[EL] Virginia provisional ballots, etc.

[Michael P McDonald]

Ned,

Some provisional ballots cast in Fairfax County are where a UOCAVA voter was automatically mailed an absentee ballot (per UOCAVA and amended by MOVE) but voted in-person. I believe the law in Virginia is that a voter does not vote provisionally if the voter surrenders their mail ballot at the polling place, but for UOCAVA voters that have returned to the United States since the last election their ballot might not catch up with them. Fairfax County has a sizable military and overseas civilian population consisting of DoD and civilian government workers that might have returned to the United States since the last election. These likely comprise the bulk of provisional ballots that the electoral board can easily accept without the voter being present since election officials know whether or not the absentee ballot was returned. 

This experience has revealed to me a weakness in the way which our military and overseas civilian voters are served. I support the automatic sending of ballots to these voters, but we might be able to devise a better way of notifying them if they do not need to take further action on their provisional ballot when it is being held to verify that the voter did not cast an absentee ballot. The first day that the Fairfax County electoral board discussed provisional ballots, the anecdotal evidence from Brian Schoeneman is that most of the voters who testified to the board were UOCAVA voters who had voted in-person. This was a burden on the UOCAVA voters and the electoral board. 

The board is meeting over several days in reaction to the State Board of Elections ruling regarding legal representation to ensure that more provisional voters have an opportunity to come in and have legal representation. When the board voted to accept the ballots for UOCAVA voters who were not present, they subsequently called these voters to notify them that their ballot had been counted and further action was not needed on their part. This is an ad hoc solution that we might learn from to improve the process for everyone. Many Virginia electoral boards meet only one day  to rule on provisional ballots, so the advance notification solution needs to be fleshed out more to be effective. Perhaps this situation could be resolved administratively in advance of the normal provisional ballot procedures where provisional voters come into offices. It strikes me that would take a change in law, perhaps best done at the federal level in a MOVE2 Act.

-Mike

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Foley, Edward
Sent: Monday, November 11, 2013 9:48 AM
To: Rick Hasen; law-election at UCI.edu
Subject: [EL] Virginia provisional ballots, etc.

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


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