Regulation governing June 23rd election released – Comments, if needed, must come quickly

Among many other things, the current COVID-19 mess has really fouled up elections across the nation, and Kentucky is no exception. The state’s primary election, originally scheduled for May 19, 2020 has already been postponed until June 23, 2020. Furthermore, this election will operate under emergency rules that were just released Friday by the Kentucky Board of Elections.

Details about these emergency rules are found in Kentucky Administrative Regulation 31 KAR 4:190E (which is available now in the Kentucky Board of Elections web site). The regulation, just approved on Friday, May 1, 2020, still needs to be signed by the governor and the secretary of state to become official, but that seems to be likely to happen very quickly.

But, “quickly” is an operative word here for another reason.

Normally, there is a public comment period for any regulation. That even includes an emergency regulation, which takes effect as soon as it is listed with the Kentucky Legislative Regulation Commission following its approval and collection of proper signatures, if required.

But the catch for 31 KAR 4:190E is that the public comment period for regulations is set in law, and that law wasn’t written with the current realities of COVID-19 in mind. As a result, the “Public Hearing and Public Comment Period” for this regulation cannot end until July 31, 2020, more than a month after the election already takes place.

Clearly, that makes the formal public comment period for 31 KAR 4:190E worthless.

But, there is a way to make comments that could create improvements to 31 KAR 4:190E, though you need to act quickly.

The next meeting of the Kentucky Board of Elections is going to occur on or around May 19, 2020. Comments received from the public before then can be considered by the board at that meeting. If the board decides a substantial change is worthwhile, the board could “withdraw” 31 KAR 4:190E and issue a new emergency regulation with the change included. That new regulation would need to be signed by the governor and the secretary of state and then filed at the Legislative Research Commission, but there would be time after May 19, 2020 to do this before early June when things must be fixed because absentee ballots provisions start then.

You will probably want to look at 31 KAR 4:190E just to learn what your voting options will be in June, as there are some special opportunities for absentee balloting and early balloting that were not allowed in standard, non-COVID-19 impacted times. If you should spot something in the regulation you really feel needs to be improved, now is the time to make that known.

You can comment on regulation 31 KAR 4:190E to Taylor Brown, the Board’s legal counsel by mail at: 140 Walnut Street, Frankfort, KY, 40601. He can accept an electronic submission at TaylorA.Brown@ky.gov. His phone number is (502) 782-9499.