I am an election law attorney and served as Chair of the U.S. Election Assistance Commission during my tenure as a commissioner. I also served as counsel to the Committee on House Administration of the U.S. House of Representatives; House Administration has jurisdiction over all federal election laws. As a result of my practice and my experience in election law and administration, I have comments that I hope will be helpful to you as you consider final action on the proposed amendment to 1 Va. Admin. Code § 20-70-20. Material omissions from absentee ballots. 37 Va. Reg. Regs. 15 (August 31, 2020) (“Proposed Regulation”).

Section 24.2-709(B) of the Code of Virginia was recently amended to allow for the counting of absentee ballots postmarked by election day and received by noon on the third day after the election. The Proposed Regulation would allow for the counting of ballots received by the statutory deadline despite missing or illegible postmarks.

The Proposed Regulation appears to be in conflict with the underlying statute, as a postmark is a requirement of the statute. Unlike the other portions of the Material omissions from absentee ballots regulation, which are authorized by §24.2-707 and provide clear rules for determining what form of a name or address listed on Envelope B can be accepted (e.g., omitting a zip code is acceptable as long as the city is listed), the Proposed Regulation expressly contradicts statutory language.

In addition, permitting absentee ballots to be counted with missing or illegible postmarks violates federal law.  As you are aware, federal law mandates elections be held on the Tuesday after the first Monday in November, establishing a single day for federal elections.  2 U.S.C. §§ 1, 7 and 3 U.S.C. § 1.  Without a legible postmark or other official indicia displayed on an absentee ballot envelope, there is no clear evidence to substantiate and confirm that an absentee ballot was, in fact, mailed on or before election day.  As such, the Proposed Regulation would extend the voting period for the upcoming General Election beyond November 3, 2020 by providing an opportunity for absentee ballots to be both cast and counted after election day.  This regulation as proposed is therefore pre-empted by federal law, and would likely be the subject of federal litigation.

As you consider how best to resolve this conflict, I offer several observations for your consideration.

First, I note that the problem of missing and illegible postmarks is limited. Since 2014, the U.S. Postal Service (“USPS”) has committed to postmarking all election mail, regardless of how it is posted (e.g., as business reply mail or with metered postage). This commitment is documented in the USPS Postmarking Guidelines: Fact Sheets for Election Mail. (USPS, Your 2020 Official Election Mail Kit 600, 25, https://about.usps.com/kits/kit600.pdf). Your recent action to require the use of USPS’s Official Election Mail logo will help USPS to meets this commitment by ensuring that absentee ballot return envelopes stand out and are easily identifiable.

Second, I encourage you to consider an option adopted by several other states, which appears to be acceptable under §24.2-709(B). That provision includes the following definition: “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.” § 24.2-709(B). As you know from your excellent work using the Intelligent Mail Barcode (“IMb”) to provide visibility to voters and election officials on the mailing status of individual ballots, another “official indicia” is available to you. As all of the local election officials in Virginia have implemented the IMb for the return envelope provided with absentee ballots, these alternative indicia will be readily available.

Illinois, Iowa, Kansas, Ohio, and Washington by either statute or regulation use the IMb as an alternative to verify mailing when a postmark is missing or illegible:

• Illinois—10 Ill. Comp. Stat. § 5 / 20-8
• Iowa—Iowa Code § 53.17
• Kansas—Kan. State. Ann. § 25-1132
• Ohio—Secretary of State, Absentee Voting, Directive 2017-02, 5-24 (Jan. 31, 2017).
• Washington—Wash. Admin. Code. § 434-250-120

A regulation in Virginia that adopted this approach would ameliorate the limited problem of missing and illegible postmarks and remain consistent with the statute adopted by the General Assembly.

I hope you will consider this alternative approach to this regulatory issue.

Sincerely,

Gineen Bresso