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Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

Virginia

The complete research by Election Law @ Moritz for Virginia can be found below.

Institutional Arrangements

State Chief Election Authorities

Bipartisan appointed board

Chief election authority: State Board of Elections. § 24.2-103.

Method of selection: Appointed by governor and confirmed by state legislature. § 24.2-102. The Board is composed of two individuals from the leading political party and one individual from the second leading party.

Current officer: N/A (Last updated 1/1/08)

State High Court Composition

Unknown affiliation/appointed

Method of selection: Appointment by General Assembly. Const. Art. 6, § 7. Unexpired terms are filled by gubernatorial appointment.

Justices: Leroy Rountree Hassell, Sr. (appointed by Baliles (D)), Lawrence L. Koontz, Jr. (D endorsed), Donald W. Lemons (R), Barbara Milano Keenan (D endorsed), Cynthia D. Kinser (R), Steven Agee (R), S. Bernard Goodwyn (D endorsed) (Last updated 12/26/07)

Sources:

  • Senate Democrats Back Hutton for Appeals Court, Daily Press, February 24, 1995.
  • Democrat, 3 Republicans cited as likely to seek Axselle seat, Richmond Times Dispatch, January 3, 1989.
  • Assembly highlights, Virginia Pilot and Ledger-Star, February 15, 1991.
  • Political justices?, Richmond Times Dispatch, January 15, 1998.
  • Allen fills Supreme Court slot, Daily Press, May 3, 1997.
  • Disinfect the Odor of Redistricting, Roanoke Times, April 11, 2001.
  • Virginia Democrats Bypass Norfolk Judge for Appeals Court, Virginia Pilot and Ledger-Star (Norfolk), February 25, 1995.

Local Administrator Training

Annual training/mandatory

Virginia requires that at least one member of the local electoral board attend an annual training program provided by the State Board of Elections.  Va. Code 24.2-106.  The State Board of Elections is responsible for ensuring that the city and county electoral  boards are properly trained to carry out their duties.  Va. Code 24.2-103.  The State Board must offer training annually or more often, if it deems appropriate.

Who tallies precinct results?

Local election authority - partisanship constrained

The city or county electoral board aggregates the precinct results. Va Code 24.2-671. The local electoral board meets at the clerk's or general registrar's office at or before 5:00 p.m. on the day after any election to meet and ascertain results. The board certifies the abstract of votes and delivers a copy to the State Board. Va Code 24.2-675.

Who counts provisional ballots?

Local election authority - bipartisan

The city or county electoral board counts provisional ballots. Va Code 24.2-653.

The local electoral board meets on the day following the election to determine whether a person was entitled to vote in the precinct where he or she was offered the provisional ballot.

Who performs state canvass?

Other individual - appointed

The State Board of Elections performs the state canvass. Va Code 24.2-679.

The State Board meets on the fourth Monday in November to ascertain the results of the election. The Board examines the certified abstracts and makes statements of the whole number of votes given for each office. The State Board will transmit a certificate of election to each person elected without delay. Va Code 24.2-680.

Local Administrator

County or city board - bipartisan

Every county and city in Virginia has a three-member electoral board that runs elections.  Va. Code Ann. 24.2-106.  The members are nominated by political parties and appointed by local judges.  Two of the three board members shall be from the party of the governor, and the other shall be of the other major political party.

