Donald Kersey

CHARLES TOWN – Despite potential staffing, funding and logistical challenges the coronavirus threat might impose, the May 12 primary election in West Virginia will move ahead anyway.  

“We don’t have the authority to postpone anything,” said Donald “Deak” Kersey, general counsel for the West Virginia Secretary of State’s Office. “We can’t change law.”

Responding to requests from Jefferson County officials to consider postponing the primary, Kersey pointed out that the election’s timing is mandated by state law.

The West Virginia legislature could delay the primary, but lawmakers aren’t planning to reconvene until January. Depending on how one might interpret his statutory emergency powers, the governor might be able to postpone the polls, but he’s said he’s not interested.

The Secretary of State oversees statewide election matters guided by election law.  

“All we can do is write rules that fill gaps in,” Kersey said of the office’s authority. “For example, defining who’s eligible to vote absentee under the medical reason. Medical is undefined in code, so we can define that in a rule.”

Last week Secretary of State Mac Warner announced plans to stick to the current primary schedule despite the complications and concerns created by the coronavirus contagion. The next morning Jefferson County’s election officials sent an email to his office the next day asking his staff to consider delaying the primary to avoid or ease challenges holding the election amid the virus outbreak.

In a March 19 email to state election officials, Jefferson County Clerk Jacki Shadle and her election staff expressed worries about overcoming several current and potential challenges. Their worries include ensuring the election will have sufficient polling locations, as they noted that schools, fire stations and churches scheduled to serve as polling stations are now closed because of the outbreak.

Whether enough poll workers will be willing to serve on Election Day and undertaking extra precautions that will be necessary to take to keep them safe from infection is a concern of theirs. Whether the county can mobilize sufficient staff to handle the flood of absentee ballots that state officials are encouraging voters to use, in addition to early voting, is another worry. Keeping voting machines disinfected and maintaining social distancing among the voters who go to the polls is another.

“I’m not sure this election is worth the risk to our staff, poll workers and voters,” Shadle and her colleagues wrote to state election officials.

The Jefferson County Commission, voicing similar logistical, staffing and budgetary concerns, weighed in to ask state officials to delay the primary as well.

However, Warner, during a public announcement last week, said the primary election can and must go on, but that the safety of voters can and will be maintained.

To overcome overcrowding at the polls that would undermine social distancing, he encouraged voters to take advantage of early voting and absentee voting. Meanwhile, with legal guidance from West Virginia Attorney General Patrick Morrisey, he loosened the definition of what would be a medical exemption to include worries about the possibility of contracting a virus infection.

“We’ve opened up absentee ballot voting for everybody in the state,” explained Kersey, the Secretary of State’s counsel. “Nobody has to have any in-person interaction.”

Also, Kersey said polling places can be moved, even two polling places could be consolidated into a single location. Polling places have to operate separately, but they can operate in separate locations within a single building.

A polling place that is scheduled to take place at a nursing home, for example, could be moved to a cafeteria in a school even as another polling place operates out of a gymnasium.

“You can do that under the emergency rule,” Kersey said.

No decision can offer predictable outcomes in the current situation, Kersey said. Lots of unknowns and uncertainties would shadow any decision to postpone the primary.

 Setting a summer election date, while voters now know about and anticipate the May 12 primary, still might not clear away the challenges Jefferson’s election officials worry about, Kersey said. “Because there’s no guarantee that delaying the election going to solve a problem,” he offered. “Nobody knows if this virus is going to be around in June, in November, in August, whenever.

“So you delay it once and then what happens if it’s actually worse? … We can’t predict the future.”

And a number of unforeseen and potentially serious problems could also arise from a decision to delay the primary, Kersey added. “The benefit we have right now is we’ve already got deadlines,” he said. “It’s just better to keep with the status quo, especially because we’re already in the middle of preparations.”

Kersey acknowledged that problem-solving will be required to have a successful primary. But he added that state officials are working to support county election officials through the primary, he added, including providing resources and funding assistance.

About $4 million in federal funding is already being distributed to the state’s 55 counties, and more financial aid is being sought, he said.

For his part, Warner, as the state’s highest election official, urged citizens not to let the virus keep them from participating in the election. He also called on citizens, particularly younger ones, to consider serving as a poll worker as a patriotic opportunity, especially under the unusual challenges the outbreak is creating.

“I want to stress that the fundamental principle of our democracy is voting — that’s voters at the ballot box,” Warner said. “In these times of crisis, I’d like to remind people that the best thing you can do is return to principles — longstanding principles, to guide us through these turbulent times.”


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