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West Virginia: Secretary of State

 

West Virginia Provisions for Ballot Secrecy and Hand-Checking 3% of Precincts

 

WV Constitution: "In all elections by the people, 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."

 

WV Code (italics and bold added)

 

ELECTION LAW

 

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.

 

3-1-28. Election officials; eligibility, suspension of eligibility.

(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:...

(3) Improper interference with a voter casting a ballot or violating the secrecy of the voter's ballot;

 

3-1-41. Challenged and provisional voter procedures; counting of provisional voters' ballots; ballots of election officials.

(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.

 

3-4A-2. Definitions...

(2) "Ballot" means a logical or physical device that presents races, candidates and contests, and facilitates the capture of the voter's choices or intent;...

(7) "Vote-recording device" means equipment that captures and records voter intent by marking a screen to record selections or by using electronically sensible ink to mark selections;...

 

3-4A-28. Post-election custody and inspection of vote-recording devices and electronic poll books; canvass and recounts.

  (a) The vote-recording devices, electronic poll books, tabulating programs and standard validation test ballots are to remain sealed during the canvass of the returns of the election, except that the equipment may be opened for the canvass and must be resealed immediately thereafter. During the seven-day period after the completion of the canvass, any candidate or the local chair of a political party may be permitted to examine any of the sealed materials: Provided, That a notice of the time and place of the examination shall be posted at the central counting center before and on the hour of nine o'clock in the morning on the day the examination is to occur and all persons entitled to be present at the central counting center may, at their option, be present. Upon completion of the canvass and after the seven-day period has expired, the vote-recording devices, test results and standard validation test ballots are to be sealed for one year: Provided, however, That the vote-recording devices, electronic poll books and all tabulating equipment may be released for use in any other lawful election to be held more than ten days after the canvass is completed and any of the electronic voting equipment or electronic poll books discussed in this section may be released for inspection or review by a request of a circuit court or the Supreme Court of Appeals....

  (d) During the canvass, at least three percent of the precincts are to be chosen at random and the voter-verified paper ballots are to be counted manually...

 

3-6-9. Canvass of returns; declaration of results; recounts; recordkeeping.
(a) The commissioners of the county commission shall be ex officio a board of canvassers...

(6) The board shall proceed to open each sealed package of ballots laid before them and, without unfolding them, count the number in each package and enter the number upon their record.

(7) The ballots shall then be again sealed carefully in a new envelope and each member of the board shall write his or her name across the place where the envelope is sealed.

(8) After canvassing the returns of the election, the board shall publicly declare the results of the election.

(B) ...an order shall be entered by each relevant county certifying all election results except for those offices in which a recount has been demanded...

(i) After the board of canvassers has made their certificates and declared the results as hereinafter provided, they shall deposit the sealed packages of ballots, absent voter ballots, registration records, pollbooks, tally sheets and precinct certificates with the clerk of the county commission from whom they were received, who shall carefully preserve them for twenty-two monthsProvided, 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. If there is no contest pending as to any election and their further preservation is not required by any order of a court, the ballots, pollbooks, tally sheets and certificates shall be destroyed by fire or otherwise, without opening the sealed packages of ballots. If there is a contest pending, they shall be destroyed as soon as the contest is ended.

 

2016 Canvassing and Recount Manual (WV Sec. of State)

 

Conducting an Optical Scan/Paper Ballot Canvass

 

3... The Board of Canvassers determines which precincts to hand count by random selection held in an open meeting. The method of random selection is determined by the Board of Canvassers.

 

25. To perform the actual count, teams of four individuals work together after having taken a written oath to perform duties fairly. Two members read the votes cast on the ballot. The other two members separately record the votes. Tally sheets should be used for this process. [Most WV counties have only 3 members of the board of canvassers (county commission), so these four counters are not necessarily members of the board of canvassers.]

 

28. If there is a difference or [sic] more than 1% between the tabulated results for all offices on all ballots (total votes cast) in a precinct and the hand count result in that precinct, all precincts must be hand counted.

 

Conducting a Touch Screen Canvass

 

3... The Board of Canvassers determines which precincts to hand count by random selection held in an open meeting.

 

20. To perform the actual count, teams of four individuals work together after having taken a written oath to perform duties fairly. Two members read the votes cast on the paper trail and the other two members separately record the votes on the tally sheets. This requirement must be met by removing each roll from the envelope and manually reviewing each vote. The results can only be certified after each roll is reviewed as it is unrolled.

 

22. If there is a difference between the tabulated results for any office caused by a mechanical failure of the tabulating equipment, including a paper jam of the printer, the board of canvassers must determine the error and take corrective measures in accordance with West Virginia Code 3-4A-29. Therefore, if during the canvass, the board of canvassers comes across a paper jam that misconstrues the recorded votes, it will be necessary to print ballot images from the applicable flashcard(s) of each machine affected. These ballot images should be used in place of only the unreadable ballots.

Select the "Create Vote Image Log" from the "Tabulators" menu. (This can only be done after processing the coded ballots.) Once the log is created, select the "iVotronic DRE" from the "Tabulators" menu and then select "Print Vote Image Log."

 

24. If there is a difference or [sic] more than 1% between the tabulated results for all offices on all ballots (total votes cast) in a precinct and the hand count result in that precinct, all precincts must be hand counted.

 

FREEDOM OF INFORMATION LAW

 

29B‑1‑4. Exemptions.

(a) There is a presumption of public accessibility to all public records, subject only to the following categories of information which are specifically exempt from disclosure under the provisions of this article:...

(5) Information specifically exempted from disclosure by statute;...

 

RCFP guide to WV FOIA says, "However, for any other state statute to nullify the public's right of access to public records, the statute must "specifically" exempt the particular information from disclosure, W. Va. Code 29B-1-4(5), and "the party claiming exemption . . . has the burden of showing the express applicability of such exemption to the material requested." Daily Gazette v. W. Va. Development Officesupra, Syllabus pt. 2)."

http://www.rcfp.org/west-virginia-open-government-guide/ii-exemptions-and-other-legal-limitations/b-other-statutory-excl

http://www.courtswv.gov/supreme-court/docs/fall1996/23560.htm - Daily Gazette v. W. Va. Development Office

 

RCFP guide to WV FOIA discusses voters' right to a secret ballot, but does not address whether anonymous ballots (paper or images) are subject to WV FOIA. On one hand, "Election records are subject to disclosure under the Freedom of Information Act." On the other hand "his vote, except where necessarily revealed, is entitled to the same secrecy as one cast in a primary election."

http://www.rcfp.org/west-virginia-open-government-guide/iv-record-categories-open-or-closed/j-election-records

https://www.courtlistener.com/opinion/1247026/state-ex-rel-daily-gazette-company-v-bailey/

http://www.courtswv.gov/supreme-court/docs/fall2010/35446.htm - Shepherdstown Observer v. Maghan