By Brian Skinner, Esq.
During last Tuesday night’s presidential debate, President Trump urged his supporters, as he has done before, “to go into the polls and watch very carefully.”
The president’s remarks have caused growing concern over potential confrontations at polling places due to deep partisan divides and baseless claims by President Trump that Democrats will “steal” the election.
Given the president’s plea, I thought I would take a look at whether West Virginia law would authorize persons, other than state election officials, to enter polling places as poll watchers.
No where in state law does it mention poll watcher or observers. It does however, make it clear that no one, other than the election officers and voters may be within the election room or remain within 100 feet of the outside polling place entrance while the polls are open. West Virginia Code §3-1-37.
State law makes exceptions for persons who are assisting a blind voter or for children under age 15 accompanying a parent, grandparent or legal guardian who is voting. Additionally, full-time employees of the Secretary of State’s office or full-time employees of the respective county offices of the county clerk or the county prosecutor may also be present in the polling place.
And, there are a couple of exceptions to the 100-foot rule — persons who reside or conduct business within 100 feet of the polling place and those dropping a voter off to vote.
So, despite the president’s appeal to his supporters that they go to polling places to watch for illegal conduct, poll watchers are not permitted to be within the polling place or within 100 feet of the polling place entrance. Unauthorized persons who enter or attempt to enter the polling place or even remain within 100 feet of the outside entrance the polling place, would be guilty of a misdemeanor and if convicted, would be subject to a fine of between $50 and $500, or jailed for up to 30 days. W.Va. Code §3-9-6.
Recently, chanting Trump supporters gathered outside an early voting site in Fairfax County, Virginia. Although, no voters were denied access to the polling place, some said they felt intimidated by people who waved campaign signs and shouted, “Four more years.” This followed the arrival of a noisy caravan of Trump supporters on motorcycles in a nearby parking lot.The incident led Virginia Attorney General Mark Herring, a Democrat, to issue an opinion noting that there are federal and state laws prohibiting voter intimidation.
“Voting is a fundamental right. It is the foundation of our democracy, and no Virginian should ever feel for their safety or feel intimidated when they exercise their right to vote,” he said.
In West Virginia, anyone causing a disruption at a polling place may be “taken and held in custody until sunrise of the next day, or for any shorter time” without a warrant by a sheriff or a person designated by the commissioners of election. W.Va. Code §3-1-38. A person who threatens to use force or violence or tries to intimidate anyone to vote for or against a candidate would be subject to up to a $10,000 fine, jailed for up to a year, or both. W.Va. Code §3-8-11. And, a person who tries to prevent a poll worker or election official from doing their job could be fined up to $1,000, jailed for up to a year, or both fined and jailed.
Interestingly, the law recognizes the importance of the right to vote, even by those who might try to disrupt the polling place. State law provides that a person detained for disrupting the polls “shall have an opportunity to vote, if he be entitled to do so, before he shall be committed to jail, if he so desires and shall be prepared to do so promptly.”
Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.