Introduction

Center for Election Confidence, Inc. (“CEC”) is a non-profit organization based in Arlington that promotes ethics, integrity, and professionalism in the electoral process. CEC works to ensure that all citizens can vote freely within an election system of reasonable procedures that promote election integrity, prevent vote dilution and disenfranchisement, and instill public confidence in election systems and outcomes. 

CEC submits these comments concerning 1 Va. Admin. Code 20-20 [hereinafter VAC] to the Virginia State Board of Elections in response to the periodic review of this regulation required by Va. Code Ann. §§ 2.2-4007 and           -4017.1, 1 VAC 20-10-120, and Executive Order 19 (2022).

CEC’s interest in this periodic review relates directly to its purpose of “advancing the role of ethics, integrity, and legal professionalism in the electoral process, including safeguarding the right of eligible voters to vote” by undertaking efforts that “increas[e] confidence in election results and election systems”.[1]

Conform Outdated References to Secretary of the State Board of Elections with Current Law

In 2020, Virginia implemented a change to law that provided for a Commissioner of the Department of Elections to serve as agency director for the Department of Elections (ELECT).[2] However, 1 VAC 20-20 retains several outdated references to the Secretary of the State Board of Elections as agency director, which reflects the previous operational structure. In order to reduce confusion, to promote efficiency and transparency, and to provide for conformity between Virginia law and regulations, CEC urges ELECT and the State Board to take all necessary steps to replace all such outdated references to the Secretary of the State Board of Elections with appropriate references to the Commissioner of the Department of Elections. See Va. Code Ann. §§ 24.2-102 and -103.

Revise Informal Complaints Consideration and Resolution Processes

1 VAC 20-20-80 implements Va. Code Ann. § 24.2-103 with respect to the receipt and investigation of informal complaints concerning the administration of elections from “any person”. However, this section does not provide for any process for the actual investigation or resolution of such complaints. Further, while the code section permits “any person” to make an informal complaint, the existing language only provides for a response to “all voter complaints[.]” (emphasis added). CEC urges the State Board to update 1 VAC 20-20-80 to require an investigation of all complaints received from “any person” and to require some process for their adjudication and resolution. Finally, 1 VAC 20-20-80 should require a process for a “localit[y]” forwarding the complaint to ELECT and the State Board and its investigation, adjudication, and resolution at the state level.

Applicability of the Virginia FOIA to Pre-Processing Gatherings of Electoral Board Members

Va. Code Ann. § 24.2-107 provides that “the presence of two or more [electoral] board members while the ballots, election materials, or voting equipment are being prepared . . . shall not constitute a meeting provided that no discussion or deliberation takes place that would otherwise constitute a meeting.” If such a gathering were to qualify as a “meeting” pursuant to the Virginia FOIA, both public access and prior notice would be required. 

The Virginia FOIA defines a meeting as “the meetings including work sessions, when sitting physically, or through electronic communication means . . . , as a body or entity, or as an informal assemblage of . . . a quorum . . . of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body.”[3] This would seem to encompass the assembly of a quorum of an electoral board in the pre-election preparatory period so long as the board members were discussing issues concerning preparations for the election. 

Clarification in the administrative code is necessary and justified because the language in sec. 24.2-107 is vague with respect to when and how such a gathering of a quorum of an electoral board in the pre-election preparatory period would qualify as a meeting. How much “discussion or deliberation” is required for such a gathering to become a meeting? Who arbitrates such decisions? CEC is interested in this reform because it relates directly to its purpose of “advancing the role of ethics, integrity, and legal professionalism in the electoral process, including safeguarding the right of eligible voters to vote” by undertaking efforts that “increas[e] confidence in election results and election systems”.[4]

CEC urges the State Board to update its regulations to interpret, with greater specificity, its interpretation of when sec. 24.2-107’s exception to the general definition of “meeting” applies to pre-election preparatory gatherings of a quorum of an electoral board.[5] Suggestions for drawing a bright line include whether the quorum of the electoral board is engaging merely in the execution of physical preparations for the upcoming election (e.g., assisting staff with the set up of early voting locations, confirming security seals, etc.), which might not qualify as a “meeting”, or discussing the applicability or implementation of policies or otherwise performing adjudication or administrative tasks assigned to it by relevant law or regulation, which certainly should qualify as a “meeting”. Further, the State Board should make clear in its updated regulation that the relevant public notice and access/observation rules apply to such “meetings”.

Such a rule would positively impact CEC because it would effect considered policy changes consistent with CEC’s mission, and the impact on Virginia voters would similarly be positive because the public’s access to important government functions relating to election administration would be clarified with an emphasis on transparency, which increases voters’ confidence in the election system.

Update Statutory References

To the extent that existing regulations contain outdated references to previous versions of the Virginia Code, CEC urges the State Board to update such regulations to provide for accurate and up-to-date citations and to review such references specifically for accuracy during each periodic review.

Complete Other Required Rulemakings

Various sections in Title 24.2 of Va. Code Ann. require the State Board to promulgate regulations, but the State Board has failed to do so. To the extent such regulations would be codified in Chapter 20, Agency 20, Title 1 of the Virginia Administrative Code, CEC urges the State Board to undertake such rulemakings.

Conclusion

The Center for Election Confidence urges the State Board to take the necessary steps to implement the proposals contained in this Comment for the benefit of Virginia voters’ confidence in the Commonwealth’s elections.

                                                                        Respectfully submitted this 31st day of December 2025,

                                                                        /s/ Caleb J. Hays

                                                                        Chief Policy Counsel

                                                                        Center for Election Confidence, Inc.