The largest Democrat stronghold in the state gave their provisional voters significant advantages that provisional voters elsewhere in the state did not get. The result? Predictably, the Democrat wins.
This isn’t about not wanting to count votes that should be counted. It’s not about seeking partisan advantage. To the contrary, it’s about fairness and equal protection of all Virginians under the law.
What happened in Fairfax over the last week, culminating in tonight’s announcement of a reversal in fortunes of the Virginia Attorney General candidates, was a travesty. I serve as Vice Chairman of the Stafford County Electoral Board, and can say from first hand knowledge that the Fairfax Board has departed significantly from the procedures followed by almost all other jurisdictions in Virginia in two important ways. First, provisional voters in Fairfax had more than twice the time as other Virginia voters to organize themselves and make their arguments that their ballots should be counted. Second, over the course of most of the last week, lawyers and advisors for both the Democrat and Republican parties were able to identify and coach “their” respective voters on how best to spin their facts and present their arguments to the board. No other provisional voters in the state had access to those resources.
Not only does this unprecedented and entirely unnecessary departure from the rules constitute tremendous unfairness to other voters around the Commonwealth, it turned what should have been a low-key, objective examination of the facts in accordance with published rules into the opposite: a politically charged zoo that undermines the electorate’s confidence in the uniformity and fairness of the electoral process. I’m sure the members of the FCEB felt they were doing the right thing by their voters, but in doing so they raised a giant middle finger to the rest of us.
The Log of Provisional Ballots
On election day, each precinct keeps a log of the provisional ballots cast in that precinct. Among other things, the log reflects the name, address, social security number, and phone number of the provisional voter. The log also has a coded number to reflect the reason the voter is casting a provisional ballot. According to the Virginia Code and clear guidance from the State Board of Elections (“SBE”) to all electoral boards around the state, this log is NOT TO BE SHARED WITH THE PUBLIC OR THE POLITICAL PARTIES. Rather, it is to be made available for inspection by representatives of the political parties only during the electoral board’s meeting to decide on which provisional ballots to accept from each precinct. The SBE guidance, Provisional Ballot Meeting Memo_2013 (Final), reads in relevant part as follows:
During the provisional ballot meeting, authorized representatives are permitted to see and hear the process, to inspect the provisional ballot log and take notes from the list, including the names, phone numbers, date of birth, and addresses of individuals who have voted provisionally. While authorized representatives may take notes from the log, they should not be permitted to leave the meeting with any photocopy. The access rights are limited to inspection and note-taking.
This procedure allows the party observers to understand why each ballot was accepted or rejected, and to record (in real time) the relevant information for those voters whose ballots were rejected in the event a party wishes to challenge that decision in court. What IT DOES NOT DO is allow the parties time to identify their potential supporters among provisional voters in advance of the provisional ballot meeting, get those voters to the Board meeting to plead their cases, and have the party lawyers coach them on the best possible way to spin their circumstances to get the electoral board to accept their votes.
For that, we have to look to Fairfax County, where the FCEB decided to provide the information on the provisional ballot logs to the parties well in advance of the board’s consideration of the provisional ballots. Not only that, but rather than limiting the parties’ “access rights [] to inspection and note-taking,” according to FCEB Secretary Brian Schoeneman the board helpfully provided the parties with the relevant information on a single consolidated spreadsheet “as an administrative convenience.” The FCEB apparently justifies this by relying on a remarkably tendentious reading of SBE’s policy. Schoeneman has taken great pains to clarify that they DID NOT provide the provisional logs or copies of the logs (“To be clear, again, we do NOT provide copies of the provisional ballot log”), which would have been prohibited by SBE’s guidance. Instead, they simply extracted all the relevant information from the logs and provided it to the parties in a more usable, convenient electronic form (i.e., technically not a “photocopy”).
Schoeneman says that other large jurisdictions do this as well, and suggests that perhaps this has been done before in Fairfax. I cannot speak to this, but I can say that most jurisdictions choose to follow the rules and guidance from SBE, as this is the only way to ensure that voters across the state are provided equal protection under the law. FCEB’s departure from these rules means that a substantial portion of the electorate are subjected to a different (and more favorable) treatment than the rest.
