Virginia

Virginia’s New Election Integrity Unit and How It Can Learn from the Success, or Lack Thereof, of its Arizona Equivalent

Election Law Society · December 2, 2022 ·

By Noble Pearson

On September 9, 2022, Virginia Attorney General Jason Miyares announced the creation of a new Election Integrity Unit (EIU) in the Office of the Attorney General (OAG) to “investigate and prosecute violations of Virginia election law” and “to ensure legality and purity in elections.” This new team, made up of more than 20 attorneys, investigators, and paralegals from the OAG reportedly requires no new funds and aims to increase confidence in Virginia’s elections. While in a vacuum increased election security is desirable, this announcement comes against the backdrop of persistent mistrust of elections, especially from contingents of Republican support, stemming from conspiracy theories surrounding the 2020 presidential election. Democrats in Virginia quickly criticized the move as embracing lies, and Scott Surovell of the Virginia Senate joked that next Miyares would create a “Ghost Busting Unit that will hunt for ghosts and ghouls across the Commonwealth.” Jokes aside, questions remain about how an EIU might function and what, if any, success the people of Virginia can expect. To help answer that question, let us turn our attention to another state, Arizona, which created a similar unit not long ago.

In 2019, the Arizona Legislature appropriated $530,000 to the Arizona Attorney General’s Office to begin an EIU with four full time employees. It was created under similar circumstances to its Virginia counterpart, as it followed 2018 midterm elections that saw major wins for Democrats in Arizona that led then-President Trump to comment that ballots had appeared “out of the wilderness” for Democrat Kyrsten Sinema who beat Trump-endorsed Republican Martha McSally in the U.S. Senate race. Critics claimed the EIU was simply a response by the Republican legislature to Democrat successes and that it was designed to help enforce laws limiting voter participation. The pertinent question for Virginia is, with such a backdrop of partisan disagreement and criticism, has the Arizona EIU been successful in protecting Arizona elections since 2019?

To answer this question, a good place to start is the website for the Arizona OAG, which contains basic information about its EIU, including a link to a full list of AGO criminal prosecutions related to voter fraud since 2010. This list contains thirty-six cases of prosecutions, twenty of which dated 2019 or later. Reasons for these prosecutions vary, from State v. Tracey Kay McKee, which involved illegal mailing of a dead relative’s ballot, to State v. Kenneth Russell Nelson, involving an inmate illegally voting while in Pima County Jail. From a neutral perspective, while there have been some minor cases of voter fraud prosecuted, it is unclear that the Arizona EIU should be considered a success.

Recent critics looking back at the three years of the Arizona EIU suggest that there has been only a minor increase in prosecutions, with sixteen voter fraud cases prosecuted in the six years before the EIU and only twenty prosecuted in the three years since its creation. They point to the fact that after investigating thousands of cases with a renewed focus on voter fraud, only twenty cases have been prosecuted by the OAG in a state of more than four million voters. Supporters, though, point to the fact that the group is fulfilling its mission of supporting a fair election process. But what does this all mean for Virginia?

First, it is clear that Virginia’s EIU is driven by a distrust of elections, particularly in the Republican Party, much like the context that led to Arizona’s EIU. There are differences, though. Arizona’s EIU was legislatively created with its own budget of around $500,000, while the Virginia EIU stems from a decision by AG Miyares and reportedly will require no additional funding. Arizona’s EIU contained only four members, while Virginia’s will be comprised of a group of more than twenty. Without a doubt, questions remain about the implementation of the Virginia EIU. In Arizona, a four-person team managed to prosecute twenty cases in three years on a limited budget; can a bigger team in Virginia that is not receiving any new funding be expected to better that output? Even if it did, are there any discernable benchmarks for success? None seem to have been announced so far. The bottom line from Arizona is that an EIU without measurable goals and only an uncertain vision of making voting fairer has achieved only lackluster results and faint party line support. Regardless of the context behind its creation, the Virginia EIU would do well to learn from the mixed results in Arizona to better enable its own success. Otherwise, Virginia can expect a handful of minor voter fraud prosecutions and no tangible increase in public perception of election security, nothing more.

Early Voting is Thriving in Virginia’s 2022 Midterms

Election Law Society · November 4, 2022 ·

By Noble Pearson

Over the past several years, Virginia has expanded early voting in the state with new legislation. In April 2020, former Governor Ralph Northam signed HB1/SB111 into law, which allows any registered voter to vote up to forty-five days prior to an election by absentee ballot in any election in which that person is qualified to vote with no excuse required. On that same day, Northam also signed HB238/SB455, which allows absentee ballots to be counted if they are postmarked on or before the day of an election and are received by the general registrar by noon on the third day after the election. The next year, in March of 2021, Northam signed HB1968 into law, which permits local election boards to offer absentee voting in person on Sundays during the early voting period leading up to an election. Before these changes, voting by absentee ballot had been restricted to voters meeting specific requirements, such as being an out-of-area student or a member of the armed forces residing temporarily out-of-state. The 2020 and 2021 changes thus expanded access for Virginia voters regarding early voting, particularly in response to the Covid-19 pandemic.

