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

Wed Nov 13 09:39:14 PST 2013

Marc and Michael have mentioned that Fairfax county is large. Let me give
some figures to show the scale.

The County has 665,000 registered voters, which is 13.9% of the state
total. The total vote in Fairfax county was 311,000.

Edward Still
Edward Still Law Firm LLC
130 Wildwood Parkway STE 108-304
Birmingham AL 35209
205-320-2882
still at votelaw.com
www.votelaw.com/blog
www.edwardstill.com
www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>

On Wed, Nov 13, 2013 at 10:19 AM, Legal Works of Marc Greidinger <
mpoweru4 at gmail.com> wrote:

> 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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