As The Bull Elephant‘s Jamie Radtke reported Thursday, the Virginia State Board of Elections on May 13 made the decision to allow absentee ballot applications to be signed electronically. Jamie rightly focused on the unfairness of this, and highlighted reports from within the Department of Elections that the change was undertaken at the request of House Speaker Bill Howell, who is well-positioned to take advantage of the change in his race against Susan Stimpson in House District 28.
The Washington Post reported the inexplicable justification that this rule change was merely a “clarification” of existing rules. It was not. Instead, it was a clear change to ballot application procedures. Delegate Bob Marshall highlighted the very real potential for increased voter fraud as a result of the rules change, given the lack of rigor in purging voter rolls of non-citizens and others not eligible to vote.
Brian Schoeneman, writing at Bearing Drift (and yes, I have the good manners to include a link), says this is a good thing, and that charges of changing the rules in the middle of the game are invalid because in Virginia “we’re always in the middle of an election,” and that waiting until we’re not in election season means never making rules changes. Respectfully, this is sycophantic bunk. Making changes to absentee ballot rules in the middle of the absentee ballot period is outrageous. The rules could have been changed earlier this year, or they could have been changed after June 2 (some time before the General Election absentee ballot period opens), but to change them when campaigns have already set into motion their absentee ballot programs and people have already begun to vote absentee is a plain abuse of the State Board’s discretion.
Making it worse, the change was not published, none of the procedure manuals were updated, no bulletin was sent to candidates, and no press release or other notice was placed on SBE’s website. The Post reports that the Secretary of the SBE says that they don’t have the resources to contact every candidate to alert them of the change. This is the lie that gives away the game.
Schoeneman criticizes Radtke for calling the State Board “McAuliffe’s SBE,” instead of respecting the Board as a fair and non-partisan body. But the Board’s actions here blow that notion out of the water.
SBE Secretary Department of Elections Commissioner comes up with the ridiculous lie that SBE cannot notify candidates (when clearly they have no problem doing so with respect to, for instance, campaign finance notices), you know that particular McAuliffe appointee is hiding something. How hard could it be to post it on the SBE website?
When the Secretary of the SBE refuses to release the draft minutes of the meeting at which this change was made so that the public and candidates can understand exactly what was done and what the approved procedures are for signing electronically, you know that this particular McAuliffe appointee wants to keep the rule change and its genesis a secret.
When SBE’s legal counsel (spouse to McAuliffe’s campaign manager Levar “Slasher” Stoney) and the Attorney General’s office stonewalls numerous members of the public and the media (including us) on FOIA requests for those minutes, and for the audio recording underlying them, you know that rather than doing the right thing and informing the public they instead want to try to run out the clock on this election and maintain a cloak of secrecy for as long as possible.
So, yeah, it’s McAuliffe’s SBE. And the action they took is consistent with a long list of examples of this administration overstepping its authority. First, the UETA is limited in applicability, and is not available in every single transaction of public business. Where another operation of law prevents it, the UETA does not apply. Here, in Va. Code 24.2-701, the code only makes one exception to the requirement for a signature on an absentee ballot application, and that’s if the person is disabled (i.e., incapable of the physical act of signing the application). It does not contemplate electronic signatures.
Second, Section 701 also states that an absentee “application shall be on a form furnished by the registrar.” The Board reportedly (who can know for sure?) required addition of a check box requirement to signify acceptance of the terms in box 10 of the official form. To our knowledge, there is no form generated by SBE and “furnished by the registrar” that accomplishes this or that otherwise contemplates electronic signatures.
Third, and most importantly, there are numerous provisions in Title 24.2 of the Code (governing elections) where the General Assembly has specifically authorized application of UETA for electronic signatures. Schoeneman made note that an application to register to vote can be submitted online with an electronic signature. This is correct. But it was not the Board that unilaterally decided to do this, it was an act of the General Assembly, in 24.2-416.7(5). The fact that the General Assembly specifically authorized application of UETA electronic signature requirements to certain parts of the election law but not to others (including with respect to absentee ballot applications) cannot be interpreted to mean that they did not care if UETA applied to those sections; under rules of statutory construction it must be read as an intentional act to not apply UETA to those sections. Thus, by substituting its judgment for that of the General Assembly, the SBE likely overstepped its authority by unilaterally applying it to absentee ballot applications. (Again, we cannot be 100% certain, because SBE is keeping this rule secret).
Hopefully the news media in this state includes reporters who are willing to challenge those in power to reveal the whole truth, rather than just reprinting sycophantic spin. Because there is a real story here, and it involves the most craven of power politics, and genuine corruption of the electoral process. Pretending that this is a good thing (perhaps because you hate Susan Stimpson) is a dangerous act of denial.