LEGISLATIVE PROPOSALS

Virginia General Assembly 2008 Session

Verifiable Voting Coalition of Virginia Urges New Measures for Voting Machine Security and Accuracy

Last year the General Assembly passed much-needed legislation banning the purchase of new direct record electronic (DRE) voting machines, beginning in July of 2007. The Verifiable Voting Coalition of Virginia (VVCV) supports the ban on new DREs as the first step towards having all Virginians vote on paper ballots tallied by optical scanners, a more secure, less expensive, and voter-verifiable technology that most jurisdictions already use for mailed-in absentee ballots.  

However, the legislation as passed did not address two issues critical to achieving voter confidence: meaningful recounts in the event of close races, and audits of voting machines to ensure they correctly record voters’ choices. Under existing law, recounts essentially amount to having election machines restate the original results, with no examination of the underlying votes. Similarly, the lack of any provision for audits means we do not routinely compare samples of machine counts to the actual votes cast to ensure the accuracy of the machines.  

As jurisdictions transition to optically-scanned paper ballots, we will finally have the “paper trail” that makes it possible for both voters and election officials to verify the accuracy of the machines. Legislation providing for meaningful recounts and random audits is an obvious and necessary next step in our progress towards security, transparency and reliability in our electoral system. 

In addition to these steps, the VVCV believes two new measures would further serve these objectives. First, the legislature should improve the currently-inadequate certification process for voting machines used in Virginia to include input from independent experts in election management, computer security, and handicapped accessibility, and to allow the State Board of Elections (SBE) to consider the experience of other states. Our proposed legislation would also give the SBE the authority to investigate and decertify election systems when problems are discovered after certification.

Secondly, the legislature should provide direction and funding for a study of the voting systems currently in use in Virginia similar to those that have been conducted in other states. The study should include a “top to bottom review” of voting equipment to identify security and reliability concerns, an examination of the policies and procedures used by Virginia jurisdictions to determine the vulnerability of our elections, and a look at the manageability and handicapped accessibility of voting equipment as used in Virginia.

VOTER REGISTRATION RECEIPTS

New Era for VA recommends that the Virginia voter registration form be changed to add a tear-off receipt to be given to the person registering to vote. The receipt would include the name of the office, group or person accepting the registration form; the date of registration; and a phone number for the voter to confirm his or her registration.

Problems with voter registrations show the need for receipts. Attorneys working with New Era for VA have encountered many instances of voters being turned away from the polls on Election Day because they did not appear in the registration records, when the voters believed they had properly filled in and submitted their registration forms.

In some cases, the voters may not have filled in the forms correctly or completely; this seems to be a particular problem with voters who register at the DMV. In other cases, it appears that the voters filled in forms during a registration drive, and these forms may not have been submitted to the Registrar’s office for processing.

In either case, a receipt would alert the voter to call the State Board of Election’s toll-free number or check the web site if the voter registration card is not received in the mail before the end of the registration period. In this way, the voter could fix any problems before the close of the registration period. The receipt would also allow the Board of Elections to identify problems with a registration drive that was not submitting forms, and take action against those running the drive.

Requiring registration groups to give receipts to voters prevents fraud. Currently it is difficult to determine whether a registration group may be deliberately and fraudulently failing to deliver completed registration forms to the registrar’s office, simply because there is no way to track forms. Yet any such effort to defraud citizens of their right to vote would be quickly revealed if voters are able to present proof that they completed forms provided by a particular group. Accordingly, the use of receipts can be expected to prevent this form of fraud.

Receipts will improve the registration process at little additional cost. In addition to preventing fraud, receipts will empower voters to check their registration status and take action to correct errors. They will also be able to find out the location of their polling station in the same phone call. The result will be fewer voters who are turned away at the polls because they are unregistered, and fewer who go to the wrong precinct. Yet, redesigning the registration form to include a tear-off portion at the bottom will cost very little, and there will be no added administrative costs from the change.

Receipts are a cost-effective strategy beneficial to voters and election officials alike.