Local Administrators' Party Affiliation

Unknown affiliation/appointed

County Population Administrator Voting Technology (Model / Vendor / Type)
Fairfax county 1,010,443 N/A (bipartisan board) WINVOTE / Advanced Voting Systems / DRE [11]
Virginia Beach city 435,619 N/A (bipartisan board) ACCU-VOTE TSX / Premier Election Solutions / DRE
Prince William county 357,503 N/A (bipartisan board) EDGE / Sequoia Voting Systems / DRE
Chesterfield county 296,718 N/A (bipartisan board) M100; AUTOMARK / Election Systems and Software / Marksense Tabulator; DRE
Henrico county 284,399 N/A (bipartisan board) WINVOTE / Advanced Voting Solutions / DRE
Loudoun county 268,817 N/A (bipartisan board) ACCUVOTE; ACCUVOTE TSX / Premier Election Solutions / Marksense Tabulator; DRE
Norfolk city 229,112 N/A (bipartisan board) ACCUVOTE TSX / Premier Election Solutions/ DRE
Chesapeake city 220,560 N/A (bipartisan board) ACCUVOTE TSX / Premier Election Solutions / DRE
Richmond city 192,913 N/A (bipartisan board) WINVOTE / Advanced Voting Solutions / DRE
Newport News city 178,281 N/A (bipartisan board) ACCUVOTE; ACCUVOTE TSX / Premier Election Solutions / Marksense Tabulator; DRE
Totals (Virginia has 95 counties and 39 independent cities) 3,474,365 (45 % of population) ACCUVOTE (23); ACCUVOTE TSX (22); AUTOMARK (3); AVC (9); EDGE (31); eSLATE (3); iVOTRONIC (9); M100 (2); OPTECH IIIPE (3); PATRIOT (22); WINVOTE (33)
  • [11] http://www.sbe.virginia.gov/cms/Election_Information/Voting_Systems_Ballots/Index.asp

Voter Registration

Registration Deadline

29 days before election

The deadline to register in Virginia is 29 days before a primary or general election.  VA Code 24.2-416.  Mailed registrations must be postmarked by 29 days prior to the election.  Va Code 24.2-416.4.  Mailed registrations that are missing a postmark will be deemed timely received if they arrive no more than 5 days after the deadline. 

Notice of Registration Error

Yes

If the applicant has failed to sign the application or failed to provide a required item of information on the application, the general registrar must send another registration form to the voter, giving the voter a second chance to correctly fill out the form.  Va Code 24.2-422.  The applicant also may appeal the denial of his or her first or second attempted registration to the circuit court of the county or city where the attempt was made within 10 days of the decision. 

Notice of Registration Error

Yes

Virginia registrars must notify an applicants at the address shown on his or her application of the acceptance or denial of the applicant's registration.  Va Code 24.2-114.  In addition, the registrar must send notice of the applicant's right to appeal the decision.  Va Code 24.2-422.  If the reason for rejection is a missing signature or other required piece of information, the registrar must include another registration form affording the applicant a second chance at registration.  It seems this second chance form will be accepted even after the regular deadline. 

Opportunity to Correct after Registration Deadline

No

If a voter registration application is denied because it is incomplete, election officials will send the voter a new application.  Va Code 24.2-422.  However, resubmitted applications received after the book closing deadline will not be effective for the upcoming election.  The applicant also may appeal the denial of his first or second attempted registration to the circuit court of the county or city where the attempt was made within 10 days of rejection, but this kind of appeal seems unlikely considering the effect of the book closing deadline.

HAVA matching standards

Substantial match standard

A representative of the Virginia Secretary of State's office stated that she thought Virginia uses a substantial match standard, at least for voters who submitted driver's license or state ID numbers on their registration applications.  However, she was not sure, and did not get back to us with details.  A report produced by the Brennan Center in 2006 indicates that Virginia intended to use a substantial match standard for social security matches as well (see here). 

 

Will the inability to verify social security number or driver's license number prevent registration?

Voter may cast an ordinary ballot after showing ID at polls

If officials cannot obtain a match, the voter is still registered, but must show the minimum HAVA ID at the polls (current and valid photo ID, or current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter).

Source: Email, Virginia Secretary of State's office.

Will the inability to verify social security number or driver's license number prevent registration?

Voter may cast an ordinary ballot after showing ID at polls

If officials cannot obtain a match, the voter is still registered, but must show the minimum HAVA ID at the polls (current and valid photo ID, or current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter).

Source:  Email, Virginia Secretary of State's office.

Challenges

Pre-election challenges

Challenge decided by local election official or court

Any three voters may challenge the registration of any voter in the county by "making an allegation" to local election officials that the voter should not be on the rolls. VA ST 24.2-429. Officials will give notice and schedule a hearing to occur 10 days or more after the notice. The hearing cannot occur within 60 days of the November general election, or within 30 days of any other election. If officials find that the person is not eligible or if the person does not appear at the hearing, officials will cancel the registration. The decision may be appealed to the courts. VA ST 24.2-430.

Any three voters may also challenge the eligibility of any other voter in the county by filing a petition with the local trial court. VA ST 24.2-431. The petition must state the grounds for the challenge. The court will give 15 days notice to the parties and schedule a hearing. VA ST 24.2-432. The court's decision may be appealed directly to the Virginia Supreme Court. VA ST 24.2-433.

