Date: Mon, Aug 17, 2015 at 1:13 PM
Subject: Continuing Problems at the State Board of Elections
The recent proposed rule change to Virginia voter registration forms may only have been a distraction.
Proposed regulations to effectively transfer all of the State Board of Elections' authority to the politically appointed Commissioner of Elections will be voted on at SBE's meeting on September 1st.
This could result in the Commissioner unilaterally declaring any changes to the voter registration form the Commissioner wants, and that would only be the beginning of the potential mischief.
Please do what you can to publicize this matter and stop it from happening. The registration form proposal was halted in part because so many irate Virginians showed up at SBE's August meeting.
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Subject: | Continuing Problems at the State Board of Elections |
Date: | Mon, 17 Aug 2015 11:07:16 -0400 |
From: | Dr. Keith Damon, RPV SCC 11th CD <kgdamon@pheasridge.com> |
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On July 30 I sent you an email describing several problems that we are having with the State Board of Elections and what we could do about them. There is some good news and some very bad news!
The first problem related to a proposed change to the SBE Voter Registration Form in which answering the three voter eligibility questions on the form (citizenship, felony convictions and mental competency) were to be made optional, being replaced by a revised Affirmation Signature Statement. This revised Affirmation would include the correct answers to the three eligibility questions, thus implying that, if signed, the applicant was stating his eligibility. The new approach would make it virtually impossible for the successful prosecution of voter fraud if the applicants were found to have lied about their eligibility. I asked you and your colleagues to send in public comments against these changes and 88% of the 1251 comments did oppose the changes. Sen. Tom Garrett, Del. Jim LeMunyon and Del. Tim Hugo effectively led the General Assembly Republican Caucus' opposition to these changes as well. If you are not already aware, I am pleased to report that the Chairman James Alcorn of the SBE has withdrawn this proposal from consideration at the SBE September 1 meeting "because of the concerns raised in the Public Comments". Surprisingly enough, even the Washington Post was willing to publish my Letter to the Editor pointing out these results.
While the news that the voter registration form changes will be postponed is a victory, it is at best a temporary victory since we will have further battles. Last week the Washington Post featured a front page article regarding Gov. McAuliffe's effort to eliminate "voter restrictions". The Governor - through Edgardo Cortes (Commissioner of Elections) and the Democrat-controlled SBE - will be attacking all of safeguards that the Code currently has in place to ensure integrity of the voting process - all in the name of simplifying the voting process.
I have previously mentioned a more pernicious problem that will be discussed and voted on at the September 1 meeting of the SBE regarding the delegation of activities and assignment of responsibilities within the Office of Elections between the Commissioner and the State Board. As background, the 2013 General Assembly passed a bill - SB 1229 (amending §24.2-102 amongst others) to create the Department of Elections and a Commissioner to be appointed by the Governor for the purpose of employing "the personnel required to carry out the duties imposed by the State Board of Elections." Basically this created an administrative agency within which the SBE would operate. The same 2013 bill also amended §24.2-103 Sections A & B so that these Sections read "The SBE , through the Department of Elections, shall ........" to describe the duties and responsibilities of the SBE. At no point in these Sections of the Code was there any specific mention of any role of the Department of Elections or the Commissioner in the existing SBE duties other than its implied role from §24.2-102 to provide the administrative support enabling the SBE to carry out its duties. §24.2-103 Section E was also added as a requirement for the new Department of Elections to supervise its staff to ensure that they are not officials in a political party or are paid staff or a volunteer for a candidate for public office. Hopefully this would create a staff that is at least outwardly non-partisan although, of course, it really will never be non-partisan.
