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Deak Kersey

Donald “Deak” Kersey, general counsel for the Secretary of State’s Office, speaks to the Legislature’s Joint Judiciary Committee on Monday. Kersey presented the committee with proposed legislation for the 2022 session that would affect the state’s election system.

Lessons learned by the Legislature during the 2020 election and the 2021 redistricting process are translating to legislation for 2022.

Of particular interest among attorneys for the Legislature’s Joint Judicial Committee and the Secretary of State’s Office were ways to ensure county clerks provide certain data in a timely fashion for redistricting, and establishing means of safety and accountability in the state’s election system.

Members of the committee heard presentations from Donald “Deak” Kersey, general counsel with the Secretary of State’s Office, Senate General Counsel Liz Schindzielorz, House Judiciary General Counsel Brian Casto, and Putnam County Clerk Brian Wood.

Getting more accurate Census data

Among proposed legislation presented to lawmakers Monday were bills that would give the Secretary of State’s Office the means to publish election audit data online, line up municipal and levy elections with county elections, and potentially establish penalties for county clerks who don’t supply local precinct data to the U.S. Census Bureau.

The Legislature completed its work for the 2021 redistricting process last month, during which lawmakers adopted new legislative and congressional district maps. The census data arrived four months later than normal due to issues arising from the COVID-19 pandemic.

Among the challenges lawmakers encountered were irregular census blocks, Casto said. Census blocks are the smallest unit of geographical measurement the U.S. Census Bureau uses to establish how many people live in a given area. Every part of the country is measured in census blocks, so some census blocks have no population.

Lawmakers are required to adhere legislative and congressional district maps to those census blocks.

In West Virginia, irregular census blocks occurred in part because 13 county clerks did not submit their respective precinct data to the Census Bureau, Casto said.

“The data the Census Bureau is using on this is super old and outdated,” Kersey said. “Unless we work with them, we, the state, they’re just going to keep using the same old data and we run into the same situations that we did before.”

To deal with this issue, Kersey suggested the Secretary of State’s Office, the County Clerk’s Association or a legislative committee find the means to nudge county clerks into submitting updated precinct data. State law requires the clerks to file the data, but there’s no provision that spells out what happens if they don’t.

“That’s one idea is to put some teeth into it,” Kersey said.

Hindsight from the 2020 election

County commissions and county clerks already perform audits of West Virginia’s elections before certifying the results, but the data they compile is not as publicly accessible as it should be, Kersey said.

Following the 2020 election, Kersey said the Secretary of State’s Office received calls from people requesting canvassing that local governments already perform. He said it seemed voters did not know election results were already audited.

“They don’t know that we do this audit where they go in and the counties actually count 3% of the precincts by hand,” Kersey said.

Kersey proposed a bill to mandate counties send their post-election audit results to the state, so the data can be posted online.

“We did it via an administrative order in the 2020 general [election],” Kersey said. “It’s not necessarily something we want to keep doing administratively. It’d be nice if this was statutory, that way it’s a regular part of the process.”

Kersey said the 2020 election also showed ways officials need to be more stringent in ensuring safety. That includes updating existing state law that prevents any electronic voting machines from being connected to the internet.

He said language in the current law needs to be updated to accommodate the various vendors and types of electronic voting machines in use throughout the state and clarify they are required to have a lack of connectivity.

“We don’t want voting machines on the internet,” Kersey said. “We don’t want our tabulators where the votes are counted on the internet. Right now, there’s not a single machine in the State of West Virginia that touches the internet.”

Among other proposed election legislation:

  • Clarifying the deadline to register online to vote is 11:59 p.m. to clear up confusion about the meaning of “the close of business day,” which is not currently defined in state law. This has led to some counties closing online registration when their courthouses close, while others allow registration until 11:59 p.m.
  • Extending the number of days a county clerk has to mail an absentee ballot application to days before election day.
  • Changing the appeals process for challenges to municipal and county election results. That change would mean election challenges would be heard in circuit court instead of to the respective city or town council or county commission.
  • Extending opportunities for electronic voting to include first responders who are called to an out-of-county emergency during the early voting period.
  • Syncing municipal and levy elections up with county elections. Towns without charters establishing election cycles are required by state law to have their elections in June, and that bill also would provide for cities and towns without charters to pass an ordinance to move their elections from June to the county election day as long as proper public notice is provided.
  • Require non-public funding sources for public elections be approved by the West Virginia Election Commission.
  • Repeal a 50 cent Division of Motor Vehicles fee that supports the state's motor voter program. Kersey said new business registration in West Virginia has led to the Secretary of State’s Office collecting enough funds that the fee, which garners $160,000 a year, no longer is needed.
  • Establish a ban on “harassing” voters beyond 100 feet of polling places on election day. Current law makes it illegal to “improperly interfere” with voters as they enter a polling place, but proposed legislation would prevent candidates and supporters from stopping people against their will or harassing them on their way to vote. 

Clarification: Explanations of proposed legislation have been updated to provide technical clarifications of the intent of the bills.

Lacie Pierson covers politics. She can be reached at 304-348-1723 or Follow @laciepierson on Twitter.

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