Bill Text: WV HB3113 | 2025 | Regular Session | Introduced
Bill Title: Increasing the percentage of precincts to be audited during the election canvass
Spectrum: Partisan Bill (Republican 11-0)
Status: (Introduced) 2025-03-04 - To House Judiciary [HB3113 Detail]
Download: West_Virginia-2025-HB3113-Introduced.html
WEST VIRGINIA LEGISLATURE
2025 REGULAR SESSION
Introduced
House Bill 3113
By Delegates Ridenour, Butler, Kimble, Hillenbrand, Flanigan, Kump, Ward, Phillips, Jennings, Marple, and Maynor
[Introduced March 04, 2025; referred to the Committee on the Judiciary]
A BILL to amend and reenact §3-4A-28 and §3-6-9 of the Code of West Virginia, 1931, as amended, relating to increasing the percentage of precincts to be audited during the election canvass and amending the period of time a candidate is allotted to demand a recount following the declaration of results at the conclusion of the election canvass.
Be it enacted by the Legislature of West Virginia:
Article 4A. ELECTRONIC VOTING SYSTEMS.
§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 9:00 a.m. 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 10 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.
(b) In canvassing the returns of the election, the board of canvassers shall examine, as required by subsection (d) of this section, all of the vote-recording devices, electronic poll books, the automatic tabulating equipment used in the election and those voter-verified paper ballots generated by direct recording electronic vote machines, shall determine the number of votes cast for each candidate and for and against each question and, by this examination, shall procure the correct returns and ascertain the true results of the election. Any candidate or his or her party representative may be present at the examination.
(c) If any qualified individual demands a recount of the votes cast at an election, the voter-verified paper ballot shall be used according to the same rules that are used in the original vote count pursuant to §3-4A-27 of this code. For purposes of this subsection, "qualified individual" means a person who is a candidate for office on the ballot or a voter affected by an issue, other than an individual's candidacy, on the ballot.
(d) During the canvass, at least three 10 percent of the precincts are to be chosen at random and the voter-verified paper ballots are to be counted manually. Whenever the vote total obtained from the manual count of the voter-verified paper ballots for all votes cast in a randomly selected precinct:
(1) Differs by more than one percent from the automated vote tabulation equipment; or
(2) Results in a different prevailing candidate or outcome, either passage or defeat, of one or more ballot issues in the randomly selected precincts for any contest or ballot issue, then the discrepancies shall immediately be disclosed to the public and all of the voter-verified paper ballots shall be manually counted. In every case where there is a difference between the vote totals obtained from the automated vote tabulation equipment and the corresponding vote totals obtained from the manual count of the voter-verified paper ballots, the manual count of the voter-verified paper ballots is the vote of record.
Article 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§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 and, as such, shall keep in a well-bound book, marked "election record", a complete record of all their proceedings in ascertaining and declaring the results of every election in their respective counties.
(1) They shall convene as the canvassing board at the courthouse on the fifth day (Sundays excepted) after every election held in their county, or in any district of the county, and the officers in whose custody the ballots, pollbooks, registration records, tally sheets and certificates have been placed shall lay them before the board for examination.
(2) They may, if considered necessary, require the attendance of any of the commissioners, poll clerks or other persons present at the election to appear and testify respecting the election and make other orders as shall seem proper to procure correct returns and ascertain the true results of the election in their county; but in this case all the questions to the witnesses and all the answers to the questions and evidence shall be taken down in writing and filed and preserved. All orders made shall be entered upon the record.
(3) They may adjourn, from time to time, but no longer than absolutely necessary.
(4) When a majority of the commissioners are not present, the meeting shall stand adjourned until the next day and so from day to day, until a quorum is present.
(5) All meetings of the commissioners sitting as a board of canvassers shall be open to the public.
(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.
