West Virginia’s ‘Don’t Ask, Don’t Tell’ Policy for Voters

The West Virginia Secretary of State's office and county election offices in the state are refusing to tell independent voters arriving to early vote at the state's 55 voting locations that they are entitled to vote in its Democratic or Republican 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, West Virginia, 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.

In 2006, 133,555 West Virginians were listed as independents, according to the secretary of state's office. That represented 11.74% of all registered voters in the state. Early voting began April 23 and ends May 10. The West Virginia primary is May 13.

Officials with the Secretary of State's office defended their position as not wanting to influence any individual's vote.

Gregory L. Howard, Jr., the lawyer for the Secretary of State, pointed to two sections of state law to support its position. The law cited said, "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.

Howard's citation of the department's legal underpinning for the policy was made following a 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."

Election protection lawyers also requested that signs with the same message be placed in the area where people come to early vote. However, 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.

"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. "Letting a voter know that if he wants to vote for a presidential candidate -- of whatever party -- is not influencing an election ... It's the duty of the Secretary of State's office to educate voters and encourage voting, not to help disenfranchise people."

The state's 'don't ask, don't tell' policy was discovered late last week after 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.

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 are validated and counted before the election results are certified. A provisional ballot cast after a voter has already cast a valid independent ballot will not be counted, a senior WV election official confirmed.

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 or if they check "No Party Choice."

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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