HB 5401

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Key: Green = existing Code. Red = new code to be enacted
WEST virginia legislature
2026 regular session
ENROLLED
Committee Substitute
for
House Bill 5401
(By Delegates Funkhouser, Hillenbrand, Moore, Dittman, Mallow, Flanigan, Masters, Akers, Butler, Martin and Roop)
(By Request of the Secretary of State)
[Passed March 14, 2026; in effect 90 days from passage (June 12, 2026)]
AN ACT to amend and reenact §3-3-1 and §3-3-1a of the Code of West Virginia, 1931, as amended, relating to modifying the eligibility to vote in certain elections of certain persons residing abroad or overseas; defining terms; and providing effective date.
Be it enacted by the Legislature of West Virginia:
		ARTICLE 3. VOTING BY ABSENTEES.
		§3-3-1. Persons eligible to vote absentee ballots.
(a) All registered and other qualified voters of the county may vote an absentee ballot in person during the period of early voting.
(b) Registered voters and other qualified voters in the county may vote an absentee ballot by mail in the following circumstances:
(1) Any voter who is confined to a specific location and prevented from voting in person throughout the period of voting in person because of:
(A) Disability, illness, injury, or other medical reason;
(B) Physical disability or immobility due to extreme advanced age; or
(C) Incarceration or home detention if the underlying conviction is not for a crime which is a felony or a violation of §3-9-12, §3-9-13, or §3-9-16 of this code involving bribery in an election;
(2) Any voter who is absent from his or her county of residence throughout the period and available hours for voting in person because of:
(A) Personal or business travel;
(B) Attendance at a college, university, or other place of education or training; or
(C) Employment which because of hours worked and distance from the county seat make voting in person impossible;
(3) Any voter absent from the county throughout the period and available hours for voting in person and who is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. § 1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including members of the uniformed services on active duty, members of the merchant marine, and spouses and dependents of those members on active duty;
(4) Any citizen of the United States temporarily residing abroad who:
(A) Immediately prior to their departure from the United States was domiciled in West Virginia and:
(i) Was last registered to vote, or last eligible to register and vote, in West Virginia; or
(ii) Would have been eligible to register and vote in West Virginia except that the citizen had not reached 18 years of age, but has since reached 18 years of age; and
(iii) Is not registered or qualified to vote elsewhere in the United States;
(B) Holds a valid passport or passport card or other proof of citizenship issued under the authority of the Secretary of State of the United States; and
(C) Has not established permanent residency in any other state or country.
 (5) Any voter who is participating in the Address Confidentiality Program as established by §48-28A-103 of this code.
(c) Registered voters and other qualified voters in the county may vote an electronic absentee ballot in the following circumstances:
(1) The voter has a physical disability, as defined in §3-3-1a of this code;
(2) The voter is absent from the county throughout the period and available hours for voting in person and is an absent uniformed services voter or overseas voter, as defined by 42 U.S.C. § 1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including members of the uniformed services on active duty, members of the merchant marine, and spouses and dependents of those members on active duty;
(3) The voter is a citizen of the United States, temporarily residing abroad, who meets the conditions in subdivision (4), subsection (b) of this section for voting an absentee ballot by mail; or
(4) The voter is a qualified first responder called away on duty to respond to an emergency outside the voter’s county of residence, which prevents the voter from participating in the election by in-person and mail-in absentee voting. For purposes of this section, "qualified first responder" means a person with specialized training who arrives and provides aid at the scene of an emergency, such as an accident, natural disaster, or act of terrorism. First responders typically include emergency medical technicians, firefighters, law-enforcement officers, neighborhood assistance officers, and paramedics.
