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

[John Tanner]

to get another picture of the scale of the board's task, Fairfax County
voters cast a total of 593 provisional ballots on election day.


On Wed, Nov 13, 2013 at 12:39 PM, Edward Still <still at votelaw.com> wrote:

> 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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