Debriefing the 2022 WV Regular Legislative Session — Elections

By Brian J. Skinner, Esq.

After the 2020 general election, many state legislatures have made election integrity a priority. Many states have enacted legislation that affects everything from voter registration timelines and absentee ballots to election crimes, ballot harvesting, and drop boxes.

The West Virginia Legislature’s efforts during the second session of the 85^th Legislature were not as ambitious as those in Texas and Florida, but it did address concerns about illegal voting and voter intimidation and changed laws related to how elections are administered.

Efforts to address illegal voting include House Bill 4311, which amends the current misdemeanor penalties for voting illegally by making the offense a felony subject to incarceration for up to 10 years and a fine of up to $10,000 or both. Additionally, a new felony offense is created for knowingly and willfully voting or attempting to vote more than once in the same election, in more than one county at the same or equivalent election, or in this state and another state or territory at the same or equivalent election irrespective of different offices, questions, or candidates on the ballot, knowing the same to be illegal. The new offense carries the same penalty of imprisonment for up to 10 years or a fine of up to $10,000 or both.

House Bill 4299 creates a new misdemeanor criminal offense for intentionally physically interfering with a voter’s travel on the walkways, driveways, and parking areas adjacent to a building in which a polling place is located with the intention of delaying, hindering, interrupting, harassing, or intimidating a voter. (§3-9-21). Conviction may result in a fine of up to $1,000 or confinement in jail for up to one year or both.

Concerns that an election might be “hacked” led to the enactment of House Bill 4438, which requires that all voting systems used in any election may not at any time be connected to the Internet.

Similar concerns about how local governments fund elections were behind House Bill 4097, which prohibits public officials or bodies responsible for overseeing, administering, or regulating an election from accepting funding for election administration and related expenses from individuals or corporations without the prior written approval by the State Election Commission. However, the Secretary of State is authorized to accept nonpublic funds that may be used only in accordance with rules promulgated by the Secretary with the approval of the State Election Commission.

In House Bill 4312, the Legislature extended the option of electronic absentee ballot transmission to first responders who are called away on duty to respond to an emergency outside their county of residence that prevents them from participating in the election by in-person and mail-in absentee voting.

Other legislation related to the administration of elections includes Senate Bill 191, authorizing counties to employ poll clerks to work both full and half days during an election, and House Bill 4353, which requires all local elections to be held on a date that a statewide election is being held.

House Bill 4450 repeals a 50-cent fee currently charged for each driver’s license issued by the Department of Motor Vehicles. The fee is deposited in the Combined Voter Registration and Driver’s Licensing Fund. The bill is effective on July 1, 2022.

A bill resulting from the Legislature redistricting efforts in October 2021 amends current law regarding the manner in which redistricting is implemented. Senate Bill 253 designates the Secretary of State as the Legislature’s agent to the U.S. Census Bureau and requires county commissions to submit precinct boundary modifications to the Secretary of State.

A couple of bills intended to clarify the manner in which vacancies are filled include Senate Bill 591, which addresses the process for filling vacancies in multi-county senatorial or delegate districts by authorizing the county executive committee of a single-county senatorial or delegate district to fill vacancies. House Bill 3303 authorizes the county executive committee, or its chairperson if the committee fails to act, to fill a vacancy on the ballot for a seat in the House of Delegates or Senate when the delegate district or senatorial district is entirely within a single county.

Two bills involve the operation of political parties. Senate Bill 693 removes a provision in current law that requires that all official actions of a political party executive committee must be conducted by a voice vote. House Bill 4419 authorizes candidate committees and caucus campaign committees to make contributions to their affiliated state party executive committees or a caucus campaign committee up to $75,000. The bill also authorizes state party committees and caucus campaign committees to make coordinated expenditures in any amount to the general election campaign of a candidate for Governor, Attorney General, Auditor, Commissioner of Agriculture, Secretary of State, Treasurer, State Senate, and House of Delegates. The amendments contained in the bill do not become effective until after this year’s general election.

While not directly impacting elections, the Legislature enacted other legislation that indirectly affect elections and public officials.

House Bill 2177 permits the Division of Motor Vehicles to issue an identification card without a photograph to an applicant who, under oath or affirmation, affirms that he or she is a member of a recognized religious sect that has established tenets and teachings due to which the applicant is conscientiously opposed to posing for a photograph.

In an effort to provide greater transparency to a state agency, municipality, county, and school district contracts for lobbying services, House Bill 3220 mandates that the details of government lobbying contracts must be disclosed to the West Virginia Ethics Commission. The requirement becomes effective on July 1, 2022.

Finally, House Bill 3223 prohibits state, county, and municipal governments from dedicating or naming any public structure for a public official who holds office at the time of the proposed dedication or naming.

Brian Skinner is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.