[EL] Virginia provisional ballots, etc.

[Rick Hasen]

    #VAAG: Explanation and Clarification from the Virginia State Board
    of Elections <http://electionlawblog.org/?p=56641>

Posted on November 11, 2013 7:04 am 
<http://electionlawblog.org/?p=56641>by Rick Hasen 
<http://electionlawblog.org/?author=3>

I received the following email from Donald Palmer, Secretary, Virginia 
Board of Elections, which I am reprinting here with his permission:

    I wanted to provide some explanation and chronology on the
    instructions to the field on the provisional ballot meeting issue. 
    You can post this if you wish....

    To answer a few of your open questions and clear up any misconceptions:

    The key issue is whether a lawyer or representative may be present
    on the part of the voter at the provisional ballot meeting without
    the voter being present at the meeting.   The initial place to start
    the analysis is with the Virginia Election Code itself which states
    that the "voter and their representative or legal counsel" are
    permitted to be present.

    /     Notwithstanding the provisions of the Virginia Freedom of
    Information Act (§ 2.2-3700 et seq.), attendance at meetings of the
    electoral board to determine the validity of provisional ballots
    shall be permitted only for the authorized representatives provided
    for in this subsection, for the persons whose provisional votes are
    being considered and their representative or legal counsel, and for
    appropriate staff and legal counsel for the electoral board./

    There has been no change in state policy with regard to provisional
    meeting procedures. The voter may have his or her representative
    present at the meeting if the voter is also present.  The only
    change was when Fairfax County submitted these proposed procedures
    for review by the SBE.   Apparently, Fairfax had considered allowing
    Democrat or Republican representatives to purportedly advocate and
    make assertions for voters who would not be present at the meeting. 
    The SBE has not heard of any other jurisdiction that had implemented
    or even considered this new practice during the course of this or
    previous elections.

    When the SBE became aware of the proposed plan outside the practice
    of local electoral boards and SBE's interpretation of the Code, it
    provided a reminder of statewide guidance to ensure uniformity on
    the issue.  SBE only became aware of the issue when Fairfax
    submitted their proposed procedures for the provisional meeting to
    the SBE and others.   SBE immediately responded with guidance to
    Fairfax and the greater election community as a number of
    jurisdictions were holding their final provisional ballot meetings
    after the noon deadline for ID submissions.  A large number of
    jurisdictions had already concluded their provisional ballot
    meetings without the proposed Fairfax procedure.  After uniform
    practice throughout the Commonwealth, to allow Fairfax to implement
    a different procedure unlike the other 132 jurisdictions (and
    outside the parameters of the Code) would raise fundamental fairness
    issues.  Due to its large numbers, Fairfax has usually been one of
    the last jurisdictions to hold and complete its required provisional
    meetings.

    Voters have always been permitted to be present at the provisional
    meeting if they wished to address the local electoral board.  If
    voters cannot be present after notice of the meeting, they are
    permitted to provide statements or other evidence to the electoral
    board.  In many instances, the ballot may count without the voter
    providing any additional information, either in person or in
    writing.  In some cases, no additional information or advocacy
    in-person will assist the voter's qualification to vote.  The
    determination is based on the facts and circumstances of the
    provisional ballot and the appearance of the voter is not usually
    determinative.  To clear up any misconceptions, the election staff
    does extensive research on the information on the provisional
    envelopes, provisional logs, interviews with officers of elections
    or voters and then provide these reports and recommendations to the
    local electoral board.  In the case of provisional ballots
    associated with the Department of Motor Vehicles (DMV), the SBE
    provides research and audit trails to the local electoral boards. 
    In the case of ID provisionals, the law allows the voters to provide
    evidence by means of fax, email, mail or in-person delivery of a
    copy of proper ID.

    *So to make clear: No voter is required to appear as a prerequisite
    to have his or her provisional ballot count. *

    The General Assembly revised the procedure in the 2012 session.  One
    change in the process was made in July 2012 when the General
    Assembly clarified the role of the representative in the provisional
    ballot meeting:  See
    http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB63
    <http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB63>. Before
    this legislation, only the voter and party representatives had a
    right to attend the provisional ballot meeting.  With its enactment,
    the General Assembly clearly inserted the right of the voter to have
    a representative or legal counsel with them at the provisional
    meeting.  Before this change, it was unclear that a legal
    representative could even be in the provisional meeting at all,
    voter or no voter.

