In that event
an election commissioner from each party shall immediately after the closing proclamation begin with the last voter in line and
together supply the voters within the line with waiting-voter
permits which shall be prescribed by the secretary of state. Each
voter shall sign his permit in the presence of both commissioners
who shall then likewise affix their signatures to the permit in the
presence of the voter and each other. After each such voter in
line has received and signed his permit and the election
commissioners have affixed their signatures thereto, voting shall
be resumed. Each voter shall present his permit to one of the poll
clerks so that the signature thereon may be compared to the voter's
signature when he signs the pollbook. Each permit so presented
shall be attached to the page in the pollbook on which the voter
affixed his signature. In no case shall any person who arrives at
the polling place after the closing hour be given a waiting-voter
permit or be allowed to vote. After the final voter presents his
waiting-voter permit and casts his ballot no more ballots shall be
cast or received.
WVC 3-1-33
§3-1-33. How elections conducted by double boards.
In all precincts wherein two election boards shall have been
appointed, the receiving board shall attend at the opening of the
polls, shall open the polls, and shall proceed with the election.
The counting board shall attend at the voting place not later than
three hours after the opening of the polls, and shall take charge
of the ballot box containing the ballots theretofore cast in that
precinct. They shall retire to a partitioned room or space in the
voting place and there proceed to count and tabulate the ballots
cast, as they shall find them deposited in the ballot box. The
receiving board shall continue to receive the vote of electors in
the other box, until such time as the counting board shall have
finished counting and tabulating the ballots cast in the first
ballot box. The county board shall, before exchanging the ballot
boxes as herein provided, seal the ballots counted by it in
envelopes to be provided for the purpose, which shall not be opened
until the two boards shall together proceed with counting,
tabulating and summarizing the votes as by this chapter provided.
The two boards shall then exchange the first box for the second
box, and so continue until the hour of closing the polls arrives.
WVC 3 - 1 - 34
§3-1-34. Voting procedures generally; assistance to voters; voting
records; penalties.
(a) Any person desiring to vote in an election shall, upon
entering the election room, clearly state his or her name and
residence to one of the poll clerks who shall thereupon announce
the same in a clear and distinct tone of voice. If that person is
found to be duly registered as a voter at that precinct, he or she
shall sign his or her name in the designated location provided at
the precinct. If that person is physically or otherwise unable to
sign his or her name, his or her mark shall be affixed by one of
the poll clerks in the presence of the other and the name of the
poll clerk affixing the voter's mark shall be indicated immediately
under the affixation. No ballot may be given to the person until
he or she signs his or her name on the designated location or his
or her signature is affixed thereon.
(b) The clerk of the county commission is authorized, upon
verification that the precinct at which a handicapped person is
registered to vote is not handicap accessible, to transfer that
person's registration to the nearest polling place in the county
which is handicap accessible. A request by a handicapped person
for a transfer of registration must be received by the county clerk
no later than thirty days prior to the date of the election. Any
handicapped person who has not made a request for a transfer of
registration at least thirty days prior to the date of the election
may vote a provisional ballot at a handicap accessible polling place in the county of his or her registration. If during the
canvass the county commission determines that the person had been
registered in a precinct that is not handicap accessible, the voted
ballot, if otherwise valid, shall be counted. The handicapped
person may vote in the precinct to which the registration was
transferred only as long as the disability exists or the precinct
from which the handicapped person was transferred remains
inaccessible to the handicapped. To ensure confidentiality of the
transferred ballot, the county clerk processing the ballot shall
provide the voter with an unmarked envelope and an outer envelope
designated "provisional ballot/handicapped voter". After
validation of the ballot at the canvass, the outer envelope shall
be destroyed and the handicapped voter's ballot shall be placed
with other approved provisional ballots prior to removal of the
ballot from the unmarked envelope.
(c) When the voter's signature is properly marked, the two
poll clerks shall sign their names in the places indicated on the
back of the official ballot and deliver the ballot to the voter to
be voted by him or her without leaving the election room. If he or
she returns the ballot spoiled to the clerks, they shall
immediately mark the ballot "spoiled" and it shall be preserved and
placed in a spoiled ballot envelope together with other spoiled
ballots to be delivered to the board of canvassers and deliver to
the voter another official ballot, signed by the clerks on the
reverse side. The voter shall thereupon retire alone to the booth or compartment prepared within the election room for voting
purposes and there prepare his or her ballot. In voting for
candidates in general and special elections, the voter shall comply
with the rules and procedures prescribed in section five, article
six of this chapter.
(d) It is the duty of a poll clerk, in the presence of the
other poll clerk, to indicate by a check mark, or by other means,
inserted in the appropriate place on the registration record of
each voter the fact that the voter voted in the election. In
primary elections the clerk shall also insert thereon a
distinguishing initial or initials of the political party for whose
candidates the voter voted. If a person is challenged at the
polls, the challenge shall be indicated by the poll clerks on the
registration record, together with the name of the challenger. The
subsequent removal of the challenge shall be recorded on the
registration record by the clerk of the county commission.
