You have requested an official opinion relative to the application blanks used for absent voter's ballots. Your letter, in part, reads as follows:

Laws authorizing voting by absentees are not new to the legislative history of this country. As early as 1813, Pennsylvania adopted an absent voter's law. Chase v. Miller, 41 Pa. 403. During the Civil War many states, both north and south, passed statutes permitting soldiers who were in the armies to vote in both national and state elections. These early laws permitting absent voters to vote were confined strictly to soldiers in the army. Absent voting by soldiers was found to be satisfactory, and, as noted by the Nebraska Court in Rasp v. McHugh, 237 N.W. 394, p. 397:

See Annotations: 14 A.L.R. 1257; s. 19 A.L.R. 308; s. 35 A.L.R. 820; 140 A.L.R. 1102. The right to vote through the use of an absent voter's ballot is a privilege granted to qualified voters, and is not an absolute right. McMaster v. Wilkinson, 15 N.W. 2d 348; 145 Neb. 39. It is fundamental that the scope, application, and effect of absent voters' laws depend upon the proper construction of the particular state's statutes.

Votes cast by absent voters were first authorized in West Virginia in 1917 by the Legislature (See Acts of the Legislature, 1917, Second Extraordinary Session, Chapter 13; Chapter 3, Sections 101 to 115, of the Code of 1918), which permitted registered voters engaged in military service, who were required “to be absent from the precinct in which he is registered” on election day, to vote, using absentee ballots. The Legislature declared that:

*2 In 1921, the Legislature broadened the scope of voting by absentees to encompass:

The 1921 Acts (Chapter 55, Section 2; 1931 Code, Chapter 3, Article 6, Section 2) provided that a qualified voter:

And further (1921 Acts, Chapter 55, Section 3), that:

See 1931 Code, Chapter 3, Article 6, Section 3, for a similar provision.

In 1963, the Legislature revised considerably the State's election laws (see 1963 Acts of the Legislature, Chapter 64), further broadening the scope of absentee voters to include not only any qualified voter who expects to be absent from the State, but any qualified voter who “expects to be absent from the county” on election day (Emphasis supplied), or is physically “unable to vote in person at the polls”, or is a member of the armed services “who, in the performance of his duties, expects to be absent on election day from the county” of his registration. Presently, Chapter 3, Article 3, Section 2, of the Code of West Virginia provides that any qualified voter “expecting to be absent from the county or from the polls” on election day might:

Further, Code 3-3-3 provides that:

*3 Code 3-3-4 requires each clerk to keep a log of absent voter's ballot applications:

In analyzing these statutory provisions, a clear distinction must be made between (1) the voter's act of obtaining an absent voter's application blank, and (2) the voter's act of delivering his absent voter's ballot application to the proper circuit clerk.

It is obvious, under Code 3-3-3, that the absent voter's ballot application must be delivered to the “clerk of the circuit court of the county in which the applicant is a qualified elector”, but it is not so obvious as to where and from what source such application blanks must, or can be obtained. Application blanks, by the very words of the statute, are certainly obtainable from the clerk of any circuit court (and not only the circuit clerk of the county where the applicant is a qualified voter). No one, in view of the present language of Code 3-3-3, should seriously urge that an absent voter's ballot application made on a form obtained from the circuit clerk of X county should be rejected by the circuit clerk of Y county. Clearly, forms upon which such applications can be made are now to be furnished and made obtainable by voters through any circuit clerk's office of the State. There is absolutely no statutory requirement that an absent voter's ballot application must be on a form which was actually supplied to that voter by the circuit clerk (or his deputy) to whom the application is delivered in order to obtain an absent voter's ballot.

