The Honorable Robert S. Brink

Chairman

State Board of Elections

Virginia Department of Elections

1100 Bank Street, 1^st Floor

Richmond, VA  23219 

Dear Chairman Brink: 

During the 2020 General Assembly Session, SB 455 & HB 238 were passed and signed into law by the Governor.  These bills amended Section 24.2-709(B) of the Code of Virginia allowing for absentee ballots to be counted if they are postmarked on or before Election Day and returned to the general registrar by noon on the third day after the election. 

It is my understanding that during the August 4 meeting of the State Board of Elections, there was a regulatory amendment put forth regarding Material Omissions from Absentee Ballots (1VAC20-70-20) which would allow for the counting of absentee ballots with missing or ineligible postmarks, if such ballots are received by the legal deadline.  This proposed amendment has an open public comment period ending October 2, 2020. Please accept this letter as my formal comment in opposition to this proposed amendment.

Section 24.2-709(B) of the Code of Virginia could not be more clear, “ 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.”

 Furthermore, Section 24.2-709(A) states, “Any ballot returned to the office of the general registrar in any manner except as prescribed by law shall be void.”

The Code of Virginia is clear on this issue and I strongly believe it is not within the power or authority of the State Board of Elections to adopt such an amendment that would supersede the statutory language regarding postmarks on absentee ballots.

As of the date of this letter, there are more than 725 comments submitted in opposition to the proposed regulation on postmarks.  This should speak volumes that adopting this amendment undermines our electoral process and the laws which govern them.   I strongly urge you to not adopt this proposed amendment.

What concerns me even more is that this is not an isolated example of actions by the Department of Elections that clearly violate the election laws of the Commonwealth.  It has come to my attention that just several days ago, on September 28, the Department of Elections distributed official guidance to general registrars instructing them to accept absentee ballots and count them as normal if the ballots are left in a drop box without being inside the outside envelope, or if the ballot is returned in person without being inside the outside envelope.  This is in direct conflict with Section 24.2-709(A) which states, “No returned absentee ballot shall be deemed void because the inner envelope containing the voted ballot is imperfectly sealed so long as the outside envelope containing the ballot envelope is sealed.” 

Furthermore, on September 23, official guidance was sent from the Department of Elections to general registrars instructing them to provide a “gold form SBE-708” and then a regular ballot to a voter who states they have not received their absentee ballot or has lost their absentee ballot.  Again, this guidance clearly violates Virginia Code §24.2-708(B) which states, “If for any reason a person who has applied for and has been sent an absentee ballot does not receive the ballot or loses the ballot, he shall be entitled to cast another ballot after presenting to the general registrar or officer of election a statement signed by him that he did not receive the ballot or has lost the ballot, subject to felony penalties for making false statements as pursuant to § 24.2-1016. If such person offers to vote at his proper polling place or at a central absentee voter precinct established by the governing body of the county or city where he is registered to vote on the day of the elections, he shall be entitled to cast a provisional ballot pursuant to §24.2-653.1.”

The integrity of our election system is paramount. Voters in the Commonwealth need to be confident that our elections are fair, open, and conducted according the laws which are outlined in the Code of Virginia.  Anything less is completely unacceptable.  The State Board and Department of Elections must immediately cease its efforts to try and re-write law to suit their opinions.   

 With best regards,

Very truly yours,

Mark D. Obenshain