(e) (1) No voter may receive any assistance in voting unless,
by reason of blindness, disability, advanced age or inability to
read and write, that voter is unable to vote without assistance.
Any voter qualified to receive assistance in voting under the
provisions of this section may:
(A) Declare his or her choice of candidates to an election
commissioner of each political party who, in the presence of the
voter and in the presence of each other, shall prepare the ballot
for voting in the manner hereinbefore provided and, on request, shall read to the voter the names of the candidates selected on the
ballot;
(B) Require the election commissioners to indicate to him or
her the relative position of the names of the candidates on the
ballot, whereupon the voter shall retire to one of the booths or
compartments to prepare his or her ballot in the manner
hereinbefore provided;
(C) Be assisted by any person of the voter's choice, other
than the voter's present or former employer or agent of that
employer, the officer or agent of a labor union of which the voter
is a past or present member or a candidate on the ballot or an
official write-in candidate; or
(D) If he or she is handicapped, vote from an automobile
outside the polling place or precinct by the absentee balloting
method provided in subsection (e), section five, article three of
this chapter in the presence of an election commissioner of each
political party if all of the following conditions are met:
(i) The polling place is not handicap accessible; and
(ii) No voters are voting or waiting to vote inside the
polling place.
(2) The voted ballot shall then be returned to the precinct
officials and secured in a sealed envelope to be returned to the
clerk of the county commission with all other election materials.
The ballot shall then be tabulated using the appropriate method
provided in section eight of this chapter as it relates to the specific voting system in use.
(3) Any voter who requests assistance in voting but who is
believed not to be qualified for assistance under the provisions of
this section shall nevertheless be permitted to vote a provisional
ballot with the assistance of any person herein authorized to
render assistance.
(4) Any one or more of the election commissioners or poll
clerks in the precinct may challenge the ballot on the ground that
the voter thereof received assistance in voting it when in his, her
or their opinion the person who received assistance in voting is
not so illiterate, blind, disabled or of such advanced age as to
have been unable to vote without assistance. The election
commissioner or poll clerk or commissioners or poll clerks making
the challenge shall enter the challenge and reason therefor on the
form and in the manner prescribed or authorized by article three of
this chapter.
(5) An election commissioner or other person who assists a
voter in voting:
(A) May 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 must
not keep or make any memorandum or entry of anything occurring
within the voting booth or compartment and must 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; and
(B) Shall sign a written oath or affirmation before assisting
the voter on a form prescribed by the Secretary of State stating
that he or she will not override the actual preference of the voter
being assisted, attempt to influence the voter's choice or mislead
the voter into voting for someone other than the candidate of
voter's choice. The person assisting the voter shall also swear or
affirm that he or she believes that the voter is voting free of
intimidation or manipulation: Provided, That no person providing
assistance to a voter is required to sign an oath or affirmation
where the reason for requesting assistance is the voter's inability
to vote without assistance because of blindness as defined in
section three, article fifteen, chapter five of this code and the
inability to vote without assistance because of blindness is
certified in writing by a physician of the voter's choice and is on
file in the office of the clerk of the county commission.
(6) In accordance with instructions issued by the Secretary of
State, the clerk of the county commission shall provide a form
entitled "list of assisted voters", the form of which list shall
likewise be prescribed by the Secretary of State. The
commissioners shall enter the name of each voter receiving
assistance in voting the ballot, together with the poll slip number of that voter and the signature of the person or the commissioner
from each party who assisted the voter. If no voter has been
assisted in voting, the commissioners shall likewise make and
subscribe to an oath of that fact on the list.
(f) After preparing the ballot, the voter shall fold the
ballot so that the face is not exposed and so that the names of the
poll clerks thereon are seen. The voter shall announce his or her
name and present his or her ballot to one of the commissioners who
shall hand the same to another commissioner, of a different
political party, who shall deposit it in the ballot box if the
ballot is the official one and properly signed. The commissioner
of election may inspect every ballot before it is deposited in the
ballot box to ascertain whether it is single, but without unfolding
or unrolling it so as to disclose its content. When the voter has
voted, he or she shall retire immediately from the election room
and beyond the sixty-foot limit thereof and may not return except
by permission of the commissioners.
(g) Following the election, the oaths or affirmations required
by this section from those assisting voters, together with the
"list of assisted voters", shall be returned by the election
commissioners to the clerk of the county commission along with the
election supplies, records and returns. The clerk of the county
commission shall make the oaths, affirmations and list available
for public inspection and shall preserve them for a period of
twenty-two months or until disposition is authorized or directed by the Secretary of State or court of record: Provided, That the
clerk may use these records to update the voter registration
records in accordance with subsection (d), section eighteen,
article two of this chapter.
(h) Any person making an oath or affirmation required under
the provisions of this section who knowingly swears falsely or any
person who counsels, 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 jail for a period of not
more than one year, or both fined and confined.
