[EL] Do we have any breakdown?
John W. Farrell
jfarrell at mccandlaw.com
Thu Nov 14 15:54:30 PST 2013
Justin
Several members of the list serve have asked this question. My
response at this stage is limited by 5 things: intense sleep
deprivation, the restrictions of an executive session, a lack of time
to compile my notes, attorney client privilege and the really screwy
coding protocols imposed by the Virginia SBE.
But let this be a preliminary summary subject to revision and
extension as the dust settles:
The largest fraction of the rejects were:
Not registered - lots of folks claimed to have registered @ DMV. In
some cases, that agency had records of attempted completed
registration forms that had gotten lost in the ether but, in too many
cases, DMV had no corroborative records.
Also, the old form for change of address for voter registration put
the affirmation of citizenship in an easy to overlook position
resulting in, not only the voter's address change not being processed
but, worse, the voter's registration being cancelled.
There were few cases under this category where the voter's
registration had been wrongfully cancelled by the list purges that
happened over the last several months.
Not registered in County - lots of folks who were originally
registered to vote elsewhere in Virginia and moved to Fairfax also
claimed to have filed a change of address @ DMV. In some cases, that
agency had records of attempted completed change of address forms
that had also gotten lost in the ether but, in too many cases, DMV
had no corroborative records.
Wrong precinct - voters had moved within Fairfax and were still
eligible to vote at their old precinct but voted at the precinct
nearest their new home instead.
Only 12 rejections this year related to ID. Last year, Fairfax
voters cast 500,000+ votes and only had 15 ID provisionals and 8 were
accepted after the voter sent in their ID by fax and other means
before the canvass ended Sunday night. Remember Hans Van Spakofsky
voted to count votes from people who produced their ID on Saturday or
Sunday last year. This year the Republican Board members held fast
that Friday noon was the cut-off to get IDs into the Electoral
Board. I don't agree with their reading of the General Registrar and
Electoral Board Manual.
The largest fraction of voters whose provisionals were accepted, by
far, was 2012 overseas voters who had returned state-side for 2013.
There were lots of other reasons but that group was by far the largest.
John W. Farrell
Attorney at Law
11350 Random Hills Road, Suite 500 Fairfax, VA 22030-7429
tel (703) 934-1182 cell (703) 507-1182
website | bio | vCard | map | email
On Nov 14, 2013, at 12:41 PM, Justin Levitt wrote:
> Hi, John. Thanks for the generous offer of more info.
>
> Do we have any breakdown of why the 218 that were rejected were
> rejected? Or why the 271 that were accepted were cast in the first
> place?
> --
> Justin Levitt
> Associate Professor of Law
> Loyola Law School | Los Angeles
> 919 Albany St.
> Los Angeles, CA 90015
> 213-736-7417
> justin.levitt at lls.edu
> ssrn.com/author=698321
> On 11/13/2013 8:22 PM, John W. Farrell wrote:
>> 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)
>>
>> <mime-attachment.jpeg>
>>
>> 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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>>
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