Can a Kentucky governor suspend election laws during a state of emergency, or only move the election date?

Plain-English summary

After the Governor moved Kentucky's 2020 primary from May 19 to June 23 because of COVID-19, the Honest Elections Project asked how far the Governor's emergency power over elections actually went: could he suspend election laws generally, or only reschedule the date?

The Attorney General concluded the Governor's emergency election authority is exactly what one statute spells out, no more and no less. Under KRS 39A.100(1)(l), and only "upon the recommendation of the Secretary of State," the Governor may declare by executive order "a different time or place for holding elections" in an area under a declared emergency, and the election must be held within 35 days of the suspended date. The opinion explained that the Governor ordinarily has only the powers given to him by statute, and changing election dates is normally a legislative function. The General Assembly can delegate that kind of authority if it builds in safeguards, and KRS 39A.100(1)(l) does that: an emergency must be declared, the Secretary of State must recommend the change, and the new date must fall within 35 days. The Governor's order moving the primary 31 days satisfied those conditions, so it was lawful. But beyond declaring a different time or place, the Governor had no power to supersede or suspend Kentucky election law, a limit the opinion said is compelled by the Kentucky Constitution, which vests election lawmaking in the General Assembly.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The opinion began from the principle that "the text of the statute is supreme" (Owen v. Univ. of Ky.) and that the Governor has only those powers conferred by statute (Brown v. Barkley). Changing the time or place of an election is ordinarily a legislative function reserved to the General Assembly (Ky. Const. §§ 15, 29; Beshear v. Bevin; Fletcher v. Com.), but the legislature may delegate such authority where the delegating law provides safeguards against abuse of discretion (Beshear). KRS 39A.100(1)(l) is that delegation: on the Secretary of State's recommendation, the Governor may "declare by executive order a different time or place for holding elections" in an emergency area, with the election held "within thirty-five (35) days" of the delayed date. Measured against the statutory primary date (KRS 118.561(1)), the Governor's move from May 19 to June 23, 2020 (Executive Order 2020-236) fell 31 days out and followed the Secretary of State's recommendation, so it complied with the safeguards. A "different place" must still comply with Kentucky law, e.g., secret-ballot voting on machines (KRS 118.025(1)) and display of the American flag at each location (KRS 118.045(1)). The opinion concluded that, beyond KRS 39A.100(1)(l), the Constitution (including §§ 147 and 153) leaves election lawmaking to the General Assembly, so the Governor had no further authority to suspend election law (Bloemer v. Turner).

Citations and references

Constitution and statutes:

• KRS 39A.100(1)(l); KRS 118.561(1); KRS 118.025(1); KRS 118.045(1); Ky. Const. §§ 2, 15, 26, 27, 28, 29, 36, 80, 81, 147, 148, 153; 3 U.S.C. § 1; 31 KAR 4:160

Cases:

• Owen v. Univ. of Ky., 486 S.W.3d 266 (Ky. 2016); Brown v. Barkley, 628 S.W.2d 616 (Ky. 1982); Beshear v. Bevin, 575 S.W.3d 673 (Ky. 2019); Fletcher v. Com., 163 S.W.3d 852 (Ky. 2005); Bloemer v. Turner, 137 S.W.2d 387 (Ky. 1939)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2020-06.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601

March 26, 2020

OAG 20-06

Subject: Whether, during a declared state of emergency, the Governor may suspend Kentucky's laws governing elections, beyond merely rescheduling the date of the election?

Requested by: Jason Snead, Executive Director, Honest Elections Project

Written by: Carmine G. Iaccarino, Executive Director; Brett R. Nolan, Special Litigation Counsel, Office of Civil & Environmental Law

Syllabus: Under KRS 39A.100(1)(l), the General Assembly has granted the Governor the specific authority to declare by executive order a "different time or place" for holding elections. The General Assembly has not granted the Governor any other election-related authority.

Opinion of the Attorney General

This Office recently described the outbreak of a never-before-seen disease, COVID-19, caused by a novel coronavirus known as SARS-CoV-2. The disease and its rapid spread quickly led to declarations of emergency issued by the President of the United States, the Governor of the Commonwealth and every other state in the Union, and the executives of numerous counties across Kentucky. Subsequently, at the recommendation of the Secretary of State on March 16, 2020, the Governor issued an executive order delaying "Kentucky's Democratic primary election, the Republican primary election, 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[.]"

With elections approaching, this Office is now asked its opinion on the extent of the Governor's authority to "suspend Kentucky's duly enacted laws, beyond merely rescheduling the date of the election[.]" Request at 2.

Our analysis is informed, as it always is, by basic legal principles, the text of controlling statutes, and the Kentucky Constitution. Owen v. Univ. of Ky., 486 S.W.3d 266, 270 (Ky. 2016) ("[T]he first rule of statutory interpretation is that the text of the statute is supreme."). On the basis of that authority, it is the Opinion of this Office that the Governor's election-related authority during this declared state of emergency is not limited to "merely rescheduling the date of the election." Request at 2. Instead, the Governor may do just what the statute says. "[U]pon the recommendation of the Secretary of State," he may declare by executive order "a different time or place for holding elections." KRS 39A.100(1)(l) (emphasis added).

