In Razor-Thin VA AG’s Race, Republican Dominated Elections Board, at Direction of AG Cuccinelli, Changes Rules for Counting Provisional Ballots

The race for Virginia attorney general between Democrat Mark Herring and Republican Mark Obenshain is razor thin—at the moment Obenshain appears to have a 55-vote lead, but the number is changing as various counties correct mathematical errors and count provisional ballots.

While most of the provisional ballots across the state have already been counted, that’s not true in Fairfax County, where Democrats expect they would pick up further gains for Herring. So this development reported by WTOP was a big surprise:

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.

There’s more on the change from the Huffington Post. The Board of Elections says it is issuing this directive to insure that there is uniformity across the state in how provisional ballots are handled. But it appears the directive came out after most of the provisional ballots (outside of Democratic Fairfax and Arlington counties) have already been counted—and it is not clear if the other counties used uniform standards in counting provisional ballots. Further, it seems that the rule goes against both Fairfax County practice (which allowed legal representatives to argue for the counting of ballots rather than the voter in person), as well as Virginia’s Board of Elections posted rules (see page 21 of this pdf: among people who may attend decisions on counting provisional ballots: “Legal counsel and representatives of the person who cast the provisional ballot.”)

There are a lot of factual and legal things unclear (to me at least) at this point.  (1) Is the new VA rule a change in practice? (2) Was it necessary to assure uniformity so as to prevent a Bush v. Gore type inequality in vote counting problem? (3) Did the rule timing mean that it did not assure uniformity even if that was its intent? (4) If a court reviews this question, which trumps: assuring uniformity or following written, past practice put in place before the current decision? (This is an issue I wrote about in The Democracy Canon in the last part of the article.) (5) Will any of this make a difference to the election outcome?  Presumably, if there are provisional ballots not counted in Fairfax because of the lack of the voter’s presence in person, then a court could later order those ballots counted—but there’s a lot riding on being out in front at the time of certification on Tuesday. (6) Was the rule pronounced Friday for sound election administration reasons, or to give the Republican the edge (as Democrats have already suggested)?

Interesting times.

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