DISCLAIMER This nutshell was prepared for informational purposes only. It is not legal advice and is not intended to and does not create an attorney-client relationship. Any decision to take action, legal or otherwise, or to obtain legal advice or an attorney, should not be based solely on information contained in this publication.
TABLE OF CONTENTS INTRODUCTION... 5 ABOUT ADVANCEMENT PROJECT... 5 VOTER REGISTRATION... 6 WHO MAY REGISTER TO VOTE?... 6 WHEN WILL THE PRIMARY AND GENERAL ELECTIONS BE HELD?... 6 WHAT IS THE VOTER REGISTRATION DEADLINE FOR EACH ELECTION?... 6 WHERE CAN A PERSON APPLY FOR VOTER REGISTRATION?... 7 WHAT INFORMATION MUST BE PROVIDED ON A VOTER REGISTRATION APPLICATION?... 8 HOW DOES A HOMELESS PERSON REGISTER TO VOTE?... 9 MAY A PERSON REGISTER TO VOTE BY MAIL? IF SO, ARE THERE SPECIAL REQUIREMENTS FOR FIRST- TIME VOTERS WHO REGISTER TO VOTE BY MAIL?... 9 WILL MAIL-IN VOTER REGISTRATION APPLICATIONS BE ACCEPTED IF THEY ARE RECEIVED BY THE REGISTRAR S OFFICE AFTER THE REGISTRATION DEADLINE?... 10 CAN VOTER REGISTRATION FORMS BE CORRECTED AFTER THE DEADLINE?... 11 GENERALLY, NO. IF AN APPLICATION IS REJECTED BECAUSE THE APPLICANT FAILED TO SIGN THE APPLICATION OR OTHERWISE FAILED TO PROVIDE A REQUIRED ITEM OF INFORMATION, THE APPLICANT CAN CORRECT THE REGISTRATION APPLICATION--BUT MUST DO SO BY THE REGISTRATION DEADLINE. IF A PERSON SUBMITS THE CORRECTED OR COMPLETED APPLICATION AFTER THE DEADLINE, THEIR APPLICATION WILL BE PROCESSED AFTER ELECTION DAY.... 11 ARE THERE ANY RULES ABOUT ASSISTING OTHERS WITH THE COMPLETION OF A VOTER REGISTRATION APPLICATION?... 11 HOW MANY VOTER REGISTRATION APPLICATIONS MAY INDIVIDUALS OR GROUPS CONDUCTING VOTER REGISTRATION DRIVES RECEIVE FROM THE STATE BOARD OF ELECTIONS OR REGISTRAR OFFICES?... 11 ARE THERE ANY SPECIAL RULES PERTAINING TO THE FEDERAL REGISTRATION APPLICATION?... 11 MAY PERSONS CONDUCTING VOTER REGISTRATION DRIVES MAKE COPIES OF COMPLETED VOTER REGISTRATION APPLICATIONS BEFORE DELIVERING THEM TO THE REGISTRAR S OFFICE?... 12 ARE PERSONS CONDUCTING VOTER REGISTRATION DRIVES REQUIRED TO DELIVER OR MAIL COMPLETED VOTER REGISTRATION APPLICATIONS TO REGISTRAR OFFICES WITHIN A CERTAIN TIME LIMIT?... 12 THESE DEADLINES ARE EXTREMELY IMPORTANT BECAUSE ANY PERSON WHO FAILS TO MAIL OR DELIVER THE APPLICATION IN A TIMELY MANNER SHALL BE GUILTY OF A CLASS 1 MISDEMEANOR.... 12 WHEN VOTER REGISTRATION APPLICATIONS ARE MAILED OR DELIVERED TO ELECTION OFFICIALS, HOW LONG WILL IT TAKE FOR THE APPLICATIONS TO BE PROCESSED?... 12 WHAT CAN A PERSON DO IF THEIR APPLICATION IS DENIED?... 13 IDENTIFICATION REQUIREMENTS... 14 IMPORTANT NOTE: THE NEW VOTER ID LAW THAT WAS PASSED DURING VIRGINIA S 2013 LEGISLATIVE SESSION, WHICH WOULD REQUIRE A PHOTO ID FOR EVERY VOTER SEEKING TO VOTE IN PERSON, WILL NOT BE IN EFFECT FOR THE 2013 ELECTIONS. THE IDENTIFICATION REQUIREMENTS FOR 2013 WILL BE THE SAME REQUIREMENTS THAT WERE IN EFFECT IN 2012.... 14 WHAT IDENTIFICATION IS REQUIRED FOR VOTER REGISTRATION?... 14 WHAT IDENTIFICATION IS REQUIRED AT THE POLLING PLACE?... 14 WHAT IDENTIFICATION IS REQUIRED TO OBTAIN AN ABSENTEE BALLOT IN PERSON?... 15 WHAT IDENTIFICATION IS REQUIRED TO OBTAIN AN ABSENTEE BALLOT BY MAIL?... 16 WHAT IDENTIFICATION IS REQUIRED TO VALIDATE A PROVISIONAL BALLOT?... 16 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 2
VOTER REGISTRATION LIST MAINTENANCE... 17 FOR WHAT REASONS CAN A PERSON S NAME BE REMOVED FROM A LIST OF REGISTERED VOTERS?... 17 UNDER WHAT CIRCUMSTANCES WILL A PERSON S NAME BE PLACED ON A LIST OF INACTIVE VOTERS? 18 HOW DOES THE VOTER GET THEIR NAME BACK ON THE ACTIVE LIST?... 18 WHAT SHOULD THE VOTER DO IF THEY CHANGE THEIR ADDRESS?... 19 WHAT ARE THE PROCEDURES FOR REMOVING NAMES OF PERSONS WHO HAVE FELONY CONVICTIONS FROM THE REGISTRATION ROLLS?... 19 MAY A PERSON WHOSE NAME HAS BEEN REMOVED BECAUSE OF A FELONY CONVICTION HAVE THEIR RIGHT TO VOTE RESTORED?... 19 WHAT ARE THE PROCEDURES FOR REMOVING NAMES OF PERSONS WHO HAVE BEEN FOUND MENTALLY INCOMPETENT?... 21 WHAT MAY A VOTER DO IF THEY LEARN THEIR NAME HAS BEEN REMOVED FROM THE REGISTERED VOTERS LIST IN ERROR?... 21 WHO MAY OBTAIN A LIST OF REGISTERED VOTERS?... 22 ABSENTEE VOTING... 23 WHO IS PERMITTED TO VOTE BY ABSENTEE BALLOT?... 23 HOW MAY A PERSON REQUEST AN ABSENTEE BALLOT?... 24 WHEN IS THE DEADLINE FOR REQUESTING AN ABSENTEE BALLOT?... 25 MAY A FIRST TIME VOTER CAST AN ABSENTEE BALLOT?... 26 WHAT STEPS MUST A VOTER TAKE IF THEY REQUEST BUT DO NOT RECEIVE OR LOSE AN ABSENTEE BALLOT?... 27 HOW MUST VOTERS CAST AN ABSENTEE BALLOT TO ENSURE IT IS COUNTED?... 27 WHEN IS THE DEADLINE FOR CASTING AN ABSENTEE BALLOT TO ENSURE IT IS COUNTED?... 28 ARE THERE OTHER REQUIREMENTS FOR CASTING AN ABSENTEE BALLOT?... 28 WHEN WILL ABSENTEE BALLOTS BE COUNTED?... 28 WHAT IS THE PROCEDURE FOR DETERMINING WHETHER THE ABSENTEE BALLOT WILL BE COUNTED?28 WHAT SHOULD A PERSON DO IF THEY REQUESTED AN ABSENTEE BALLOT BUT WANTS TO VOTE IN PERSON ON ELECTION DAY?... 29 IS THERE EARLY VOTING BY ABSENTEE BALLOT? IF SO, DESCRIBE.... 29 POLLING PLACE LOCATIONS AND PROCEDURES... 30 WHAT HOURS ARE THE POLLS OPEN ON ELECTION DAY?... 30 IF A VOTER IS IN LINE TO VOTE AT POLL CLOSING TIME BUT HAS NOT REACHED THE VOTING MACHINE, MAY THE VOTER STILL VOTE?... 30 CAN A CHILD/MINOR ENTER THE VOTING BOOTH WITH THE VOTER?... 