Senate committee advances changes to out-of-precinct and provisional-ballot rules, adds fraud penalties

A West Virginia Senate committee on [date not specified in transcript] advanced a committee substitute for Senate Bill 61 that would limit when ballots cast outside legally defined methods or in the wrong polling location may be counted, add a narrowly drawn handicapped-voter exception and create misdemeanor and felony penalties for knowingly counting nonconforming ballots.

Counsel for the committee summarized the substitute as amending two sections of the election code in chapter 3 and said it would bar ballots “not cast in a manner expressly provided for by West Virginia law” and disallow counting ballots cast in the incorrect precinct, with an exception for handicapped voters. Counsel described new criminal provisions and said, “the committee substitute creates a felony offense, related to fraudulently counting a nonconforming absentee ballot with a potential $10,000 to $20,000 dollar fine as a penalty, and the, penalty range, being 1 to 5 years.” (Counsel)

Why it matters: Sponsors said the goal is to deter deliberate efforts to alter outcomes by counting ballots that should not be counted. Opponents warned the language risks disenfranchising otherwise eligible voters who cast provisional ballots and could sweep in volunteer poll workers or local officials for honest mistakes.

Members pressed several points during the committee’s review. Senator from Marion questioned whether the bill would “for the most part, get rid of provisional ballots,” noting that county canvasses commonly reconcile and count provisional ballots when verification is possible. Counsel and David Cook, general counsel for the Secretary of State’s Office, said provisional ballots may be counted at canvass when verified but that the committee substitute removes or limits the county board of canvassers’ discretion to make those exceptions in some technical-error cases. Cook told the committee, “That eliminates this discretion,” referring to the board’s current ability to accept a provisional ballot after review. (David Cook, General Counsel, Secretary of State’s Office)

Senators also sought clarification about who could face criminal exposure under the bill. Senator from Marion asked whether the new penalties would apply to county commissioners, clerks or poll workers; witnesses acknowledged the language is broad and could reach poll workers as well as commissioners, but said the statutes as drafted link penalties to acts done “with the intent to commit fraud” rather than to inadvertent errors.

The committee adopted a floor amendment, moved by the senator from Brook, to replace instances of the word “precinct” with “polling location” where appropriate to align the bill’s wording with other pending code changes. The amendment was adopted by voice vote. The committee then agreed to the committee substitute as amended and voted to report it to the full Senate with the recommendation that it do pass; Senator from Marion stated she would vote against the bill. The committee record shows the motion to report was adopted by voice vote.

What’s next: The committee substitute will be reported to the full Senate for consideration. Procedural details, such as whether prosecutors would pursue cases under the new felony provision and how county clerks should implement the change at canvass, were not resolved in session and would depend on future guidance and potentially statutory interpretation.

Sources: Committee counsel explanation of the committee substitute; sworn testimony from David Cook, general counsel for the Secretary of State’s Office; recorded questions and statements by senators during the committee hearing (committee transcript).