The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) writes to offer comments regarding the proposed changes to Va. Admin.  Code § 20-40-10 concerning the definition of “valid” with respect to acceptable forms of photo identification.

The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination.  The principal mission of the Lawyers’ Committee is to secure equal justice under law, particularly in voting rights, criminal justice, community development, employment, educational opportunities, fair housing and fair lending, and immigration.

The Lawyers’ Committee supports the retention of the definition of “valid” adopted by the State Board of Elections (SBE) on June 10, 2014.  That definition states:

‘Valid’ for all purposes related to voter identification shall mean documents containing the name and photograph of the voter appearing to be genuinely issued by the agency or issuing entity appearing upon the document where the bearer of the document reasonably appears to be the person whose photograph is contained thereon.  Other data contained on the document, including but not limited to expiration date, shall not be considered in determining the validity of the document.

However, the proposed change seeks to redefine “valid” so that documents that are more than 30 days expired are no longer acceptable as identification for the purposes of voting. The proposed definition states:

‘Valid’ for all purposes related to voter identification means documents containing the name and photograph of the voter having legal effect, legally or officially acceptable or of binding force, and appearing to be genuinely issued by the agency or issuing entity appearing upon the document where the bearer of the document reasonably appears to be the person whose photograph is contained thereon. Other data contained on the document, including but not limited to expiration date, shall not be considered in determining the validity of the document. Such documents shall be accepted up to 30 days after expiration.

The Lawyers’ Committee opposes the proposed change to Va. Admin. Code § 20-40-10 because (1) the current definition of “valid” is consistent with basic rules of statutory construction and the photo identification law’s legislative history, (2) the funding for public education about the photo identification law is insufficient to support a last minute change, (3) the proposed change will cause poll worker confusion, thereby hindering Virginians’ right to vote, and (4) the proposed change advances no legitimate governmental purpose.

1. The SBE’s current definition of “valid” reflects basic rules of statutory construction and is consistent with the legislative history of Virginia’s photo identification law.

a) The SBE’s current definition of “valid” reflects the plain meaning of SB 1256.

In a letter requesting Secretary Palmer to reconsider the SBE’s June 10, 2014 definition of valid, Senator Mark D. Obenshain, chair of the Privileges and Elections Committee, wrote: "The State Board, by regulation, now defines expired IDs—regardless of how much time has transpired since their expiration—as being expressly ‘valid,’ which, to my thinking, violates the plain meaning of the statute."

Basic rules of statutory interpretation, as well as the legislative history of Va. Code § 24.2-643—the section of the Virginia Code codifying the state’s current photo identification law—do not support Senator Obenshain’s contention.  During the 2013 legislative session, two bills modifying Va. Code § 24.2-643 were introduced—HB 1337 and SB 1256.  Although both bills passed the General Assembly and were signed by Governor McDonnell, due to an appropriations decision (discussed below), only SB 1256 was implemented.

The text of HB 1337 reveals the General Assembly’s understanding of the term “valid.”  HB 1337 (as passed by the General Assembly) states, in part: "All forms of identification permitted in this subsection are required to (i) be current and valid and (ii) contain a photograph or the name and address of the voter." (emphasis added).

If the General Assembly intended for “valid” to encompass “unexpired,” it would have had no reason to include the word “current” in HB 1337.  Indeed, Senator Obenshain’s interpretation of HB 1337 reads “valid” as encompassing “unexpired,” thereby rendering the word “current” meaningless.  As Virginia’s highest court has long held, interpreting a statute such that a word is rendered meaningless “violates a fundamental rule of construction.  Every part of an act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary.”  Raven Red Ash Coal v. Ashber, 153 Va. 332, 335 (1929).[1]  Senator Obenshain’s interpretation of “valid” therefore fails to accord the General Assembly the deference that it deserves.  Barr v. Town & Country Properties, Inc., 240 Va. 292, 295 (1990). (“We must also assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute.”)                                                                                                                                                             

b) The General Assembly’s decisions not to include “current” in SB 1256 and not to fund HB 1337 indicate that it did not intend for acceptable forms of photo identification to be limited to those that are “unexpired.”