With all due respect to the Fairfax board members, this “administrative convenience” is precisely what the procedures followed by most of the rest of the state are designed to thwart. The political parties are not supposed to be in advocacy mode, injecting their partisan interest into what should be an almost completely objective determination of the merits of each ballot. Which leads us to the second major departure from standard practice.
The blanket extension of time for provisional ballot consideration
Provisional voters are informed when they cast their provisional ballot that they may, if they wish, appear before the board THE FOLLOWING DAY to tell the board why their provisional ballot should be accepted. The Virginia Code Section 24-2.653 contemplates that the electoral board may determine a need to grant more time for this process:
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 provisional ballots offered in the election.
Read that again: “[T]he meeting shall stand adjourned from day to day, not to exceed seven calendar days from the date of the election.” On Saturday the FCEB announced that it was extending the period for considering provisional ballots to Tuesday (today) at 1:00 PM. It is quite obvious that this departs from the Code in two important ways: first, a single day extension is to be granted to individual voters (presumably because of individual circumstances), not ALL provisional voters. Second, if the board is unable to complete its review of all voters by the end of one day, they may adjourn to the next day, but there is no authority to say in advance of a particular day’s meeting that the meeting will need to be adjourned for subsequent days.
Undoubtedly because of squawking by the political parties about insufficient time to find and coach their voters, and the fact that relatively few voters had shown up during the standard period (just like in every other jurisdiction), the Fairfax Board decided their voters were special, and not subject to the same rules and limits as everyone else. So, the Board voted to extend all Fairfax provisional voters’ time to appear before the Board by 3 days. And this is after they had already extended the period a day longer than almost every other jurisdiction, the vast majority of which completed their provisional canvasses last Friday.
Election Dis-Uniformity
I confess that I’m not privy to all the facts and circumstances giving rise to the Fairfax Board’s actions. My impression from afar is that they took these actions over the private objections of the State Board, and some of the actions over the very public objections of the Republican Party. Nor am I familiar with the precise procedures in other large jurisdictions, or what has been done previously in Fairfax. But, that’s essentially irrelevant.
What I CAN speak to is what most other electoral boards did. In Stafford, we too were harangued by the political parties to provide the lists of provisional voters in advance of the provisional ballot meeting. But, like most other jurisdictions, we followed SBE procedures to provide a uniform application of the election laws across all of the Commonwealth’s localities. We also saw the value of SBE’s procedures, as the idea of having the media and partisan circus swirling around our process is inimical to the spirit of non-partisan fairness that my colleagues and I pride ourselves on.
Had we fully grasped the impending disregard of the rules in Fairfax, I’m quite confident my colleagues and I would have likewise availed ourselves of the opportunity to give our voters a much better chance of getting their votes counted. But now, like most voters around the state, the voters in my county have been subjected to the unfairness of Fairfax.
Cross-posted at Virginia Virtucon.
38 comments
The solution to the unfairness is as follows. There will be a special recount court in Richmond composed of 3 judges which will set the rules for the recount. That court should be asked to issue an order allowing all counties, with the exception of Fairfax County, to allow their provisional voters who were rejected an additional 3 days to come in during the recount process to true their votes. The argument would be that Fairfax County violated the statute by its blanket 3 day extension and that Bush v. Gore demands all voters be treated equally. In other words the Virginia statute as applied violated the Equal Protection clause of the US Constitution. This will not be a reopening of the election because no new votes will be cast. It would be merely applying the same Fairfax County standards to all Virginia voters during the recount. It will also not be an attempt to throw out the Fairfax County votes which would be unwise for a number of reasons If we are going to a recount let’s right the wrong which Fairfax County inflicted upon the rest of Virginia’s voters.
I like that approach, Daoud. Makes a lot of sense.
Funny that you like this approach when it’s completely barred by law. The Code provides that recounts don’t include reviewing the qualifications of voters – including provisionals. This plan would throw that out the window.