30 MAY VOTERS WHO HAVE MOVED TO A NEW ADDRESS IN ANOTHER PRECINCT BUT WHO HAVE NOT REGISTERED AT THEIR NEW ADDRESS BE ALLOWED TO VOTE AT THE PRECINCT FOR THEIR OLD ADDRESS?... 30 WHAT STEPS ARE TAKEN IF A VOTER S NAME DOES NOT APPEAR IN THE POLL BOOK?... 31 HOW ARE DECISIONS ABOUT PRECINCTS AND POLLING PLACE LOCATIONS MADE?... 31 WHEN IS THE FINAL LIST OF POLLING PLACE LOCATIONS MADE AVAILABLE TO THE PUBLIC?... 31 HOW AND WHEN WILL VOTERS BE NOTIFIED ABOUT POLLING PLACE CHANGES?... 32 ASSISTANCE AT THE POLLS... 33 CAN VOTERS REQUEST ASSISTANCE WITH VOTING EQUIPMENT AT THE POLLING PLACE?... 33 WHAT ACCOMMODATIONS MUST BE MADE FOR NON-ENGLISH SPEAKERS OR PERSONS UNABLE TO READ?... 33 WHAT ACCOMMODATIONS MUST BE MADE FOR VOTERS WITH DISABILITIES AND ELDERLY VOTERS?.. 34 CHALLENGES AND VOTER INTIMIDATION... 35 WHAT ACTIVITIES ARE RESTRICTED AT POLLING PLACES ON ELECTION DAY?... 35 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 3
ARE POLL WATCHERS OR OTHER NON-VOTERS PERMITTED INSIDE THE POLLING PLACE?... 35 CAN A PERSON S RIGHT TO VOTE BE CHALLENGED AT THE POLLS?... 36 WHO CAN CHALLENGE A PERSON S RIGHT TO VOTE AT THE POLLS?... 37 WHAT CAN A PERSON DO IF THEY ARE CHALLENGED AT THE POLLS?... 37 WHAT CONSTITUTES ILLEGAL INTIMIDATION OF VOTERS AT THE POLLS?... 37 ARE LAW ENFORCEMENT OFFICERS ALLOWED IN A POLLING PLACE DURING VOTING HOURS?... 38 TO WHOM SHOULD A PERSON REPORT ACTS OF INTIMIDATION?... 38 PROVISIONAL BALLOTS... 39 WHAT IS A PROVISIONAL BALLOT?... 39 WHO MAY REQUEST A PROVISIONAL BALLOT?... 39 WHY AND WHEN WILL PROVISIONAL BALLOTS BE PROVIDED TO VOTERS?... 39 WHO DECIDES WHETHER A VOTER GETS A PROVISIONAL BALLOT?... 40 WHAT CAN A VOTER DO IF THEY REQUEST BUT DO NOT RECEIVE A PROVISIONAL BALLOT?... 40 WHAT INFORMATION MUST BE PROVIDED TO VOTERS WHO CAST PROVISIONAL BALLOTS?... 40 HOW DO ELECTION OFFICIALS DETERMINE WHETHER A PROVISIONAL BALLOT WILL BE COUNTED?... 40 DOES THE VOTER WHO CASTS A PROVISIONAL BALLOT HAVE A RIGHT TO PRESENT EVIDENCE OR APPEAR BEFORE THE ELECTION OFFICIALS EVALUATING WHETHER IT WILL COUNT?... 41 WHEN WILL PROVISIONAL BALLOTS BE COUNTED?... 41 HOW CAN VOTERS FIND OUT WHETHER THE PROVISIONAL BALLOTS THEY CAST WERE COUNTED?... 41 DOES THE VOTER HAVE A RIGHT OF APPEAL?... 41 ENDNOTES... 42 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 4
INTRODUCTION This publication ( Nutshell ) is intended to distill complex election law for lawyers, advocates, voter registration campaigns, and Get Out The Vote campaigns. It combines state election law with state regulations, rules, attorney general opinions, and other election materials to provide a comprehensive interpretation of the law and practices with respect to elections. While this Nutshell does not cover every provision of state election law, it highlights those provisions that, in our experience, have most affected the voting rights of voters of color. ACKNOWLEDGMENTS Advancement Project wishes to thank supporters of our Voter Protection Program, including the Ford Foundation, Open Society Foundations, John D. and Catherine T. MacArthur Foundation, Tides Foundation - Black Civic Engagement Fund, Public Interest Projects - State Infrastructure Fund, Mitchell Kapor Foundation, Wallace Global Fund, SEIU, AFSCME, an anonymous funder, and individual donors for making this publication possible. Also, a special thanks to attorney and Virginia Bar member Richael Faithful of Advancement Project for her contributions to this 2013 legal guide. ABOUT ADVANCEMENT PROJECT Advancement Project is a next generation, multi-racial civil rights organization. We tackle inequity with innovative strategies and strong community alliances. With a national office in Washington, DC and two offices in California, we combine law, communications, policy and technology to create workable solutions and achieve systemic change. We aim to inspire and strengthen movements that expand opportunity for all. Since 2000, we have worked closely with a broad array of local community, voter registration, and GOTV groups, statewide civic engagement coalitions, national partners and election officials to eliminate barriers to voting in communities of color. We have done this in many key states, including Virginia. See www.advancementproject.org for more information. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 5
VOTER REGISTRATION Who may register to vote? A person may register to vote in Virginia if they: 1 are a citizen of the United States; are at least 18 years of age on or before the day of the next general election; are a resident of Virginia and of the precinct in which they intend to vote; have not been convicted of a felony or, if previously convicted, have had their civil rights restored; and have not been found by a court to be mentally incompetent or, if previously determined to be mentally incompetent, have had their competency reestablished. Any person who will turn 18 before the day of the next general election and who is otherwise eligible may register and vote in any primary or special election leading up to the general election. 2 When will the primary and general elections be held? The primary and general elections will be held on: 3 Primary Election: June 11, 2013 General Election: November 5, 2013 What is the voter registration deadline for each election? The 2013 registration deadlines are: Primary Election: May 20, 2013 General Election: October 15, 2013 The final day to register for a primary or general election is the 22nd day before the election. 4 The registrar s office will be open until 5 p.m. on the final day of registration, and any person in line to register at the close of the final day must be allowed to complete a registration application or make any necessary changes to their existing registration records. 5 Registration applications returned via the U.S. Postal Service must be postmarked by the 22 nd day before the election. 6 (For additional information regarding Virginia Voter Protection Laws in a Nutshell, September 6, 2013 6
