Virginia Judge Throws Wrench in Post-Election Day Ballot Count

Voters line up outside to cast ballots in the general election at the Henrico County general registrar’s office in Henrico County, Va., Friday, Sept. 18, 2020, on the first day of the state’s 45-day early voting period. (Bob Brown/Richmond Times-Dispatch via AP)

FREDERICK, Va. (CN) — A state judge has kneecapped recent changes to Virginia’s voting laws in a split decision released Wednesday that could allow some votes received after Election Day to not be counted.

The dispute started in the rural Virginia court of Frederick where local Board of Elections Chair Thomas Reed and Robert Hess were faced with an August rule change from the Virginia State Board of Elections.

The new rule allowed localities to accept ballots with illegible postmarks up to three days after Election Day. State law, in the wake of the coronavirus outbreak, was changed to allow for the mail-in ballots to be counted the following Friday as long as postmarks were on or before Election Day. However, the rule change gave some wiggle room.

“The missing or illegible postmark is not a material omission,” the rule change from the state agency listed, extending the list of forgivable offenses that would otherwise disqualify a ballot. 

But in an early October complaint filed with the Frederick Circuit Court, the two board members argued the rule change violated state law and should be nixed. 

“The action item example, namely that a ballot that did not comply with [state] law can still be counted nullifies an explicit statute passed by the General Assembly and signed by the governor,” plaintiffs argued, in the complaint authored by Christina Adams with the Alexandria-based Public Interest Legal Foundation. 

And in a two-page opinion released Wednesday evening, Frederick Circuit Judge William Eldridge partially agreed with concerns lobbed from the local election officials, as first reported by the Associated Press.

While acknowledging Election Day being only a week away, he still denied the request blocking absentee ballots with illegible postmarks as long as the secrecy ballot encompassing the actual ballot was signed before Election Day. But he allowed ballots to be spoiled if their intelligent barcode tracking system failed to show they were mailed on or before Nov. 3. 

Two factors could impact the ballots in question. 

First, a federal judge removed the ballot signature requirements claiming it disenfranchised those who were vulnerable to coronavirus, otherwise forcing them to come in contact with another person which could increase virus contact. Second, the intelligent barcode system employed by the state has a less than 90% success rate, an issue first reported by Courthouse News earlier this month.

“The law requires that [Reed and Hess]follow rules and regulations,” said the Virginia Republican Party Chairman Rich Anderson in an email following the opinion. “I’m proud of Tom for standing up for the rule of law. And I’m proud of Bob for bringing the Republican Party of Virginia to stand along Tom’s side in this fight.”

But Charlotte Gomer, press secretary for Virginia Attorney General Mark Herring who defended the Board of Elections rule change, said the legal challenge was an attempt by conservatives to suppress the vote. 

“Herring has made voter protection and election integrity a top priority over the past few months and he remains dedicated to making sure that any legally cast vote in Virginia counts,” she said in an emailed statement. “As Governor Ralph Northam advised, voters may consider utilizing a drop-box at this point so close to the election to ensure the ballot is received on time and counted.”

Gomer said Herring was still “weighing his options” as to an appeal on the case. 

Wednesday’s decision comes in the wake of a seemingly endless number of court decisions impacting the 2020 election.

Locally, Virginia Democrats recently sued the Board of Elections in the state’s Capitol, Richmond, over failing to provide spoiled ballot data. Lawyers for the state party have since signaled a solution was in the works and oral arguments over the dispute have been delayed. 

Nationally, the decision is relevant in the face of the U.S. Supreme Court weighing in on how ballots are counted after Election Day.

Wednesday played host to two decisions, one in North Carolina and one in Pennsylvania, both of which saw changes to election law, either by a state’s high court or a state agency. Both, inline with a conservative outlook on federalist intervention in state law, were sustained for now. 

But changes to Wisconsin’s election deadline, altered by a federal court, were shut down  earlier in the week.

While Herring debates an appeal, considering how the highest court in the land has ruled will undoubtedly impact his decision.

Virginians go to the polls Nov. 3.

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