I appreciate the Board’s effort to clarify for local election officers the criteria that will and will not disqualify an absentee ballot.  In order to provide true clarity, the Board should alter the proposal in two ways. 

First, it is unclear from the regulation whether an illegible voter signature or illegible witness signature should render a ballot invalid.  Without clarity on this question, local election officials in different jurisdictions may reach different conclusions about the validity of such ballots.  An illegible but legal signature in one county might be rules acceptable, while in another county it may be ruled sufficient to throw a ballot out.  Even if I sign my signature in the same way that I would sign a check or a legal document, an election official has the discretion, under this regulation, to throw my ballot out.

This leeway is inappropriate, and the potential differences in jurisdictions is unacceptable.  State law does not require the voter and the witness to sign “legibly.”  State law specifies only that the voter must “sign the statement printed on the back of the envelope in the presence of the witness, who shall sign the same envelope.”  Va. Code § 24.2-707 

In order to provide clear and consistent information to local election officers, please amend the proposed regulation to include additional language in section (C):

C. The ballot should not be rendered invalid if on the Envelope B: …

7. The signature of the voter is illegible; or

8. The signature of the witness is illegible.

Second, subsection (C)(3) states that a ballot shall not be rendered invalid if “The voter used a derivative of his legal name as a first name (e.g., ‘Bob’ instead of ‘Robert’)” on Envelope B.  Is an initial a “derivative”?  If Ralph Dale Earnhardt wrote “R. Dale Earnhardt” on the envelope, would the elections officers rule the ballot to be invalid?  I expect that the result may differ in different jurisdictions.    

Please clarify the text to avoid this uncertainty and the likely inconsistent treatment that will result in different locations around the Commonwealth.  Please amend the proposed regulation in subsection (C)(3) to read:

3. The voter used a derivative of his legal name (e.g., "Bob" instead of "Robert") or his first initial instead of his first name;

Finally, please include language that was proposed to be included in this regulation in 2010:

D. Notwithstanding subsections B 1 through B 3 of this section, if the voter's identification can be ascertained by information provided on the outside or inside envelope, or by any preprinted information provided by the electoral board or general registrar, then the ballot should not be rendered invalid.

This language balances the right to vote and the need to verify that the person who is entitled to submit the absentee ballot actually submitted that ballot.  This provision is limited to particular information and is not overly broad.  Furthermore, other protections are also in place to assure the voter’s identity and to punish any fraudulent attempts.  Upon application for an absentee ballot, state law requires the voter to affirm his/her identity.  Va. Code § 24.2-701(B)(1).  Furthermore, violations are punishable as felonies under Virginia Code § 24.2-1016, as noted on Envelope B.  Va. Code § 24.2-706.  

The additional language would allow the Board to uphold its responsibility to assure that only qualified voters vote.  At the same time, it protects the right of individuals to participate in one of the most precious rights and responsibilities of our democracy.  Limiting the ability to vote limits citizens’ ability to participate in our government and our society at the most basic level.  Our goal as citizens should be to encourage participation, not to limit it unnecessarily.  Please add the paragraph back in.