Regulatory Provision:

1VAC20-70-20. Material omissions from absentee ballots. (virginia.gov)

F. If a ballot is received by the general registrar's office by noon on the third day after the election pursuant to § 24.2-709 of the Code of Virginia but the return envelope has a missing or illegible postmark, the General Registrar shall refer to the Intelligent Mail barcode on the return envelope to determine whether the ballot was mailed on or before the date of the relevant election.

1. If there is evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, the ballot shall be rendered invalid.

2. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, but the return envelope has an illegible postmark, the General Registrar shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.

3. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election and if the return envelope has a missing postmark, the ballot shall be rendered invalid.

Comment:

Brief Summary: 

The regulation directs a General Registrar to the Intelligent Mail barcode on the return envelope to determine whether an absentee ballot was mailed on or before the date of the relevant election.  This direction is nonsensical because an Intelligent Mail barcode does not contain date information.  Then, if the Intelligent Mail barcode does not answer the question, the regulation illegitimately directs the General Registrar to refer to the date on which the oath on Envelope B was signed” to determine whether the date of mailing preceded the election.  The statute authorizes only the use of a postmark to determine the date of mailing.  It does not authorize reference to Envelope B for this purpose.  Nor would it have been sensible for the statute to do so, since a ballot may be mailed days after the oath is signed and there is no way to determine what the interval was.  This portion of the Board’s regulation is directly contrary to the express requirement in the statute to use the postmark to determine the date of mailing.  It is, therefore, entirely unauthorized and should be removed.  The regulation should be amended to follow the statute’s command that the postmark is to be the proper evidence of the date of mailing.

Full Analysis:

Start with Virginia Code § 24.2-709(B), which provides: 

“Notwithstanding the provisions of subsection A, any absentee ballot (i) returned to the general registrar after the closing of the polls on election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in this chapter if the voter is found entitled to vote. For purposes of this subsection, a postmark shall include any other official indicia of confirmation of mailing by the United States Postal Service or other postal or delivery service.”

This statute on its face allows counting a ballot after the election up to “noon on the third day” but only with proof that an absentee ballot was mailed on or before the date of election.  The statute directs that the postmark is to provide proof.  It defines this term broadly to allow that “other official indicia” applied “by the United States Postal Service or other postal or delivery service” may be used.  There is no mention in the statute of Intelligent Mail barcodes.  There is no mention in the statute of Envelope B.

Now turn to the regulation.  It begins, consistent with the statute, by properly directing a General Registrar to refer to the postmark to determine the date of mailing.  If the postmark is present and legible, the analysis is done and the date of the postmark will control whether the ballot is accepted.

But what if there is no postmark or it is illegible?  The regulations directs that “the General Registrar shall refer to the Intelligent Mail barcode on the return envelope to determine whether the ballot was mailed on or before the date of the relevant election.” 

I researched the question of whether the Intelligent Mail barcode records or evidences the date of mailing.  My internet research did not turn up any evidence that Intelligent Mail barcodes record the date of mailing.  It appears that it does not.

After the General Registrar refers to the Intelligent Mail barcode, the regulation then directs a General Registrar to proceed along the following decision guide:

“1. If there is evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, the ballot shall be rendered invalid.

2. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election, but the return envelope has an illegible postmark, the General Registrar shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.

3. If there is no evidence from the Intelligent Mail barcode that the ballot was mailed after the close of polls for the relevant election and if the return envelope has a missing postmark, the ballot shall be rendered invalid.”

The first step in the regulation's decision guide is a null set, because (according to my research) the mailing date cannot be derived from the Intelligent Mail barcode.  Furthermore, this decision guide reverses the statutory presumption and plainly suggests that the ballot is to be considered valid unless there is proof from the Intelligent Mail barcode that it was mailed “after” the close of polls.  On the contrary, the statutory presumption is that the ballot is not valid unless there is proof of mailing “on or before” the date of the election.

The second step in the regulation's decision guide will always obtain if there is an illegible postmark.  In every case, the Intelligent Mail barcode will fail to establish that the ballot was mailed after the close of polls.  After this inevitable failure, the regulation then instructions that the General Registrar “shall refer to the date on which the oath on Envelope B was signed to determine whether the ballot was cast on or before the date of the relevant election.” 

This use of the date of the oath on Envelope B as the determinant of the mailing date contradicts the statute, which requires a postmark.  It is true that the statute defines postmark more broadly than usual to “include other official indicia of confirmation of mailing by the United States Postal Service or other postal or delivery service.”  The date of the oath on Envelope B, however, is completely outside this definition.  It refers to the date applied by the voter and not to “official indicia” of any kind from the United States Postal Service or other postal or delivery service.  Therefore, the Board is not entitled to require or authorize the date of the oath on Envelope B as a basis for determining the date of mailing.

Finally, as a practical matter, it is obvious that the date of the oath on Envelope B is a wildly unreliable determinant of the date of mailing.  First, it is applied by the voter, not an independent third party (contrary to the statute).  Second, it is not intended to record or prove the date of mailing.  Third, as a practical matter, there is no way to determine from the date of mailing from the date of the oath.

The third step in the decision guide once again (improperly) reverses the statutory presumption on validity. It does, however, appear to reach the right statutory result of invalidating a ballot with a missing postmark.

In sum, Section F of this regulation is unauthorized by the statute and, as a practical matter, fails to achieve the statutory goal of reliably determining the date on which an absent ballot is mailed.  It should be revised to carefully conform to the dictates of the statute.  Specifically, the Board may only authorize or direct a General Registrar to refer to the postmark, as defined in the statute, to determine the date of mailing.