Nowhere in Code 3-3 (Voting by Absentees) provisions is there any indication that the supply of application forms required to be available in all circuit clerks' offices is the exclusive source of such forms. There are no statutory prohibitions or restrictions on printing, or duplicating, or circulating such application forms. There is nothing to prohibit a voter from devising his own form or adopting a form prepared by another. The only limitation is that the application must be substantially in accord with the form prescribed in the statute (Code 3-3-3). The Legislature's use of the word “substantially” seems to indicate that there was no intent that the prescribed statutory form should be strictly adhered to, but instead the application--whether on a blank obtained from a circuit clerk or elsewhere--should clearly set forth the essential information relative to the applicant's qualifications for an absent voter's ballot. Undoubtedly the Legislature contemplated some deviation from the sample form, or the use of a standard specific type of blank would have been made mandatory (hence, made a condition precedent to the applicant's right to receive an absent voter's ballot). Information required to be inserted in the blank application is designed to identify the voter, the precinct where he is registered, and the reason for his expected absence from the election polls--all to insure the authenticity of the application, and to guard against election fraud.

*4 The supplies of application blanks in each circuit clerk's office are not limited or subjected to any inventory control; such application blanks are not serially numbered. There is no statutory requirement that circuit clerks must keep a list of persons who requested or received a blank upon which to make application for an absent voter's ballot. Code 3-3-3 requires that a blank shall, “upon request”, be sent (by mail) or delivered (in person) to the applicant. The statute does not indicate or specify who should make the request (the applicant, the applicant's agent, a relative of the applicant, etc.). If the “request” for a blank be made to a circuit clerk in writing, there is no requirement that the written request be preserved. Under Code 3-3-4, the circuit clerks need only begin election records of absent voter's ballots “Upon receipt of an absent voter's ballot application”; the records of circuit clerks do not begin when application blanks are furnished “upon request”. If the Legislature intended that such application blanks should have a particular sanctity and thus be obtainable only through “the circuit clerk of the county in which the applicant is a qualified elector”, then the Legislature would most certainly have established safeguards as to the printing of such blanks, provided for some type of inventory control or accountability, and forbidden such blanks to be obtained elsewhere than through circuit clerks. The apparent lack of any inventory or accountability control over application blanks strongly indicates that such blanks should be readily and freely available to voters.

It should be noted that as of October 10, 1963, the Secretary of State, as the chief registration official of the State, authorized all clerks of the circuit courts of the fifty-five counties to accept and honor Federal “Post Card Application(s) for Absentee Ballot” (Form 1956-0-374140), an application form which was developed by Federal authorities, and approved by the Secretary of State “in order to encourage every military man to vote”. This application form, distributed freely to military personnel, while containing much of the information set forth in the prescribed application blank for absent voter's ballot in Code 3-3-3, does not substantially conform to or contain all of the information required in the statutorily prescribed form (for example, the Federal form does not declare that the applicant expects “to be absent from the said county on the date of such election”), and such application form is not supplied to the applicant by any circuit court clerk.

Under Code 3-3-3 the circuit clerk's statutory duty to supply blanks “upon request”, and to supply (by mail or in person) ballots to any applicants, is a mere ministerial duty to be performed by the circuit clerk without questioning the applicant's right to vote. Our Court, in Matthews v. Anderson, 127 W.Va. 147, was concerned with an instance where a soldier, a native of Braxton County, who has recently been in Putnam County, appeared in person and applied for an absent voter's ballot. The soldier was questioned extensively and left without voting. Our Court concluded:

[In 1944, when the Matthews v. Anderson case, supra, arose, the then applicable statute--“Absentee Voting by Service Men and Women” (Acts of the Legislature, 1944, Extraordinary Session, Chapter 1, Section 10; Acts of the Legislature, 1951, Chapter 90, Section 10)--required that:

This duty to check application information and to make corrections is no longer a part of the absent voting statute.] Thus, all discretion and right to question an applicant's right to receive and vote an absent voter's ballot has been taken away from the circuit clerk, and the absent voter's ballots are left subject to possible challenge by the election officials and voters in the polling places.