It also violates the parts of Bush v. Gore that aren’t dicta, namely, that Courts don’t have the authority to alter the rules of a recount after the fact.
This is what I find ironic – you guys are blasting us for exercising discretion that is within the Code, and now you’re saying you like an approach – one that “makes a lot of sense” – but flat out contradicts Virginia law and Supreme Court precedent.
The hypocrisy is astounding.
Brian, you’re right. I had a knee-jerk reaction (not hypocrisy) to Daoud’s comment. But you’re right on the law on this issue.
Nobody but me is reading this, Steve. I should send you guys a bill for providing you all with traffic.
If you were wondering precisely how significant you are to this site, I got more traffic to this blog from one well-placed link than you have in the entirety of your activities here ever.
Hahaha, what a sweet thing to say! Very wrong, but sweet.
You can’t remedy a Constitutional violation by referring to another code section. The rules of the recount haven’t been set yet.
You also can’t remedy a Constitutional violation with another Constitutional violation. Changing the rules of the recount in midstream is as also an equal protection problem – that was the fundamental ruling in Bush v. Gore.
Claiming that you’re not altering the rules of the recount because it hasn’t yet begun is mere sophistry – you said the recount court should do this but how can there be a recount court without a recount petition being granted? Come on.
I’m not arguing that folks can’t make an appeal. I’m saying that your proposed remedy is worse than whatever error it is you are trying to correct. The reason we did this in the first place was our concern that all votes be counted, so I don’t know what you’re talking about in that regard. Are you claiming that the rest of Virginia didn’t care as much as we did?
Bottom line – the provisional ballots in Fairfax had zero impact on the AG’s race and nobody would be making up nonsense about equal protection violations if Obenshain had won. This is partisan nonsense and I’m not going to stand for it.
It’ not altering rules in midstream if the recount hasn’t begun yet. That is not sophistry. The Constitutional rights of Virginians who don’t reside in Fairfax County have been violated. The proposed remedy not only makes sense but it is the only remedy available. The only other remedy would be to throw out the provisional votes in Fairfax County which should not be an option. The point about all votes being counted is that residents of other counties should be given the same opportunities as the Fairfax County residents. As far as other counties not caring as much about their voters, as Mr. Albertson pointed out if other counties had anticipated what Fairfax County was going to do they might have held their deliberations open until Tuesday also. The Equal Protection argument is not partisan nonsense. The only question among people who have raised it is what can be done about it.
This is the fundamental point you and others who agree with you don’t seem willing to accept or to understand – voters across Virginia had absolutely the same opportunities that voters in Fairfax did. The amount of time we allowed voters to come in isn’t an issue – all voters in Virginia had the same physical right to come in, regardless of he amount of time. That’s where the equal protection argument fails.
Again, there is no recount court until there is a recount petition that had been accepted, so any actions taken by that recount court would be changing the rules after the recount has begun.
The only way to get this in front of a court is to find someone from another part of Virginia who had their provisional ballot rejected and had actual information that would have changed the Board’s decision AND they were physically unable to come before the Board in the amount of time they we’re given. If you can’t find that person, you can’t find any kind of legitimate injury and the case fails for lack of standing.
I’m willing to bet that there is no person that fits all those criteria.
So, again, this entire argument is academic. And yes, it’s partisan because I have yet to hear a single Democrat criticize how we handled things.
So, if Voter A is told by her Board of Elections she has 3 days to come in and argue her provisional ballot should be counted and Voter B is told by his Board of Elections he has 7 days to do so you believe they have been treated equally under the law because they both had the right to physically appear. I believe Voter A would disagree with that.
With regard to the Recount Court, Virginia Code § 24.2-802(B) reads: “After the full court is appointed under § 24.2-801 or 24.2-801.1, it shall call a hearing at which all motions shall be disposed of and the rules of procedure shall be fixed finally.” It seems clear that this Court could entertain a motion that the Equal Protection clause has been violated as applied and that an appropriate remedy is the one I suggested. You believe this would be changing the rules after the recount has begun. I disagree. The actual recount hasn’t begun until the procedures are in place and the ballots are being counted.