Election day challenges

Challenged voter may cast a regular ballot after signing affidavit

Any qualified voter may challenge the vote of any person who is listed in the pollbook but is known or suspected by the challenger not to be a qualified voter. Va Code 24.2-651. Poll workers are required to challenge voters under these circumstances. They must explain to the challenged voter the qualifications of a voter and may then examine the challenged voter concerning his or her qualifications. A challenged voter may sign an affirmation that he or she is registered and eligible to vote and may cast a regular ballot. Voters who refuse to sign such an affidavit will not be allowed to vote.

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter was registered and eligible

Provisional ballots will be counted if officials determine that the voter was qualified to vote in the precinct where he or she cast the ballot. Alternatively, if the voter can provide proof that he or she registered to vote before registration closed at a DMV or other agency and was qualified to do so, the ballot will be counted. Va. Code 24.2-653(B).

Provisional ballot - voter cast ballot in wrong precinct

Ballot will not be counted

Provisional ballots cast in the wrong precinct will not be counted. Va. Code 24.2-653(B).

Provisional Ballot Casting Rate - 2006

0-.25 percent of ballots cast at polls

0.08%

Provisional Ballot Counting Rate - 2006

30-40 percent

36.3%

Early and Absentee Voting

Convenience Voting

Neither early voting nor "no excuse" absentee voting

Virginia allows any registered voter to vote by absentee ballot only when the voter is 1) absent from the county or city, 2) a member of the uniformed service or temporarily resides outside of the US (or their spouse), 3) a student who will be absent on election day, 4) disabled and unable to go to the polls, 5) confined while awaiting trial for a misdemeanor, 6) a member of an electoral board, 7) responsible for the care of an ill or disabled family member, 8) unable to go to the polls because of a religious obligation, and 9) working 11 of the 13 hours that the polls are open.  Va. Code 24.2-700.  In-person applications must be made at least three days prior to the election in the office of the general registrar.  Va. Code 24.2-701.  Applications made by mail, electronic or telephonic transmission must be made by 5:00 p.m. on the 7th day prior to the election.  A qualified absentee voter may request an early absentee ballot for elections for Governor, Lieutenant Governor, or Attorney General.  Va. Code 24.2-702.

Virginia does not have early voting as such, but voters who qualify for an absentee ballot may apply for a ballot in person and cast it at the office of the local election officials (see here).  This means that Virginia has a form of "early voting" for those who qualify for an absentee ballot.

Voting Technology

Voting Technology

Predominately or 100% DRE

County Population Administrator Voting Technology (Model / Vendor / Type)
Fairfax county 1,010,443 N/A (bipartisan board) WINVOTE / Advanced Voting Systems / DRE [11]
Virginia Beach city 435,619 N/A (bipartisan board) ACCU-VOTE TSX / Premier Election Solutions / DRE
Prince William county 357,503 N/A (bipartisan board) EDGE / Sequoia Voting Systems / DRE
Chesterfield county 296,718 N/A (bipartisan board) M100; AUTOMARK / Election Systems and Software / Marksense Tabulator; DRE
Henrico county 284,399 N/A (bipartisan board) WINVOTE / Advanced Voting Solutions / DRE
Loudoun county 268,817 N/A (bipartisan board) ACCUVOTE; ACCUVOTE TSX / Premier Election Solutions / Marksense Tabulator; DRE
Norfolk city 229,112 N/A (bipartisan board) ACCUVOTE TSX / Premier Election Solutions/ DRE
Chesapeake city 220,560 N/A (bipartisan board) ACCUVOTE TSX / Premier Election Solutions / DRE
Richmond city 192,913 N/A (bipartisan board) WINVOTE / Advanced Voting Solutions / DRE
Newport News city 178,281 N/A (bipartisan board) ACCUVOTE; ACCUVOTE TSX / Premier Election Solutions / Marksense Tabulator; DRE
Totals (Virginia has 95 counties and 39 independent cities) 3,474,365 (45 % of population) ACCUVOTE (23); ACCUVOTE TSX (22); AUTOMARK (3); AVC (9); EDGE (31); eSLATE (3); iVOTRONIC (9); M100 (2); OPTECH IIIPE (3); PATRIOT (22); WINVOTE (33)
  • [11] http://www.sbe.virginia.gov/cms/Election_Information/Voting_Systems_Ballots/Index.asp

Does state law require a VVPAT?