Given that “legislature[s] cho[o]se, with care, the words [ ] used when [] enacting” statutes, we must presume that the General Assembly would have included the word “current” in SB 1256 (see below for text of SB 1256), as it did in HB 1337, had it intended for acceptable forms of identification to be “unexpired.”[2]  Unlike HB 1337, SB 1256 did not stipulate that a photo identification card is only acceptable if it is “current.”  Instead, it states (as passed by the General Assembly), in part:

The officer shall ask the voter to present any one of the following forms of identification: his Commonwealth of Virginia voter registration card, his social security card, his valid Virginia driver's license, his concealed handgun permit issued pursuant to § 18.2-308 valid United States passport, or any other photo identification card issued by a government agency of the Commonwealth, one of its political subdivisions, or the United States; any valid student identification card containing a photograph of the voter and issued by any institution of higher education located in the Commonwealth of Virginia; or any valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer's business; or a copy of a current utility bill, bank statement, government check, or paycheck that shows the name and address of the voter.

The relevant appropriations decisions also demonstrate the General Assembly’s intent to separate “valid” from “current.”  The implementation of both SB 1256 and HB 1337 was contingent on general appropriations from the 2013 and 2014 General Assemblies, respectively.  SB 1256 received the necessary funding, while HB 1337 did not.  Had the General Assembly felt strongly enough that acceptable forms of photo identification had to be both “valid” and “current,” it could have appropriated funding for HB 1337 rather than for SB 1256.  We must therefore presume that a conscious choice by the General Assembly led to SB 1256 forming the basis of the amendments to Va. Code § 24.2-643.

Thus, it is clear—contrary to the proposed change to the definition of “valid”—that the General Assembly did not intend to limit acceptable forms of photo identification to those that are “unexpired.”

2. The amount of money allocated for voter education is insufficient to support last minute changes to the regulations.

A paltry $200,000/year from fiscal year 2015 to fiscal year 2017 has been allocated for voter education and outreach about the requirements of the photo identification law.  This allocation of funds has already proven to be inadequate.  To fill that void, non-profit and grassroots organizations have had to step up and provide voter education materials, using their own limited resources.

Given the minimal funding to educate the general public, making yet another change to the law, especially one made after the law has gone into effect, will lead to more voter confusion, and sufficient funding is not available to minimize that confusion.

3. The proposed definition of “valid” will confuse poll workers, thereby preventing Virginians from exercising their right to vote.

As not all of the forms of identification listed in SB 1256 (including the Virginia Voter Photo ID card issued by local registrar offices) have expiration dates, changing the definition of “valid” to encompass “unexpired” will cause a number of election administration problems.

On the one hand, if the SBE does not issue guidance for poll workers on how to treat photo identification cards that do not have expiration dates, a voter’s ability to exercise their right to vote will be left to the discretion of individual poll workers.  This is highly problematic.  A Virginian’s right to vote should not be subject to the whims of a poll worker.  On the other hand, if the SBE does issue guidance for poll workers on how to treat photo identification cards without expiration dates, people whose photo identification cards have expiration dates will likely be disadvantaged; they will not be able to vote if their photo identification cards have expired, whereas individuals whose photo identification cards do not have expiration dates would not be subject to the same limitation.  Such a scenario is also unfair.  Indeed, the majority of registrars that have submitted comments as of 11:00 a.m. on July 24, 2014 are against the proposed change.

4. There is no reasonable justification for the proposed definition of “valid.”

As has been stated by previous commenters—including Judy Brown (General Registrar for Loudoun County), Carolyn Sherayko (General Registrar for City of Lynchburg), and Linda Lindberg (Registrar writing on behalf of the Arlington Electoral Board)—requiring photo identification cards to be “unexpired” does not serve any legitimate governmental purpose.  A Virginian’s right to vote does not expire; so long as the individual remains a Virginia resident, they cannot lose their right to vote unless they are convicted of a felony or adjudicated as mentally incompetent.  Whether or not the form of photo identification that an individual presents at the polls is “unexpired” is not indicative of either whether the individual has been convicted of a felony or of whether the individual has been adjudicated as mentally incompetent, and it certainly still serves as proof that the person is who they say they are.  Thus, whether or not a photo identification card is expired should not dictate whether they can exercise their right to vote.

The Commonwealth of Virginia and the State Board of Elections should seek to ensure that every Virginian is able to exercise their right to vote without any difficulties.  This last minute proposed change does the opposite.  If adopted, it will serve as a roadblock for countless Virginians on Election Day.

[1] See also Monument Assoc. v. Arlington Cnty. Bd., 242 Va. 145, 149 (1991) (“the settled rule of statutory construction [is] that an enactment should be interpreted, if possible, in a manner which gives meaning to every word.”)

[2] See Barr, 240 Va. at 295.