(d) Registered voters and other qualified voters in the county may, in the following circumstances, vote an emergency absentee ballot, subject to the availability of the services as provided in this article:
(1) Any voter who is confined or expects to be confined in a hospital or other duly licensed health care facility within the county of residence or other authorized area, as provided in this article, on the day of the election;
(2) Any voter who resides in a nursing home within the county of residence and would be otherwise unable to vote in person, providing the county commission has authorized the services if the voter has resided in the nursing home for a period of less than 30 days;
(3) Any voter who becomes confined, on or after the 7th day preceding an election, to a specific location within the county because of illness, injury, physical disability, immobility due to advanced age, or another medical reason: Provided, That the county clerk may require a written confirmation by a licensed physician, physician’s assistant, or advanced practice registered nurse that the voter meets the criteria of this subdivision before permitting the voter to vote an emergency absentee ballot; and
(4) Any voter who is working as a replacement poll worker and is assigned to a precinct out of his or her voting district, if the assignment was made after the period for voting an absentee ballot in person has expired.
(e) Any overseas federal election voter may register to vote and may apply for and vote an absentee ballot by mail in any federal election held in the election district of this state in which the voter was formerly domiciled.
(f) Any overseas federal election voter who was born outside the United States may register to vote and may apply for and vote an absentee ballot by mail in any federal election held in the election district of this state in which the voter’s parent, legal guardian, or spouse was formerly domiciled.
(g) A United States citizen who was never domiciled in West Virginia is not eligible to vote in any state, county, municipal, or special election.
(h) Any overseas state and federal voter may register to vote and may apply for and vote an absentee ballot by mail in a state election and a federal election held in the election district of this state in which the voter was formerly domiciled.
(i) The amendments to this section enacted during the 2026 regular session of the Legislature are effective January 1, 2027.
		§3-3-1a. Definitions.
(a) For the purposes of this article, the following terms and phrases have the meanings ascribed to them.
(1) "Disability" means a physical or mental impairment that substantially limits one or more major life activities.
(2) "Federal election" means any general, special, or primary election held for the purpose of nominating or electing any candidate for President or Vice President of the United States, Presidential elector, United States Senate, or United States House of Representatives.
(3) "Overseas federal election voter" means any citizen of the United States who:
(A) Was born outside the United States;
(B) Is not a voter under subdivision (4), subsection (b) of this section or an "overseas state and federal voter" under subdivision (4) of this section;
(C) Would otherwise satisfy the state’s voter eligibility requirements, except for the West Virginia residency requirement, if the last place where the parent, legal guardian, or spouse of the voter was, or would have been eligible to register and vote before departure from the United States is within West Virginia; and
(D) Has not previously registered to vote elsewhere in the United States.
(4) "Overseas state and federal voter" means a citizen of the United States residing abroad who does not intend to return or whose intent to return is uncertain, and:
(A) Immediately prior to departure from the United States was domiciled in West Virginia; and
(i) Was registered to vote, or last eligible to register and vote, in West Virginia; or
(ii) Would have been eligible to register and vote in West Virginia except that the citizen had not reached 18 years of age, but has since reached 18 years of age; and
(iii) Is not registered or qualified to vote elsewhere in the United States;
(B) Holds a valid passport or passport card or other proof of citizenship issued under the authority of the Secretary of State of the United States; and
(C) Has not established permanent residency in any other state or country.
(5) "Physical disability" means a physical impairment that substantially limits one or more major life activities and renders a person unable to vote in person, at the polls, without assistance.
(6) "State election" means any general, special, or primary election held for the purpose of:
(A) Nominating or electing a candidate as:
(i) Governor, Secretary of State, Attorney General, Treasurer, Auditor, or Commissioner of Agriculture; or
(ii) A member of the State Senate or the House of Delegates; or
(B) Approving or rejecting any amendment to the West Virginia Constitution.
(b) The amendments to this section enacted during the 2026 regular session of the Legislature are effective January 1, 2027.
The Clerk of the House of Delegates and the Clerk of the Senate hereby certify that the foregoing bill is correctly enrolled.
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	Clerk of the House of Delegates
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	Clerk of the Senate
Originated in the House of Delegates.
In effect 90 days from passage.
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	Speaker of the House of Delegates
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	President of the Senate
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	The within is ................................................ this the...........................................
Day of ..........................................................................................................., 2026.
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								Governor
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