[EL] Virginia provisional ballots, etc.

[Flavio Komuves]

What is occurring now in Virginia is almost the opposite of the
problem that occurs in New Jersey in disputes over the counting of 
mail-in and
provisional ballots.  Here, if a board of elections proposes to reject a
provisional or absentee ballot, the voter is not given notice 
pre-deprivation
notice of the board's plans (except in some rare instances relating to
first-time voters’ identification issues).  All voters can eventually 
call to find
out if their ballot has been accepted or rejected, however, they must 
take the
initiative.  Rather, most (but not all) counties
do not inform voters, even post-deprivation, that their mail-in or 
provisional
ballot has been rejected; where they do, it is usually weeks or months 
after
the election.


If a voter does find out (usually, through being contacted by an 
advocate for a candidate or public question) that their mail-in or 
provisional ballot
has been challenged, they can come to the board of elections meeting 
where the
challenge is adjudicated.  However, I have regularly seen the board
refusing to hear from the voter him or herself; rather, they limit the 
presentation
to candidates or public-question advocates (or their lawyers). In the 
absence of any controlling statute, whether to hear from the voter is at 
the board's discretion.


I have criticized the failure to notify or include voters in the 
adjudication
 of ballot challenges as being violative of procedural due process 
rights under Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. 
Supp. 1354,
1357 (D. Ariz. 1990) and  Zessar v. Helander,
2006 WL 642646 (N.D. Ill. Mar. 13. 2006), vacated as moot,  536 F.3d 788 
(7th Cir. 2008), cert. denied,
129 S. Ct. 2734 (2009).


Our courts here have found “some merit to
this argument” but there has not been any case where the trial record 
was
sufficiently developed to lead the court to rule definitively on our 
practice of relegating the voter to second-class status when their own 
vote is at issue.  See In re November 2, 2010 Gen.
Election For Office of Mayor in Borough of S. Amboy, Middlesex Cnty., 31
A.3d 945, 955 n.1 (N.J. App. Div. 2011).


 


I have not studied how prevalent our
practices (or Virginia’s) practices may be nationally, but any time a 
voter or
a person supported by the voter has the doors of the administrative 
proceeding
closed off to them, it is a matter of concern in my view.  And that 
concern is only magnified where different counties follow different 
rules on the matter.
 


 
 
On Mon, Nov 11, 2013 at 09:48 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






 


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