    Some in Fairfax assert that this is a practice they allowed in the
    past.  Based on the information available to SBE, no other locality
    in the Commonwealth or Fairfax had a procedure to allow lawyers or
    political party representatives to represent voters without the
    voter being present at the meeting.  In discussions after the
    reminder guidance, some informed SBE that they believed that the
    Fairfax electoral board had considered a policy to allow the party
    representatives to advocate or make general arguments on behalf of
    provisional voters in 2012.  However, no voters attended the
    provisional meeting and the issue became a moot point.  While the
    past actions in Fairfax are unclear on this point, the Fairfax
    County Electoral Board should never have allowed party
    representatives or lawyers to represent voters at electoral board
    meetings without the voter being present. SBE provisional ballot
    guidance has never allowed for a party or lawyer to be present and
    advocate without the voter present.  The SBE interpretation of the
    code was carefully considered by staff and leadership and this
    interpretation was affirmed as a correct reading of the statute by a
    career Senior Assistant Attorney General, counsel to the Board.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
provisional ballots <http://electionlawblog.org/?cat=67>

On 11/11/13, 6:48 AM, Foley, Edward wrote:
>
> As a result of some Twitter exchanges this morning (thanks to Brian 
> Schoeneman and Doug Chapin), I know understand a distinction that I 
> did not appreciate last night: a provisional voter need not show up in 
> order to have the ballot count IF the local board has enough 
> information without the voter's presence in order to validate the 
> ballot.  The current dispute in Virginia concerns the procedures for 
> giving the local board additional information that might help to have 
> the ballot count.   According to the new directive from the State 
> Board of Elections (which may or may not be a change in the rules---it 
> is certainly alleged to be a change, as Rick has blogged, but I'm not 
> clear on that point yet), the provisional voter must show up in person 
> with any such additional information; a representative cannot show up 
> to supply that same information without the voter's presence.
>
> This distinction relates to something I've wondered about since first 
> studying provisional ballots in the aftermath of HAVA.  How many 
> provisional ballots can self-validate---in other words, need no 
> additional info in order for the local board to recognize their 
> eligibility to be counted?  Does anyone have any statistics on that, 
> either for Virginia specifically or other states?
>
> Relatedly, I've also wondered the extent to which local boards might 
> permit provisional voters to send relevant info---by email or fax (or 
> perhaps even a phone call in some instances)---without having to show 
> up in person at the local board?  In the case of a missing form of ID 
> on Election Day, for example, could the provisional voter supply a 
> copy of the ID in a PDF attachment to an email?  I wonder now whether 
> Virginia law, as construed by the State Board of Elections, would 
> permit that.  Or must the voter show up with the missing ID if the 
> voter wants that additional info to be considered?
>
> As a practical matter, it would seem to me that being able to send an 
> email, and not having to trudge down to the local board, might make a 
> significant difference in a voter's willingness to take steps to get a 
> ballot validated.  And of course the voter's willingness may first 
> depend on whether the race, like this VA AG election, is close enough 
> that validating the provisional ballot might make a difference.
>
> But I don't have a very solid sense on how much of a difference the 
> particular procedures that a state uses to permit provisional voters 
> to verify their eligibility may have on the ultimate rate at which 
> provisional ballots get counted, whether it close elections or 
> otherwise.  Does anybody have insight on this, or is it another aspect 
> of election administration for which we very much need more data?
>
> (By the way, these questions are very much relevant to the American 
> Law Institute project that Steve Huefner and I are working on, as we 
> see the need to address some of these procedural details concerning 
> the vote-counting process as part of what the ALI project must address.)
>
> Thanks, Ned
>
> The Ohio State University
> *Edward B. Foley *
> Director, /Election Law @ Moritz /
> Chief Justice Thomas J. Moyer Professor for
>
> the Administration of Justice & Rule of Law
>
> Moritz College of Law
> 614-292-4288
>
>   

-- 
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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