West Virginia Recount Laws
This information was updated 6/6/2020.
Mixed paper ballot and DREs with VVPAT (hand marked paper ballots, BMDs and DREs with VVPAT)
For more details, visit Verified Voting.
Mix of hand count, retabulation and electronic review
During a recount, “all ballots are to be hand tabulated, unless otherwise requested. This includes all paper rolls from the electronic touch screens. However, if upon request precincts are specified to not be hand counted, then the recount procedures from canvass [including the random drawing referenced below] are in place 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.” 2018 Best Practices Guide for Recounts, p. 9.
Precincts not requested to be hand counted will be counted in accordance with the provisions of the West Virginia Code (WV Code) Section 3-4A-27 & 3-6-9. See WV State Rules 153-20-3.1.c.
“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.” WV Code Section 3-4A-28(d). If as a result of that hand count, 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).
In addition, 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).
Candidate determines how many/which precincts to 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 and may request all or only a limited number of precincts to be recounted. WV State Rules 153-20-3.1. 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. Each precinct may only be recounted once. WV Code Section 3-6-9(f).
Timing: WV State Rules 153-20-3.2 and WV Code Sections 3-6-9(b), (c) and (f).
Voters may request recounts for initiatives/questions
Recounts may be requested by “any qualified individual,” which is defined as “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 Rules 153-20-3.
Initiator pays deposit or bond before recount
Payer 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.
Initiator pays deposit or bond before recount
Payer of costs depends on outcome of recount (varies)
Petitioners 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.
Statutes specify that recount must be public
Party/candidate or initiator has statutory authority to appoint challengers
According to WV State Rules 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 petitioners are allowed to appoint one representative each; either the petitioner or the petitioner's representative may observe the recount and may also question ballots. WV State Rules 153-20-6.2.a – 6.2.c.
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. See also WV State Rules 153-27.
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 Rules 153-20-6.3.b.
This information was updated 6/6/2020 West Virginia Code (WV Code) current through legislation passed through the 2019 First Extraordinary Session of the West Virginia Legislature. The West Virginia Code of State Rules were accessed 6/6/2020.