No

Currently, Virigina does not require VVPAT. A previous bill proposed this requirement, but was not passed. See 2006 VA SB 424.

Polling Place Operations

Who are poll workers?

Appointed by local administrator/some minority party representation

Poll workers are appointed by the local election administrator, a county or city board of elections.  Va. Code Ann. 24.2-115.  The board must appoint at least three poll workers to each precinct, and both parties must be represented.  However, the representation does not have to be equal, unless there are an even number of poll workers.  If there are an odd number of workers, there may be one more member from the majority party.

Poll worker training

Prior to each election

Virginia's electoral boards are required to instruct their chief and assistant chief poll workers in their duties before each election. No further detail is provided beyond that basic requirement. Va. Code 24.2-115. Virginia has three tiers fo poll workers. The lowest tier poll workers are not required by state law to be trained. Rather, the law states that electoral boards may train these poll workers before each November election. Fairfax county, Virginia's largest, requires all poll workers go through one-time training while chief and assistant chief poll workers complete training prior to every election (see here).

Polling hours extension

Extensions probably not permitted

Virginia law sets polling hours (6 a.m. to 7 p.m.) and only those voters in the polls and in line by 7 p.m. "and no others" may vote after 7:00 p.m. Va. Code Ann. § 24.2-603. No cases could be found on the issue of extending polling hours. Virginia allows the governor to reschedule the date of an election in case of emergency but polling hours are not mentioned in the statute.

Only those voters in the polls and in line by 7 p.m. "and no others" may vote after 7:00 p.m. Va. Code Ann. § 24.2-603.

Polling place closing times - local times

7:00 PM local time

Polling place closing times - by Eastern time zone

7:00 PM Eastern time

Ballot Security

Voter ID requirements

Non-photo ID required

Virginia requires that all voters present one of the following forms of identification: 1) Commonwealth of Virginia voter registration card; 2) social security card; 3) valid Virginia driver’s license; or 4) any other identification card issued by a government agency of the Commonwealth, one of its political subdivisions, or the US; or 5) any valid employee identification card containing a photograph of the voter and issued by an employer of the voter. See here; Va.Code 24.2-643.

Exception: Voters who are voting in Virginia for the first time, who registered by mail, and whose identities were not verified by the state's matching process do not have to follow the regular ID requirement, but must present ordinary HAVA ID.

 

Consequences of failure to present ID

Voter may cast an ordinary ballot after signing affidavit

If a voter is unable to present one of the forms of identification, the voter must sign a statement that he or she is the named registered voter who he or she claims to be in order to vote. Va.Code 24.2-643. The only exception applies to unverified first-time mail-in registrants, who are not bound by Virginia's ordinary ID requirement, but by HAVA's. When these individuals cannot present the proper HAVA-required ID, they cannot cast an ordinary ballot simply by signing an affidavit, but must cast a provisional ballot.

Emergency Preparedness

Natural Disasters or Emergencies

Election-specific emergency provision

The governor may postpone an election by executive order in areas affected by an emergency to a date not to exceed 14 days from the original date of the election.  Va Code 24.2-603.1.  Local officials may petition a three-judge panel of the Virginia Supreme Court for an extension if they believe that a longer postponement is needed.  The panel may reschedule the election to a date not to exceed 30 days from the original election.  Only those registered to vote as of the original election may vote in the rescheduled election.  Procedures are also established on how to handle ballots already cast before an emergency begins or ballots that are damaged in an emergency.

Ballot Shortages

Poll workers may create makeshift ballots

If during the election, a precinct runs out of ballots, or a machine malfunctions so that ballots cannot be cast without it, the local electoral board at its discretion may approve an officer of elections to “have copies of the official paper ballot reprinted or reproduced by photographic, electronic, or mechanical processes for use at the election.” Va Code 24.2-642(c). The ballots shall be counted just as any other ballot or vote. The officer who made the copies must submit a written statement specifying the number of ballots that were copied, subject to felony penalties for making false statements.

What if touchscreens break down?

