Post #556: RESCINDED: Mail-in absentee ballot, can anything be done?

Posted on March 17, 2020

I take this all back.   My wife just found a story in today’s news stating that Department of Elections will allow anyone to use a mail-in ballot, in light of the epidemic.  Use Reason 2A.  Those are now official instructions from the Commonwealth.

This is the reference.

Skip the rest of this.




CD - Town Flyer 2020 (1)

Fairfax County is encouraging the use of absentee ballots in the forthcoming Town elections.  To the extent that it can.  The Fairfax County flyer on the Town elections above says:

“It is hopeful that residents will examine all their options in voting to include voting early in person or requesting an absentee ballot to be mailed.”

That oddly ambiguous language is there because Commonwealth law has not yet caught up with the coronoavirus epidemic.  Virginia currently requires that voters have an excuse for voting absentee.  As of today, you must meet one of 20 allowable reasons in order to vote absentee.

That will change soon.  But, absent extraordinary action, not soon enough for the Town elections.  The Virginia General Assembly recently passed a bill allowing “no excuses” absentee voting.  That bill is awaiting (and undoubtedly will receive) Governor Northam’s signature.   This bill:

Permits any registered voter to vote by absentee ballot in any election in which he is qualified to vote. The bill removes the current list of statutory reasons under which a person may be entitled to vote by absentee ballot and removes references to those reasons from other sections of the Code.

This bill likely will be signed well prior to the Town’s election.   But in the Commonwealth, new laws go into effect on July 1, unless stated otherwise.  If the Commonwealth sticks with that rule, and does not specify otherwise, Virginia will become a “no excuses” absentee ballot state — about eight weeks after the 2020 Town elections.  The impact statement for the bill literally says “effective with the general election on November 3, 2020.”

This bill originated and was passed before Virginia had a single case of coronavirus.  The bill was viewed as a voting rights measure.  But it is now a public health measure.  If China’s experience provides any guide, unless humid spring weather puts a stop to the transmission of coronavirus, we will still be at the point of wanting to avoid unnecessary in-person contacts at the time of the 5/5/2020 Town elections.

Unfortunately, at this point, I don’t think this can be changed as a matter of regular legislative business.  I believe the legislature is no longer in session, and will reconvene only a few days prior to the 5/5/2020 Town elections.  And, in my experience, much of Virginia election law is written as if these May Town elections don’t exist.  It’s not clear that we are even on the radar screen of legislators in Richmond with respect to these May elections.

That said, it seems possible that the Governor could temporarily waive the absentee voting rules in light of this public health emergency.  It would require doing nothing more than applying the law as it will stand on July 1, to the elections of May 5.  That doesn’t seem like a controversial action to me, and one that could encourage voters to use the safer mail-in option rather than voting in person.