mail-in applications, see the answer to Will mail-in voter registration applications be accepted if they are received by the registrar s office after the registration deadline? ) Certain individuals can receive extended time to register. The following individuals can register in person up to and including Election Day if they are qualified to register and, because of active duty or temporary residence overseas, are either (1) normally absent from the city or county in which they reside or (2) returned to their residence during the 28 days immediately preceding the election: 7 Any active duty U.S. uniformed service member; Any member of the U.S. merchant marines; Any person who resides temporarily outside of the United States; and Any spouse or dependent residing with a person listed above. Any person who was on active duty as a U.S. uniformed service member and has been discharged from the uniformed service during the 60 days immediately preceding the election, as well as that person s spouse or dependent, may also register, if otherwise qualified, in person up to and including Election Day. 8 In addition, the mail-in registration deadlines do not apply to certain individuals. The following individuals may submit their registration application along with their application for an absentee ballot after the registration deadline, if (1) they are eligible to be registered, and (2) they are normally absent from the city or county in which they reside due to active duty: 9 Any active duty U.S. uniformed service member; and Any spouse or dependent residing with a person listed above. Where can a person apply for voter registration? In Virginia, a person can apply for voter registration in person at the following locations: 10 Offices of the city or county general registrars; Offices of the Department of Motor Vehicles (DMV); Public assistance agencies; Agencies whose primary function is to provide state-funded programs primarily engaged in providing services to persons with disabilities; Armed Forces recruitment offices; and Regional offices of the Department of Game and Inland Fisheries and the offices of the Virginia Employment Commission in the Northern Virginia Planning District 8. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 7
Each voter registration agency must provide applicants with assistance in completing voter registration forms, unless the applicant refuses assistance. 11 If an agency provides home services to a person with a disability, the agency must also provide voter registration services. 12 Agencies must forward each completed application as directed by the State Board of Elections no later than 5 business days after receiving the application. 13 All voter registration locations must be accessible to persons with disabilities. 14 A person may also register by mail by completing either the Virginia Voter Registration Application form or the national mail form. 15 In late 2013 or early 2014, the State Board of Elections will also make online registration available to some voters. Check www.sbe.virginia.gov or contact Advancement Project for updates. What information must be provided on a voter registration application? The following information must be provided on a Virginia voter registration application: 16 Full name; Date of birth; Gender; 17 Address of residence in the precinct and mailing address, if different; 18 Social security number, if any; 19 Date of the application; Whether the applicant has registered to vote in the past, and if so, the applicant s full legal name, date of birth, last 4 digits of their social security number and address at which they were previously registered to vote; Whether the applicant is presently a United States citizen; Whether the applicant will be 18 years old on or before Election Day; Whether the applicant has ever been convicted of a felony; and if so, the month, day and year the applicant s right to vote was restored (where applicable); and Whether the applicant has ever been found by a court to be mentally incapacitated; and if so, the month, day and year the applicant s capacity was restored (where applicable). If any of the requested information does not apply to the applicant, the applicant should write NONE or NA in that space. Most importantly, if an applicant does not have a social security number, they should write NONE in the space designated for the social security number and the registrar will assign them a unique voter identification number when the application is received. If the space for the social security number is left blank, the application will be rejected. 20 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 8