(i) Any election commissioner or poll clerk who authorizes or
provides unchallenged assistance to a voter when the voter is known
to the election commissioner or poll clerk not to require
assistance in voting is guilty of a felony and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in a state correctional facility for a period of not
less than one year nor more than five years, or both fined and
imprisoned.
WVC 3-1-35
§3-1-35. Ballots to be furnished voters.
In general and special elections the ballots for all voters of
an election precinct shall be the same. In primary elections the
ballot of the voter's political party at that election in that
precinct shall be furnished to the voter together with separate
ballots, if any, on any nonpartisan candidates and any public
questions submitted to the voters generally at such primary
election. In the event the voter is lawfully registered as
"independent" or as an adherent of a political party not appearing
on any primary election ballot to be voted in his precinct, he
shall not, in a primary election, be given or entitled to vote any
party ballot but shall be furnished any separate ballots to be
voted thereat on nonpartisan candidates and public questions.
WVC 3-1-36
§3-1-36. Report on and disposition of ballots spoiled or not used.
Any voter who shall spoil, deface or mutilate the ballot
delivered to him, on returning the same to the poll clerks, shall
receive another in place thereof. Every person who does not vote
any ballot delivered to him shall, before leaving the election
room, return such ballot to the poll clerks. When a spoiled or
defaced ballot is returned, the poll, clerks shall make a minute of
the fact on the pollbooks, at the time, and the word "spoiled"
shall be written across the face of the ballot and such ballot
shall be placed in an envelope for spoiled ballots.
Immediately on closing the polls, the commissioners of
election shall ascertain the number of ballots spoiled during the
election and the number of ballots remaining not voted. The
commissioners of election shall also ascertain from the pollbooks
the number of persons who voted and shall report, over their
signatures, to the clerk of the county commission, the number of
votes case, the number of ballots spoiled during the election and
the number of ballots not voted. All unused ballots shall at the
same time be returned to the clerk of the county commission, who
shall separately package the unused ballots from each precinct,
mark the name and number of the precinct on the package and retain
them securely along with other election materials.
Each commissioner who is a member of an election board which
fails to account for every ballot delivered to it is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than one thousand dollars or confined in the county jail for not
more than one year, or both fined and imprisoned.
The board of ballot commissioners of each county, or the
chairman thereof, shall preserve the ballots that are left over in
their hands, after supplying the precincts as provided, until
twenty-two months after the election.
WVC 3 - 1 - 37
§3-1-37. Restrictions on presence and conduct at polls.
(a) Except as otherwise provided in this section, no person,
other than the election officers and voters going to the election
room to vote and returning therefrom, may be or remain within three
hundred feet of the outside entrance to the building housing the
polling place while the polls are open. This subsection does not
apply to persons who reside or conduct business within such
distance of the entrance to the building housing the polling place,
while in the discharge of their legitimate business, or to persons
whose business requires them to pass and repass within three
hundred feet of such entrance.
(b) A person who is delivering a voter to a polling place by
motor vehicle may drive such vehicle to a convenient and accessible
location to discharge the voter, notwithstanding that the location
is within three hundred feet of the outside entrance to the
building housing the polling place. Upon discharging such voter
from the vehicle, the person shall remove the vehicle from within
three hundred feet of the entrance until such time as the voter is
to be transported from the polling place or another voter
delivered: Provided, That vehicles delivering voters who require
assistance by reason of blindness, disability or advanced age may
remain within three hundred feet of the entrance until such time as
the voter is to be transported from the polling place.
(c) The election commissions shall limit the number of voters
in the election room so as to preserve order. No person may approach nearer than five feet to any booth or compartment while
the election is being held, except the voters to prepare their
ballots, or the poll clerks when called on by a voter to assist in
the preparation of his ballot, and no person, other than election
officers and voters engaged in receiving, preparing and depositing
their ballots, may be permitted to be within five feet of any
ballot box, except by authority of the board of election
commissioners, and then only for the purpose of keeping order and
enforcing the law.
(d) Not more than one person may be permitted to occupy any
booth or compartment at one time. No person may remain in or
occupy a booth or compartment longer than may be necessary to
prepare his ballot, and in no event longer than five minutes,
except that any person who claims a disability pursuant to section
thirty-four of this article shall have additional time up to ten
additional minutes to prepare his ballot. No voter, or person
offering to vote, may hold any conversation or communication with
any person other than the poll clerks or commissioners of election,
while in the election room.
(e) The provisions of this section do not apply to persons
rendering assistance to blind voters as provided in section
thirty-four of this article or to any child fourteen years of age
or younger who accompanies a parent, grandparent or legal guardian
who is voting. Any dispute concerning the age of a child
accompanying a parent, grandparent or legal guardian who is voting shall be determined by the election commissioners.
WVC 3-1-38
§3-1-38. Disorder at polls; procedure.
