The West Virginia Secretary of State's office and county election offices in the state are refusing to tell independent ("no party choice") voters arriving to early vote at the state's 55 voting locations that they are entitled to vote in the Democratic primary, stating that they are forbidden to do so by law.
"The Obama campaign will lose thousands of votes during early voting if this situation isn't corrected quickly," Victoria Baker, a former Republican who is an Obama supporter in Huntington, WV, said Sunday. "The Secretary of State's position is not supported by the law," according to Roy D. (Don) Baker, a West Virginia lawyer familiar with the situation. "It is wrong," he said. Mr. Baker, a Democrat, is also an Obama supporter and Ms. Baker's husband
156,199 West Virginians are registered as independents eligible to vote in West Virginia's May 13 primary according to figures released over the weekend by the Secretary of State's office. That represents 13.2% of all registered voters in the state. These figures include voters who registered before last week's April 22nd registration deadline in the state. Early voting began April 23 and ends May 10.
Gregory L. Howard, Jr., the lawyer for the Secretary of State's office, said two sections of West Virginia law, Sections 3-1-35 and 3-2-31,1 mandate the office's position. The crucial provision, he said, is a sentence which says "Political parties, through the official action of their state executive committees, shall be permitted to determine whether unaffiliated voters or voters of other parties shall be allowed to vote that party's primary election ballot upon request." Howard, a Republican, is a former member of West Virginia's House of Delegates.
"If those sections are all they have to support their 'Don't tell, don't ask' policy, it's scandalous," Mark L. Levine, a voter protection lawyer from New York investigating the matter, said.
Howard's citation of the department's legal underpinning for the policy was made following the voter protection lawyer's request that the Secretary of State's office require election workers to deliver a slip of paper to each independent coming to vote which says, "If you want to vote in the Presidential Primary and are registered as an Independent ("No Party Choice"), you must ask for either a Republican or Democratic ballot. "No Party Choice" (Independent) ballots do not include a choice for President."
Levine also asked that signs with the same message be placed in the area where people come to early vote. Both requests were denied by Jason Williams, manager of the Elections Division of the Secretary of State's office, and by Howard. Williams said that this policy had long been in effect and could not be changed. He referred Levine to Howard for the policy's legal basis.
Levine made the requests late last week after learning that two West Virginians who wanted to early vote in the Democratic presidential primary voted on touch screens that listed no candidates for president since the two had registered as independents. West Virginia law permits voters who made no party choice when they registered to vote in the primary of either the Republican or Democratic party.
Howard said Friday that the two sections from the West Virginia code are the only legal basis for the Secretary of State's office's position and all that is necessary. Pressed to say what in those two sections supported the office's policy, he said that it was "two words"- the "upon request" at the end of Section 3-2-31(a) (the sentence quoted above). Howard rejected Levine's contention that nothing in either section supported the office's policy and denied his request that Ireland review the issue and change the office's position. It is not known whether Howard or Williams have apprised Ireland of that request. Ireland's 94-year-old mother died on Thursday and was buried Saturday.2
Williams said that the state's election offices had sent mailings to independent voters telling them they must ask for a party ballot if they want to vote in the presidential primary and that they also encouraged reporters to write articles to inform independent voters. He said those activities are not prohibited by the law but that giving the same information to independent voters at early voting and the polls is prohibited.
Two students at Marshall University (Huntington, WV), Matthew Smith and Tamara Chavies, voted with independent ballots at the Cabell County Courthouse in Huntington before noon Wednesday morning, the first day of early voting. Both were surprised when they learned that there was no choice for President on the ballot and that their votes had already been recorded. Voters in WV vote on touch screens and cannot tell from looking at the screen when they start voting that the presidential candidates are not listed on a subsequent screen.
"I don't understand how they can penalize you for not knowing how to vote when they don't tell you that you have to ask for a specific ballot," Smith said. "I'd hate to see my vote not counted because of a technicality."
The only race on the independent ballot was to elect two members of the Cabell County Board of Education.
Both Smith and Chavies were permitted to cast provisional ballots after they discovered their error. Each said they voted for Obama on the provisional ballot and were told that their vote might be counted. Under West Virginia law, provisional ballots are not opened on election night but can be opened and counted during a canvass of votes after May 13 if a county canvassing board determines, based on the circumstances surrounding each provisional ballot, that they should be.3 A provisional ballot cast after a voter has already cast a valid independent ballot will not be counted, voter protection lawyers say. A senior WV election official, speaking not for attribution, confirmed this.
Betty Ireland, a Republican, is West Virginia's secretary of state. She was elected in 2004 and is the first woman ever to be elected to the state's executive branch.4 She announced last July that she was not seeking re-election or running for another office in 2008 because attending to the needs of her aged parents and fulfilling her duties as Secretary of State would not allow her time to plan and run a political campaign in 2008.5 Both her parents are now deceased. Ireland pulled a major upset in 2004 election when she defeated former Secretary of State Ken Hechler and is a likely candidate for higher office.6
Levine said he had initially been told by a county elections officer on Thursday that the purpose of the policy was to prevent the SOS's office and election workers from "influencing elections." "Letting a voter know that if he wants to vote for a presidential candidate - of whatever party - is not influencing an election," Levine said. "It's the duty of the Secretary of State's office to educate voters and encourage voting, not to help disenfranchise people."
There is no Independent party as such in West Virginia. Voters are considered independents if they do not register for any of the parties listed on the state's registration form (Republican, Democrat, Mountain and "other") or if they check "No Party Choice."7 West Virginia Republicans have long permitted Independents to vote in their primaries. This is the first year that the Democratic Party has permitted it.
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