A social security number is required only for a voter s original registration: it is not required on a voter registration application that is being used to transfer a registration or to change a name or address. 21 The applicant must sign the application under the registration statement, unless the applicant has a physical disability that prevents them from signing. 22 If the applicant is unable to sign, the applicant may mark the signature line, and the application must provide the name and address of the person who assisted the applicant in completing the form. 23 Certain common errors can lead to a local registrar rejecting a voter registration application. For example, registrars may require an applicant to reapply if the applicant fails to check the two boxes at the top of the application indicating that an applicant is over 18 and a United States citizen. Many first time applicants in Virginia also fail to check section 7, which asks if an applicant is currently registered to vote in Virginia or another state. If the registrar cannot locate the applicants prior registration address and an applicant fails to check the box in section 7, the registrar will not process the application, but instead send a letter indicating the applicant needs to reapply. How does a homeless person register to vote? A homeless person may register to vote in the city or county where they intend to remain for an unlimited period of time. 24 A homeless person may use any address that is an approximation of their residence. 25 Examples of addresses that may be used as an approximation of residence include an address used within the last 60 days, a local church address, a homeless shelter address, or an agency address. 26 May a person register to vote by mail? If so, are there special requirements for first-time voters who register to vote by mail? Yes. A person may register to vote by completing and returning via mail or third party either the Virginia Voter Registration Application form or the national mail form. 27 Any person who registers to vote by mail and who has not previously voted in the county or city in which they register must vote in person, either at the polls on Election Day, or by casting an in-person absentee ballot. 28 However, this requirement to vote in person does not apply to the following people: 29 Any absent active duty uniformed United States service member, or spouse or dependent of an absent active duty uniformed United States service member; Any person temporarily living overseas who will be absent from the county or city in which they are entitled to vote on Election Day; Virginia Voter Protection Laws in a Nutshell, September 6, 2013 9
Any person with a disability who is unable to go in person to the polls on Election Day; Any person age 65 or over who is allowed to vote by absentee ballot; Any full-time college student; Any person entitled to vote otherwise than in person under other federal law; or For presidential and vice-presidential elections only, any person who requests an absentee ballot, as entitled by federal law. Any person who has previously registered and voted in Virginia but who transfers their registration to a different address by completing a mail voter registration application will not be treated as a first-time voter. The application will be considered a transfer application, and the applicant will not be required to vote in person. 30 Note that an application that is returned by a third party to the voter registration office will be treated as a mail application. 31 For the special identification requirements of first-time voters in a federal election who register by mail, see the next chapter, Identification Requirements. Will mail-in voter registration applications be accepted if they are received by the registrar s office after the registration deadline? Sometimes. Mail-in voter registration applications returned through the United States Postal Service will be accepted after the registration deadline so long as they are postmarked by the registration deadline (the 22nd day before the primary or general election). 32 If a mail-in registration application has no postmark, or the postmark affixed by the U.S. Postal Service is illegible or undated, the application will be accepted if received through the mail no later than 5 days after the registration deadline. 33 However, a mail-in voter registration application returned by any other means (e.g., UPS, Federal Express, third-party) must be received by the voter registration deadline, regardless of when it was sent. 34 See the section above, What is the voter registration deadline for each election? for certain exceptions to this deadline. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 10