The commissioners of election shall preserve order at, and in
the vicinity of, the polls, and keep the way to the polls open and
free from obstruction, and may direct disorderly persons to be
removed therefrom, and, if necessary and proper, to be taken and
held in custody until sunrise of the next day, or for any shorter
time, which may be done by any sheriff or constable or other person
or persons designated by the commissioners of election. For such
purpose no warrant or authority in writing shall be necessary. The
jail of the county or other place designated by the commissioners
of election may be used as the place of custody. But any person so
arrested shall have an opportunity to vote, if he be entitled to do
so, before he shall be committed to jail, if he so desires and
shall be prepared to do so promptly.
WVC 3 - 1 - 39
§3-1-39. Illegal voting; affidavit; procedure.
(a) If at any time during the election any qualified voter
shall appear at the polls for the purpose of stating that any
person who has voted is an illegal voter in the precinct, that
person shall be admitted to the election room and shall appear
before a commissioner of election to make an affidavit explaining
why he or she believes the accused to be an illegal voter.
(b) All affidavits alleging illegal voting shall be placed in
a strong and durable envelope by the commissioners of election.
The envelope shall be securely sealed and each of the commissioners
shall endorse his or her name on the back of the envelope. At the
close of the count the envelope shall be delivered to the clerk of
the circuit court in accordance with section sixteen, article five
of this chapter and section eight, article six of this chapter.
The clerk of the circuit court shall carefully preserve the
envelope containing the affidavits and deliver it, with the seal
unbroken, to the prosecuting attorney in the county. The
prosecuting attorney shall proceed as if it had been made before
him or her.
WVC 3 - 1 - 40
§3-1-40.
Repealed.
Acts, 2003 Reg. Sess., Ch. 100.
WVC 3 - 1 - 41
§3-1-41. Challenged and provisional voter procedures; counting of
provisional voters' ballots; ballots of election
officials.
(a) It is the duty of the members of the receiving board,
jointly or severally, to challenge the right of any person
requesting a ballot to vote in any election:
(1) If the person's registration record is not available at
the time of the election;
(2) If the signature written by the person in the poll book
does not correspond with the signature purported to be his or hers
on the registration record;
(3) If the registration record of the person indicates any
other legal disqualification; or
(4) If any other valid challenge exists against the voter
pursuant to section ten, article three of this chapter.
(b) Any person challenged shall nevertheless be permitted to
vote in the election. He or she shall be furnished an official
ballot not endorsed by the poll clerks. In lieu of the
endorsements, the poll clerks shall complete and sign an
appropriate form indicating the challenge, the reason thereof and
the name or names of the challengers. The form shall be securely
attached to the voter's ballot and deposited together with the
ballot in a separate box or envelope marked "provisional ballots".
(c) At the time that an individual casts a provisional ballot,
the poll clerk shall give the individual written information stating that an individual who casts a provisional ballot will be
able to ascertain under the free access system established in this
section whether the vote was counted and, if the vote was not
counted, the reason that the vote was not counted.
(d) Before an individual casts a provisional ballot, the poll
clerk shall provide the individual written instructions, supplied
by the board of ballot commissioners, stating that if the voter is
casting a ballot in the incorrect precinct, the ballot cast may not
be counted for that election: Provided, That if the voter is found
to be in the incorrect precinct, then the poll worker shall attempt
to ascertain the appropriate precinct for the voter to cast a
ballot and immediately give the voter the information if
ascertainable.
(e) Provisional ballots may not be counted by the election
officials. The county commission shall, on its own motion, at the
time of canvassing of the election returns, sit in session to
determine the validity of any challenges according to the
provisions of this chapter. If the county commission determines
that the challenges are unfounded, each provisional ballot of each
challenged voter, if otherwise valid, shall be counted and tallied
together with the regular ballots cast in the election. The county
commission, as the board of canvassers, shall protect the privacy
of each provisional ballot cast. The county commission shall
disregard technical errors, omissions or oversights if it can
reasonably be ascertained that the challenged voter was entitled to vote.
(f) Any person duly appointed as an election commissioner or
clerk under the provisions of section twenty-eight of this article
who serves in that capacity in a precinct other than the precinct
in which the person is legally entitled to vote may cast a
provisional ballot in the precinct in which the person is serving
as a commissioner or clerk. The ballot is not invalid for the sole
reason of having been cast in a precinct other than the precinct in
which the person is legally entitled to vote. The county
commission shall record the provisional ballot on the voter's
permanent registration record: Provided, That the county
commission may count only the votes for the offices that the voter
was legally authorized to vote for in his or her own precinct.
(g) The Secretary of State shall establish a free access
system, which may include a toll-free telephone number or an
internet website, that may be accessed by any individual who casts
a provisional ballot to discover whether his or her vote was
counted and, if not, the reason that the vote was not counted.
WVC 3-1-42
§3-1-42. Time off for voting.