I don’t agree with your standing scenario that someone must have been physically unable to appear. It would be enough to assert that a person was given a different time period to appear and if that person had been given extra time he or she could have proved entitlement to cast a ballot. I believe such people exist.
I agree the argument is academic at this point in time. Who knows what will be proposed?
The shorter time period alone isn’t sufficient because unless you know that the voters ballot wasn’t accepted and there was information only the voter had that would have affected the outcome, then there is no actual harm and thus no standing.
The law itself presupposes that there would be situations where someone would get more time – read all of 653. If it’s an equal protection violation to give one voter more time than another, why does 653 specifically say that boards can grant extensions for voters to bring information? If the voter requests an extension and it is granted, what happens to others who weren’t granted the extension? Do they have an equal protection claim? I don’t think so.
Again, what we did is consistent and plausible within our reading of the law. If the GA wants to tighten up the rules in the future to deal with this issue, that’s fine, but the law is the law right now and what we did conforms to it.
My standing scenario does not rely upon just a shorter time period. I clearly stated that standing could be established by a shorter time period and “and if that person had been given extra time he or she could have proved entitlement to cast a ballot.” With the a motion before the Recount Court, two or three representative plaintiffs might be sufficient.
It’s true that Va Code § 24.2-653 anticipates there might be individual cases where an extension is necessary. So if one person needs an extension because she forgot a document and is given until the next day to produce that document, such an extension wouldn’t violate the Constitutional rights of other Virginians. However, if every voter in Fairfax County is given until Tuesday at 1:00 PM and every voter in all other counties is given until Friday at !2:00 PM that does present an equal protection problem.
Once again, what the Fairfax County Board of Elections did is not consistent with, and in fact violates, Va. Code § 24.2-653 which only allows “day to day” extensions. The statute does not allow a county to say “We’re going to extend the time for three days no matter what and if no one shows up today or tomorrow, they can still come in Tuesday.”
Again, the Code specifically says that if we cannot resolve all the provisional ballots, we can adjourn to the next day to continue. That is exactly what happened. It took us five days to resolve the provisionals. I don’t understand why you are continuing to be obtuse. Read the plain language of the statute.
Here is the official press release. Nowhere here do I see the statement “Because the Board has not resolved all the provisional ballots, we will continue the proceedings until tomorrow.” This is a blanket extension which contains no qualifications of any kind.
“Provisional ballot review by the Electoral Board is ongoing in the Fairfax County Government Center, Room 315, until Tuesday, with the following hours:
Today, Saturday, Nov. 9 until approx. 5-6 p.m.
Sunday, Nov. 10, 1 to 5 p.m.
Monday, Nov. 11, 10 a.m. to 4 p.m.
On Tuesday, 1 p.m. or an hour after the Electoral Board returns from a meeting at the Courthouse – whichever is later.”
The Code does not require magic words be spoken. All the provisionals had not yet been resolved. That’s all it takes. Again, you are being obtuse.
No, the Code doesn’t require magic words. It requires facts. The fact of a necessity to continue deliberations on a daily basis and not grant a blanket extension to a date certain in the future. The fault lies not in the press release itself but in the actions of the board in not strictly hewing to the language of the statute. But I now wish to end this conversation. So I won’t reply further.
Daoud, don’t waste your time. Brian will continue to provide all manner of evasive responses, and will continue to baselessly call you obtuse, until he has the last word.
Rest assured that everyone else reading this knows you’re right.
Your advice is excellent. Brian has been quite clear on this subject at BD, he will ALWAYS have the last word.
The facts were there and always have been – even without the extension, we were unable to adjudicate all the ballots before Tuesday. We needed DMV and State Board records for some, and we were working over a weekend and a holiday. The aboard did nothing wrong, and attempting to shoe horn error into our process is pointless.
If you really feel so strongly, go find the voters you insist exist and file a complaint on their behalf. That’s the only way for critics to prove their interpretation is correct and ours is not.
We didn’t inflict any wrongs on anybody, certainly not the rest of Virginia’s voters.
