I received the following email from Donald Palmer, Secretary, Virginia Board of Elections, which I am reprinting here with his permission:
I wanted to provide some explanation and chronology on the instructions to the field on the provisional ballot meeting issue. You can post this if you wish….
To answer a few of your open questions and clear up any misconceptions:
The key issue is whether a lawyer or representative may be present on the part of the voter at the provisional ballot meeting without the voter being present at the meeting. The initial place to start the analysis is with the Virginia Election Code itself which states that the “voter and their representative or legal counsel” are permitted to be present.
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.
There has been no change in state policy with regard to provisional meeting procedures. The voter may have his or her representative present at the meeting if the voter is also present. The only change was when Fairfax County submitted these proposed procedures for review by the SBE. Apparently, Fairfax had considered allowing Democrat or Republican representatives to purportedly advocate and make assertions for voters who would not be present at the meeting. The SBE has not heard of any other jurisdiction that had implemented or even considered this new practice during the course of this or previous elections.
When the SBE became aware of the proposed plan outside the practice of local electoral boards and SBE’s interpretation of the Code, it provided a reminder of statewide guidance to ensure uniformity on the issue. SBE only became aware of the issue when Fairfax submitted their proposed procedures for the provisional meeting to the SBE and others. SBE immediately responded with guidance to Fairfax and the greater election community as a number of jurisdictions were holding their final provisional ballot meetings after the noon deadline for ID submissions. A large number of jurisdictions had already concluded their provisional ballot meetings without the proposed Fairfax procedure. After uniform practice throughout the Commonwealth, to allow Fairfax to implement a different procedure unlike the other 132 jurisdictions (and outside the parameters of the Code) would raise fundamental fairness issues. Due to its large numbers, Fairfax has usually been one of the last jurisdictions to hold and complete its required provisional meetings.
Voters have always been permitted to be present at the provisional meeting if they wished to address the local electoral board. If voters cannot be present after notice of the meeting, they are permitted to provide statements or other evidence to the electoral board. In many instances, the ballot may count without the voter providing any additional information, either in person or in writing. In some cases, no additional information or advocacy in-person will assist the voter’s qualification to vote. The determination is based on the facts and circumstances of the provisional ballot and the appearance of the voter is not usually determinative. To clear up any misconceptions, the election staff does extensive research on the information on the provisional envelopes, provisional logs, interviews with officers of elections or voters and then provide these reports and recommendations to the local electoral board. In the case of provisional ballots associated with the Department of Motor Vehicles (DMV), the SBE provides research and audit trails to the local electoral boards. In the case of ID provisionals, the law allows the voters to provide evidence by means of fax, email, mail or in-person delivery of a copy of proper ID.
So to make clear: No voter is required to appear as a prerequisite to have his or her provisional ballot count.
The General Assembly revised the procedure in the 2012 session. One change in the process was made in July 2012 when the General Assembly clarified the role of the representative in the provisional ballot meeting: See http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB63. Before this legislation, only the voter and party representatives had a right to attend the provisional ballot meeting. With its enactment, the General Assembly clearly inserted the right of the voter to have a representative or legal counsel with them at the provisional meeting. Before this change, it was unclear that a legal representative could even be in the provisional meeting at all, voter or no voter.
Some in Fairfax assert that this is a practice they allowed in the past. Based on the information available to SBE, no other locality in the Commonwealth or Fairfax had a procedure to allow lawyers or political party representatives to represent voters without the voter being present at the meeting. In discussions after the reminder guidance, some informed SBE that they believed that the Fairfax electoral board had considered a policy to allow the party representatives to advocate or make general arguments on behalf of provisional voters in 2012. However, no voters attended the provisional meeting and the issue became a moot point. While the past actions in Fairfax are unclear on this point, the Fairfax County Electoral Board should never have allowed party representatives or lawyers to represent voters at electoral board meetings without the voter being present. SBE provisional ballot guidance has never allowed for a party or lawyer to be present and advocate without the voter present. The SBE interpretation of the code was carefully considered by staff and leadership and this interpretation was affirmed as a correct reading of the statute by a career Senior Assistant Attorney General, counsel to the Board.