West Virginia Recount Laws
This information was updated May 9, 2016 using the West Virginia Code (WV Code) current through the 2015 Regular Legislative Session and the West Virginia State Rules (WV State Rules).
Voting System Used:
Mixed paper ballot and DREs with VVPAT
For more details, visit Verified Voting.
Mix of recount, retabulation and electronic review
According to the West Virginia 2014 Best Practices Guide for Canvass and Recount (the Recount Guide), “during a recount in which the candidates have specified precincts, all ballots are to be hand tabulated. This includes all paper rolls from the electronic touch screens. If no precincts are specified, then the 3% recount procedures from canvass are in place (only for electronically tabulated ballots).
If the random drawing brings up one or more of the same precincts that were hand-counted at canvass, then those precincts must be counted by hand again.” Recount Guide at page 23. According to the Administrative Rules, the petitioner may, however, request that certain precincts not be counted by hand: the recount request is required to state “the precincts which the candidate is requesting to be recounted, and which recounted precincts need not be hand-counted.” WV State Rule 153-20-3.2.b. Precincts not requested to be hand counted will be counted in accordance with the provisions of WV Code Section 3-4A-27, described below. WV State Rule 153-20-3.1.c.
The sample hand count procedures referred to above are as follows: “[d]uring 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.” WV Code Section 3-4A-28(d). If as a result of the hand counts required pursuant to the foregoing, the total obtained by the hand count differs by more than 1% from the total produced by the tabulating equipment, or changes the outcome of any election in the selected precincts, then all of the ballots must be counted manually. WV Code Sections 3-4A-28(d)(1) and (2).
That said, the statutes also provide that in the case of any recount request, “the voter-verified paper ballot shall be used according to the same rules that are used in the original vote count.” WV Code Section 3-4A-28(c). Those procedures require that “[i]n systems using ballots in which votes are recorded upon screens with a stylus or by means of touch, the ballots are to be tabulated according to the processes of the system,” WV Code Section 3-4A-27(c)(2). “In systems using ballots marked with electronically sensible ink, ballots are to be removed from the ballot boxes and stacked for the tabulator” and then tabulated automatically, WV Code Section 3-4A-27(c)(1), provided that “[i]f for any reason it becomes impracticable to count all or a part of the ballots with tabulating equipment, the county commission may direct that they be counted manually.” WV Code Section 3-4A-27(f). Therefore, it would appear that (1) when a complete recount is requested, the count is conducted by electronic review or retabulation unless the 3% manual audit conducted as part of that process indicates discrepancies that require escalation to a full manual count, and (2) when a partial recount is requested, the count is conducted manually unless the petitioner requests otherwise.
Candidate determines how many/which precincts to recount
Any candidate on the ballot may request a recount. There are no restrictions regarding the type of election in which a recount may be requested, or limiting the eligibility of certain offices for a recount, WV Code Sections 3-6-9(b) and (c).
The petitioner must be a candidate for the office for which the recount is being requested. WV State Rule 153-20-3.1. As noted above, candidates may request all or only a limited number of precincts. However, if the first candidate does not request all precincts, other candidates for that office may file a later request to recount the remaining precincts. WV State Rule 153-20-3.4. However, each precinct may only be recounted once. WV Code Section 3-6-9(f).
Voters may request recounts for initiatives/questions
Recounts may be requested by “any qualified individual,” which includes “a voter affected by an issue, other than an individual's candidacy, on the ballot,” WV Code Section 3-4A-28(c). However, the individual must be “a voter of the jurisdiction of the election.” WV State Rule 153-20-3.1. Voters may also request a recount on special elections held to approve the charter for a city or municipality and the election of officers thereof. WV Code Section 8-3-6.
Timing: See WV State Rule 153-20-3.
Cost for Candidate-Initiated Recounts:
Initiator pays deposit or bond before recountPayer of costs depends on outcome of recount
Candidates are required to pay a bond, not to exceed $300, and are liable for the full costs of the recount if the election result is not changed. If the outcome of the election is altered, the board shall not assess costs to the candidate and the bond is cancelled or refunded. WV Code Sections 3-6-9(h) and (j); for additional detail see also WV State Rule 153-20-4.7.
Cost for Voter-Initiated Recounts:
Initiator pays deposit or bond before recountPayer of costs depends on outcome of recount (varies)
Initiators are required to pay a bond, not to exceed $300, and are liable for the full costs of the recount if the election result is not changed. If the outcome of the election is altered, the board shall not assess costs to the candidate and the bond is cancelled or refunded. WV State Rule 153-20-4.7. For recounts regarding municipal charters, “[a] recount may be had, as in general elections, upon the party or parties desiring such recount providing adequate assurance to the county court that he or they will pay all costs of such recount.” WV Code Sections 8-3-6.
Challengers and Observers:
Statutes specify that recount must be public Party/candidate or initiator has statutory authority to appoint challengers
According to WV State Rule 153-20-6.2, “a reasonable number of the general public shall be freely admitted to the room where the recount is being conducted.”
Recount initiators are allowed to appoint one representative each; either the initiator or the initiator’s representative may observe the recount and may also question ballots. WV State Rules 153-20-6.2.a – 6.2.c.
Rules for Determining Voter Intent:
Statutory guidance provided
The statutory guidance provided for determining voter intent in West Virginia is not detailed, but simply states that “[a]ny ballot or part of a ballot from which it is impossible to determine the elector's choice of candidates shall not be counted as to the candidates affected thereby.” WV Code Section 3-6-7. During a recount, if the counting team “cannot agree on the intent of the voter’s markings on a ballot,” the ballot is to “remain questioned and the votes for that ballot shall not be recorded.” WV State Rule 153-20-6.3.b.
State has audit laws