Commenter:
Rex Simmons, Chair, Fairfax County Democratic Committee
Proposed Reg Falls Short
Dear Board of Elections:
Although I appreciate the Board’s effort to clarify for local election officers the criteria that will and will not disqualify an absentee ballot, this effort falls short of that goal in two significant ways.
First, the proposed regulation does not make clear whether local election officials must count or must reject a ballot on the basis of an illegible voter signature or illegible witness signature. Unfortunately, this may result in different results in different jurisdictions, as some officials may rule that an illegible signature renders the ballot invalid, while others determine that the legibility of the signature is irrelevant.
Provided that the voter and witness sign with their legal signatures, it should be irrelevant whether their signature is legible to the election officials. Furthermore, 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
Therefore, to provide clear and consistent information to local election officers, I recommend that the proposed regulation be amended 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, the instruction in subsection (C)(3) 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 will lead local election officials to question whether they should consider a first initial as a “derivative.” For instance, if Robert Creigh Deeds writes his name as R. Creigh Deeds on Envelope B – as his name is listed on the ballot – would “R.” be considered a derivative of Robert?
By clarifying the regulatory text, the Board can avoid uncertainty and the resulting inconsistent treatment in different locations around the Commonwealth. Therefore, I recommend that the proposed regulation in subsection (C)(3) be amended 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, I recommend that the Board 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 provides a strong and appropriate balance between the right to vote and the need to verify that the person who is entitled to submit the absentee ballot is the person who actually submitted the absentee ballot in question. 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. Protections are in place to prevent illegitimate voting and to punish those who attempt to vote illegally. The additional language would allow the Board to uphold its responsibility to assure that only qualified voters vote, and also would assure that qualified voters are not unknowingly deprived of their right to vote over a minor omission on government-required paperwork.
