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 came at an extraordinary moment in Alabama public life. Days earlier, the governor had declared a state of emergency as the coronavirus outbreak spread across the state, public gatherings were being curtailed, and health officials had begun urging residents to keep their distance from one another in workplaces, churches and public buildings. Against that backdrop, the image of voters lining up in shared polling places on a fixed date had become, for many officials, a public health question rather than merely an administrative one.
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. Every day of expansion brought more county health officers, hospitals and emergency management agencies into the election-planning conversation, and more local officials wondering whether the calendar could survive the pandemic.
What the opinion says
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.
The Emergency Management Act of 1955 is the backbone of Alabama’s disaster law, written long before anyone contemplated a pandemic colliding with an election calendar. It gives the governor broad authority to direct the resources and operations of state government during a declared emergency, and Marshall’s reading extends that authority to the scheduling of elections themselves. The opinion effectively converts the question from whether the runoff could legally move to whether the governor should move it — a policy decision resting with Ivey’s office rather than with the courts or the Legislature.
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. The state’s election calendar is a chain of statutory deadlines — candidate certification, absentee ballot windows, military and overseas ballots, runoff-to-general spacing — and a long postponement could have forced lawmakers to rebuild it midstream.
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. For county officials across Alabama, that silence was itself the problem: every day without a decision is a day of preparing for an election that may not happen as scheduled.
Mobile County keeps preparing
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, whose office administers elections for one of the largest voting jurisdictions in Alabama, said the county has no choice but to keep moving until Montgomery says otherwise.
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. The list of precincts in a county the size of Mobile depends on dozens of such host sites, and each closure in the outbreak ripples through the precinct map. A school that shutters its building takes its gymnasium — and its voting machines, signage and accessibility features — out of the election plan with it.
“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.”
The poll worker question may prove the hardest of all. Running a precinct in Mobile County requires a full team of poll workers — inspectors, clerks and counting boards — and Alabama law sets the staffing for each precinct. If older poll workers withdraw out of health concerns, counties must find replacements in a hurry, train them in a compressed window and, in a pandemic, consider how to equip them to serve safely. Some states responding to the same dilemma have broadened absentee voting or lowered the age requirements for poll workers, and the same ideas were beginning to circulate among Alabama election officials.
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.
Why the runoff matters so much this year
The March 31 runoff was set to settle the crowded races from Alabama’s March 3 primary, in which no candidate cleared the majority threshold needed to win nominations outright. The runoff ballot carried contests for statewide and congressional nominations, and turnout — historically thin in Alabama runoffs — was expected to matter enormously, since the candidates who emerge from a runoff often face little opposition in November in much of the state. Whichever date the runoff lands on, the parties’ nominees for the fall ballot will be determined in whatever conditions the pandemic leaves behind.
That thin-turnout reality is precisely why the postponement question cuts both ways. Delaying an election can suppress participation further, particularly for campaigns built around compressed schedules and limited budgets. Moving forward with an election during a pandemic risks the health of the voters most likely to participate — older Alabamians, who turn out at the highest rates. Election officials in both camps have been weighing a question that has no clean answer: which risk is worse, a virus spreading at the precincts or an election decided by whoever shows up.
The absentee option
Alabama’s absentee ballot process has drawn new attention amid the outbreak. Under existing law, voters can cast absentee ballots for a limited set of reasons, including being out of the county on election day, illness or physical disability, or work obligations that keep them at the polls’ hours. Any voter who falls within those categories — and any poll worker or voter in a higher-risk health category — can already request an absentee ballot from the county probate office rather than appear in person on March 31. County absentee managers across the state have reported steady interest as the outbreak has grown, and Mobile County’s probate office is among the offices fielding those requests.
Officials have also been studying sanitation and staffing adjustments for in-person voting should the election proceed: extra disinfecting of machines and surfaces between voters, spacing within polling places, and provisions for workers who fall ill. None of those measures substitutes for a statewide decision, but they represent the kind of contingency planning county offices can do on their own authority while they wait.
For now, Alabama’s election calendar hangs on two offices. The attorney general’s opinion says the governor can move the runoff; the governor has not yet said whether she will. In Mobile County, Don Davis’s office is training poll workers, confirming polling sites and answering calls from voters — prepared either way, and asking everyone else to tread water until the word comes down from Montgomery.