Can voter registration forms be corrected after the deadline? Generally, no. If an application is rejected because the applicant failed to sign the application or otherwise failed to provide a required item of information, the applicant can correct the registration application--but must do so by the registration deadline. 35 If a person submits the corrected or completed application after the deadline, their application will be processed after Election Day. 36 See the section above, What is the voter registration deadline for each election? for certain exceptions to this deadline. Are there any rules about assisting others with the completion of a voter registration application? Yes. Voter registration applications may be completed by a third party at the direction of the applicant. 37 The applicant must sign the application, unless they are unable to sign due to a physical disability. 38 If the applicant is unable to sign, they may mark the signature line and must provide the name and address of the person providing assistance. 39 Additionally, any person assisting an applicant with the completion or return of a mail voter registration application shall not copy, disclose or make any use of the applicant s social security number, or any part thereof, except as authorized by law for official use. 40 How many voter registration applications may individuals or groups conducting voter registration drives receive from the State Board of Elections or registrar offices? The State Board of Elections must make available a reasonable number of mail voter registration application forms to any individual or group. 41 Additionally, city or county registrar offices will generally furnish small quantities of applications to anyone who requests them. However, a group that requests a large number of blank applications from a city or county registrar office will normally be referred to the State Board of Elections. Any individual or group that requests 25 or more voter registration applications must register with the State Board, local electoral board, or general registrar s office, receive training as approved by the State Board, and sign an affidavit swearing to abide by all Virginia laws and rules regarding the registration of voters. 42 Are there any special rules pertaining to the federal registration application? No. A person may submit a federal mail voter registration application form in lieu of the state form to vote in federal, state, and local elections. 43 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 11
May persons conducting voter registration drives make copies of completed voter registration applications before delivering them to the registrar s office? Yes, with an important limitation. Persons assisting applicants with the completion or return of their mail voter registration applications cannot copy, disclose or make any use of the applicants social security numbers, or any part thereof, except as authorized by law for official use. 44 Therefore, persons conducting voter registration drives must either place a piece of opaque tape over the social security number before the application is photocopied, or strategically place the tape on the photocopy machine so that it will cover the social security number. Also, any photocopying must be done by the persons conducting the voter registration drive, not an outside photocopy vendor. Are persons conducting voter registration drives required to deliver or mail completed voter registration applications to registrar offices within a certain time limit? Yes. Current law states that any person who agrees to mail or deliver a signed voter registration application to the voter registrar or other appropriate recipients must do so within 10 calendar days of the applicant s signature or by the registration deadline, whichever occurs first. 45 These deadlines are extremely important because any person who fails to mail or deliver the application in a timely manner shall be guilty of a Class 1 misdemeanor. 46 When voter registration applications are mailed or delivered to election officials, how long will it take for the applications to be processed? Virginia law does not provide for a precise time frame, although it does state that the registrar must promptly notify the applicant of the acceptance or denial of his registration 47 If an applicant s registration is accepted, they will receive a voter registration card in the mail. 48 If the registration is denied, they will receive a form notifying them of the denial and of the reason(s) for the denial. 49 If a person does not receive either a registration card or a denial notification, they should contact their local registrar s office to make sure that their application has been processed. For a list of registrars, see Virginia Election and Registration Information System (VERIS) website, https://www.voterinfo.sbe.virginia.gov/publicsite/public/ft2/publiccontactlooku p.aspx. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 12
