West Virginia primary election set to go on as planned

West Virginia

The West Virginia Attorney General Patrick Morrisey issued an opinion Wednesday stating the Governor’s state of emergency declaration gives the Secretary of State authority to allow voters broad access to absentee voting for the upcoming primary election. (MARCH 18 CHANNEL 13 STAFF PHOTO)

CHARLESTON, WV (WOWK) – West Virginia’s primary election is still set to continue as planned Tuesday, May 12.

While polling places will be cleaned and sanitized, any voter in West Virginia can now request an absentee ballot for medical reasons, including concern about the coronavirus.

West Virginia Attorney General Patrick Morrisey issued an opinion Wednesday stating the Governor’s state of emergency declaration gives the Secretary of State authority to allow voters broad access to absentee voting for the upcoming primary election.

“Our legal opinion has the potential to provide expanded opportunities for citizens to vote safely during this unprecedented public health emergency, while protecting the integrity of the primary election,” Attorney General Morrisey said. “It is important to note that this is an extraordinary, unique situation. We are in unchartered territory and the opinion expressed in our letter should be viewed within the confines of the state’s emergency powers.”

Morrisey says a request from the Secretary of State sought guidance as to whether the Secretary of State’s emergency rulemaking powers apply in the context of the coronavirus pandemic and, if so, what would trigger such authority and how broad would it extend.

According to Chapter 3 of state code, Morrisey says the Secretary of State may invoke his emergency rulemaking authority. This would be based upon the Governor’s declaration of a state of emergency or preparedness, such as those declared on March 4 and March 16, respectively.

This power also may be invoked regionally upon the order of a county’s chief circuit judge.

Morrisey says he describes the extent of the Secretary of State’s emergency powers as broad and flexible, as long as the emergency rule does not conflict with Chapter 3 of state code – meaning the measure stays consistent with issues on which the statues are silent.
 
For example, Morrisey says Chapter 3 allows those “confined to a specific location and prevented from voting in person” due to “illness … or other medical reason,” to vote by absentee ballot. This allows the Secretary of State emergency authority to make absentee voting available to those subject to limited travel and/or mandatory or voluntary quarantine due to the coronavirus pandemic.
 
Morrisey says while his opinion letter addresses the Secretary of State’s emergency powers, the Governor has separate and more extensive authority through Chapter 15. These could arguably support an order from the Governor regarding safe election procedures.

Such provisions could potentially include personnel at polling places and/or the date of the primary election.

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