No-Excuse In-Person Absentee Voting

New Era proposes that the Legislature amend the Virginia Election laws to allow any voter to cast an absentee ballot before the general election by appearing in person at a registrar’s office during the hours when in-person absentee voting is offered. For in-person voting only, the voter would not be required to provide an excuse why he or she could not vote on Election Day. This proposal would ease the current confusion about absentee voting, help shorten lines on Election Day, make voting more convenient, and improve turnout, especially among working people.

Currently, Virginia voters can vote absentee only by claiming one of nine valid excuses, including not just several different categories covering an anticipated absence on Election Day, but various hardships that range from disability to a work and commuting schedule that takes up at least eleven of the thirteen hours the polls are open.

While the absentee provisions do allow many citizens to vote who might otherwise be unable to, they are also the source of confusion among both voters and election officials. For example, during the 2004 election, workers from both parties erroneously told senior citizens that they were entitled to vote absentee because they had passed the age of 65. These seniors were subsequently turned away when they showed up at registrars’ offices seeking to vote before Election Day. On the other hand, some working people with long commutes lost the opportunity to vote because they could not get to the polls by 7 p.m., a situation they could have avoided by voting absentee had they understood that they were permitted to do so. Finally, there were instances in which registrars’ staff grilled voters on the details of their excuses or turned away voters who were legitimately entitled to vote absentee.

The excuse requirement presents a stumbling block for anyone with a reason to vote ahead of the general election, but they present a particular problem for many elderly voters, who would prefer to avoid the bustle of their local precinct but may not qualify to vote absentee; and business travelers, who often don’t know their schedules sufficiently in advance to be able to swear they will be absent on Election Day. Long hours, long commutes, and unexpected travel plans have become normal for Virginia workers, and our election procedures should accommodate this new reality.

Eliminating the excuse requirement for voters who show up in person to vote absentee will prevent all these problems and make absentee voting as straightforward as voting on Election Day. It would also encourage absentee voters to vote in person rather than by mail, reducing the concerns about fraud or coercion that have been raised in the context of mail-in ballots.

No-excuse in-person absentee voting will take Virginia one step closer to the goal of ensuring that every eligible voter has the opportunity to cast a ballot.

Non-Partisan Redistricting

Voters should choose their representatives; politicians should not choose their voters.  Under current law, the General Assembly establishes electoral districts for members of the House of Representatives, the House of Delegates and the Virginia Senate.  In making these determinations they must comply with federal equal protection guarantees, but there are no restrictions on favoring political parties.  Thus, Virginia voters may be packed into districts that heavily favor one party.  We believe that gerrymandering is bad for voters and for the political system.  Packing voters into uncompetitive districts disenfranchises those in the minority, causes elections to be decided at the primary level and moves the political dialogue towards the extremes. 

This year offers an opportunity for Virginia to change its redistricting system to one that fosters competition and ignores entrenched political interests.  The General Assembly is split; Republicans hold the House and Democrats hold the Senate.  Redistricting is coming and neither party knows whether they will be in control of the process.  Thus, both sides should see a potential benefit in removing partisanship from redistricting.  The General Assembly will be considering this issue in several bills.  Bills have been offered by Senator Janet Howell, Senator Creigh Deeds, and Delegate Kenneth Plum.  We urge you to contact your Delegate and Senator to urge them to support Senator Howell’s and Senator Deeds’ bills on this issue.  All of the bills are described below.   

Senator Creigh Deeds has introduced two bills on non-partisan redistricting.  The first bill, SB 38, would establish a Bipartisan Redistricting Commission.  The standards set forth in the bill would require certain factors to be taken into account in drawing district boundaries.  Districts would be required to be compact, contiguous and as equal in population as is practicable.  Districts should also respect the boundaries of existing political subdivisions and encompass communities of interest, to the extent practicable.  The standards would also prohibit certain factors from being taken into account.  Prohibited factors include the impact on incumbent legislators, members of Congress, or known candidates for office, or promotion of the interests of a political party.