What can a person do if their application is denied? If a voter registration application is denied, the general registrar must send the applicant a form notifying them of the denial and of the reason(s) for the denial (a denial form). The notice must also include a new registration form and must inform the applicant of their right to either (1) appeal the denial, or (2) submit a new voter registration application by the registration deadline. 50 Most denials involve incomplete registration forms, and can be fixed with the submission of a properly completed voter registration application before the deadline. An applicant should attempt this option when appropriate. 51 If an applicant chooses to appeal the denial, the applicant must file a written petition (i.e. a completed denial form) with the clerk of the court, and pay a $10 filing fee, within 10 calendar days after the denial. 52 To complete the petition, the person must, in the spaces provided on the denial form, (i) indicate their desire to petition the court to have their right to register determined, and (ii) state the facts supporting their right to register. 53 Once the petition is filed, the clerk of the court must bring the petition to the attention of the chief judge immediately so that a hearing on the petition can be scheduled. 54 The hearing must be heard as soon as possible, taking precedence over all of the court s other business. 55 If the applicant loses the hearing on the petition, the next appeal must be made to the Supreme Court of Virginia. 56 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 13
IDENTIFICATION REQUIREMENTS IMPORTANT NOTE: The new voter ID law that was passed during Virginia s 2013 legislative session, which would require a photo ID for every voter seeking to vote in person, will NOT be in effect for the 2013 elections. 57 The identification requirements for 2013 will be the same requirements that were in effect in 2012. What identification is required for voter registration? The Virginia voter registration application requires the applicant to provide their social security number, if they have one. 58 Additionally, the Help America Vote Act (HAVA) requires, with some exceptions, any person who registers to vote for the first time by mail to present an acceptable form of identification when appearing to vote for the first time in a federal election. 59 A first time voter who submits a copy of an acceptable form of identification when registering by mail is exempt from HAVA s requirement to show identification when voting for the first time in a federal election. 60 Any of the following types of identification are acceptable: 61 Current and valid photo identification; or Current utility bill, bank statement, government check, paycheck, or other document that shows name and address. The following individuals are exempt from this HAVA ID requirement: 62 Persons entitled to vote by absentee ballot under the Uniformed and Overseas Citizens Absentee Voting Act; Elderly voters (age 65 or older) or voters with temporary or permanent physical disabilities who are entitled to vote absentee because their polling places are not accessible; Persons voting only for the President and Vice-President; and Persons entitled to vote otherwise than in person under any other federal law, such as the Military and Overseas Voting Empowerment (MOVE) Act. 63 What identification is required at the polling place? As discussed above, federal law requires certain identification for first-time voters, with limited exceptions. Under HAVA, a voter who registered to vote by mail and who has never voted in a federal election in the state must present one of the following types of identification when appearing to vote for the first time Virginia Voter Protection Laws in a Nutshell, September 6, 2013 14
(unless a copy of an acceptable form of identification was submitted with their voter registration application or they fall under one of the above exemptions): 64 Current and valid photo identification; or Current utility bill, bank statement, government check, paycheck, or other document that shows name and address. If a first-time voter who is required to present identification under the HAVA provisions does not present proper identification at the polls, they are offered a provisional ballot. 65 That provisional ballot will not count unless the voter provides the required ID to the electoral board, in person or by mail, fax, or email, by noon on the third day after the election. 66 All other voters must present one of the following forms of identification at the polling place: 67 Virginia voter registration card; Social Security card; Valid Virginia driver s license; Any other identification card issued by an agency of Virginia, one of its political subdivisions (e.g., a county) or the United States; Any valid student identification card issued by an institution of higher education located in the Commonwealth; Any valid employee identification card containing a photograph and which was issued by the voter s employer in the ordinary course of business; or A copy of a current utility bill, bank statement, government check, or paycheck that shows the name and address of the voter. If a voter is unable to present an acceptable form of identification, and is otherwise qualified to vote, the person will be allowed to vote a provisional ballot. 68 However, that provisional ballot will not count unless the voter provides the required ID to the electoral board, in person or by mail, fax, or email, by noon on the third day after the election. 69 What identification is required to obtain an absentee ballot in person? Under HAVA, a voter who registered to vote by mail and who has never voted in a federal election in the state must present one of the following types of identification when applying to vote in-person absentee (unless a copy of an acceptable form of identification was submitted with their voter registration application or they fall under one of the exemptions): 70 Current and valid photo identification; or Current utility bill, bank statement, government check, paycheck, or other document that shows name and address. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 15
