[EL] Virginia Voter Purge Case

Sun Oct 20 07:11:03 PDT 2013

Thank you very much, Justin, to all those others who indicated that my
comments have been getting through, and particularly those who commented on
the provisional voting issue. The implications of this for us here are far
from theoretical, as there have been a number of significant elections
recently decided in Virginia by margins in the 1% range or less.

Justin, I was unaware of your article and very much appreciate the link.
While my client cited the relevant statute in its complaint, I thought we
were writing on a blank slate. The article promises to be quite useful to
what we are doing as soon as 24 ¾ hours from now.

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin
Levitt
Sent: Saturday, October 19, 2013 9:16 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Virginia Voter Purge Case

Your emails do seem to be getting through to the list, Marc.  If you're not
getting your own posts (and also for anyone else with similar
list-management questions), there's a link down at the bottom of this page
here <http://department-lists.uci.edu/mailman/listinfo/law-election>  -- at
the very bottom of the page, you'll see an "Unsubscribe or edit options"
button: once you log in, you can change listserv options (including whether
you receive your own posts or not).

On the substance: Judge Hilton wouldn't be the first to presume (and
therefore overstate) the reliability of the provisional ballot process.
See, e.g., Crawford v. Marion County Election Board ("The severity of that
burden is, of course, mitigated by the fact that, if eligible, voters
without photo identification may cast provisional ballots that will
ultimately be counted.").  

But to the extent that problems with provisionals do arise, questions about
what errors or omissions in the provisional process are material are fodder
not only for state law, but for federal law as well.  The Civil Rights Act
of 1964  <http://www.law.cornell.edu/uscode/text/42/1971> prohibits refusing
to count a ballot (among other voting-related acts) based on an immaterial
error or omission on any paper or record relating to voting.  It's an
underappreciated safeguard for the process, which I've written about at
length here <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1477663> .

Justin

On 10/19/2013 4:44 AM, Legal Works of Marc Greidinger wrote:

I observed the hearing before Judge Hilton in this case brought by the
Virginia Democratic Party yesterday.

.

Among the several reasons Judge Hilton denied the Motion for a Preliminary
Injunction was that he bought the State Board of Elections argument that
provisional ballots cast by persons who were wrongfully dropped from the
rolls would be counted.

Unfortunately, we know that this cannot be taken for granted. Here in
Fairfax County, Virginia, for example, a significant number of provisional
votes were not counted for reasons completely immaterial to questions about
the identity and qualifications of the voter. For example, I am told that
over 20 ballots were rejected because election officers in the precincts
forgot to sign the outside of the absentee ballot envelope. Others were
rejected for lack of a full or partial social security number – a violation
of section 7 of the Privacy Act

The Fairfax County Democrats continue to sue the State Board of Elections in
state court over questions about what is a material omission from the
absentee ballot envelope. But if every vote enjoys constitutional protection
because it is “preservative of all other rights” the voter purge means that
significant numbers of people’s constitutional rights will be violated, and
the provisional balloting process will provide no cure.

Irreparable harm is likely, and IMHO, Judge Hilton got this one wrong.

By the way, I almost never see my own posts on this list-serve. I would
appreciate it if one of you on the list serve could write back, just to
confirm you got this.

Best,

Marc Greidinger

Outside Counsel, Fairfax County Democratic Committee

(703) 626-1363

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Friday, October 18, 2013 11:22 PM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 10/19/13

 <http://electionlawblog.org/?p=56084> “Judge denies injunction in voter
lawsuit brought by Democrats” 

Posted on October 18, 2013 10:56 am <http://electionlawblog.org/?p=56084>
by Rick Hasen <http://electionlawblog.org/?author=3>  

Times-Dispatch
<http://www.timesdispatch.com/news/state-regional/government-politics/judge-
denies-injunction-in-voter-lawsuit-brought-by-democrats/article_c78b1904-380
e-11e3-9a05-0019bb30f31a.html> : “A federal judge has rejected a request
from Virginia Democrats who want the State Board of Elections to reinstate
nearly 40,000 voters who were recently purged from the voter rolls.”

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D56084&title=%E2%80%9CJudge%20denies%20injunction%20in%20voter%20lawsui
t%20brought%20by%20Democrats%E2%80%9D&description=> Share

Posted in election administration <http://electionlawblog.org/?cat=18> , The
Voting Wars <http://electionlawblog.org/?cat=60> , voter registration
<http://electionlawblog.org/?cat=37>  

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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