West Virginia’s Upcoming Primary Election
March 19, 2020
By: Samantha M. D'Anna and Danielle M. Waltz
In anticipation of the May 12, 2020 election in addition to the surrounding concern of COVID-19, Attorney General Patrick Morrisey issued an opinion 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,” Morrisey said, “while protecting the integrity of the primary election.”
Attorney General Patrick Morrisey’s March 18, 2020 Opinion
The Attorney General’s opinion specifically addresses two questions:
- Does the Secretary’s emergency rulemaking powers apply in the context of a epidemic, like COVID-19? If so, how is this authority invoked?
Section 3-1A-6(e) of the West Virginia Code, which governs emergency election procedures, applies to “an actual or imminent viral epidemic in the State.” This provision may be invoked by declaration of the Governor. The Governor’s March 16, 2020 proclamation found that “the COVID-19 epidemic constitutes a disaster under . . . the West Virginia Code,” declaring a state of emergency in all 55 counties and satisfying this requirement.
- What is the extent of the Secretary’s authority?
Section 3-1A-6(e) grants the Secretary broad emergency powers outside of the ordinary rulemaking process where necessary to promote voter access and public confidence in the election process.
What does this mean?
West Virginia will hold a primary election on May 12. The big takeaway: Attorney General Morrisey’s Opinion broadens the use of absentee ballots.1
Those who request absentee ballot applications are required to justify why they are voting absentee – for example, the ballot traditionally has an exception for those who have medical concerns.2 The Attorney General’s March 18 Opinion states that fear of the coronavirus at a polling place is a legitimate medical excuse.
Secretary of State Mac Warner is urging people to “[u]se the absentee process” as “[a]lmost everybody could fall under this medical concern, medical excuse, using the Coronavirus.”3
What should you do?
Early voting takes place from April 29th through May 9th.
Anyone who wishes to vote absentee must have their application in to the Secretary of State, at least 6 days before the election (May 6, 2020).
1 Attorney General Morrisey Opinion Approves Broad Absentee Voting Amid Coronavirus Pandemic, News from the Attorney General’s Office (Mar. 18, 2020), https://mailchi.mp/wvago/wva-ag-opinion-approves-broad-absentee-voting-amid-pandemic.
2 Brad McElhinny, W.Va. voters may cite health concerns to ask for absentee balloting, Warner and Morrisey say, MetroNews (Mar. 18, 2020 5:32 PM), http://wvmetronews.com/2020/03/18/w-va-voters-may-cite-health-concerns-to-ask-for-absentee-balloting-warner-and-morrisey-say/.
3 Mark Curtis, WV primary election still on for May 12th, but many more may vote absentee, WOWK (Mar. 18, 2020), https://www.wowktv.com/news/elections/wv-primary-election-still-on-for-may-12th-but-many-more-may-vote-absentee/