Regulatory Provision:

1VAC20-70-20. Material omissions from absentee ballots. (virginia.gov)

F. If a ballot is received by the general registrar's office by noon on the third day after the election pursuant to § 24.2-709 of the Code of Virginia but the return envelope has a missing or illegible postmark, the General Registrar shall refer to the Intelligent Mail barcode on the return envelope to determine whether the ballot was mailed on or before the date of the relevant election.

1. If there is evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, the ballot shall be rendered invalid.

2. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, but the return envelope has an illegible postmark, the General Registrar shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.

3. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election and if the return envelope has a missing postmark, the ballot shall be rendered invalid.

Comment:

Brief Summary: 

The regulation directs a General Registrar to the Intelligent Mail barcode on the return envelope to determine whether an absentee ballot was mailed on or before the date of the relevant election.  This direction is nonsensical because an Intelligent Mail barcode does not contain date information.  Then, if the Intelligent Mail barcode does not answer the question, the regulation illegitimately directs the General Registrar to refer to the date on which the oath on Envelope B was signed” to determine whether the date of mailing preceded the election.  The statute authorizes only the use of a postmark to determine the date of mailing.  It does not authorize reference to Envelope B for this purpose.  Nor would it have been sensible for the statute to do so, since a ballot may be mailed days after the oath is signed and there is no way to determine what the interval was.  This portion of the Board’s regulation is directly contrary to the express requirement in the statute to use the postmark to determine the date of mailing.  It is, therefore, entirely unauthorized and should be removed.  The regulation should be amended to follow the statute’s command that the postmark is to be the proper evidence of the date of mailing.

Full Analysis:

Start with Virginia Code § 24.2-709(B), which provides: 

“Notwithstanding the provisions of subsection A, any absentee ballot (i) returned to the general registrar after the closing of the polls on election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in this chapter if the voter is found entitled to vote. For purposes of this subsection, a postmark shall include any other official indicia of confirmation of mailing by the United States Postal Service or other postal or delivery service.”

This statute on its face allows counting a ballot after the election up to “noon on the third day” but only with proof that an absentee ballot was mailed on or before the date of election.  The statute directs that the postmark is to provide proof.  It defines this term broadly to allow that “other official indicia” applied “by the United States Postal Service or other postal or delivery service” may be used.  There is no mention in the statute of Intelligent Mail barcodes.  There is no mention in the statute of Envelope B.

Now turn to the regulation.  It begins, consistent with the statute, by properly directing a General Registrar to refer to the postmark to determine the date of mailing.  If the postmark is present and legible, the analysis is done and the date of the postmark will control whether the ballot is accepted.

But what if there is no postmark or it is illegible?  The regulations directs that “the General Registrar shall refer to the Intelligent Mail barcode on the return envelope to determine whether the ballot was mailed on or before the date of the relevant election.” 

I researched the question of whether the Intelligent Mail barcode records or evidences the date of mailing.  My internet research did not turn up any evidence that Intelligent Mail barcodes record the date of mailing.  It appears that it does not.

After the General Registrar refers to the Intelligent Mail barcode, the regulation then directs a General Registrar to proceed along the following decision guide:

“1. If there is evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, the ballot shall be rendered invalid.

2. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, but the return envelope has an illegible postmark, the General Registrar shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.

3. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election and if the return envelope has a missing postmark, the ballot shall be rendered invalid.”

The first step in the regulation's decision guide is a null set, because (according to my research) the mailing date cannot be derived from the Intelligent Mail barcode.  Furthermore, this decision guide reverses the statutory presumption and plainly suggests that the ballot is to be considered valid unless there is proof from the Intelligent Mail barcode that it was mailed “after” the close of polls.  On the contrary, the statutory presumption is that the ballot is not valid unless there is proof of mailing “on or before” the date of the election.

The second step in the regulation's decision guide will always obtain if there is an illegible postmark.  In every case, the Intelligent Mail barcode will fail to establish that the ballot was mailed after the close of polls.  After this inevitable failure, the regulation then instructions that the General Registrar “shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.” 

This use of the date of the oath on Envelope B as the determinant of the mailing date contradicts the statute, which requires a postmark.  It is true that the statute defines postmark more broadly than usual to “include other official indicia of confirmation of mailing by the United States Postal Service or other postal or delivery service.”  The date of the oath on Envelope B, however, is completely outside this definition.  It refers to the date applied by the voter and not to “official indicia” of any kind from the United States Postal Service or other postal or delivery service.  Therefore, the Board is not entitled to require or authorize the date of the oath on Envelope B as a basis for determining the date of mailing.

