Chapter 3. Elections


Published: 2015

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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.