Under Code 3-3-4, the circuit clerk first makes a record of the application blank when he receives the completed application, as follows:

Thus, the application blank for an absent voter's ballot becomes an application only after it has been completed with answers to questions thereon and has been delivered to “the clerk of the circuit court of the county in which the applicant is a qualified elector,” and, as such, becomes, for the first time, a part of the election returns. See Park v. Landfried, 135 W.Va. 361, 63 S.E. 2d 586, where our Court held that the applications for absent voters' ballots are clearly a part of the election returns and to determine the question of whether or not applications were made in time; “it is only by resort to these applications that the alleged illegality of each of the twenty-four absentee ballots can be determined.”

*6 It should be noted that in each circuit clerk's office there is a full and complete record of all persons who have received absent voter ballots, and such list of applications is available for inspection. From this list it can be ascertained what election precincts will have absent voter ballots delivered there to be considered by election officials on election day. Any challenges to the absent voter's ballots should then be made at the precinct level (See Code 3-3-14, 15).

Code 3-3-8 requires the circuit clerk, upon receipt of an absent voter's ballot, to “forthwith enclose the same, unopened, together with the application made by such absent voter, in a large carrier envelope” securely sealed, marked and sent to the appropriate precinct. Again nothing is mentioned concerning the original “request” for an application blank.

On election day (see Code 3-3-15), the election commissioners open the carrier envelope and:

Code 3-3-14 authorizes the challenge of an absent voter's ballot “for any cause for which it could be challenged if the voter were present and voting in person.” Therefore, under Code 3-3-14 and 15, an absent voter's ballot could be challenged upon the following grounds:

Note there is no mention of the request for an application blank or any enumerated ground for challenge, such as “the voter failed to make his application upon a blank furnished by the circuit clerk.” Apparently, use of an application blank not “furnished” by a circuit clerk is not ground for challenge.

Most of the western states, particularly decisions in Texas, hold that statutory requirements for a written application for an absentee ballot are directory and not mandatory. Fugate v. Johnson, Tex. Civ. App., 251 S.W. 2d 792; Paredes v. Martinez, Tex. Civ. App., 264 S.W. 2d 958.

*7 Our Court has noted that:

Accordingly, our Court, in Lockhart v. Rogers, 134 W.Va. 470, 477, 61 S.E. 2d 258, declared:

Our Court, in Phillips v. Board of Canvassers, 64 W.Va. 715, 718, 63 S.E. 392, in considering the statute which relates to the manner in which a voter prepared his absentee ballot, recognized that some states hold that:

The courts of various jurisdictions present conflicting decisions as to whether or not election statutes contain mandatory or directory provisions. It is impossible to reconcile these conflicting decisions; consequently, no useful purpose would be served by attempting to differentiate between mandatory and directory statutes. We believe that our Court, as well as other present-day courts, have adhered to the doctrine that the purpose of election laws is to secure to every qualified voter the right to cast an honest ballot and have the same counted as cast, and that any procedure established by law to encourage the exercise of that right of suffrage should not be nullified by the courts unless the arguments against the same are clear, convincing and unanswerable. Surely a ballot should never be voided by anything which is not clearly within the prohibiting words and meaning of the statute. A voter should not be deprived of his right to have his ballot counted through mere inference, but only upon the clear expression of the law. Goodell v. Judith Basin County (Mont.), 224 P. 1110; Phillips v. Board of Canvassers, supra.

It is believed from the consideration of the absent voter statute (Chapter 3, Article 3) in its entirety, that the provisions of Code 3-3-3, which provide that

indicate that the application blank and the request (either oral or written) for such a blank is a preliminary step in the voting procedure; that the request (oral or written) plays no part in the voting procedure, nor should the “request” be considered in determining the voter's right to cast his ballot after the blank application form is mailed or delivered to the voter. Further, it appears that the phrase “a blank to be furnished by the clerk of any circuit court of the state” is a directive or command by the Legislature to all circuit clerks that they should have available blank forms for the convenience of voters; by having such a supply of blank applications available in circuit clerks' offices, voters are assured of a source from which to get application blanks upon which to apply for an absent voter's ballot. Code 3-3-3 therefore imposes a duty upon the clerk that is enforceable by mandamus if a circuit clerk should fail to furnish an application blank upon request. Thus, the “request” and the “blank” upon which the application is formally made by the absent voter are of no vital significance in the election procedure. The application blank is a mere vehicle which the absent voter can utilize in making formal application to the appropriate circuit clerk. Neither the “request” nor the “blank” has anything to do with the voter's right to vote. The sufficiency of the completed application (that is, whether or not the completed application substantially conforms to the prescribed statutory form) is the essential matter to be considered by the clerk in determining whether or not an absent voter ballot should be forwarded to the applicant.