Every person entitled to vote at any election who may be
employed by any person, company, or corporation on the day on which
such election shall be held in this state, shall, on written demand
of such employee, made at least three days prior thereto, be given
a period of not more than three hours, if necessary, between the
opening and the closing of the polls on such day, for the purpose
of enabling such person to repair to the place of voting to cast
his vote and return, without liability to any penalty or deduction
from his usual salary or wages on account of such absence, except
that any employee, who has three or more hours of his own time away
from his work or place of employment at any time between the hours
of the opening and the closing of the polls on election day and who
fails or neglects to vote or elects not to vote during such free
time away from his work or employment, may be subject to wage or
salary deductions for the time actually absent from his work or
employment for voting in such election.
In essential government, health, hospital, transportation and
communication services and in production, manufacturing and
processing works requiring continuity in operation, the employer
may, upon receipt of such written demand for voting time off,
arrange and schedule a calendar of time off for any and all of his
employees for voting so as to avoid impairment or disruption of
essential services and operations, but every such schedule or
calendar of time off for voting so arranged shall provide ample and convenient time and opportunity for each employee of such services
or works to cast his vote as herein provided.
WVC 3-1-43
§3-1-43. Disposition of miscellaneous election papers.
At the expiration of twenty-two months after any election, the
affidavits taken and returned by any registrar or any election
officer, applications for absent voters' ballots, rejected absent
voters' ballots, certificates of nominations of candidates, and the
written designations of election officers and of ballot
commissioners shall be destroyed. If the further preservation of
any of the documents mentioned in this section shall be required by
the order of the court, the same shall be destroyed at the
expiration of the time fixed for the further preservation thereof
by such order.
WVC 3 - 1 - 44
§3-1-44. Compensation of election officials; expenses.
(a) Each ballot commissioner is to be paid a sum, to be fixed
by the county commission, not exceeding one hundred twenty-five
dollars for each day he or she serves as ballot commissioner, but
in no case may a ballot commissioner receive allowance for more
than ten days' services for any one primary, general or special
election.
(b) Each commissioner of election and poll clerk is to be paid
a sum, to be fixed by the county commission, not exceeding one
hundred twenty-five dollars for one day's services for attending
the school of instruction for election officials if the
commissioner or poll clerk provides at least one day's service
during an election and a sum not exceeding one hundred seventy-five
dollars for his or her services at any one election: Provided,
That each commissioner of election and poll clerk is to be paid a
sum not exceeding one hundred seventy-five dollars for his or her
services at any of the three special elections described in
subsection (f) of this section.
(c) Each alternate commissioner of election and poll clerk may
be paid a sum, to be fixed by the county commission, not exceeding
fifty dollars for one day's services for attending the school of
instruction for election officials: Provided, That no alternate
may be eligible for compensation for election training unless the
alternate is subsequently appointed as an election official or is
instructed to attend and actually attends training as an alternate and is available to serve on election day.
(d) The commissioners of election or poll clerks obtaining and
delivering the election supplies, as provided in section
twenty-four of this article, and returning them, as provided in
articles five and six of this chapter, are to be paid an additional
sum, fixed by the county commission, not exceeding one hundred
twenty-five dollars for his or her services pursuant to this
subsection at any one election. In addition, he or she is to be
paid mileage up to the rate of reimbursement authorized by the
travel management rule of the department of administration for each
mile necessarily traveled in the performance of his or her
services.
(e) The compensation of election officers, cost of printing
ballots and all other expenses incurred in holding and making the
return of elections, other than the three special elections
described in subsection (f) of this section, are to be audited by
the county commission and paid out of the county treasury.
(f) The compensation of election officers, cost of printing
ballots and all other reasonable and necessary expenses in holding
and making the return of a special election for the purpose of
taking the sense of the voters on the question of calling a
constitutional convention, of a special election to elect members
of a constitutional convention and of a special election to ratify
or reject the proposals, acts and ordinances of a constitutional
convention are obligations of the state incurred by the ballot commissioners, clerks of the circuit courts, clerks of the county
commissions and county commissions of the various counties as
agents of the state. All expenses of these special elections are
to be audited by the secretary of state. The secretary of state
shall prepare and transmit to the county commissions forms on which
the county commissions shall certify all expenses of these special
elections to the secretary of state. If satisfied that the
expenses as certified by the county commissions are reasonable and
were necessarily incurred, the secretary of state shall requisition
the necessary warrants from the auditor of the state to be drawn on
the state treasurer and shall mail the warrants directly to the
vendors of the special election services, supplies and facilities.
WVC 3 - 1 - 45
§3-1-45. Court proceedings to compel performance of duties, etc.
