Re: Cooch and the State Board of Elections discounting Votes
Date: November 13, 2013 09:42PM
We were given a guidance by SBE as to what they believe Virginia Code Section 24.2-653 means when it says: "[A]ttendance at meetings of the electoral board to determine the validity of provisional ballots shall be permitted only for the authorized representatives provided for in this subsection, for the persons whose provisional votes are being considered and their representative or legal counsel, and for appropriate staff and legal counsel for the electoral board."
I think the "and" in "and their representative or legal counsel" should be broad enough to allow the legal counsel to present information on their behalf if they cannot do so or choose not to do so. SBE disagreed, and an AG office lawyer (a non-political appointee) agreed. I don't.
I agree with Not Tom Davis that the SBE's reading of the law contradicts one of the bedrock principles of American jurisprudence, and that's the primary reason why I disagreed with the guidance.
For the record, the rest of the state didn't have to cut-off on Friday. The only cut-off in the Code is in Section 24.2-653 which provides a noon-Friday ("no later than noon on the third day after the election") for voters who cast a provisional ballot because of no ID to get their ID to us.
As I have been saying, the Code provides in 653 that "f 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."
We didn't feel we were able to determine the validity of all provisional ballots until we had heard from the voters themselves, and that's why we waited. In other localities that had only a handful of provisionals, they could get done sooner. We 489 and that took time to research and adjudicate.
Further, we can give extensions to voters to get information to us explicitly, as the Code gives us authority to do so: "The electoral board shall have the authority to grant such extensions which it deems reasonable to determine the status of a provisional vote."
Given the posturing, it's clear there will be a recount, and the court can order what it chooses to order, but short of an election contest, they can't go back and reexamine the qualifications of any voter. It would be, in my experience, unprecedented for a court to disallow every provisional in any jurisdiction after they've been accepted and I would argue that would be a serious 14th amendment issue.
Edited 1 time(s). Last edit at 11/13/2013 09:43PM by BrianSchoeneman.