Comment re: 1VAC20-45-40. Material Omissions from Federal Write-In Absentee Ballots

The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) writes to offer comments regarding the proposed changes to Va. Code § 24.2-706 concerning material omissions from federal write-in absentee ballots.

The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination.  The principal mission of the Lawyers’ Committee is to secure equal justice under law, particularly in voting rights, criminal justice, community development, employment, educational opportunities, fair housing and fair lending, and immigration.

The Lawyers’ Committee for Civil Rights Under Law agrees with prior comments stating that proposed changes are unnecessary.  As previously noted, as long as the Board of Elections is able to determine the identity of the voter, the omission of a street identifier or generational suffix should not constitute a “material omission” that renders the ballot invalid.  The comments from Virginia election officials are particularly persuasive in suggesting that the stricter policy toward omissions would unfairly invalidate a substantial number of absentee ballots. We present four additional points.

First, the U.S. Code states, “[n]o person acting under color of law shall . . .  deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.” 42 USC 1971(a)(2)(B).  In a consent decree settling a case between the U.S. Department of Justice and Waller County, Texas the U.S. District Court for the Southern District of Texas found that the omission of a zip code on a voter registration form was “not material to determining whether the applicants are qualified under Texas law to vote, and Waller County’s rejection of applications on these grounds violates 42 U.S.C. 1971(a)(2)(B).”  (Consent Decree, United States v. Waller County, No. 4:08-cv-03022 (S.D. Tex. 2008), available at http://www.campaignlegalcenter.org/attachments/Court_Cases_Of_Interest/1927.pdf).  Although the proposed changes to the Virginia regulations do not make omission of a zip code material, the omission of a street indicator or generational suffix is even more tangential to identifying a voter.  The Waller County case indicates that the Department of Justice would similarly consider Virginia’s proposal to make omission of a street indicator or generational suffix material a violation of 42 U.S.C. 1971(a)(2)(B). 

Second, the U.S. Postal Service (USPS) does not require customers to provide the specific street identifier for most mail.  If USPS finds it unnecessary to require a street identifier or generational suffix to accurately identify mail recipients and deliver mail, there is little reason that Virginia election officials should require them to identify voters, especially when other methods of voter verification are readily available.  

Third, the proposed changes would likely lead to voter confusion regarding what information is necessary to ensure their ballot is counted.  Ensuring that all voters understand any changes from the primary election procedures would prove especially difficult only a few months before the general election.

Finally, as other commenters have pointed out, the identity of a voter can often be determined even when the generational suffix is omitted.  It is unnecessary to always consider this a “material omission.”  As the General Registrar for Loudoun County noted, if there is any confusion between “Junior” and “Senior,” election officials can also compare the signatures provided on the absentee ballot.  Along with other methods of verification, this is usually sufficient to confirm a voter’s identity.

Virginia should seek to expand opportunities to vote and ensure votes are counted.  The proposed changes are not only unnecessary to protect the integrity of elections, but instead serve only to potentially disenfranchise eligible voters who may be confused by these unnecessary restrictions.