Any officer or person upon whom any duty is imposed by this
chapter may be compelled to perform his or her duty by writ of
mandamus. The circuit courts, or the judges thereof in vacation,
shall have jurisdiction by writ and shall, upon affidavit filed
showing a proper case, issue a writ to be returned, heard and
determined within fifteen days from the commencement of the
proceedings. If a circuit court, or a judge thereof in vacation,
shall proceed against any board of canvassers by mandamus, or
otherwise, to control, in any manner, the action of the board in
the performance of its duties, under the provisions of this
article, in any case concerning the election of a member of the
House of Delegates, or a state senator, and shall fail to enter a
final order in the proceedings, settling all questions presented
therein within fifteen days from the commencement of the
proceedings, unless delayed by proceedings in the supreme court of
appeals, or a judge thereof in vacation, the writ shall be
dismissed. The board shall convene within not less than five days
thereafter and proceed forthwith to the performance of its duties
under the provisions of this article. A mandamus shall lie from
the supreme court of appeals, or any one of the judges thereof in
vacation, returnable before court, to compel any officer herein to
do and perform legally any duty required of him or her. In an
election of a member of the House of Delegates and state senator,
a writ of certiorari, mandamus or prohibition shall lie from the supreme court of appeals, or a judge thereof in vacation,
returnable before the court, to correct any error of law and review
and correct the proceedings of any circuit court, or the judge
thereof in vacation, or any board of canvassers. When any rule to
show cause why a writ of mandamus, prohibition or certiorari is
issued by the court, or a judge thereof in vacation, it shall be
the duty of the court to convene in special session at the state
capital, not later than ten days from the date of the writ, to hear
and determine all matters arising upon the writ. The issues raised
in the petition for a writ of mandamus, prohibition or certiorari
shall have precedence over all other business pending before the
court. The issues before the court shall be determined within five
days from the assembling of the court and, in any case, in ample
time for the case to be remanded and final action taken by the
circuit court and the board of canvassers in order that the board
may perform its duty and issue the certificate of election before
the second Wednesday in January, then next following. Mandamus and
prohibition proceedings under this section may be upon affidavit
alone.
WVC 3 - 1 - 46
§3-1-46. Training program for election officials.
(a) The Secretary of State in conjunction with the State
Election Commission shall produce one or more audio-visual programs
which explain and illustrate the procedures for conducting
elections, the duties of the various election officials and the
methods of voting on each voting system in use in the state.
(b) One copy of the appropriate training program shall be
distributed to and kept and preserved by the clerk of the county
commission of each county. The program shall be shown to all
election officials before each election as part of their
instructional program. The clerk of the county commission shall
conduct an adequate number of sessions to train all election
officials, shall schedule the regular sessions not less than seven
days before each election and shall notify all election officials
of the exact date, time and place such instructional program will
be conducted.
(c) No person may serve as an election commissioner or poll
clerk in any election unless he or she has attended the
instructional program required by subsection (a) of this section
within thirty days prior to an election. If an election official
fails to attend the instructional program, another person shall be
appointed in the election official's place in the same manner as
persons are appointed under the provisions of section thirty of
this article to replace election officials refusing to serve. The
clerk of the county commission shall conduct an additional instructional program within seven days prior to the election for
any such person so appointed: Provided, That in cases of
emergency, when no person who has attended the instructional
program for that election is available to fill a vacancy on the
election board, the clerk of the county commission may appoint the
substituted person as a commissioner or poll clerk notwithstanding
that he or she has not received the instruction.
(d) The requirements of this section apply to all elections
conducted by municipalities, except that the recorder or municipal
clerk responsible for the election shall perform the duties of the
clerk of the county commission defined in this section. The clerk
of the county commission may assist the recorder or municipal clerk
in conducting the instructional program.
(e) When the instructional program is not being used by the
clerk for instructional purposes, it shall be available to any duly
organized civic, religious, educational or charitable group without
charge, except that the clerk shall require a cash deposit on such
use in an amount to be determined by the Secretary of State.
(f) The Secretary of State shall cause the instructional
program to be amended, edited or reproduced whenever he or she is
of the opinion such revision is necessary in light of changes in
the election laws of this state.
(g) No elected official may appear in any training program
either in person or by visual image or by name.
(h) Every county clerk shall attend a training, to be conducted by the Secretary of State every two years, for the
purpose of reviewing the election official training and receiving
updates on election law matters.
WVC 3-1-47
§3-1-47.
Repealed.
Acts, 1991 Reg. Sess., Ch. 68.
WVC 3 - 1 - 48
§3-1-48. Legislative findings; State Election Fund; loans to
counties; availability of funds; repayment of loans.
(a) Legislative findings. -- The "Help America Vote Act of
2002", PL 107-252, 42 U.S.C. §15301, et seq., provides funding so
that all states will be able to implement some form of electronic
voting system to replace punch card and lever machines by two
thousand six. The new voting systems must meet several
requirements including notifying the voter of over votes and
permitting each voter to review his or her ballot and correct
errors before casting the vote. The limited, finite funding
available to the state will not be sufficient to meet current and
future needs for equipment and services as equipment needs to be
obtained, repaired or replaced as technology changes. It is the
intent of the Legislature to maximize the available funds by
establishing a no-interest loan program to assist any county,
regardless of its current voting system, in purchasing necessary
electronic voting equipment and services. As the loans are repaid
funds will continue to be available to meet future needs. It is
not the intent of the Legislature to mandate any technology for
voting systems to be utilized in this state and this section is
intended only to establish terms and conditions for providing loan
assistance to counties in accordance with the provisions of this
section.
