CHARLESTON — Delegates Monday advanced a bill specifying the Legislature has the ability to bring legal actions against state government officials who make or attempt unauthorized changes in state election laws.
Another element of House Bill 4205 would allow citizens to seek a court order against any state or local official who fails to abide by or to enforce a state election law or regulatory requirement.
“The intent here is to give the Legislature standing in the courts and what we as a body set into law,” said Delegate Josh Holstein, R-Boone, the lead sponsor of the bill.
“As you saw with previous election years, there were election officials who changed the rules unilaterally and then the Legislature had no standing to bring court cases up against that so there was really no contest to those changes. So that’s what I’m trying to address here.”
The House Judiciary Committee advanced the bill on Monday afternoon. It was one of several elections-related bills considered by the committee during the afternoon session.
Deak Kersey, chief of staff for the Secretary of State, testified before the committee and said he could not recall any instances of unauthorized deviations from election law in West Virginia.
“In West Virginia, I’m not aware of any,” Kersey said.
Delegate Shawn Fluharty, D-Ohio, asked Kersey if he would be concerned that 1.2 million voting-age West Virginia citizens might be empowered to sue over real or perceived election changes.
“Well, if the Secretary of State’s office breaks the law, I hope that all 1.2 million sue us,” Kersey said.
Changes that some states made to their elections processes during the COVID pandemic in 2020 fell under scrutiny that year.
Texas Attorney General Ken Paxton led a multi-state coalition objecting to election changes that year in swing states Georgia, Michigan, Pennsylvania and Wisconsin. The argument was that states did an end run around election laws passed by their own legislatures. West Virginia Attorney General Patrick Morrisey signed on to the case. The Supreme Court dismissed it.
That same year, Gov. Jim Justice signed an executive order to delay the Primary Election into June. The state also cited a state of emergency to relax the ability of people to request absentee ballots that spring. The changes were made under a finding by Morrisey and requested by Secretary of State Mac Warner.
The Legislature did not explicitly authorize any of those changes.
Fluharty asked Kersey about that year’s changes and whether the current bill would apply.
“That was not legislative action. If this bill were enacted, you as Secretary of State or the Governor’s Office would not be able to do that, correct?” Fluharty asked.
Kersey responded that West Virginia’s election date change and loosened absentee voting standards that year were an outgrowth of the governor’s emergency powers, which were part of state law.
“The governor’s authorization in current code is given by the Legislature to do things like issue a state of emergency for various reasons,” Kersey said.
He said the emergency powers enabled the governor to issue a stay-home order that spring, which was in conflict with in-person voting on the traditional Primary Election date.
“It was an authorized change by the governor because the Legislature had given him that authority via the state of emergency,” Kersey said.
Fluharty didn’t seem quite satisfied by the chain of events representing the kind of authorization the bill is meant to address.
“Very clear,” he said.
