Alabama Attorney General Steve Marshall has issued a formal opinion confirming that Gov. Kay Ivey has the legal authority to postpone the state’s March 31 primary runoff election if she determines it is necessary to protect public health during the coronavirus outbreak. The opinion clears the way for a possible delay as concerns mount over holding a statewide election while officials urge residents to practice social distancing.
Marshall’s opinion came in response to a request from Alabama Secretary of State John Merrill, who asked the attorney general’s office over the weekend to weigh in on whether the governor could legally reschedule the runoff. In his letter, Merrill argued that in order to effectively carry out the social distancing measures recommended by federal, state and local health officials, the runoff election “must be postponed.”
The request comes as several other states have already delayed their own primary elections in response to the spread of COVID-19, with health officials warning that large gatherings, including polling places, could accelerate transmission of the virus. Confirmed coronavirus cases in Alabama have continued to climb this week as testing capacity has expanded across the state.
According to Marshall’s opinion, when a governor declares a state of emergency, as Ivey did last week, that declaration grants the office “substantial powers,” including the authority to postpone a primary runoff election in order to protect public health and safety for the duration of the emergency. Marshall wrote that should the governor exercise that authority, any existing law setting a different date for the runoff would be suspended under the Alabama Emergency Management Act of 1955.
Marshall also indicated general agreement with Merrill’s view that, if at all possible, the runoff should not be pushed back beyond July 14, 2020, in order to avoid creating scheduling conflicts with the general election already set for Nov. 3. As of now, Ivey’s office has not announced whether she intends to use that authority or, if so, what a new election date might look like. Requests for comment sent to the governor’s office did not receive an immediate response.
The uncertainty has already reached local election officials. In Mobile County, concerns have been raised about the wisdom of moving forward with an election during a declared state of emergency, but Probate Judge Don Davis said earlier this week that his office is continuing preparations, including training sessions for poll workers ahead of the scheduled March 31 date.
Davis said he has heard the same public health concerns being raised statewide and is working directly with the operators of planned polling locations, many of which are schools, churches and museums that have closed to the public because of the outbreak, to confirm whether those sites remain willing and able to serve as polling places under the current circumstances.
“Another issue that we’re dealing with is that the vast majority of our poll workers are 60 years of age and older,” Davis said, noting that older adults face a heightened risk of severe illness from COVID-19. “We’ve received some calls from folks expressing concern and wanting to know whether they’re going to be asked to serve, and we’re just asking them to tread water right now until we can get direction from Montgomery.”
Davis said his office is prepared to adjust quickly once state leaders make a final decision, but that for now, training and logistical planning for the scheduled election date will continue. Mobile County voters and poll workers are being encouraged to watch for updates from the Secretary of State’s office and the governor in the coming days as the situation develops.