If a first-time voter seeking to vote by in-person absentee ballot does not present the required ID, they must be offered a provisional ballot. 71 However, that ballot will not be counted unless the voter provides the required ID to the electoral board, in person or by mail, fax, or email, by noon on the third day after the election. 72 Any other person completing an application for an in-person absentee ballot must present any one of the following forms of identification: 73 Virginia voter registration card; Social Security card; Valid Virginia driver s license; Any other government-issued identification card; Any valid student identification card issued by an institution of higher education located in the Commonwealth; Any valid employee identification card containing a photograph and which was issued by the voter s employer in the ordinary course of business; or A copy of a current utility bill, bank statement, government check, or paycheck that shows the name and address of the voter. If the voter is unable to present an acceptable form of identification, the voter will be allowed to vote a provisional ballot. However, that ballot will not be counted unless the voter provides the required ID to the electoral board, in person or by mail, fax, or email, by noon on the third day after the election. 74 What identification is required to obtain an absentee ballot by mail? Voters are not required to show any ID when voting absentee by mail. 75 What identification is required to validate a provisional ballot? If a voter cast a provisional ballot because they were unable to show the required identification, they must provide the required ID to the electoral board, in person or by mail, fax, or email, by noon on the third day after the election. Otherwise, the ballot will not be counted. 76 If a voter cast a provisional ballot for any other reason, the electoral board must validate the ballot if (i) the board determines that the voter is entitled to vote in the precinct, or (ii) the State Board of Elections or voter presents proof that indicates the voter submitted a registration application to the DMV, or another state-designated voter registration agency, prior to the close of registration and the registrar determines that the person was qualified for registration based upon the submitted application. 77 A voter has the right to appear before the local electoral board to explain their circumstances, if necessary. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 16
VOTER REGISTRATION LIST MAINTENANCE For what reasons can a person s name be removed from a list of registered voters? A voter can cancel their registration by submitting a signed cancellation form to the general registrar. 78 Additionally, the general registrar must remove a person s name from the list of registered voters if the person: Is deceased; Has a felony conviction and their right to vote has not been restored; Has been found by a court to be mentally incapacitated and their capacity has not been restored by the court; Has moved from Virginia (Registrar must receive a notice that the voter has moved from Virginia signed by either the voter or the registration official from another jurisdiction); Has registered to vote outside of Virginia after registering to vote in Virginia (Registrar must receive a notice signed by the voter or the registration official from another jurisdiction); or Remains on inactive status beyond the day of the second general election for federal office after they were placed on inactive status. 79 The general registrar may also cancel a person s registration prior to the voter registration deadline if the DMV receives notice that the person has moved from Virginia and the DMV forwards this notice to the general registrar. The registrar must mail notice of the cancellation to the person s new address and the Virginia address at which they were most recently registered. 80 If a registrar receives notice from the DMV that a registered voter has recently applied for an ID or driver s license and indicated non-citizenship on the DMV application, the registrar will send notice to the voter and ask the voter to affirm their citizenship. If the voter does not respond within 14 days, their registration will be cancelled. 81 Virginia is also seeking access to federal immigration data beginning on July 1, 2013. 82 If the federal government gives Virginia access to the data, and if it is not blocked in court, registrars will also begin to send notice to registered voters who are identified as noncitizens by that data. 83 If a voter does not respond to the notice by returning a signed statement affirming his citizenship within 14 calendar days, their registration will be cancelled. 84 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 17
