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Provisional-ballot voters in Va. face new obstacle

Sunday - 11/10/2013, 9:44am  ET

Nearly 400 voters cast provisional ballots in Fairfax County. (WTOP/Max Smith)

WASHINGTON - A last-minute change means Fairfax County voters who cast provisional ballots may face troubles getting them counted.

Nearly 500 voters cast provisional ballots in the county, many more across Virginia, in Tuesday's election. But the promise from Democratic and Republican parties to make sure their ballots got counted is now no good.

The state Electoral Board decided Friday to change the rules that had been followed in Fairfax County and ban legal representatives from stepping in to help get the ballot counted, unless the voter him or herself is there.

County Electoral Board Secretary Brian Shoeneman says he and board chairman Seth Stark disagree with the ruling, but they have to comply. The board is voting on some provisional ballots later Saturday.

"The office of the Attorney General advised us that this was the correct reading of the statute," State Board of Elections Secretary Don Palmer says.

He says the State Board of Elections has always interpreted the policy this way and issued the reminder guidance Friday after learning about Fairfax County's plans to allow advocates to represent voters without the voter present.

Election officials in Fairfax County say they have allowed the representation for years and only stopped it because of the memo sent out Friday.

The local board of elections will still consider any written evidence that voters submitted.

Read the memo from the State Board of Elections below.


In order to "obtain uniformity in their practices and proceedings and legality and purity in all elections," the State Board of Elections issues the following instructions to the electoral boards and general registrars regarding individuals permitted in the provisional ballot meeting, particularly whether the legal counsel or the voter's representative can be present to advocate for the voter without the voter present in the meeting. We are issuing this instruction in order to ensure uniformity in determining whether to count provisional ballots throughout the Commonwealth. Specifically, it would not be uniform if one locality took evidence from a representative without the voter present and another insisted on the voter being present.

1. A voter attending the provisional ballot meeting is permitted to have legal counsel or a representative present when the Electoral Board meets to determine the validity of his/her provisional ballot. However, the provisional voter must also be present if a person claims to be there to represent the voter as his/her legal counsel or a representative. There shall be no legal counsel or representative present in the meeting without the voter being present.

2. The representative referenced above is a different individual than the "authorized representatives" is permitted to be there to represent each party during the meeting (1 per party) so long as they have the required letter. That authorized representative is there to observe only and is not permitted to participate in the proceedings. That individual must not impede the orderly conduct of the meeting.

24.2-653 is included below as a reference:

24.2-653. Voter whose name does not appear on pollbook or who is marked as having voted; handling of provisional ballots; ballots cast after normal close of polls due to court order extending polling hours. A. When a person offers to vote pursuant to 24.2-652 and the general registrar is not available or cannot state that the person is registered to vote, then such person shall be allowed to vote by paper ballot in the manner provided in this section. This procedure shall also apply when required by 24.2-643 or 24.2-651.1.

Such person shall be given a paper ballot and provide, subject to the penalties for making false statements pursuant to 24.2-1016, on a green envelope supplied by the State Board, the identifying information required on the envelope, including his social security number, if any, full name including the maiden or any other prior legal name, date of birth, complete address, and signature. Such person shall be asked to present one of the forms of identification specified in subsection B of 24.2-643. The officers of election shall note on the green envelope whether or not the voter has presented one of the specified forms of identification. The officers of election shall enter the appropriate information for the person in the precinct provisional ballots log in accordance with the instructions of the State Board but shall not enter a consecutive number for the voter on the pollbook nor otherwise mark his name as having voted. The officers of election shall provide an application for registration to the person offering to vote in the manner provided in this section.

The voter shall then, in the presence of an officer of election, but in a secret manner, mark the ballot as provided in 24.2-644 and seal it in the green envelope. The envelope containing the ballot shall then promptly be placed in the ballot container by an officer of election.

An officer of election, by a written notice given to the voter, shall (i) inform him that a determination of his right to vote shall be made by the electoral board, (ii) advise the voter of the beginning time and place for the board's meeting and of the voter's right to be present at that meeting, and (iii) inform a voter voting provisionally when required by 24.2-643 that he may submit a copy of one of the forms of identification specified in subsection B of 24.2-643 to the electoral board by facsimile, electronic mail, in-person submission, or timely United States Postal Service or commercial mail delivery, to be received by the electoral board no later than noon on the third day after the election. At the meeting, the voter may request an extension of the determination of the provisional vote to the following day in order to provide information to prove that the voter is entitled to vote in the precinct pursuant to 24.2-401. The electoral board shall have the authority to grant such extensions which it deems reasonable to determine the status of a provisional vote.

B. The provisional votes submitted pursuant to subsection A, in their unopened envelopes, shall be sealed in a special envelope marked "Provisional Votes," inscribed with the number of envelopes contained therein, and signed by the officers of election who counted them. All provisional votes envelopes shall be delivered either (i) to the clerk of the circuit court who shall deliver all such envelopes to the secretary of the electoral board or (ii) to the general registrar in localities in which the electoral board has directed delivery of election materials to the general registrar pursuant to 24.2-668.

The electoral board shall meet on the day following the election and determine whether each person having submitted such a provisional vote was entitled to do so as a qualified voter in the precinct in which he offered the provisional vote. If the board is unable to determine the validity of all the provisional ballots offered in the election, or has granted any voter who has offered a provisional ballot an extension to the following day as provided in subsection A, the meeting shall stand adjourned from day to day, not to exceed seven calendar days from the date of the election, until the board has determined the validity of all provisional ballots offered in the election.

One authorized representative of each political party or independent candidate in a general or special election or one authorized representative of each candidate in a primary election shall be permitted to remain in the room in which the determination is being made as an observer so long as he does not participate in the proceedings and does not impede the orderly conduct of the determination. Each authorized representative shall be a qualified voter of any jurisdiction of the Commonwealth. Each representative, who is not himself a candidate or party chairman, shall present to the electoral board a written statement designating him to be a representative of the party or candidate and signed by the county or city chairman of his political party, the independent candidate, or the primary candidate, as appropriate. Such statement, bearing the chairman's or candidate's original signature, may be photocopied and such photocopy shall be as valid as if the copy had been signed.

Notwithstanding the provisions of the Virginia Freedom of Information Act ( 2.2-3700 et seq.), attendance at meetings of the electoral board to determine the validity of provisional ballots shall be permitted only for the authorized representatives provided for in this subsection, for the persons whose provisional votes are being considered and their representative or legal counsel, and for appropriate staff and legal counsel for the electoral board.

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