It is well established that the Governor has only those powers and duties conferred upon him by statute. Brown v. Barkley, 628 S.W.2d 616, 624 (Ky. 1982). Ordinarily, the Governor has no power to suspend statutes to declare a different time or place for an election. That is a legislative function reserved to the General Assembly. Ky. Const. §§ 15, 29; Beshear v. Bevin, 575 S.W.3d 673, 682 (Ky. 2019) ("The making and changing of laws is the hallmark of the legislative power[.]"); Fletcher v. Com., 163 S.W.3d 852, 869 (Ky. 2005) ("The Governor has no constitutional authority to exercise legislative powers[.]"). But the Kentucky Supreme Court has recognized that "[t]he General Assembly may validly vest legislative . . . authority in [the Governor] if the law delegating that authority provides 'safeguards, procedural and otherwise, which prevent an abuse of discretion[.]'" Beshear, 575 S.W.3d at 683.

In KRS 39A.100(1)(l), the General Assembly provided a specific delegation of election-related legislative authority to the Governor during a declared state of emergency. "Upon the recommendation of the Secretary of State," the Governor is authorized "to declare by executive order a different time or place for holding elections in an election area for which a state of emergency has been declared for part or all of the election area." KRS 39A.100(1)(l). Moreover, the election must "be held within thirty-five (35) days from the date of the suspended or delayed election." Id. Under this provision, the grant of authority is as specific as the division of labor is clear: First, the Secretary of State must recommend a change to the time or place of an election during an emergency. Then, subject to the scope of that recommendation, the Governor may "declare by executive order a different time or place for holding elections." Id. (emphasis added).

The Commonwealth's primary elections were scheduled to occur on May 19, 2020. See KRS 118.561(1) (requiring that the Commonwealth conduct its presidential preference primaries "on the first Tuesday after the third Monday in May" in each presidential election year). However, the Governor exercised his specific authority under KRS 39A.100(1)(l) to delay the primary election, upon the recommendation of the Secretary of State, until June 23, 2020—thirty-one days after the election date set by statute. This act might be reasonably construed as an exercise of legislative authority because the effect of the executive order was to alter the statutory date of the Commonwealth's primary elections. Compare KRS 118.561(1) with Executive Order 2020-236. But the Governor's executive order complied with the statutory "safeguards" imposed by the General Assembly in the specific grant of authority in KRS 39A.100(1)(l): 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 (35) days" from the original date. See Beshear, 575 S.W.3d at 683. Thus, the Governor's executive order was a lawful exercise of his authority under KRS 39A.100(1)(l). Id.

The Governor's election-related authority following an emergency declaration is not limited to merely delaying the date of the election, but also extends to his or her power to "declare by executive order a different . . . place for holding elections." KRS 39A.100(1)(l). In that case, the "different place" for the election, i.e. each polling location, must comply with controlling Kentucky law. For example, "voting in all elections shall be by secret ballot on voting machines," KRS 118.025(1), with the American flag displayed at each voting location, KRS 118.045(1).

Finally, that the Governor's election-law authority is limited to what is specifically contained within KRS 39A.100(1)(l) is a conclusion compelled by Kentucky's Constitution. Sections 147 and 153 of the Kentucky Constitution vest exclusively in the General Assembly the authority to pass laws to provide for the registration of voters, assistance to voters who need it, and the manner of voting, among other things. The General Assembly has not given the Governor any relevant election-related authority other than what appears in KRS 39A.100(1)(l).

Ours must remain a "government of laws and not of men"—even in times of emergency. Bloemer v. Turner, 137 S.W.2d 387, 390 (Ky. 1939). As explained above, the Governor has only those powers and duties conferred upon him by law. Brown, 628 S.W.2d at 624. And under the law, the Governor may, "upon the recommendation of the Secretary of State," declare by executive order "a different time or place for holding elections." KRS 39A.100(1)(l) (emphasis added). Other than the specific delegation of power in that statute, the Governor has no authority to "supersede or suspend Kentucky [election] law." Request at 1; see Ky. Const. §§ 2, 15, 26, 27, 28, 29, 81; Beshear, 575 S.W.3d at 683.

Daniel Cameron
ATTORNEY GENERAL

Carmine G. Iaccarino, Executive Director
Brett R. Nolan, Special Litigation Counsel

[1] See Opinion of the Attorney General 20-05.

[2] Executive Order 2020-236, available at http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2020-MISC-2020-0236-266347.pdf (last accessed March 26, 2020).

[3] Id. The State Board of Elections has already established the procedures called for in Executive Order 2020-236. See 31 KAR 4:160 ("Elections Emergency Contingency Plan"). Unless validly amended, those procedures govern administration of the election scheduled to occur on June 23, 2020.

[4] The "place" of the election refers to a specific location. See, e.g., Merriam-Webster (defining "place" to mean a "physical environment," "a building or locality used for a special purpose," "a particular region, center of population, or location," among others), available at https://www.merriam-webster.com/dictionary/place (last accessed March 26, 2020).

[5] This opinion does not reach the question whether a Governor may exercise any delegated authority to declare a different time or place for the election of the President and Vice President, see 3 U.S.C. § 1, or the regular election of "State, county, city, town, urban-county, or district officers," see Ky. Const. § 148.

[6] To the extent that there is any disagreement on these fundamental principles of basic constitutional law, the current emergency has fallen during the legislative session. See Ky. Const. § 36. Therefore, the General Assembly may, if desired, take any action that may be needed to address the situation. Moreover, Kentucky's Constitution provides a mechanism by which the Governor may call an extraordinary session to address such important questions. See Ky. Const. § 80.