In 2011 the SBE created/amended several Regulations (1VAC20-20-10, 1VAC20-20-30 and 1VAC20 -20-60) to interpret the the Code (§24.2-103) and specifically to describe the duties and responsibilities of the Secretary and other members of the SBE. Now the SBE wants to change these Regulations to replace the word "secretary" with "Commissioner" (see attached copy of the proposed changes taken from the Virginia Register of Regulations (Volume 31, Issue 15, pages 1370/1 from March 23, 2015). These changes basically give the duties and responsibilities of the Secretary of the SBE to the Commissioner. The difficulty with these Regulation changes is that they go beyond merely changing the interpretation of the Code (§24.2-103) into the realm of the changing the spirit and intent of the General Assembly by changing the Code itself. As described above, the Secretary of the SBE was given certain duties and responsibilities by the General Assembly through the Code and now they are being given away to the Commissioner. As with all Regulation changes, a Public Comments period was set. Unfortunately this proposed change was "under the radar", never questioned and the comments period expired in May of this year. I have not determined this but it is possible that no one submitted a single Public Comment. These Regulation changes will be voted on by the SBE at their September 1 meeting.
The minutes of the June 22, 2015 SBE meeting indicate there was a discussion of these Regulation changes under the agenda topic "Amended Delegation Regulations" (Lines 164 -181 of the minutes, copy attached). The discussion centers around three items which will be voted on at the September 1 meeting:
- approve staff's proposed regulations conforming to the 2013 legislation naming the Commissioner of Elections agency head: The Department of Elections was created by 2013 SB 1229. The bill amends § 24.2-101, 102, 103, 411.2, 464, 502, 644, 713, 946.4, 953.3 and 953.4. A summary of this bill as passed, taken from the Virginia 2013 LIS, is attached. Nowhere in the summary or in any of the amended sections of §24.2 is there any indication that the duties given to the SBE may or should be delegated to the Commissioner. The staff proposals appear to exceed the authority given to the Commissioner since the Code gives the SBE the responsibility to interpret the Code through Regulations and there is nothing giving them the right to delegate away this responsibility.
- delegate to the Department of Elections responsibility for the drawing to determine ballot order in special elections: This task, while not very significant, is again a change to the Code.
- delegate to the Commissioner authority to determine when changes to forms, instructions and guidance documents require Board approval: This has very serious implications with the potential to completely change the role of the SBE. Approval of Item 1 delegates the duties and responsibilities of the SBE to the Commissioner but nothing indicates that there would be any modification of the approval process for changes to the election process itself (Regulation drafted, Regulation published, public comments, SBE approval). Presumably the Commissioner would recommend changes and then pass them to the SBE for the normal approval process. This item 3, however, apparently gives the Commissioner the authority to totally bypass the SBE as he wishes and make changes to the any part of the election process itself under his own personal authority. Thus, the Governor-appointed (and likely partisan) Commissioner can make changes to the election process that previously had to go through the review and discussion process for approval by the bi-partisan SBE and eliminates any input by the public through the Public Comments bulletin board. Given this scenario, the proposed changes to the voter registration form could theoretically be implemented without any review whatsoever upon the authority of the Commissioner alone. This could have a disastrous effect on the election process in Virginia if it is approved. I do not believe this is a partisan issue since the Commissioner could be of either party and he could make "unchecked" changes in either direction. Further, even if I thought this were a "legal" change (I don't because it goes beyond an interpretation of the Code and thus is a GA prerogative), it has never gone through the SBE approval process and certainly there has been no Public Comments period.
I am not sure what we and the grassroots can do about this since the Public Comments period has expired. All I can think to do is send emails to the Commissioner and the SBE members and then speak at the September 1 meeting. However, as I have indicated above, I do believe this is a General Assembly problem because what is being voted upon will fundamentally change the Code and that is the business of the GA. Thus, it would be valuable for you to let your HOD and Senate members know of this problem. In my opinion, the Governor and the Commissioner are attempting a power grab so that they can make whatever changes they want to "simplify the election process" and by doing so, completely bypass the SBE, any public review and any intentions of the GA. I obviously ask for your help to stop this.
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Dr. Keith G. Damon
Republican Party of Virginia
11th CD Representative
703-818-2628
Opportunity for ALL, favoritism for NONE!
Opportunity for ALL, favoritism for NONE!
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