[EL] what exactly is the potential BvG issue in #VAAG?
John W. Farrell
jfarrell at mccandlaw.com
Wed Nov 13 20:22:20 PST 2013
Hi John Tanner and the list serve
It was 493 of which 4 were mooted out by the voter putting their
ballot through the optical scan machine rather than into the green
envelope. 13 were ID provisionals.
271 provisional ballots were accepted; 218 were rejected. When the
271 were open, 2(?) were found to be empty.
Last year Fairfax had 2,600 provisionals out of 500,000+ ballots.
And only 15 ID provisionals
In 2010, Fairfax had 1065 provisionals out of 250,000+ ballots.
I was the sole representative of the Fairfax County Democratic
Committee allowed to attend the Fairfax Electoral Board executive
session, provisional ballot meeting.
Within the bounds of attorney-client privilege, I'm happy to answer
questions members on the list serve may have.
John W. Farrell, Esq.
McCandlish & Lillard, P.C.
11350 Random Hills Rd., Suite 500
Fairfax, Virginia 22030
703-934-1182
703-507-1182 (cell)

On Nov 13, 2013, at 12:46 PM, John Tanner wrote:
> 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
>
>
>
> 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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