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Bill To Allow Electronic Voting For West Virginians With Disabilities Passes Legislature

Perry Bennett
West Virginia Legislative Photography
Chief Counsel for House Judiciary Kip Reese talks to Judiciary Co-Chair, Del. Moore Capito, while discussing Senate Bill 94 on the House Floor on Jan. 23, 2020. The bill was passed out of the Legislature on Jan. 24, 2020.

The West Virginia House of Delegates has passed a bill that would allow voters with certain disabilities to vote electronically in the upcoming election. 

Senate Bill 94 will provide West Virginians with disabilities the same electronic voting ability the West Virginia Secretary of State allowed for overseas military members in 2018. It’s the first bill both chambers of the Legislature have voted on this year. 

The bill now heads to the governor’s desk for final approval. 

Donald Kersey, general counsel to the Secretary of State’s office, said Thursday qualifying voters will know within a month what kind of electronic voting methods will be available to them, assuming Gov. Jim Justice signs the bill. 

He said because Tusk-Montgomery Philanthropies, a mobile voting advocacy group, has offered to pay for the associated equipment, implementing the bill won’t cost anything to the state or the counties responsible for offering and collecting the ballots. The same group covered mobile voting costs in the last election.

Justice’s office was unavailable for comment at the time of this article’s publication. 

During the 2018 election, the Secretary of State’s office made the mobile voting app Voatz available to counties with overseas voters. 

Kersey said the Secretary of State and various other state security officials have to review the app to make sure it’s up to par with safety and security requirements.

“We’re not going to just trust that because it was good in 2018 it’s good in 2020,” Kersey said. “We’re going to do our due diligence.”

The bill was formally introduced to members of the interim Judiciary Committee in December by request of the Secretary of State.

According to Kersey, who spoke to lawmakers at the time, West Virginia risked legal challenges under the American with Disabilities Act for not offering reasonably accessible voting options to people with certain disabilities, who rely on assistance to fill out paper absentee ballots. The constitution says that’s a violation of a person’s right to privately vote.

Other states have already run into legal troubles, including the Maryland Board of Elections in 2016 and the Ohio Secretary of State’s office in 2017

In both situations, a federal judge agreed paper ballot voting systems discriminate against those with disabilities. Kersey has told lawmakers a firm in D.C. and an advocacy group active in West Virginia had plans for similar legal action if the West Virginia Legislature didn’t pass the bill promptly. 

“They understood that if we didn’t pass the law there’d be a lawsuit that the state was going to lose,” Kersey said of the Legislature. 

Some Lawmakers Concerned For Election Security

Prior to the House’s vote, some lawmakers raised concerns about the election security risks associated with expanding electronic voting. 

Del. Shawn Fluharty, D-Ohio, recalled a hacking attempt into the Voatz app that U.S. Attorney Mike Stuart’s office confirmed in October 2019, when he announced an ongoing investigation into the matter.

Stuart’s office declined to comment on the status of the investigation earlier this week. 

“What we can confirm is that nothing bad happened,” Kersey said, adding Voatz’s system “worked exactly as designed” and no voter information was compromised or leaked.  “Elections infrastructure across the United States are constantly being attempted for intrusion.” 

He called the bill “a calculated risk.” 

“The alternative to not having an electronic means of delivery is violating the Americans with Disabilities Act,” Kersey said.

Senate Bill 94 also allows voters to apply for absentee ballots on Jan. 1, which is earlier than the previously prescribed 84-day period.

Emily Allen is a Report for America corps member. 

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