W. Va. Code § 3-1-34 RE: New Valid Identifying Documents Requirement
Why do we need to design and implement a statewide education program?
Under W. Va. Code § 3-1-34(a)(9), “Prior to the primary and general elections to be held in calendar year
2018, the Secretary of State shall educate voters about the requirement to present a valid identifying
document and develop a program to help ensure that all eligible voters are able to obtain a valid
New Requirements for In-Person Voting
For elections occurring on or after January 1, 2018, the person desiring to vote:
- Shall present to one of the poll clerks a valid identifying document meeting the requirements of this subsection;
- The poll clerk shall inspect and confirm that the name on the valid identifying document conforms to the name in the individual’s voter registration record; and
- If the valid identifying document contains a photograph, the image displayed shall “truly” be an image of the person presenting the document.
“Valid Identifying Document” defined:
A document shall be deemed to be a “valid identifying document” if it:
- Contains the voter’s name and was issued either by the State of West Virginia, one of its subsidiaries, or by the United States Government; or
- Falls into one of the following categories:
(A) A valid West Virginia driver’s license or valid West Virginia identification card issued by the West
Virginia Division of Motor Vehicles;
(B) A valid driver’s license issued by a state other than the State of West Virginia;
(C) A valid United States passport or passport card;
(D) A valid employee identification card with a photograph of the eligible voter issued by any branch, department, agency, or entity of the United States Government or of the State of West Virginia, or by any county, municipality, board, authority, or other political subdivision of West Virginia;
(E) A valid student identification card with a photograph of the eligible voter issued by an institution of higher education in West Virginia, or a valid high school identification card issued by a West Virginia high school;
(F) A valid military identification card issued by the United States with a photograph of the person desiring to vote;
(G) A valid concealed carry (pistol/revolver) permit issued by the sheriff of the county with a photograph of the person desiring to vote;
(H) A valid Medicare card or Social Security card;
(I) A valid birth certificate;
(J) A valid voter registration card issued by a county clerk in the State of West Virginia;
(K) A valid hunting or fishing license issued by the State of West Virginia;
(L) A valid identification card issued to the voter by the West Virginia Supplemental Nutrition Assistance (SNAP) program;
(M) A valid identification card issued to the voter by the West Virginia Temporary Assistance for Needy Families (TANF) program;
(N) A valid identification card issued to the voter by West Virginia Medicaid;
(O) A valid bank card or valid debit card;
(P) A valid utility bill issued within six months of the date of the election;
(Q) A valid bank statement issued within six months of the date of the election; or
(R) A valid health insurance card issued to the voter.
Three (3) Exceptions to the Requirement for Presenting a Valid Identifying Document:
Exception 1: Affidavit by an Adult with Knowledge
In lieu of providing a valid identifying document a registered voter may:
- Be accompanied at the polling place by an adult known to the registered voter for at least six months;
- That adult shall present a valid identifying document with his or her name, address, and photograph;
- That adult then signs an affidavit on a form provided by the Secretary of State, which states under oath or affirmation that the adult has known the registered voter for at least six months and that, in fact, the registered voter is the same person who is present for the purpose of voting.
Exception 2: Personal Knowledge of a Poll Worker
No valid identifying document or affidavit is required and a voter shall be permitted to vote without presenting a valid identifying document if a poll worker has known for at least six months. (Note: the Code provides the exact affidavit language, which is at the end of this document)
Exception 3: Precinct Polling Places of Residents living in State Licensed Care Facilities.
A voter who votes in person at a precinct polling place that is located in a building which is part of a state licensed care facility where the voter is a resident is not required to provide proof of identification as a condition before voting in an election.
Anticipated Frequently Asked Questions and Answers
What happens if a voter does not have a valid identifying document or is not accompanied by an adult with knowledge? Or, what if the proof of identification does not qualify as a valid identifying document?
The voter may still vote! However, the voter must cast a provisional ballot and sign an affidavit affirming his or her identity (the same affidavit will be used for an adult with knowledge, mentioned above in Exception 2—the affidavit language is in the Code).
If a voter casts a provisional ballot, will it be counted?
The ultimate determination is up to the Board of Canvassers. However, under the direction of the Code, the provisional ballot is entitled to be counted once the election authority verifies the identity of the individual by comparing that individual’s signature to the current signature on file with the election authority and determines that the individual was otherwise eligible to cast a ballot at the polling place where the ballot was cast.
Poll workers and adults with knowledge (Exceptions 1 and 2 above) have a lot of authority and deference—what happens if someone misuses this authority and falsifies a voter identity affidavit?
They can be charged with a crime.
Under W. Va. Code § 3-1-34(h), “Any person making an oath or affirmation required under the provisions of this section who knowingly swears falsely or any person who counsels, advises, aids or abets another in the commission of false swearing under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for a period of not more than one year, or both fined and confined.”
What happens to a voter’s registration in the Statewide Voter Registration System if a voter signs a voter identity affidavit (because the voter did not provide a valid identifying document)?
The county clerk (or his or her agent/employee) shall indicate in the Statewide Voter Registration System to simply indicate that a voter has not presented a valid identifying document. No further action shall be taken. (See W. Va. Code § 3-1-34(a)(7).
What if a voter is participating in the Address Confidentiality Program appears in-person and has to execute a voter identity affidavit? Will their address confidentiality be compromised?
Absolutely not. The program participant’s residential or mailing address is still subject to the confidentiality provisions of W. Va. Code § 48-28a-108, and the Secretary of State’s office should be notified to guarantee confidentiality.
Voter Identity Affidavit for Proof of Identification
State of West Virginia
County of __________________
I do solemnly swear (or affirm) that my name is
______________________________________; that I
reside at _________________________________________________________________; and that I
the person listed in the precinct register under this name and at this address.
I understand that knowingly providing false information is a violation of law and subjects me to possible criminal prosecution
Signature of voter
Subscribed and affirmed before me this ________day of _______________________, 20___
Name of Election Official
Signature of Election Official
This summary was compiled by Donald Kersey, Elections Directory and Deputy Legal Counsel, from the Office of WV Secretary of State Mac Warner for the 1st stakeholders meeting (November 6, 2017) concerning public education about the new Voter ID.