(A) For a candidate on the ballot in entirely one county, the board shall not enter an order certifying the election results for a period of forty-eight hours five days after the declaration. At the end of the 48-hour five-day period, an order shall be entered certifying all election results except for those offices in which a recount has been demanded.
(B) For a candidate on the ballot in more than one county, the board may not enter an order certifying the election results for a period of forty-eight hours five days after the final county's board has publicly declared the results of the election. In such case, each relevant board shall notify the Secretary of State immediately following each relevant board's public declaration of results. For offices on the ballot in more than one county, the Secretary of State shall notify the board of each relevant county when the final county has made a public declaration of the results of the election. At the end of the 48-hour five-day period in this section, an order shall be entered by each relevant county certifying all election results except for those offices in which a recount has been demanded.
(b) Within the 48-hour five-day period, a candidate on the ballot in entirely one county may demand the board to open and examine any of the sealed packages of ballots and recount them.
(c) If a candidate is on the ballot in more than one county, then within the 48-hour five-day period after the final county's board has made a public declaration of the results, such candidate may demand the board to open and examine any of the sealed packages of ballots and recount them.
(d) After any recount pursuant to either subsection (b) or (c) of this section the board shall seal the ballots again, along with the envelope above named, and the clerk of the county commission and each member of the board shall write his or her name across the places where it is sealed and endorse in ink, on the outside: "Ballots of the election held at precinct No.____, in the district of _______________, and county of ____________, on the _____day of ______."
(e) In computing the 48-hour five-day period as used in this section, Saturdays, Sundays and legal holidays shall be excluded. A candidate on the ballot in more than one county shall not be precluded from demanding a recount in any county in which the candidate is on the ballot until the final county in which the candidate is on the ballot has certified the election results.
(f) If a recount has been demanded, the board shall have 48 hours in which to send notice to all candidates who filed for the office in which a recount has been demanded of the date, time and place where the board will convene to commence the recount. The notice shall be served under the provisions of subsection (g) of this section. The recount shall be set for no sooner than three days after the serving of the notice: Provided, That after the notice is served, candidates so served shall have an additional 24 hours in which to notify the board, in writing, of their intention to preserve their right to demand a recount of precincts not requested to be recounted by the candidate originally requesting a recount of ballots cast: Provided, however, That there shall be only one recount of each precinct, regardless of the number of requests for a recount of any precinct. A demand for the recount of ballots cast at any precinct may be made during the recount proceedings only by the candidate originally requesting the recount and those candidates who notify the board, pursuant to this subdivision, of their intention to preserve their right to demand a recount of additional precincts.
(g) Any sheriff of the county in which the recount is to occur shall deliver a copy thereof in writing to the candidate in person; or if the candidate is not found, by delivering the copy at the usual place of abode of the candidate and giving information of its purport, to the spouse of the candidate or any other person found there who is a member of his or her family and above the age of 16 years; or if neither the spouse of the candidate nor any other person be found there and the candidate is not found, by leaving the copy posted at the front door of the place of abode. Any sheriff, thereto required, shall serve a notice within his or her county and make return of the manner and time of service; for a failure so to do, he or she shall forfeit $20. The return shall be evidence of the manner and time of service.
(h) Every candidate who demands a recount shall be required to furnish bond in a reasonable amount with good sufficient surety to guarantee payment of the costs and the expenses of the recount in the event the result of the election is not changed by the recount; but the amount of the bond shall may in no case exceed $300.
(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 22 months: Provided, That the clerk may use these records to update the voter registration records in accordance with §3-2-18 (d) of this coder. 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.
(j) If the result of the election is not changed by the recount, the costs and expenses of the recount shall be paid by the party at whose instance the recount was made.
NOTE: The purpose of this bill is to increase the number of precincts to be audited by manual hand count to ensure accuracy of the electronically tabulated results and to lengthen the timeframe that candidates have to demand a recount to ensure sufficient time for the manual audit to be conducted and candidate opportunity to ascertain advisability of demanding a recount following the audit.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
