[EL] Virginia provisional ballots, etc.

[Foley, Edward]

That's very helpful information, especially the point that emails and faxes are permitted to supply missing info without the voter having to show up.

It does, however, raise at least some policy questions (that the law professor in me can't help but consider): what if a person without a computer or fax machine wants a friend (or pro bono attorney) to send in a copy of an ID in order to help validate a ballot; is that okay if the email/fax includes a signed statement of the voter saying he/she is doing so with this other person's assistance?

And if a voter can hand-deliver a copy of a doc to the local board (as Donald Palmer says) without having to appear at the board's meeting, could another person hand-deliver the same doc from the voter, as long as the doc is accompanied by a letter from the voter authorizing the designated rep to do so?  And if that's okay, why not-again as a policy matter-allow another person to speak on behalf of the voter at a meeting of the local board, without the voter being present, as long as the designated representative has some kind of signed "power of attorney" to appear on the voter's behalf?  (To be sure, a voter who does not show up can't testify on his/her own behalf; so can't present that additional evidence that might make a difference; but why not let a lawyer make a case on behalf of the evidence the board already has?)

But of course what makes sense as a matter of policy for the future is not the issue concerning what Virginia law called for on Election Day 2013 (although it's certainly relevant for the ALI project).  In terms of Bush v. Gore and Roe v. Alabama, if Virginia law on Election Day 2013 clearly required that voters show up at any local board meetings to make a case as to why their provisional ballots should count, then for the State Board of Elections to tell a local board to comply with this clear rule would seemingly not be "new law" even if the local board mistakenly had engaged in an aberrant practice for some period of time.  (As I recall, in the Minnesota 2008 U.S. Senate election, it was held not to be "new law" to insist on invalidating absentee ballots without witness signatures even though some localities had previously permitted the counting of such ballots in these circumstances.)

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


From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Monday, November 11, 2013 10:05 AM
To: Foley, Edward; law-election at UCI.edu
Subject: Re: Virginia provisional ballots, etc.

#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.  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.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D56641&title=%23VAAG%3A%20Explanation%20and%20Clarification%20from%20the%20Virginia%20State%20Board%20of%20Elections&description=>
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<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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