Finally, as a practical matter, it is obvious that the date of the oath on Envelope B is a wildly unreliable determinant of the date of mailing.  First, it is applied by the voter, not an independent third party (contrary to the statute).  Second, it is not intended to record or prove the date of mailing.  Third, as a practical matter, there is no way to determine from the date of mailing from the date of the oath.

The third step in the decision guide once again (improperly) reverses the statutory presumption on validity. It does, however, appear to reach the right statutory result of invalidating a ballot with a missing postmark.

In sum, Section F of this regulation is unauthorized by the statute and, as a practical matter, fails to achieve the statutory goal of reliably determining the date on which an absent ballot is mailed.  It should be revised to carefully conform to the dictates of the statute.  Specifically, the Board may only authorize or direct a General Registrar to refer to the postmark, as defined in the statute, to determine the date of mailing.

Comment 1

Regulatory Provision:

1VAC20-70-20. Material omissions from absentee ballots. (virginia.gov)

F. If a ballot is received by the general registrar's office by noon on the third day after the election pursuant to § 24.2-709 of the Code of Virginia but the return envelope has a missing or illegible postmark, the General Registrar shall refer to the Intelligent Mail barcode on the return envelope to determine whether the ballot was mailed on or before the date of the relevant election.

1. If there is evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, the ballot shall be rendered invalid.

2. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, but the return envelope has an illegible postmark, the General Registrar shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.

3. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election and if the return envelope has a missing postmark, the ballot shall be rendered invalid.

Comment:

Brief Summary:  The regulation directs a General Registrar to the Intelligent Mail barcode on the return envelope to determine whether an absentee ballot was mailed on or before the date of the relevant election.  This direction is nonsensical because an Intelligent Mail barcode does not contain date information.  Then, if the Intelligent Mail barcode does not answer the question, the regulation illegitimately directs the General Registrar to refer to the date on which the oath on Envelope B was signed” to determine whether the date of mailing preceded the election.  The statute does not authorize reference to Envelope B to determine the date of mailing.  Nor would it have been sensible for the statute to do so, since a ballot may be mailed days after the oath is signed and there is no way to determine what the interval was.  This portion of the Board’s regulation is directly contrary to the express requirement in the statute to use the postmark to determine the date of mailing.  It is, therefore, entirely unauthorized and should be struck.  The regulation should carefully follow the statute’s command that the postmark is to be the proper evidence of the date of mailing.

Full Analysis:

Start with Virginia Code § 24.2-709(B), which provides: 

“Notwithstanding the provisions of subsection A, any absentee ballot (i) returned to the general registrar after the closing of the polls on election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in this chapter if the voter is found entitled to vote. For purposes of this subsection, a postmark shall include any other official indicia of confirmation of mailing by the United States Postal Service or other postal or delivery service.”

In short, this statute allows counting a ballot after the election up to “noon on the third day” but only with proof that an absentee ballot was mailed on or before the date of election.  The statute directs that the postmark is to provide proof.  It allows that “other official indicia” applied “by the United States Postal Service or other postal or delivery service” may be used.  There is no mention of Intelligent Mail barcodes.  There is no mention of Envelope B.

Now look directly at the regulation.  It begins, consistent with the statute, by properly directing a General Registrar to refer to the postmark to determine the date of mailing.  If the postmark is present and legible, the story is over and the date of the postmark will control whether the ballot is accepted.

But what if there is no postmark or it is illegible?  The regulations directs that “the General Registrar shall refer to the Intelligent Mail barcode on the return envelope to determine whether the ballot was mailed on or before the date of the relevant election.” 

I researched the question of whether the Intelligent Mail barcode records or evidences the date of mailing.  I spoke with three supervisors and three counter clerks at three different Post Offices in Virginia.  The uniform answer from each of these USPS employees was that the Intelligent Mail barcode does not record or provide evidence of the date of mailing.  All characterized the Intelligent Mail barcode as a tool used in bulk mail processing product not intended to record the date of mailing.  These answers were consistent with my internet research, which also did not turn up any evidence that Intelligent Mail barcodes are used to record the date of mailing.

After the General Registrar refers to the Intelligent Mail barcode, the regulation then directs a General Registrar to proceed along the following decision guide:

“1. If there is evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, the ballot shall be rendered invalid.

2. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, but the return envelope has an illegible postmark, the General Registrar shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.

3. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election and if the return envelope has a missing postmark, the ballot shall be rendered invalid.”

