Relying on the old adage “if it ain’t broke, don’t fix it”, as my guiding light, I would respectfully suggest that the proposed new Virginia voter registration application form will create more problems than it will solve. The only consistent, repeated problem that our office sees with the current Virginia voter registration application form is that, for some reason or another, a significant number of applicants tend to miss the very first question – i.e. the question that asks if the applicant is a U.S. citizen? – and many applicants accordingly leave this blank, and this requires us to deny these applications.

 As far as all of the rest of the current form, the applicants generally seem to understand it, and provide the necessary information, and so I am not sure that it is a good idea to change the whole form all around as is proposed. In addition, the proposed new form would apparently make the original “alpha card”, which we store in our files, larger than the current 5” x 8” form, which would require all registrars’ offices to change their methods of storing the forms. We would be intermixing 5” x 8” forms with larger forms, which would create lots of practical difficulties with respect to filing and retrieval of the alpha cards.

 If other localities are truly experiencing significant problems with the current form – other than the main problem that I have outlined above (i.e. applicants missing the citizenship question), then I think it would be good for us to hear about them, as a justification for changing the current form.

 However, if, as I suspect, other localities are experiencing one major problem and one major problem only, with the current form – i.e., applicants missing the citizenship question – then I would suggest that a very simple alteration of the current form – enlarging and bolding the print on the citizenship question – would remedy this issue, without creating different problems that would give us trouble down the road.

 In addition to practical concerns regarding the proposed new Virginia voter registration application form, I have some serious concerns with respect to the accompanying proposed new regulation regarding non-material omissions to voter registration applications – 1VAC20-40-70. The new proposed regulation would require registrars to accept a voter registration application, notwithstanding that the application did not:

 A) provide the applicant’s Social Security number;

B) affirmatively indicate that the applicant is a US citizen;

C) affirmatively indicate that the applicant is not a convicted felon;

D) affirmatively indicate that the applicant has not been adjudicated mentally incapacitated.

 On the one hand, Va. Code §24.2-418 (A) gives the State Board the authority to prescribe the form of the Virginia voter registration application. On the other hand, Va. Code §24.2-418 (A) also affirmatively and unequivocally establishes the parameters of the Virginia voter registration form, as follows:

 “The form of the application to register shall require the applicant to provide the following information: full name; gender; date of birth; Social Security number, if any; whether the applicant is presently a United States citizen; address of residence in the precinct; place of last previous registration to vote; and whether the applicant has ever been adjudicated incapacitated or convicted of a felony, and if so, under what circumstances the right to vote has been restored.”

Va. Code §24.2-418 (A) (emphasis added).

 Under familiar principles of Virginia law, an agency’s regulatory power is circumscribed by legislation.*

 With respect to the proposed regulation regarding non-material omissions on a voter registration application form, the Virginia code section authorizing the State Board to adopt a form for the voter registration application form specifically sets out requirements of that form – these are not voluntary or optional, but are plainly mandatory – and among them are the requirement that the form require the applicant to provide a social security number, affirmatively indicate whether or not the applicant is a US citizen, affirmatively indicate whether or not the applicant is a felon, and affirmatively indicate whether or not the applicant has been adjudicated mentally incapacitated. Notwithstanding these mandatory and unequivocal directives of the statute, the proposed regulation, in conjunction with the proposed new Virginia voter registration application form, would abandon each of these requirements. Accordingly, it seems to me that the proposed regulation would not withstand judicial scrutiny.

 The inclusion, in section 7, of the proposed new registration application form, of the pre-printed “catchall” language – stating that the applicant affirms citizenship, non-felon status, and non-incapacitated status – would not appear to cure these problems, because the provisions of §24.2-418 (A) require the applicant to address “whether” he/she is a US citizen, a convicted felon, or adjudicated mentally incapacitated – which clearly calls for a considered “yes” or “no” response, and which does not seem to be met by the blanket preprinted affirmation contained in section 7. Alternatively, if the blanket preprinted affirmation contained in section 7 is sufficient to meet the requirements of §24.2-418 (A), then this begs the question of why the proposed new application form should include the citizenship box in section 1, or any of section 5 (regarding felony conviction and/or adjudication of incapacity) at all?

 If registrars were to be required to process voter registration applications under the proposed new regulation and form, and if a subsequent judicial challenge to the regulation and form determined that the regulation and form were void because they ignored the statutory requirements, then there would be resulting chaos, where registrars tried to go back through their prior acceptance of voter registrations to determine whether they had accepted some applications notwithstanding the plain mandate of the code requirements, and whether those applications were retroactively void. There seems to be little to recommend this Russian roulette approach, and a lot to be said for sticking with the current form, just modified slightly so as to bring the citizenship question more to the attention of the applicants.

 If there exists a body of evidence that affirmatively indicates that, because of the current form of the Virginia voter registration application, Virginia voter registrars have been consistently and wrongfully denying voter registration to qualified applicants, then I could understand the need for some revision to the voter registration application form. However, the only denials of registration applications that my office sees on a fairly regular basis are denials because the applicant neglected to respond to the US citizenship question. I think that this issue could be much more easily resolved – and resolved while maintaining the statutory requirements for Virginia registration applications – by simply enlarging and bolding the print on the citizenship question on the current form, to more forcefully bring that to the attention of the applicants.

Respectfully submitted,

 Richard J (Jake) Washburne

General Registrar, Albemarle County

 * See, e.g., Mirant Potomac River, LLC v. Commonwealth, Record No. 2067-08-2 (Va. App. 6/23/2009) (Va. App., 2009):

   "On review, the interpretation which an administrative agency gives its [law] must be accorded great deference." Jackson v. Marshall, 19 Va. App. 628, 633-34,  454 S.E.2d 23, 26 (1995) (internal quotation marks and citations omitted). However, when the question before us is solely a matter of statutory interpretation and whether the administrative agency's regulation complies with that statute, we will not afford such deference to the agency. Id. at 634, 454 S.E.2d at 26 (stating that "[c]ourts must construe and determine compliance with the statutes governing adoption of administrative regulation irrespective of the agency's construction, and not merely rubber-stamp an agency determination. Agency action, even when supported by substantial evidence, must be set aside if judicial review reveals a failure . . . to comply with statutory authority." (internal quotation marks and citations omitted)). Indeed, "[w]hen the legislature delegates authority to an administrative agency to promulgate regulations, those regulations must neither exceed the scope of the authority delegated nor be inconsistent with it." Avalon Assisted Living Facilities v. Zager, 39 Va. App. 484, 508,  574 S.E.2d 298, 309 (2002). Thus, a question of statutory interpretation and regulatory compliance with statutory authority involves a pure question of law, and, therefore, on appeal, we review it de novo. Va. Cellular v. Va. Dept. of Taxation, 276 Va. 486, 490,  666 S.E.2d 374, 376 (2008) (citing Ainslie v. Inman, 265 Va. 347, 352,  577 S.E.2d 246, 248 (2003)).