[EL] VA AG dispute

Rick Hasen rhasen at law.uci.edu
Sun Nov 10 12:43:10 PST 2013 

    In Razor-Thin VA AG's Race, Republican Dominated Elections Board, at
    Direction of AG Cuccinelli Changes Rules for Counting Provisional
    Ballots <http://electionlawblog.org/?p=56609>

Posted on November 10, 2013 12:39 pm 
<http://electionlawblog.org/?p=56609>by Rick Hasen 
<http://electionlawblog.org/?author=3>

The race for Virginia attorney general between Democrat Mark Herring and 
Republican Mark Obenshain is razor thin---at the moment Obenshain 
appears to have a 55-vote lead 
<http://www.washingtonpost.com/local/trafficandcommuting/newly-counted-fairfax-votes-narrow-gap-in-attorney-generals-race/2013/11/09/c2618dc0-4978-11e3-a196-3544a03c2351_story.html>, 
but the number is changing as various counties correct mathematical 
errors and count provisional ballots.

While most of the provisional ballots across the state have already been 
counted, that's not true in Fairfax County, where Democrats expect they 
would pick up further gains for Herring. So this development reported by 
WTOP 
<http://www.wtop.com/120/3501230/Provisional-ballot-voters-face-obstacles> 
was a big surprise:

    A last-minute change means Fairfax County voters who cast
    provisional ballots may face troubles getting them counted.

    Nearly 500 voters cast provisional ballots in the county, many more
    across Virginia, in Tuesday's election. But the promise from
    Democratic and Republican parties to make sure their ballots got
    counted is now no good.

    The state Electoral Board decided Friday to change the rules that
    had been followed in Fairfax County and ban legal representatives
    from stepping in to help get the ballot counted, unless the voter
    him or herself is there.

    County Electoral Board Secretary Brian Shoeneman says he and board
    chairman Seth Stark disagree with the ruling, but they have to
    comply. The board is voting on some provisional ballots later Saturday.

    "The office of the Attorney General advised us that this was the
    correct reading of the statute," State Board of Elections Secretary
    Don Palmer says.

There's more on the change from the /Huffington Post/ 
<http://www.huffingtonpost.com/2013/11/09/virginia-attorney-general-race_n_4247571.html>. 
The Board of Elections says it is issuing this directive to insure that 
there is uniformity across the state in how provisional ballots are 
handled. But it appears the directive came out after most of the 
provisional ballots (outside of Democratic Fairfax and Arlington 
counties) have already been counted---and it is not clear if the other 
counties used uniform standards in counting provisional ballots. 
Further, it seems that the rule goes against both Fairfax County 
practice (which allowed legal representatives to argue for the counting 
of ballots rather than the voter in person), as well as Virginia's Board 
of Elections posted rules 
<http://townhall.virginia.gov/L/ViewGDoc.cfm?gdid=5301>(see page 21 of 
this pdf: 
<http://electionlawblog.org/wp-content/uploads/va-bd-rules.pdf> among 
people who may attend decisions on counting provisional ballots: "Legal 
counsel and representatives of the person who cast the provisional ballot.")

There are a lot of factual and legal things unclear (to me at least) at 
this point.  (1) Is the new VA rule a change in practice? (2) Was it 
necessary to assure uniformity so as to prevent a /Bush v. Gore/ type 
inequality in vote counting problem? (3) Did the rule timing mean that 
it did not assure uniformity even if that was its intent? (4) If a court 
reviews this question, which trumps: assuring uniformity or following 
written, past practice put in place before the current decision? (This 
is an issue I wrote about in /The Democracy Canon/ in the last part of 
the article.) (5) Will any of this make a difference to the election 
outcome?  Presumably, if there are provisional ballots not counted in 
Fairfax because of the lack of the voter's presence in person, then a 
court could later order those ballots counted---but there's a lot riding 
on being out in front at the time of certification on Tuesday. (6) Was 
the rule pronounced Friday for sound election administration reasons, or 
to give the Republican the edge (as Democrats have already suggested)?

Interesting times.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
recounts <http://electionlawblog.org/?cat=50>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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