[EL] what exactly is the potential BvG issue in #VAAG?

[Foley, Edward]

The following thoughts are tentative/speculative, and I'm curious whether members of this list know of facts, law, regs, practices, etc. that would affect the analysis:

As Rick's link to the WAPO story indicates (WaPo<http://www.washingtonpost.com/local/virginia-politics/mark-herring-gets-a-leg-up-as-race-for-va-attorney-general-seesaws-again/2013/11/12/c9526ca6-4beb-11e3-ac54-aa84301ced81_story.html?wprss=rss_local-virginia-social&utm_source=twitterfeed&utm_medium=twitter>) , there is potentially an incipient Bush v. Gore Equal Protection claim concerning the allegedly disparate treatment of provisional voters in Virginia.  The claim, which Republicans would advance, is that provisional voters in Fairfax County received more favorable treatment than similarly situated voters elsewhere because (as I understand it) they received more days in which to show up in person to verify their ballots.  The Post says that Fairfax could show up until 1 pm Tuesday, whereas voters elsewhere had to show up by Friday.

Fairfax, the story continues, claims that it has the discretion to extend the deadline and the one Virginia statute that I've looked at does speak in terms of giving the local board the authority to extend the deadline for a particular voter; sec. 24.2-653(B):

"The electoral board shall meet on the day following the election and determine whether each person having submitted such a provisional vote was entitled to do so as a qualified voter in the precinct in which he offered the provisional vote.  If the board is unable to determine the validity of all the provisional ballots offered in the election, or has granted any voter who has offered a provisional ballot an extension to the following day as provided in subsection A, the meeting shall stand adjourned from day to day, not to exceed seven calendar days from the date of the election, until the board has determined the validity of all the provisional ballots offered in the election.

Subsection (A), as referred to, says that at the time of casting the provisional ballot, the poll workers must "inform a voter" of any need to provide additional ID "to be received by the electoral board no later than noon on the third day after the election."  Is that the Friday deadline mentioned in the Post story?  I haven't seen any other reference to Friday in the statute.  But the extension granted by Fairfax, as I understand it, concerned the ability of a provisional voter to appear in person, not to submit ID docs.  Subsection (A) then immediately goes on to provide:

At the meeting, the voter may request an extension of the determination of the provisional vote to the following day in order to provide information to prove that the voter is entitled to vote in the precinct pursuant to [sec.] 24.2.-401. The electoral board shall have the authority to grant such extensions which it deems reasonable to determine the status of the provisional vote.

Some questions I have about this statute are: (1) can the local board extend for more than one day with respect to each individual provisional voter; maybe yes, but there seems some ambiguity on this point? (2) can the board provide an extension for any reason other to give the voter more time to provide ID docs; in other words, can there be extensions of the time of the meeting in which the voter needs to appear? [I'm not defending the statute on policy grounds, just trying to figure out how to read it];  (3) most importantly, can a local board grant a blanket multi-day extension to all provisional voters in the county, when the nature of exercising discretion in the statute arguably appears to speak in terms of case-by-case decisions for each individual provisional voter? and (4) related, must a voter request an extension before it's granted?

Now for some "bigger picture" issues.  Presumably, the Board is/would defend their across-the-board extension on the ground that there was at least confusion over the policy about whether voters could have representatives attend the meeting without the voter also being present (the issue that surfaced over last weekend).  To my mind, that sounds somewhat like extending the hours to vote in particular precincts because of problems that emerged in those precincts during Election Day: machine failure, running out of ballots, etc.  I believe that Equal Protection analysis must be especially sensitive to the asserted justification for extending polling hours in some, but not all, precincts in an election.  Clearly, a selective extension of polling hours in only certain favorable localities in an effort to add last-minute votes for one's own candidate would be an inappropriate manipulation of the voting process.  On the other hand, when a genuine problem emerges in only some polling locations on Election Day, then an effort to equalize conditions for all voters in the election-and thus achieve nonpartisan fairness for all voters-would seem to justify the selective extension of polling hours in just those places affected by the problem.  I've written about this particular Equal Protection topic in the past: http://moritzlaw.osu.edu/electionlaw/freefair/index.php?ID=401  (And, indeed, the McCain v. Obama simulation we conducted in 2008, in order to explore the possible Bush v. Gore issues, concerned a polling place extension of this nature: http://moritzlaw.osu.edu/electionlaw/projects/mccainvobama/index.php )

So I'm left with the basic question of whether the polling place extension analogy is an apt one in this situation.  The ability to verify a provisional ballot, so that it counts, is rather like the ability to cast a ballot.  So having extra time to verify a provisional ballot seems like having extra time on Election Day to go to the polls.  We should be nervous when this extra time is given only to some voters in the electorate selectively.  Nonetheless, in some circumstances there can be good and sufficient reasons for this sort of selective extension.

The fact that Fairfax might have created the problem in the first place (by suggesting that the voter need not be present at the meeting when state law requires the voter to be there-if this is indeed the correct understanding of the relevant state law) does not rule out the possibility that its extension might be justified.  After all, election officials may be responsible for the circumstances that cause machine failure or ballot shortages at particular precincts on Election Day, and still an extension of polling hours might be justified.  So, I still want to hear more about all the relevant Virginia laws and facts before making any judgment on what I think about this particular Fairfax extension.

I do think the fact that the extension was supported by a Republican member of the local board, as I understand it, is relevant to the analysis.  It indicates that the extension was not a partisan effort to manipulate the process in favor of one side, but rather than an effort to "make whole" the voters who had suffered as a result of the Fairfax Board's own apparent mistake in earlier saying that they did not need to appear at the relevant meetings.

But, as surfaced in Minnesota in the 2008 U.S. Senate election, there is a risk that LOCAL election officials in an attempt to do right by their own LOCAL voters sometimes inadvertently create inequities between THEIR votes and OTHER voters elsewhere in the state.  It's perhaps a form of  local favoritism, rather than partisan favoritism.  I'm not saying that this is what occurred in Fairfax.  Instead, it might just be a form of local re-balancing, so that Fairfax voters are back on roughly the same footing as voters in the rest of the state.

Anyway, enough ruminations for now.  If others have information relevant to these issues, or see different relevant considerations (or view them differently), I'd love to hear it.

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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