Following Election Day, in a transparent attempt to give Republican attorney general candidate Mark Obenshain an advantage, Virginia’s State Board of Elections ordered Fairfax County to change how provisional ballots are counted, right in the middle of the vote-counting process. Provisional ballots are cast by voters whose eligibility is in question — perhaps they changed addresses and didn’t update their registrations, or forgot to bring an ID to the polls or their names are misspelled on the electoral rolls. Once polls are closed, legal or otherwise permitted representatives at the polls can advocate for those ballots to be counted.
Under orders from current Republican Attorney General Ken Cuccinelli, who recently lost his bid for governor, Fairfax County, which leans blue, had to retroactively change the rules so that legal proxies are no longer allowed to advocate for ballots if the voters themselves are not present. Voters had until last Tuesday to come back to the polls to defend their ballots.
Cuccinelli’s order to change how provisional ballots are counted was clearly strategic. Fairfax County is largely responsible for Democratic candidate Mark Herring’s current slight lead over Obenshain, and this race is so close that the 493 provisional ballots in question are the determining factor in the election. Since Fairfax County has finished counting its votes, Herring has come out ahead and is therefore the likely winner, but the state has not yet confirmed this. Obenshain refuses to concede, and there is a high likelihood of a recount.
Changing the rules at the last minute was an obvious attempt to shift the advantage toward Obenshain, and though it is unlikely to swing the election the way Cuccinelli wanted, it is still concerning. This sudden alteration obstructs voting rights, and that is objectionable no matter what your political affiliation is. Fairfax County has not previously required voters to return to the polls and advocate for their ballots, and since the ruling came post-Election Day, voters who cast provisional ballots were not told at the polls that they would need to return. This means there was no way to ensure that all voters found out about the new requirement (unless they frequently checked the Fairfax County Board of Elections site), and, equally as importantly, that they would be able to return to the polls at all, since scheduling issues and work might not permit it for some voters.
This is exactly the reason why voters would choose in the first place to send a legal representative to advocate for their ballots; voting is often inconvenient, and returning to argue the validity of your vote is even more so. Voters who work full time and have familial responsibilities need to be able to send someone in on their behalf; removing this right is especially unfair to those who simply can’t return to the polls because of other important obligations.
Any complication in the voting process automatically undermines it. The sudden change in protocol in this election creates an unnecessary obstacle to counting votes, and it forces voters to quickly adjust to a new voting procedure after already having voted. The new rules for Fairfax County were imposed well after Election Day, right in the middle of the Election Board’s vote counting process, and this is unfair to voters and officials alike who have been accustomed to the way they have handled provisional ballots in Fairfax County for years.
The fact that Cuccinelli is adjudicating this issue is itself troubling. Cuccinelli is the first attorney general in Virginia since 1993 to choose not to step down from his position while running for governor. Past attorneys general have stepped down because legal matters concerning voting would be within their jurisdiction, which means there is a possibility that they would have to oversee issues in their own elections — a clear conflict of interest. Though the results of Cuccinelli’s own race are not close enough to be challenged, he maintains the power to oversee the other races in Virginia, and is using it to his party’s advantage. His decision has compromised the political system, and it is also a clear overreach of power in order to sabotage the Democratic candidate for attorney general.
Voting rights should not be toyed with for strategic purposes; that is not how a democracy functions. The Fairfax County Electoral Board, made up of both Republicans and Democrats, seems to believe this; among other members of the Board, Brian Schoeneman, the secretary of the Electoral Board and a Republican activist, disagrees with the attorney general’s office’s decision. Voting is a fundamental right and the treatment of these provisional ballots is just another new, creative way to interfere with it.
Dani Bernstein is an Opinion columnist for The Cavalier Daily. Her columns run Tuesdays.
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