The State Board of Elections and Department of Elections (ELECT) just made it easier for every Virginian to request an absentee ballot (AB). As the former Secretary and senior member of the Electoral Board in the largest jurisdiction in Virginia, I’m happy to see SBE and ELECT making good decisions that make access to the ballot easier for all Virginians. As a Republican, I am saddened to, yet again, see an innocuous change that will increase convenience for voters attacked by Republicans for partisan political purposes.
The process for requesting an absentee ballot in Virginia is laborious. Unlike voter registration, where there’s an online registration system that is run by the Department of Elections, requesting an absentee ballot  remains mired in mid-20th century policy. An individual who wants an absentee ballot must physically print the form, fill it out, sign it and mail it (or they scan and email it, or fax it) to their local Electoral Board in order to receive an absentee ballot. Political campaigns and voter rights groups have tried to speed up that process, creating software and programs that allow for pre-printed forms for individuals, who simply need to fill in certain data that’s not pre-filled. This sped up the process, and the use of software helped to ensure that voters completely and appropriately filled out the application – I can’t tell you the number of applications denied because of mistakes in filling out the forms. It’s a perennial problem. Even with these pre-filled and software aided systems, the voter still has to print the application, and pay for postage to mail it or go through the hassle of scanning and emailing or finding a fax machine. Needless to say, in a world where you can do almost everything online, the inability of voters to request absentee ballots without going through a laborious and time consuming process is a failure in policy that needed to be addressed.
SBE and ELECT decided to address it. The biggest stumbling block to creating an e-file AB application has always been the signature requirement. Each voter requesting an AB needed to physically sign the application and send it in, as required by Virginia Code § 24.2-701 . What SBE essentially did was allow for an electronic signature to be sufficient on an AB application, rather than demanding a physical signature. Since § 24.2-701 simply requires a “signature” and doesn’t specify that it requires a physical one, this is an easy interpretative change that will provide significant convenience to voters, especially those like me who prefer one-step, online processes. It’s also an interpretive change that brings this signature requirement in line with other signature requirements in Virginia law.
It didn’t take long for the knives to come out attacking “the McAuliffe SBE” for this decision, trying to score some partisan points. The attacks are meritless.
First, Susan Stimpson has attacked Speaker Bill Howell for apparently requesting that SBE address this issue, and then attacked him for providing a service via his website where voters can request an AB using an electronic signature. She asks a number of questions in an email sent around about the change, and Jamie Radtke has a typical post up on the blog she occasionally writes for in support of Stimpson attacking the change.
Stimpson first asks “Why wasn’t this done by the General Assembly and why was it necessary to take this action just weeks before an election?” The answer to the first part of the question is simple – it doesn’t require a statutory change.
Signatures hold a special place in the mythology of elections – in law in general. We require them on all kinds of documents, from receipts for credit cards to pretty much every government document. From a legal stand point, the signature is usually just a formality – the lack of a signature on many different kinds of things won’t destroy their validity. When it comes to voting, that’s especially true, because the signature is primarily designed as part of an attestation that the person filling out the form – whether it’s an actual ballot or just a form – understands that knowingly providing false information will subject them to criminal penalties. It’s not the signature that triggers the penalties, it’s the act of knowingly providing false information. Under Virginia law, if you falsely fill out a form and turn it in, even if you don’t sign it you’re still subject to penalties for providing false information. The signature itself adds no greater protection. Electronic signatures have been accepted in Virginia for almost fifteen years now .
As for the timing, in Virginia, one thing you’ll learn is that no matter when you make a policy change, you are close to an election. In my two years on Fairfax County’s Electoral Board, we supervised nine elections. We had a running joke in the office that saying you would wait to get a major project done “after an election” was tantamount to saying it will never get done – there’s always another election coming up.
Stimpson next asks “Why is Bill Howell the only candidate with a website prepared to capitalize on this change?” The answer to that question is simple: he’s not. The fact that he’s got a product up on his website that allows for ABs is great for every candidate running in the June 9th primary, including her. If I were her, I’d direct all of my voters who want an AB and want to get it without going through a time consuming process to use Bill Howell’s system. The Speaker can’t determine who the voter requesting an AB using his system is voting for, so Stimpson should be taking advantage of something Howell is doing that can benefit her. He paid money for a system that can help her with her own ABs. She should be trumpeting that to her supporters. That’s what I would do. Instead of complaining, use it to your advantage. This has a big benefit for a lot of Virginians, especially those serving overseas in the military or in the foreign service. Use your communications to help spread the word – they’ll appreciate it, even if you didn’t have anything to do with it. That’s just good politics.
