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

[Legal Works of Marc Greidinger]

The Fairfax Board of Elections voted on the overwhelming majority of the
provisional ballots as blocks, with all provisional voters in similar
circumstances treated the same irrespective of the personal appearance of
the voter. For example, all of those who were mailed, but did not vote, and
absentee ballot were approved. The Office of Elections had considerable
trouble processing and organizing the paperwork -- unfortunately having the
Deputy Registrar, Gary Scott, out on disability. It likely would have taken
Fairfax County something like this amount of time regardless of the personal
appearances by the voters. Under the circumstances, the Fairfax Elections
Board needed to extend the provisional ballot meetings to put the hundreds
of Fairfax provisional voters on equal to those in most Virginia counties,
which had a comparative handful to deal with.

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael
P McDonald
Sent: Wednesday, November 13, 2013 10:34 AM
To: law-election at UCI.edu
Subject: Re: [EL] what exactly is the potential BvG issue in #VAAG?

Another consideration is that many other electoral boards across the state
did not rule on their provisional ballots until yesterday, and few if any
did so the day after the election. Provisional voters in all jurisdictions
were afforded the opportunity to provide evidence to their electoral board
up until the time when the board ruled on their ballot. You're getting hung
up on the fact that the county held their meetings over more than one day,
but consider that as the state's largest jurisdiction, there was a larger
volume of provisional ballots to process. It may have been physically
impossible for the Fairfax board to dispense with all the provisional
ballots in one day.

============
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: Wednesday, November 13, 2013 9:26 AM
To: Rick Hasen; law-election at UCI.edu
Subject: [EL] what exactly is the potential BvG issue in #VAAG?

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) , 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




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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