As I have been saying repeatedly, of the 150+ people who came and saw us, less than a dozen cases were actually impacted by the information they provided.
All of the whining – and that’s what it is, whining – is because we announced what we were doing before we did it. I find that sad and unfortunate, because it’s feeding into the Democratic meme that Republicans want to steal elections – which was something we were trying to fight by allowing voters to come in and be a part of the process.
As Brian Schoeneman has pointed out, jurisdictions have discretion to determine how much time they allow people to appear in person. The only limit is not more than 7 days.
If there is an equal protection problem, it lies in that discretion. It is impossible to say that Fairfax was wrong and all the jurisdictions that did not allow the full 7 days were right.
As for the lede in this article:
OF COURSE THE DEMOCRAT WON. He won Fairfax *as a whole* so he would be expected to win the provisional ballots as well. Shocking, I know! Moreover, even if Fairfax had counted none of its provisional ballots, Herring would still be ahead today.
Chris, you’ve missed the point entirely. The Fairfax Board did not have the discretion to make a blanket, multi-day extension for all provisional ballots, and they had no discretion to release copies of the provisional logs (despite the tendentious hair-splitting on what constitutes a “photocopy”). The code and SBE guidance provides discretion within narrow bounds to deal with unforeseeable circumstances, but otherwise demands uniformity of process to ensure equal protection under the laws. Fairfax threw uniformity out the window.
And yes, of course the Democrat won in the largest Democrat stronghold. One would not expect any different. But this points to another reason, beyond the Constitutional requirements, that uniformity is important: when one party benefits from dis-uniformity, it undermines the entire electorate’s confidence in the integrity of the process. This is why the electoral boards have partisan representation; it’s not so that the members can advocate on behalf of their own party in a partisan way, but rather to give that party’s voters the confidence that both sides are being treated fairly. There was a failure in that regard in Fairfax.
Finally, I will note that nowhere do I suggest that the Fairfax results tilted the outcome. However, in a recount situation the relative handful of additional votes that may have resulted from the unfair advantage given to Fairfax provisional voters may indeed be the margin, But the more important issue is the basic unfairness, and the potential that this precedent may be followed by Fairfax and other jurisdictions in future, further eroding the uniformity that underlies election fairness across the entire Commonwealth.
Come on, Steve. Of course we had the discretion – so did you guys, but you chose not to exercise it. We made our decision to release the provisional information before the latest SBE guidance came out, and we complied with the letter of their guidance – nobody got photocopies of the provisional ballot log. Period.
Uniformity is important, but one of the problems with far too much of the guidance we get from SBE is that they’re designed for localities that are a hundredth of the size of ours. Stafford County has 1/10 the number of precincts we have in Fairfax County. You guys had a whopping 19 provisional ballots – we had twenty times that number to deal with and far more attention being paid to us because even minor typos in our SORs were resulting in hundred vote swings in both directions.
The provisional issue is a perfect example of that. Both parties wanted the information and were demanding it, and we had been sued last year in a case that was still on-going for not providing it in a timely fashion.
If the General Assembly doesn’t want voters being contacted, they can deem everything about a voter’s provisional ballot confidential and not releasable to the parties. They haven’t done that.
“Nowhere do I suggest that the Fairfax results tilted the outcome” – really? Because you say it in the next sentence. I’m getting tired of hearing this insinuation, whether from you or other folks – all Republicans, by the way – complaining about what we did. If this is really an equal protection issue and not just sour grapes because of the outcome, then I would expect to hear some complaining from Democrats, too. I haven’t.
Bottom line, even if we had rejected every single provisional ballot on Wednesday at the very start of our meeting, Herring would still have been up 110+ votes by the end of certification. Our provisionals were a net 53 vote gain for him. And even if we had rejected every single Herring vote and kept every Obenshain vote, Herring would still have been up 3 votes.
What we did in Fairfax had zero – 0 – ZERO impact on the outcome of this election.
If you want to talk about fairness, what we did was fair – it certainly wasn’t “giving the finger” to voters elsewhere. Try to put yourself in our position before you start throwing accusations around.