The Commission would be composed of five members selected from a panel of retired judges.  The Speaker of the House of Delegates, the minority leader of the House of Delegates, the President pro tempore of the Senate and the minority leader of the Senate would each appoint one member of the pool to serve on the Commission.  The four Commission members would then appoint a fifth member, by majority vote.  That fifth member would be the Chairman of the Commission. 

The Commission would then create a redistricting plan (the first plan) based on the standards described above.  The first plan would be submitted to the General Assembly.  The plan could be accepted or rejected but not modified.  If the General Assembly rejects the first plan, then the Commission would create a second plan based on the standards and the comments of the General Assembly.  The second plan would be submitted to the General Assembly.  This plan could also be accepted or rejected but not modified.  If the second plan is also rejected, the Commission would create a third plan based on the standards and the comments of the General Assembly.  The third plan would be submitted to the General Assembly and could be accepted or modified.  

This bill is an interim measure that would improve the redistricting process after the next census.  The second bill, described below, would provide a more permanent solution, but requires amending the Virginia Constitution which requires multiple steps and therefore cannot be accomplished this year.   

The second bill, SJ 5, would amend the Virginia Constitution to establish the Virginia Redistricting Commission.  The Commission would establish electoral districts that are contiguous and compact and as equal in population as is practicable.  District boundaries should coincide with existing boundaries of political subdivisions.  Districts may not be drawn to favor a political party or incumbent legislator or member of Congress.  Factors that cannot be taken into include addresses of incumbent legislators or members of Congress, political affiliations of registered voters, previous election results, or demographic information, other than population counts, except as required by the U.S. Constitution and laws. 

The Commission would be composed of 13 members.  Twelve members would be appointed as follows:  two by the President pro tempore of the Senate, two by the Speaker of the House of Delegates, two by the Senate minority leader, two by the House of Delegates minority leader, two by the chairman of the state committee of the Governor’s political party, two by the chairman of the state committee of the political party whose candidate for the office of Governor received the second most votes in the most recent gubernatorial election.  These 12 members would then elect the 13^th member, the independent member.  Election would require at least seven votes.  The 13^th member would be Chairman of the Commission. 

 The Commission would hold hearings and establish electoral districts.  Approval of a plan requires seven votes.  If the Commission cannot agree on a plan two plans receiving the greatest number of votes, but not fewer than five, shall be submitted to the Supreme Court.  The Court will select and certify the plan that most closely conforms to the requirements of Virginia and federal law. 

Once districts are established shall remain unaltered through the next year ending in zero. 

Senator Howell’s bill, SB 243, is essentially identical to SB 38 expect for the composition of the Commission.  Under SB 38, the five Commission members would be selected from a panel of retired judges.  Under SB 243, there would be seven members, appointed as follows:  one by the President pro tempore of the Senate, one by the Speaker of the House of Delegates, one by the Senate minority leader, one by the House of Delegates minority leader, one by the chairman of the state committee of the Governor’s political party, one by the chairman of the state committee of the political party whose candidate for the office of Governor received the second most votes in the most recent gubernatorial election.  These six members would then elect the seventh member, the independent member.  Election would require at least four votes.  The independent member would be Chairman of the Commission. 

Delegate Plum has offered HB 339, the Virginia Advisory Redistricting Commission Act.  Although Delegate Plum’s bill would be a step in the right direction, we prefer the Howell/Deeds approach because those bills give the Commission more power.  HB 339 would appoint a Commission whose duty would be to develop a redistricting plan using standards similar to those set forth in SB 38 and 243.  HB 339 would, however, submit only a single plan to the General Assembly and the General Assembly could adopt or modify that plan.  In our view, this process is less likely to result in a non-partisan plan since there is no real incentive for the General Assembly to adopt the redistricting commissions’ plan.  The Senate bills, because of the multi-stage process, encourage negotiation and compromise.  Therefore, we believe they are better bills and urge you to urge your Senator and Delegate to support SB 38 and 243 and SJ 5.