The first step in the decision guide is a null set.  The mailing date cannot be derived from the Intelligent Mail barcode.  Furthermore, this decision guide reverses the statutory presumption and plainly suggests that the ballot is to be considered valid unless there is proof from the Intelligent Mail barcode that it was mailed “after” the close of polls.  On the contrary, the statutory presumption is that the ballot is not valid unless there is proof of mailing “on or before” the date of the election.

The second step in the decision guide will always obtain if there is an illegible postmark.  In every case, the Intelligent Mail barcode will fail to establish that the ballot was mailed after the close of polls.  After this inevitable failure, the regulation then instructions that the General Registrar “shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.” 

This use of the date of the oath on Envelope B as the determinant of the mailing date contradicts the statute, which requires a postmark.  It is true that the statute defines postmark more broadly than usual to “include other official indicia of confirmation of mailing by the United States Postal Service or other postal or delivery service.”  The date of the oath on Envelope B, however, is completely outside this definition.  It refers to the date applied by the voter and not to “official indicia” of any kind from the United States Postal Service or other postal or delivery service.  Therefore, the Board is not entitled to require or authorize the date of the oath on Envelope B as a basis for determining the date of mailing.

Finally, as a practical matter, it is obvious that the date of the oath on Envelope B is a wildly unreliable determinant of the date of mailing.  First, it is applied by the voter, not an independent third party (contrary to the statute).  Second, it is not intended to record or prove the date of mailing.  Third, as a practical matter, there is no way to determine from the date of mailing from the date of the oath.

The third step in the decision guide once again (improperly) reverses the statutory presumption on validity. It does, however, appear to reach the right statutory result of invalidating a ballot with a missing postmark.

In sum, Section F of this regulation is unauthorized by the statute and, as a practical matter, fails to achieve the statutory goal of reliably determining the date on which an absent ballot is mailed.  It should be revised to carefully conform to the dictates of the statute.  Specifically, the Board may only authorize or direct a General Registrar to refer to the postmark, as defined in the statute, to determine the date of mailing.

Comment 2

3.a. Regulatory Provision:  None included regarding Voter Identification for absentee voting.

3.b. My Recommendation: 

Add a paragraph to:

- Require voters to provide a copy of their photo ID every time they vote absentee.  This can be in any of the following forms:

-  his or her driver license number or official state personal identification card number on the application, or

-  attach a copy of identification for election purposes to his or her application

3.c. My Comment:

Photo Voter Identification must be included in submission of absentee ballots.  A recent Monmouth Poll revealed 80% of Americans support requiring a photo identification to vote as the common sense measure for bringing trust and confidence to elections. 

The many examples of why this is easy for any voter to accomplish notwithstanding, it is just as applicable in absentee voting.  Absentee voting should be more stringent, or at least commensurate with, identification requirements for in-person voting.

Signatures should never be a source of voter identification, without commensurate investment in resources to ensure availability of signature samples and signature analysts.  Election Officials are Not signature analysts.  Additionally, signatures on Envelope B are solely the voter affirmation that they did not lie.  This should never be conflated as a substitute for voter identification.  It is empty prose creating an illusion of integrity and burdening the process of auditing/verification. 

Comment 4

4.a. Regulatory Provision: None included regarding Voter Trafficking in absentee voting. 

4.b. My Comment:

There should be a code of behavior for preventing trafficking of votes from people who can be preyed upon by “vote harvesting”.  This activity creates an environment where vulnerable people in our society can be preyed upon by bullies.  This is harshly against our American values. By indefinite authorization for absentee ballots, these voters become targets for those bullies seeking to exploit them and influence their vote.  If intimidation and manipulation are not part of the technique, certainly an unscrupulous “trafficker” can merely throw out ballots with which they don’t agree.

4.c. My Recommendation:

Add a paragraph to:

-  Require indefinitely confined voters to reapply each year to receive absentee ballots, rather than receive them automatically.

-  Require voters who are indefinitely confined due to age or disability to show a photo ID in order to vote absentee.

Comment 5

5.a. Regulatory Provision:  None included regarding protection of vulnerable people at assisted living facilities for absentee voting.

5.b. My Recommendation:

Add a paragraph to:

-Require administrators of residential care facilities and retirement homes to notify residents' relatives of when special voting deputies will be on site for residents who plan to vote absentee.

-Make it a felony for a facility employee who attempt to influence a resident's vote.

5.c. My Comment: 

Again, there should be a code of behavior for electioneering at nursing homes, assisted living facilities.  Our elders should be respected and protected from being preyed upon by unscrupulous actors attempting to gather votes from people upon whom they try to influence to vote.