Since the passage of these new laws expanding early voting, Virginia has held two elections with extremely high turnout in 2020 and 2021. 2020 saw a contentious presidential election, and 2021 included statewide contests for Governor, Lieutenant Governor, and General Assembly seats. We are now approaching the first midterm election since the new laws referenced above have been passed. There are no state elections on the ballot this time, and only a handful of competitive races for U.S. Congress, but turnout is still expected to be high. Some are suggesting that deep political divisions in the state concerning topics such as the economy, abortion, and Donald Trump will motivate increased voter participation in this election, especially early participation.

While, at the time of writing, we are still two weeks away from election day itself, high numbers of early voters are making news around the Commonwealth. In the 2018 midterm election, the last midterm election before the new laws went into effect, the grand total of early voters was around 345,000. As of October 19, 2022, more than 302,000 votershad already voted early, with nearly three weeks remaining. Suffolk General Registrar Burdette Lawrence claims that Suffolk has received near-presidential race levels of early votes. Reports from around the state, including Roanoke, Richmond, and Prince William County, indicate that early voting is taking place at significant levels. With increased access and strong political motivation, the popularity of early voting and voting by mail seem to be rising.

With many challenges remaining for election officials, there is also hope that early voting provides an avenue to mitigate other election concerns. Experts are bracing for map-based confusion in this election, as the voting maps in Virginia have changed following post-census redistricting. Additionally, there have been recent reports of printing errors wreaking havoc in northern Virginia, with election officials in Fairfax and Prince William counties reporting that over 31,000 voters received documents indicating incorrect polling locations. The good news is that early voting may help alleviate some of these issues, as county election officials have recommended early voting as a possible way to proactively avoid confusion regarding polling location on election day.

The November 2022 midterm election in Virginia is yet to be complete, but it is clear that Virginia’s recent legal changes to expand access to early voting are leading to increased voter turnout. With the voting numbers already closing in on those of the previous midterm in 2018, all expectations are that there will be a noted increase in midterm voter turnout this election. Prince William County registrar Eric Olsen has said that the state should expect to see even more early voting in the remaining days before the election, with voters often procrastinating until the last few days before the election to cast an early vote.

It is easy to see why expanded early voting is so popular. Early voting is safer, easier, and more accessible than ever before, and may well lead to enhanced civic engagement. In a time of contentious politics and heightened division, voting is increasingly important to members of both political parties. In fact, support in Virginia for early voting has been largely bipartisan, with Republican Governor Glenn Youngkin’s embrace of early voting playing a part in his 2021 election. Politics aside, the ability to vote is a fundamental part of American civil life. As Virginia is demonstrating, expanded access to voting results in expanded interest in voting, which is good for democratic participation. Long may it continue.

Virginia Passes State-Level Voting Rights Measure Mirroring Original Federal 1965 Voting Rights Act

Election Law Society · February 2, 2022 ·

By: Sarah Fisher

In March 2021, Virginia—a state historically marked by racially discriminatory practices in voting—became the first state formerly covered by the landmark federal 1965 Voting Rights Act to adopt state-level voting rights legislation modeled off of the Civil Rights Era measure.

Under the 1965 Act, certain cities, counties, and states with a history of race-based discrimination in voting were required to seek approval (called “preclearance”) from the United States Attorney General before making any changes to their election laws, regulations, or practices. The group of states and municipalities required to seek preclearance was determined by a formula that considered the jurisdiction’s use of certain discriminatory voting practices (such as poll taxes) and the jurisdiction’s voter registration and participation rates as of 1968.

Virginia Takes Initial Steps to Permanently Streamline the Restoration of Voting Rights for Virginians with Felony Conviction Histories

Election Law Society · October 20, 2021 ·

By: Sarah Fisher

Earlier this year, the Virginia General Assembly took a significant initial step toward ensuring that Virginians with felony conviction histories have their voting rights restored upon release from incarceration.

Currently, under the Constitution of Virginia, Virginians with prior felony convictions are permanently disenfranchised and may only have their civil rights restored at the discretion of the Governor upon full completion of their sentences. This policy has historically been interpreted as requiring the payment of all court costs and fees, as well as the successful completion of applicable probation or parole periods. State policy also required would-be voters to affirmatively request restoration of their rights via an application to the Governor and Secretary of the Commonwealth. While Virginia’s gubernatorial administrations now work proactively to restore voting rights to all who are eligible (therefore eliminating the application stage), new voters are often unaware their voting rights have been revived.

Virginia Cuts the Cable, Gets Same Day Voter Registration

jaboone · November 20, 2020 ·

By: Allen Coon

It was an early Tuesday morn when the Commonwealth awoke to an October surprise all of its own: on October 12^th, the last day for eligible Virginians to register to vote in the November 3^rd General Election, a Chesterfield County utilities crew accidentally severed a cable providing online connectivity for multiple Commonwealth agencies—including the Virginia Department of Elections. Prospective voters who had hoped to register or update their registration online were denied the option, with no alternative but to register in-person by 5:00 p.m.

In October 2016, when a similar technological malfunction prevented applicants from registering online, such a glitch may have posed a burden for citizens with limited or no transportation access or employment flexibility. Now, during a global pandemic, the unavailability of online registration also required all in-person applicants—and specifically elderly, poor, disabled, and minority Virginians (all vulnerable populations)—to unnecessarily risk exposure to COVID-19.