*8 As noted by the Washington Court in State v. Superior Court of Whatcom County, 83 P. 2d 345, at p. 350:

The Washington Court had under consideration challenges concerning votes cast under an absent voter statute, which provided that (83 P. 2d 347-8):

The Washington statute provided that the clerk “shall deliver to the elector, or mail to the elector at the postoffice address to be designated by such elector, the proper blank ballot of such election, * * *”. The Washington Court, in rejecting the claim that certain persons acted wrongfully in soliciting absentee votes, declared (83 P. 2d 350):

In considering this question, it must be recognized that under the substantially liberalized 1963 statute, voting by absent voters is broader than it has ever been before (for example, a person now need only be absent from the county of his residence for reasons declared sufficient under the statute); further, during the last few years thousands of West Virginia residents have moved to other states while retaining their residence in West Virginia, with the intent to return to the State whenever employment becomes available. Further, it is the increasing sentiment that every qualified citizen should be urged and assisted in exercising his voting franchise, and the voter should be assisted in exercising this right even though economic demands and travel requirements make it necessary for the voter to be absent from his county polling place on election day. Both Legislatures and Courts are taking a more liberal attitude toward the use of absent voter ballots, for the use of such ballots enables voting by voters who otherwise might, for practical considerations, be disenfranchised. If absentee voting seems to be rapidly increasing and brings about harmful results, this is unfortunate; but the Legislature can amend the law, for, as noted by a New York Court in Sheils v. Flynn, 300 N.Y.S. 536, at p. 542:

Accordingly, based upon the careful reading of the pertinent statutes and authorities cited herein, it is our considered opinion that:

1. Blanks upon which voters may make application for an absent voter's ballot are obtainable “upon request” from the clerk of any circuit court of the State; a voter need not secure such an application blank from the clerk of the circuit court of the county in which his voting precinct is situated (a voter is at liberty to devise his own form of application so long as such substantially complies with the application form prescribed in the statute), but the completed application must “be returned only to the clerk of the circuit court of the county in which the applicant is a qualified elector.”

2. The voter's application for an absent voter's ballot must be substantially in the form prescribed in the statute (Code 3-3-3); however, the application, if complete and containing substantially all information set forth in the prescribed form, is a valid application although it is not upon a blank furnished by a circuit clerk.

3. Whenever any person delivers to the clerk of the circuit court of the county in which his voting precinct is situated an application for an absent voter's ballot, proper in form in that it substantially complies with the form prescribed in the statute, such application must be honored by the circuit clerk, in the exercise of this ministerial duty, by forwarding to the applicant an official absent voter's ballot. The completed application for absentee ballot should be preserved, for it becomes a part of the election returns.

4. Under present statutes, when an applicant has delivered his application (sufficient in content) for an absent voter's ballot to the clerk of the circuit court of the county in which his voting precinct is situated, the circuit clerk has the statutory duty to supply the ballot to the applicant without questioning the applicant's right to vote; the applicant's ballot should be received, subject to challenge, and the validity thereof determined by the election officers at the polls.

It has come to my attention that several circuit clerks throughout the State are refusing to honor applications for absent voter's ballots on the basis that the application was not on a form blank supplied by that particular clerk, and are putting such applications received aside in a drawer or some other place. The Legislature never intended nor did it grant to a circuit clerk the authority to determine who can vote -- a circuit clerk has not been made judge and jury of these matters, and any clerk who assumes this unwarranted position may well subject himself to serious legal proceedings being brought against him, including his right to hold office.