CHARLESTON - A West Virginia House of Delegates committee approved a bill Wednesday that could pave the way for Attorney General Patrick Morrisey potentially prosecuting voter fraud cases in the near future.
The House Political Subdivisions Committee recommended for passage House Bill 2038 Wednesday morning, referring instances of election fraud to the attorney general for prosecution. The bill now heads to the House Judiciary Committee.
HB 2038 would allow the Secretary of State's Office to refer cases of potential election fraud to the Attorney General's Office if a county prosecuting attorney has declined to prosecute a case after a 60-day review. According to a fiscal note, the bill would cost $285,000 and require the Attorney General to hire two attorneys and a paralegal.
According to the state Constitution and state code, the Attorney General has no criminal prosecution powers. State code only allows the Attorney General to assist county prosecutors in criminal matters if a circuit judge or a justice of the state Supreme Court of Appeals deems it necessary. Anne Charnock, an attorney for the committee, said the bill doesn't address that issue.
"It doesn't address that half of the equation. It only addresses the referral," Charnock said.
Donald "Deak" Kersey, general counsel for the Secretary of State's, said the bill was needed to provide assistance to county prosecutors who may wish to prosecute election fraud cases but might not have the resources or manpower necessary.
"Sometimes county prosecutors or assistant prosecutors have to prioritize their caseloads," Kersey said. "When a misdemeanor election crime comes down and they have to pick between a child abuse and neglect case or an election crime where an elected officials walks into a polling place and asks people to vote for him or her...(the prosecutor) ends up having to pick or choose."
State code requires the Secretary of State's Office to investigate all claims of election fraud and are mandated to refer completed investigations to a county prosecutor for them to make a determination as to whether to prosecute.
According to Kersey, 67 election fraud cases have been referred to county prosecutors since 2017 with nine convictions, but 25 cases were declined for various reasons or no reason at all. Kersey said some of the reasons cited were prosecutors having no resources or prioritizing violent crime.
Kersey said prosecuting these election fraud cases was important due to protecting election integrity, ensuring people have confidence in the electoral process, and with some elections being decided by narrow margins.
"Election crimes are really important, especially in the moment, from a deterrence factor," Kersey said. "We can punish somebody later, but you lose the deterrence factor. Small misdemeanors have big impacts on elections.
According to an opinion from the state Supreme Court in 2014, the court said the Attorney General has no legal authority to prosecute criminal cases or assist county prosecutors even if requested by that county.
Morrisey sought a written opinion from the Office of Disciplinary Counsel in 2013 after the Mingo County Commission asked the Attorney General's Office to assist the county prosecuting attorney. The Office of Disciplinary Counsel told the Attorney General's Office by telephone that it was inappropriate and issued an informal advisory opinion that it would not be appropriate.
"The Lawyer Disciplinary Board determined that there currently exists in West Virginia no authority, constitutional, statutory or otherwise, for the Attorney General to assist county prosecutors with criminal prosecutions outside of what is contemplated (in state code)," wrote former Supreme Court Justice Robin Davis in the court's majority opinion.
After receiving a similar request for assistance from the Preston County Prosecuting Attorney in 2014, Morrisey filed a petition with the Supreme Court seeking to prohibit enforcement of the ODC informal advisory opinion. The Supreme Court sided with the ODC, determining that state code and the state Constitution prohibited the Attorney General from prosecuting criminal cases.
"As a result of the constitutional creation of the office of prosecutor, the Legislature empowered that office with all of the powers of criminal law prosecution," Davis wrote. "This empowerment repealed the Attorney General’s common law authority to prosecute criminal offenses."
Kersey said while the Attorney General is prohibited from assisting prosecuting attorneys, the Legislature could pass a law providing that statutory authority.
"The court has made it clear there isn't currently authority in statute for the AG to assume prosecutorial authority over a criminal matter," Kersey said. "That statutory authority could be granted by this body. The court was not concerned with the constitutionality of giving statutory authority, it was just in those matters there was no statutory authority when the issue arose."
"I think it is very important we deal with election integrity within our state," said Delegate Bill Anderson, R-Wood. "We need to clean up our own house and this bill is a start. I hope as the bill advances to the (House Judiciary Committee) they would grant to the Attorney General specific language giving him authority if a prosecutor declines to prosecute that they can intervene in the circuit court. I would hope the Judiciary Committee addresses what I think to be a defect of the bill."
Delegate Evan Hansen, D-Monongalia, was the lone vocal no vote against the bill. Hansen said discretion to prosecute election fraud cases should remain with county prosecutors. He also said he doesn't trust current Secretary of State Mac Warner to exercise the greater discretion the bill gives him, citing Warner's attendance at a Stop the Steal rally after the November 2020 presidential elections, where supporters of former president Donald Trump alleged that current President Joe Biden stole the election.
"I have some specific concerns about providing the level of discretion to the Secretary of State who participated in a Stop the Steal rally after the 2020 election, providing the level of discretion to somebody whose judgment is clouded by that action," Hansen said.