(b) State Election Fund. -- The special revenue account
created in the State Treasury and known as the "State Election Fund" account is continued. Expenditures from the account shall be
used by the secretary of state for the administration of this
chapter in accordance with the provisions of 42 U.S.C. §15301, et
seq., the Help America Vote Act of 2002, PL 107-252, in accordance
with the provisions of article eleven, chapter four of this code.
(c) Establishment of special revenue account. -- There is
created in the State Treasury a special revenue revolving fund
account known as the "county assistance voting equipment fund"
which shall be an interest-bearing account. The fund shall consist
of an initial transfer not to exceed eight million five hundred
thousand dollars from the State Election Fund established under
subsection (b) of this section pursuant to legislative
appropriation; any future funds received from the federal
government under the "Help America Vote Act of 2002", PL 107-252,
42 U.S.C. §15301, et seq., or subsequent acts providing funds to
states to obtain, modify or improve voting equipment and obtain
necessary related services including voting systems, technology and
methods for casting and counting votes; any funds appropriated by
the Legislature or transferred by any public agency as contemplated
or permitted by applicable federal or state law; and any accrued
interest or other return on the moneys in the fund. The balance
remaining in the fund at the end of each fiscal year shall remain
in the fund and not revert to the state General Revenue Fund.
(d) Use of funds. -- The money in the fund shall be used only
in the manner and for the purposes prescribed in this section. Notwithstanding any provision of law to the contrary, funds in the
county assistance voting equipment fund may not be designated or
transferred for any purpose other than those set forth in this
section.
(e) Administration of the fund. -- The Secretary of State
shall administer the fund with the approval of the State Election
Commission.
(f) Investment of fund. -- The moneys of the fund shall be
invested pursuant to article six, chapter twelve of this code and
in such a manner that sufficient moneys are available as needed for
loans authorized under this section.
(g) Loans to counties. -- The county assistance voting
equipment fund shall be used to make no-interest loans to counties
to obtain, modify or replace voting equipment, software and
necessary related services including voting systems, technology and
methods for casting and counting votes: Provided, That any county
commission that purchased an electronic voting system prior to the
thirteenth day of November, two thousand four, is eligible to apply
for matching funds under this section to upgrade the system:
Provided, however, That matching funds available for an upgrade
shall not exceed the amount available under subdivision (1) of this
subsection for the purchase of a new electronic voting system under
the Secretary of State's authorized contract. The loans shall be
made under the following terms and conditions:
(1) The State Election Commission shall, subject to availability of funds, loan no more than fifty percent of the cost
of the voting equipment or services to any county commission:
Provided, That a portion or all of the county matching requirement
may be waived in limited circumstances as determined by the State
Election Commission pursuant to this section.
(2) The county commission shall provide sufficient
documentation to establish to the satisfaction of the State
Election Commission that the county commission has at least fifty
percent of the money necessary to obtain the voting equipment,
software or services for which the loan is sought.
(3) The county commission shall enter into a contract with the
State Election Commission for the repayment of the loan over a
period not to exceed five years or the length of the contract to
obtain the equipment, software or services, whichever is less.
(4) The county commission shall use the loan for voting
equipment and services certified by the State Election Commission
pursuant to the provisions of article four-a of this chapter and
authorized for use by the Secretary of State.
(5) A county commission may apply for a loan on a form
provided by the Secretary of State. The form shall, in addition to
requesting information necessary for processing the application,
state the deadline for submitting the application and the
eligibility requirements for obtaining a loan.
(6) The State Election Commission may waive a portion or all
of the matching money required by this subsection for a county commission that can establish that it has exercised due diligence
in raising its share of the costs but has been unable to do so. On
forms provided by the secretary of state the county commission
shall request a waiver and shall make a full financial disclosure
of its assets and liabilities as well as potential for future
income when applying for a waiver. The county commission shall
demonstrate, to the satisfaction of the state election commission,
its inability to meet the matching requirements of this subsection
and its ability to repay the loan in a timely manner.
Notwithstanding the provisions of subdivision (3) of this
subsection, the state election commission may extend the repayment
period on a year-to-year basis for a repayment period not to exceed
five additional years.
(h) Application. -- An application for a loan shall be
approved by the State Election Commission if the requirements of
this section have been met.
(i) Rulemaking. -- The secretary of state shall propose for
promulgation in accordance with article three, chapter
twenty-nine-a of this code emergency and legislative rules
necessary to effectuate the purposes of this section.
