A nonprofit publication of the Kentucky Center for Public Service Journalism

Governor had right to delay election during state of emergency, attorney general’s opinion says

By Tom Latek
Kentucky Today

The Kentucky Attorney General’s office released an opinion on Monday upholding Gov. Andy Beshear’s power to delay an election during a declared state of emergency.

Jason Snead, Executive Director of the Washington, DC-based Honest Lections Project, sought the opinion, asking, “Whether, during a declared state of emergency, the Governor may suspend Kentucky’s laws governing elections, beyond merely rescheduling the date of the election?”

Attorney General Daniel Cameron’s office noted that the rapid spread of the coronavirus led to declarations of emergency issued by the President of the United States, the Governor of Kentucky and every other state in the Union, and the executives of numerous counties across Kentucky.

Attorney General Daniel Cameron says Gov. Beshear was within his rights to delay the May primary. (Kentucky Today file photo)

Also, at the recommendation of the Secretary of State on March 16, the Governor issued an executive order delaying the Democratic and Republican primaries, special elections, and local option elections, from May 19, 2020, to June 23, 2020. The order also instructed the Kentucky State Board of Elections to ‘establish procedures for election officials to follow.

Cameron’s office says they are now being asked their opinion on the extent of the Governor’s authority to suspend Kentucky’s duly enacted laws, beyond merely rescheduling the date of the election.

The opinion states, “The Governor exercised his specific authority under state law to delay the primary election, upon the recommendation of the Secretary of State, until June 23, 2020, 31 days after the election date set by statute.”

It says the executive order complied with the statutory “safeguards” imposed by the General Assembly in the specific grant of authority in the statute: the order was issued during a declared state of emergency, it followed the recommendation of the Secretary of State as required, and it moved the primary election to a date “within thirty-five days” from the original date.

The Governor’s election-related authority following an emergency declaration is not limited to merely delaying the date of the election, according to the opinion, but also extends to his or her power to declare by executive order a different place for holding elections.

The order concludes that the beyond delaying the place and time of an election, the Governor has no other powers to suspend or supersede existing election laws.

Although they questioned the actions and powers of Gov. Beshear in the request for an Attorney General’s opinion, The Honest Elections Project has a statement on their website, stating:

“The Honest Elections Project commends the growing list of state officials who are prioritizing the health of the voting public by taking steps to postpone elections. Their actions demonstrate that addressing the impact of COVID-19 on voting is a bipartisan issue, and we look forward to seeing voters head back to the polls when the immediate risk has subsided.

“Clearly, the COVID-19 situation is rapidly developing and far from over. It would be prudent for states to establish contingency plans to conduct an election, in this or future epidemics, safely and securely. That includes ensuring that state officials are authorized to postpone elections in certain cases and developing a range of tailored measures to allow officials to act to protect public health without compromising the integrity and security of each person’s ballot.”

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