May 13, 2020
Kevin A. Imhof
Attorney, Stoll Keenon Ogden PLLC
On March 16, 2020, through Executive Order 202-236, Kentucky Governor Andy Beshear delayed Kentucky’s primary, special, and local elections scheduled for May 19, 2020, until June 23, 2020. On April 24, 2020, Governor Beshear enacted Executive Order 2020-296, adopting Kentucky Secretary of State Michael Adams’s recommendations for conducting the June 23, 2020 primary election.
The Kentucky State Board of Elections (“SBE”) largely adopted the Secretary of State’s recommendations, and pursuant to KRS 13A.190 and the Elderly and Handicapped Act, 52 U.S.C. 20101 et seq., issued temporary emergency regulations (“Emergency Regulations”) to conduct Kentucky’s primary, special, and local option elections on June 23, 2020 in a manner that reduces the amount of exposure voters, poll workers, and administrators have to possible infection, and to slow and stop the spread of the coronavirus. The Emergency Regulations apply only to the June 23, 2020 primary election. Below is a list that includes important changes to the election process that will drastically impact Kentucky’s upcoming primary election:
Secure Online Portal
The SBE is currently in the process of establishing a secure online portal that will allow registered Kentucky voters to request an absentee ballot through the online submission of personally identifiable information. The information provided by a voter through the SBE’s secure online portal will serve as an application in lieu of traditional absentee ballot applications. The secure online portal will forward the application request to the County Clerk of the county in which the voter is registered to vote in. Once received, the County Clerk will then deliver the applicant an absentee ballot through regular US mail within seven (7) days—but no later than June 16, 2020. The Emergency Regulations assign the County Clerk the responsibility for determining the validity of a voter’s online application through the SBE’s secure online portal.
If a registered voter is unable to utilize the SBE’s secure online portal or traditional methods for application of an absentee ballot, she can still vote in the primary election by voting “absentee in-person.” The Emergency Regulations require County Clerks to make their offices and telephone lines available for the purpose of allowing registered voters of their respective counties to schedule appointments to vote absentee in-person beginning no later than June 8, 2020 and ending June 22, 2020, no fewer than five (5) days per week in the two (2) weeks before the week of election day.
Pursuant to the Emergency Regulations, County Clerk’s shall make reasonable efforts to accommodate in-person appointments according to the needs and availability of both the requesting voter as well as the County Clerk’s office. All appointments shall be consistent with social distancing standards and every reasonable effort shall be undertaken by County Clerks to see that in-person absentee voting in implemented in a manner that limits direct contact between voters, other voters, and election officials, and shall be conducted during the County Clerk’s business hours.
In-Person Voting on Election Day
Voters can still choose to vote on election day in-person, however, the Emergency Regulations direct County Clerks to reduce the number of sites for in-person voting on June 23, 2020. All County Clerks shall make their offices available to registered voters by telephone to schedule appointments on election day, and to accommodate in-person appointments according to the needs and availability of both the requesting voter as well as the County Clerk’s office. All appointments for in-person voting on election day shall be consistent with social distancing standards and every reasonable effort shall be undertaken by County Clerks to see that in-person voting in implemented in a manner that limits direct contact between voters, other voters, and election officials, and shall be conducted during the County Clerk’s business hours.
Absentee Ballot – Medical Emergency Application to Vote
A registered voter can send a medical emergency absentee application to vote in the primary election through regular U.S. Mail. The Emergency Regulations have relaxed traditional requirements for medical emergency absentee ballot applicants. An application for an absentee ballot due to medical emergency shall no longer require the applicant to state that an emergency condition occurred with 14 days of the election; be notarized; and shall entitle the application, upon verification of the application, to vote by absentee, by mail or in person by appointment.
A voter shall request an absentee ballot from the County Clerk of their residence by 11:59 p.m. EST June 15, 2020. All mail-in absentee ballots shall have the return postage paid for by the SBE. Any voter who fails to request a mailed absentee ballot, but desires to vote, is instructed to contact their County Clerk in order to obtain an absentee ballot or to make an appointment to vote in-person absentee or in-person on election day. Absentee ballots must be received by no later than 6:00 p.m., local time, on Junes 23, 2020, in order to be counted, except that, absentee ballots delivered by the United States Postal Service and bearing a postmark of June 23, 2020 or an earlier date, shall be counted in received by 6:00 p.m., June 27, 2020. Any ballot containing the postponed election date of May 19, 2020 will be considered valid as to the June 23, 2020 elections. A voter may deliver an absentee ballot to her County Clerk rather than sending through the mail.
Process and Security
The SBE will provide County Clerks a unique barcode for each voter’s ballot envelope which will provide election officials the ability to track the ballot through the US postal system and to issue voter credit. A registered voter may still request an absentee ballot using a traditional method of request.
A voter may hand-deliver her absentee ballot to the County Clerk’s office in lieu of mailing. The SBE may purchase secure drop-boxes and provide them to the County Clerk’s to assist them with managing the receipt of voter-delivered absentee ballots. Each drop-box must be secured inside a main or satellite office of a County Clerk, or otherwise inside a county courthouse, and must at all times be visible by County Clerk Staff. Each County Clerk utilizing one or more drop-boxes shall empty each drop-box at least once each business day and secure the ballots consistent with KRS 117.086(6); County Clerks shall empty drop-boxes more frequently as needed to accommodate the volume of voter-delivered absentee ballots.
On or before June 1, 2020, each County Board of Elections (“CBE”) shall appoint an absentee processing committee with a minimum of four (4) members, all of who must be registered voters of that county. Each committee shall have at a minimum, one (1) registered Democrat and one (1) registered Republican. One political party shall not comprise a majority of a committee unless the role of the committee is assumed by the local CBE. Each EBE shall establish and present to the SBE for approval, a process for observation of absentee ballot processing and counting, to be conducted in manner consistent with the Centers for Disease Control guidance. No person shall record or publicize any tallies or counts of these ballots until 6:00 p.m. local time, June 23, 2020. Once processed, absentee ballots must be stored in a manner consistent with current statutes and practices.
No absentee ballot can by processed and counted unless the committee verifies the signature on the absentee ballot envelope to match the voter’s signature of record. If a signature match cannot be made, the county Board of elections, absentee ballot processing committee, or the County Clerk shall make a reasonable effort to contact the voter using contact information provided by the voter’s absentee ballot application and provide the voter with a timeframe and manner in which the voter may cure the signature discrepancy. All signature cures must be made by 4:30 p.m., local time, June 29,2020.
Informing Kentuckians of Emergency Regulations
The SBE will send a postcard to every registered voter in Kentucky to inform them of Emergency Regulations and the changes being made to the June 23, 2020 primary elections as a result of the COVID-19 pandemic. The postcard will include the following information:
• Instructional steps that a voter must take to request an absentee ballot through the State Board of Election’s secure online portal or by calling the resident’s County Clerk;
• Advise voters that if they will vote in-person absentee or in person on election day, they are advised to make an appointment with their County Clerk.
Stoll Keenon Ogden understands that these are trying times for our clients and our Commonwealth. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for over 120 years.
If you would like to discuss the Kentucky State Board of Election’s Emergency Regulations, the effects of the COVID-19 pandemic on your operations, or any other important matters, please do not hesitate to contact your trusted Stoll Keenon Ogden professional.
Please also be sure to check out the Stoll Keenon Ogden Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state, and local governments in response to the Coronavirus pandemic.
 Site reduction and site selection must be pre-approved by the Kentucky State Board of Elections.