(j) Availability of loans. -- The State Election Commission
may not approve a loan under this section until final standards for
electronic voting equipment with a voter verified paper ballot have
been established by the Secretary of State or the national
institute for standards and technology. The State Election Commission may not approve a loan for the purchase, lease, rental
or other similar transaction to obtain electronic voting equipment,
software or necessary related services unless obtained under a
contract authorized by the Secretary of State pursuant to rules
promulgated under this section.
(k) Repayment of loans. -- The Secretary of State may, by
civil action, mandamus or other judicial or administrative
proceeding, compel performance by a county commission of all the
terms and conditions of the loan agreement between the state and
that county commission including periodic reduction of any moneys
due the county from the state.
WVC 3 - 1 - 49
§3-1-49. Voting system standards.
(a) In accordance with 42 U. S. C. §1530, et seq., the Help
America Vote Act of 2002, Public Law 107-252, each voting system
used in an election for federal office shall:
(1) Permit the voter to verify, in a private and independent
manner, the votes selected by the voter on the ballot before the
ballot is cast and counted;
(2) Provide the voter with the opportunity, in a private and
independent manner, to change the ballot or correct any error
before the ballot is cast and counted, including the opportunity to
correct the error through the issuance of a replacement ballot if
the voter was otherwise unable to change the ballot or correct any
error; and
(3) If the voter selects votes for more than one candidate for
a single office: (A) Notify the voter that the voter has selected
more than one candidate for a single office on the ballot; (B)
notify the voter before the ballot is cast and counted of the
effect of casting multiple votes for the office; and (C) provide
the voter with the opportunity to correct the ballot before the
ballot is cast and counted: Provided, That a county that uses a
paper ballot voting system, a punch card voting system or an
optical scan voting system may meet the requirements of this
paragraph by establishing a voter education program specific to
that voting system that notifies each voter of the effect of
casting multiple votes for an office; and providing the voter with instructions on how to correct the ballot before it is cast and
counted, including instructions on how to correct the error through
the issuance of a replacement ballot if the voter was otherwise
unable to change the ballot or correct any error.
(4) Ensure that any notification required under this section
preserves the privacy of the voter and the confidentiality of the
ballot.
(b) Each voting system used in an election for federal office
shall produce a record with an audit capacity for the system which
shall meet the following requirements:
(1) Produce a permanent paper record with a manual audit
capacity for the system; and
(2) Provide the voter with an opportunity to change the ballot
or correct any error before the ballot is cast and counted and
before the permanent paper record is produced.
(c) Each voting system used in an election for federal office
shall be accessible for individuals with disabilities, including
nonvisual accessibility for the blind and visually impaired, in a
manner that provides the same opportunity for access and
participation, including privacy and independence, as for other
voters: Provided, That the provisions of this subsection may be
satisfied through the use of at least one direct recording
electronic voting system or other voting system equipped for
individuals with disabilities at each polling place.
WVC 3 - 1 - 50
§3-1-50. Establishment of state-based administrative complaint
procedures.
(a) The Secretary of State shall establish and maintain a
state-based administrative complaint procedure for complaints
received concerning election violations which shall meet the
following requirements:
(1) The procedures shall be uniform and nondiscriminatory.
(2) Under the procedures, any person who believes that there
is a violation of any provision of this chapter or Title III of the
Help America Vote Act, Pub. L. 107-252, including a violation which
has occurred, is occurring or is about to occur, may file a
complaint.
(3) Any complaint filed under the procedures shall be in
writing, notarized and signed and sworn by the person filing the
complaint.
(4) The Secretary of State may consolidate complaints filed
under this section.
(5) At the request of the complainant there shall be a hearing
on the record.
(6) Violations of any provision of this chapter or Title III
of the Help America Vote Act, Pub. L. 107-252 shall be punishable
in accordance with the provisions of article nine of this chapter.
(7) If, under the procedures, the Secretary of State
determines that there is no violation, the Secretary of State shall
dismiss the complaint and publish the results of the procedures.
(8) The Secretary of State shall make a final determination
with respect to a complaint prior to the expiration of the
ninety-day period which begins on the date the complaint is filed
unless the complainant consents to a longer period for making a
determination.
(9) If the Secretary of State fails to meet the deadline
applicable under subdivision (8) of this section, the complaint
shall be resolved within sixty days under alternative dispute
resolution procedures established for purposes of this section.
The record and other materials from any proceedings conducted under
the complaint procedures established under this section shall be
made available for use under the alternative dispute resolution
procedures.
(b) The administrative complaint procedure required by
subsection (a) of this section is not applicable if, within thirty
days of the filing of the complaint: (1) The Secretary of State
initiates an investigation; (2) the Secretary of State determines
that the allegations contained in the complaint may result in a
finding of a criminal violation; and (3) the Secretary of State
determines that the administrative complaint procedure required by
this section would endanger or impede the associated criminal
investigation: Provided, That within three business days thereafter
the Secretary of State shall notify the complainant in writing that
the allegations contained in the complaint may result in a finding
of a criminal violation and, therefore, the administrative procedure contained in this section is inapplicable.
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.
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