Readers of my prior Election Integrity posts [here, here and here] will recall the effort by Virginia’s State Board of Elections to disregard the legal requirement that a postmark must appear on an absentee ballot return envelope arriving after Election Day but by Noon on the following Friday.
The State Board of Elections (SBE) proposed a regulation that would consider missing or illegible postmarks “immaterial,” thereby accepting absentee ballots returned without them. The public outcry was so significant (751 public comments against the regulation) that, during last week’s public hearing, the SBE proposed an amendment to the regulation, effectively changing their original proposal.
That amendment allows General Registrars to refer to the Intelligent Mail Barcode on an absentee ballot return envelope, in order to determine whether or not the ballot was mailed by Election Day. This barcode is generated by the U. S. Postal Service. If a General Registrar has to rely on the barcode to verify that the ballot was mailed by Election Day, his/her office must enter the USPS database and search for the relevant data on each returned ballot. Imagine the chaos if mounds of absentee ballots flood the system at the last minute!
But that’s not all to the amendment! If there is no evidence gleaned from the Intelligent Mail Barcode, the General Registrar must rely on the date on which the voter signed his/her oath on return envelope B. How do you prove the veracity of that date? What could go wrong?
The amended regulation was approved by the SBE on October 20.
These last-minute attempts to subvert Virginia’s election law must be taking a toll on staff at election offices. Yesterday, while visiting the Fairfax County Office of Elections, I tried to get clarity on how the barcodes work. A staff member suddenly snapped at me, accused me of looking for an argument, and said they are constantly getting new guidance from the SBE. She then turned and walked away. Her frustration is about to mount …..
Tomorrow, October 28, the Frederick County Circuit Court will hear arguments in a case brought by Thomas P. Reed (member of the Frederick County Board of Elections) and Robert Hess (Chairman of the Winchester City Republican Party). The Public Interest Legal Foundation represents Mr. Reed, and the General Counsel for the Republican Party of Virginia represents Mr. Hess.
The essence of their case is that, “In Virginia, the Legislative power is supreme to any act by an agency employee or even the Governor himself.” And, “if the language of a statute is clear and unambiguous, a regulatory interpretation … that is in conflict with the plain language of the statute cannot be sustained.”
Virginia law is clear. Absentee ballots returned after Election Day and prior to Noon the following Friday, must bear a postmark verifying that they were mailed on time by Election Day. The Rule of Law must prevail. Will it?