Poll workers must contact administrator

If voting machines break down, poll workers will immediately contact the local election administrator. Va. Code Ann. 24.2-642. The administrator shall, if possible, send a team of repair-people to the polling place or supply a substitute voting device. The code does not specifically state that emergency ballots should be issued when touchscreens break down, and no language was found requiring provision of emergency paper ballots in the polling place. See also Va. Code Ann. 24.2-646.1.

The website of the Virginia State Board of Elections contains no further information.

Post-Election Processes

State certification deadline

Fourth week in November

The State Board of Elections meets on the fourth Monday in November to ascertain the results of the November election. Va Code 24.2-679. The Board will certify the results upon completion of the canvass. Va. Code 24.2-680.

Election contest deadline

Within 1 week of state certification

2 days after certification

Notice of intent to contest the election of presidential and vice presidential electors must be filed no later than 5:00 p.m. on the second calendar day after the State Board certifies the result of the election. Va. Code Ann. 24.2-805.

The proceedings shall be held promptly and completed, in accordance with the provisions of 3 USC 5, at least six days before the time fixed for the meeting of the electors. Va. Code Ann. 24.2-805.

Local count deadline

Between 8 and 14 days after the election

The canvass begins at or before 5:00 on the day after the election. Va Code 24.2-671. The canvass must be completed seven days later. A copy of the certified abstract is immediately delivered to the State Board. Va Code 24.2-675.

Audit type

None

Virginia election law does not provide for audits. 

Audit scope

No audits authorized

No authorization for audits of voting machine accuracy was found.

Candidate-requested recounts

Available at 1%

Virginia allows the defeated candidate to appeal for a recount of the vote when there is a difference of not more than 1% of the total vote cast for two candidates.  Va Code 24.2-800.  The petition for recount must be filed by the second day after the certification of the election results.  Va Code 24.2-801.1.  Presidential candidates who think they may seek a recount are encouraged in this section to send a letter about their intention to the State Board as soon as possible after election day. 

Administrative Recounts

Not explicitly authorized

Virginia election law does not explicitly authorize administrative recounts.

Automatic Recounts

None

Virginia does not have automatic recounts. 

Defintion of a vote

Concrete standard

Virginia law requires that voters use a check or a cross or a line in the square immediately preceding the name of each candidate for whom they wish to vote. Va Code 24.2-644.  A ballot will be counted if the intent of the voter is clear.

Election Contest Scenario #1: Unverified Ballots

Depends

When unverified ballots are cast on optical scan machines, officials will randomly withdraw ballots until the number remaining matches the number of signatures in the poll book. § 24.2-662. However, where DRE machines are used, officials will make no attempt to eliminate unverified ballots but will count all votes cast. § 24.2-657. 

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Unclear

Virginia provisional voters must provide “all the information required to identify himself including social security number, if any, full name including the maiden or any other prior legal name, birthdate, and complete address.” § 24.2-653; 24.2-653(2). The ballot will be counted if officials determine the voter was entitled to vote or if proof is presented that shows the voter timely submitted a registration application. § 24.2-653. The ballot will not be counted if officials determine the voter was not entitled to vote or cannot make a determination. Id. From this language, it seems clear that errors that prevent officials from making a determination will result in invalidation of the ballot. The effect of less serious errors is less clear.

What Court Would Hear a Presidential Contest?

Other

Election contests of presidential general and primary elections are conducted by a specially appointed court. Va. Code. Ann. § 24.2-805. The court consists of the chief judge of the Circuit (trial) Court of the city of Richmond and two other circuit court judges appointed by the chief justice of the state Supreme Court. Circuit court judges are elected by the General Assembly of Virginia. Va. Const. Art. VI, § 7. 

Who Performs Presidential recounts?

Bipartisan

Presidential recounts are conducted by a three-judge panel. 24.2-801.1. The first judge is the Chief Judge of the Circuit Court of Richmond. Id. The two other judges are appointed by the Chief Justice of the Virginia Supreme Court. Id. There is no explicit constraint on the partisan composition of the three-judge panel. However, the court must permit each candidate to appoint an equal number of individuals to perform the actual physical recount. 24.2-802. Circuit court judges are elected by the state legislature. 17.1-512. So are Virginia Supreme Court justices. 17.1-303.