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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. 

If You’re Gonna Vote in Texas (You Gotta Have a Legally-Qualifying Building?)

Election Law Society · November 1, 2021 ·

It starts with tents in Houston and turns into a legal melee with forty-eight interested parties in federal court. The November 2020 elections were particularly newsworthy, featuring a contentious presidential race happening many months into an ongoing pandemic. So how do tents and Black’s Law Dictionary come into it?

Harris County, whose county seat is Houston, Texas, responded to public concerns about voting during COVID by expanding “curbside voting” during early voting with drive-through, multi-car tents (as seen here). Curbside voting has long been allowed through Texas Election Code Chapter 64 (Voting Procedures), § 64.009 – Voter Unable to Enter Polling Place. Inability was broadly defined in the Code as “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health,” the latter provision utilized to justify the drive-through voting. However, Texas Attorney General Ken Paxton released guidance pushing back on this, stating “[f]ear of COVID-19 does not render a voter physically unable to cast a ballot inside a polling place without assistance,” while still recognizing election officials should not question a voter’s qualifications for being “physically unable” to enter the building.

[Read more…] about If You’re Gonna Vote in Texas (You Gotta Have a Legally-Qualifying Building?)

In a Challenge to West Virginia’s Ballot Order Law, Will the Fourth Circuit Continue a Post-Rucho Trend of Limiting Federal Review of State Election Laws?

Election Law Society · September 30, 2020 ·

By Daniel Bruce

A ballot order challenge currently pending before the Fourth Circuit may have significant implications for the development of political question doctrine following the Supreme Court’s controversial decision in Rucho v. Common Cause.

In August, the United States District Court for the Southern District of West Virginia enjoined the West Virginia Secretary of State from enforcing the state’s nearly thirty-year-old ballot order statute and ordered it to implement a nondiscriminatory alternative for the 2020 election. Passed by Democrats in 1991, W. Va. Code § 3-6-2(c)(3) requires candidates appearing on statewide ballots to be placed in the order of the party whose candidate received the highest number of statewide votes in the previous presidential election.

[Read more…] about In a Challenge to West Virginia’s Ballot Order Law, Will the Fourth Circuit Continue a Post-Rucho Trend of Limiting Federal Review of State Election Laws?

Can Virginia Become a Redistricting Unicorn like Iowa?

Election Law Society · October 27, 2017 ·

By Aaron Barden

There was a lizard on the floor of the James City County (JCC) government building’s Board of Supervisors meeting hall on August 8th, 2017. I was there to watch the board consider OneVirginia2021’s resolution, which in most cases does little more than declare support for non-partisan redistricting. But JCC’s resolution was different. The resolution had a paragraph tacked to the end that would have changed the County’s local redistricting procedure from a citizen board with no criteria-based restrictions (preventing use of party, no incumbency protection, etc.) to a reliance on the Board’s staff to draw the lines with such restrictions. [Read more…] about Can Virginia Become a Redistricting Unicorn like Iowa?

North Carolina’s 2013 Voting Laws Were Struck Down By the 4th Circuit, But The State May Not Be Out of the Legal Fights Yet

Election Law Society · November 6, 2016 ·

By: Blake Willis

When the Fourth Circuit struck down North Carolina HB 589, the notorious law which toughened voter-ID requirements, limited early voting, and limited same-day registration, many who champion voter rights believed that North Carolina’s long-standing history as a state with suppressive voter laws may begin to change. However, that optimism may be short lived as North Carolina is now facing challenges on two other election law provisions.

[Read more…] about North Carolina’s 2013 Voting Laws Were Struck Down By the 4th Circuit, But The State May Not Be Out of the Legal Fights Yet

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