[EL] Virginia provisional ballots, etc.

[Legal Works of Marc Greidinger]

I am working for the Democrats at the Fairfax government center right now.

 

We had voters authorize our representative to represent them in 2012, and
this fact was certainly well known to SBE staff, our republican registrar
who is in constant contact with that staff, and the 2 republican members and
one democratic member of our local elections board. What we had planned this
year was not new and no surprise.

 

IMHO, what was discovered was that the election was close, and that
provisionals would make a significant difference. 

 

The announcement of the new policy – coming out Friday at noon – required us
to contact provisional voters again who had already provided us with written
authorization to represent them in their absence, and ask them to come in.

 

It has been a significant inconvenience for these voters – and required an
unexpected effort by the local party to mobilize provisional voters who had
already been told they would not have to show up. 

 

Right now, some voters have been waiting upstairs for over an hour to be
heard. They might otherwise have had other plans for Veterans Day.

 

Marc Greidinger

Outside Counsel, Fairfax County Democratic Committee

(703) 626-1363

 

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 10:37 AM
To: Rick Hasen; law-election at UCI.edu
Subject: Re: [EL] Virginia provisional ballots, etc.

 

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.

 
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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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