Brian, “Try to put yourself in our position before you start throwing accusations.”
I was in your position. So was every other EB member in the Commonwealth. Regardless of the size of the jurisdiction, the rules are the same.
You did not have the discretion to grant a multi-day blanket extension. And you did not have the discretion to release the provisional ballot logs. And stop with the COMPLETE BULLSHIT about it not being a “photocopy,” and whether certain info on the log is “confidential.” You can read the guidance just as well as EB members in every other jurisdiction. Departure from that is indeed giving the finger to the rest of us. Our job is to follow the rules to ensure uniformity; we don’t get to pick and choose which rules to follow.
You guys can convince yourself that you’re special, but your voters aren’t entitled to greater protections than ours.
Steve, it’s not complete bullshit. I did read the guidance and what we did complies with the letter of the guidance.
Sorry if you guys can’t read as well as we do. That’s on you, not on me.
And no, you weren’t in our shoes. You guys weren’t being sued, you had fewer ballots to check and you had nobody really caring about what you all did.
I’m not going to second guess the decisions you all made, so don’t second guess mine. You have no idea what position we were in, and it was nothing like yours.
“Sorry if you guys can’t read as well as we do. That’s on you, not on me.”
OK, Brian. The rest of the state–including the State Board of Elections–has a reading comprehension problem. Great argument. But, I suppose that’s the best you can come up with, so I can’t fault you for trying.
Have you been to any election uniformity workshops? Do you understand that stretching guidance to the point where you’re not following its obvious intent at all is inimical to the concept of uniformity? Do you even care?
You guys had nearly a quarter of all provisional ballots statewide and decided to subject them to a different standard than the other 3/4s. Your response is, essentially, that the rest of us are chumps for seeking to maintain equal protection under the law. Nice.
Here’s the kicker – the Democrats were negotiating with State Board on the provisional log issue because they we’re involved in this litigation, and we followed the guidance, which didn’t contradict what we had already said we would do. As I understand it, we were not the only jurisdiction that did what we did, so this wasn’t just a Fairfax issue. Get your facts straight.
Last year, we provided photocopies of all the physical ballots with the confidential information redacted, and that took too long and end up getting us sued. I know in other jurisdictions, they physically passed around every single ballot and let the party observers see information that shouldn’t have been released. How did you guys do it in Stafford? Is that what you did?
I have been to all the same VEBA and SBE workshops that everyone has access to, but I don’t recall a single one on how to handle the provisional ballot meeting. I care about uniformity, but I care about voters and their fundamental rights more.
We did not subject our ballots to a different standard. We followed the law as we understood it and nobody objected to what we announced we were doing until the very end.
Again, you focus on your shop and let me run mine.
It’s not your property, Brian. That you speak as if it is is perhaps the most disturbing thing I’ve heard from you yet.
If I can bring this back to the original issue I raised:
Steve, I now understand your argument. You’re saying that Fairfax did not have discretion to tell people back on Friday (or whenever) that they could come in on Tuesday. All they had the authority to do was say people could come back on Saturday. Then on Saturday, Sunday. Is that right?
Can we talk about how that would have led to a higher number of provisional ballots being accepted? In other words, was there any injury in fact?
Schoeneman:
You sure are an arrogant SOB.
Just can’t admit you are wrong, can you?
As the miscreant in this sorry episode, you shouldn’t even be speaking out. Do your arguing with the appeals folks.
But in the meanwhile, thanks for showing us the weakness in your sorry defense of your ignorance, incompetence, and understanding of the law.
Just how did you get through law school? Must have been at Harvard where reasoning doesn’t count for much.
Oh – and I forgot to mention your pettiness, which will be evident in your reply.
Thank you. I appreciate the compliment.
Fairfax 2013 = Florida 2000 in terms of incompetence
The extra 200 votes in Richmond for Herring were very troubling, how many other tapes were “misread” and/or “misused”?
That’s nuts, Jim. Not even close.
What happened in Fairfax had zero impact on the outcome of the election.
Sounds like a whiner or I mean loser!
Sounds like ‘unequal treatment under the law’. Not a good thing.