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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
months: 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. 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
Office, supra, Syllabus pt. 2)."
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."
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