Finally, Stimpson asks “Why did Terry McAuliffe’s electoral board go along with this?” I think it’s unfair to characterize SBE as “Terry McAuliffe’s Board.” The Board has two Democrats and one Republican – Dr. Clara Belle Wheeler, a very good friend of mine and one of the best in this business – and it’s Virginia’s State Board of Elections, not Terry McAuliffe’s. But to answer the question, they made this decision, unanimously, because it was the right thing to do and a good policy change, one that has been requested for a while now, including by folks like me when I served on Fairfax’s Board. I spoke directly to a number of folks at SBE and in the General Assembly during my tenure about my concerns with the AB process and how it was rife with inefficiencies and unnecessary busy work, and this issue was one I pointed out. Dr. Wheeler is one of the toughest in the Commonwealth on voter fraud issues, and if she thought there was a chance this could result in fraud, I don’t believe she would have voted for it. We’ve talked at length about these issues, and she supported me when we took on voter fraud issues in Fairfax when I was Board Secretary. She’s a straight shooter, and as good a Republican as you’ll find in Virginia. She’s nobody’s shill and she’s nobody’s fool. I don’t appreciate Republicans attacking her. I know what it’s like to take friendly fire for doing your job on behalf of all the citizens, and she doesn’t deserve it.
It’s important to note that according to the Washington Post , Stimpson doesn’t disagree with the change, but is angry she was not informed. SBE meetings are open to the public – if she was unaware of the changes, that’s not SBE’s fault. They complied with FOIA and the open meetings laws. SBE also informed RPV, who had the obligation to pass the information on to candidates. Did RPV do that?
Susan Stimpson isn’t the only person complaining. Sideshow Bob Marshall sent out his own email blast , claiming that voter fraud just got easier in Virginia. As usual, Bob’s email is long on hyperbole and short on facts and analysis. I wouldn’t expect more.
Former State Board of Elections Chairman Charlie Judd has come out against the change as well, claiming in a post on Facebook that he was opposed because the system “wasn’t ready for prime time” and “that allowing electronic signatures provides a tool that could be used to commit voter fraud.”
I disagree. The likelihood of voter fraud on an application with an electronic signature is no different than one with a live signature.
The signature itself doesn’t deter fraud or make it harder. It’s just as easy to fake a signature if you’re determined to commit fraud as it is to use an electronic one. The only time anybody is going to compare signatures on the applications with those on the returned ballot is in the event that there is some kind of action on election day that raises into question the issue of whether the ballot was fraudulent. Say, a voter comes to vote on election day and they are marked in the poll book as having already voted absentee. They would vote a provisional ballot, and the local Electoral Board would evaluate the provisional during their provisional ballot meeting to determine if the individual had mailed back a valid AB. If they had, and the voter claims they didn’t vote AB, a further investigation would ensue and at some point it may be possible that signatures would be compared, but the signature comparison gives us no idea who the fraudster is, it just helps to confirm that the voter’s story is true. While not all boards are the same, I always gave voters the benefit of the doubt when they appeared before me unless we had corroboration that they were lying (which, unfortunately, did happen more than once).
Whether it’s a fake signature by hand or a fake electronic signature, if someone is determined to steal someone else’s AB, the form of the signature won’t matter. That’s why the form requires additional information, all of which must be accurate and correct, in order for the application to be processed. If someone has all of the information needed to falsify an AB and actually get it processed, the signature requirement isn’t going to stop or otherwise deter them.
Here’s the bottom line – this change will have no impact on voter fraud. Voter fraud is a legitimate and serious problem, and it cheapens the charge to throw it out every time any electoral body makes a change that impacts ballot access. This change won’t increase the likelihood of fraud.
Anybody who is in election administration can tell you that we, as a body politic, desperately need to drag our elections system into the 21st century. This was a common sense change to help do that.
Stimpson has called this “cheating.” I call it “enhancing liberty.” Making it easier to vote enhances liberty, and government should be finding every way possible to make voting easier without impacting the integrity of the ballot.
This was the right thing for SBE to do, and I support the change.