Under what circumstances will a person s name be placed on a list of inactive voters? If the State Board of Elections or the general registrar receives information from the Postal Service or from other reliable sources that a registered voter has moved to a different address, the general registrar must send a notice to the voter. If the person does not respond to the notice within 30 calendar days after the registrar mails it, the voter is placed on inactive status. 85 The general registrar shall send the notification to the person via forwardable mail, and the notification must include a postage prepaid and pre-addressed reply card. The 30-day time period for reply applies regardless of whether the person actually received the notice of change of address. 86 Additionally, the general registrar will also send a notice requesting verification of a voter s current address if: 87 The person lists an address on a candidate or referendum petition that differs from the address in the voter registration system; or If any of the following documents sent to the person are returned by the Postal Service as undeliverable: i. An acknowledgement of registration; ii. An acknowledgement of transfer to a new address; iii. An absentee ballot or an application for an absentee ballot; iv. A notification of precinct reassignment; v. A notification of address change; or vi. Any official voter registration or election mail. If the person does not respond to the notice within 30 days after the registrar mails it, the person will be placed on inactive status. 88 How does the voter get their name back on the active list? An inactive voter can return to active status by taking one of the following actions during the period from the date they were deemed inactive to the date of the second general election for federal office thereafter: 89 Notifying the general registrar of a change of address within the county or city; Transferring their registration to another county or city in Virginia; Responding to a confirmation notice indicating that they still resides at the registration address; or Voting or attempting to vote in a primary or special or general election and, if necessary, correcting the registration records. Virginia Voter Protection Laws in a Nutshell, September 6, 2013 18
What should the voter do if they change their address? Whenever a voter changes their address within Virginia, they must promptly notify any general registrar. 90 A voter can notify the registrar in person, in writing, or by submitting their voter registration card with their new address noted on it or a form approved by the State Board of Elections. 91 When notifying the general registrar by written notice, the written notice may be sent via mail or fax and must be signed by the voter unless they are physically unable to sign. 92 If the voter cannot sign the notice, they must mark it and have a witness acknowledge the mark. 93 What are the procedures for removing names of persons who have felony convictions from the registration rolls? The general registrar is required to cancel the registration of any person who has been convicted of a felony and who has not had their rights restored. 94 The procedures by which the general registrar is notified of persons convicted of a felony are outlined below. Under Virginia law, each month the Division of Central Criminal Records Exchange is required to send to the State Board of Elections a list of all persons convicted of a felony in a Virginia court during the preceding month. 95 The monthly list includes the convicted person s name, address, social security number, date and place of birth, and date of conviction. 96 The State Board of Elections must put this information in the Virginia Voter Registration System, which is accessible by general registrars for list maintenance purposes. 97 The general registrar will then cancel the registration of a person who has been convicted of a felony and will mail notice of such cancellation to the person. Additionally, notice of a felony conviction in federal court is sent to the State Board of Elections by a U.S. attorney. 98 The State Board of Elections must notify the appropriate general registrar of the conviction, and the general registrar must then remove the name of the convicted person from the registration rolls. 99 May a person whose name has been removed because of a felony conviction have their right to vote restored? Yes. There are two different processes for restoring the right to vote after a felony conviction one for people convicted of non-violent felonies and one for people convicted of violent felonies. 100 Individuals with non-violent felony convictions The Governor has established a new process, effective July 15, 2013, providing that a person convicted of a non-violent felony will have their right to vote restored automatically once they satisfy the following 3 eligibility requirements: Virginia Voter Protection Laws in a Nutshell, September 6, 2013 19
(1) they have lost their right to vote as a result of a non-violent felony conviction in a Virginia court or a federal court within the Commonwealth, (2) they have completed serving their sentence, including probation and parole, and (3) they have paid all costs, fines, and/or restitution or any obligations to any other court, including traffic courts. An individual who meets these criteria will have their rights automatically restored, without the need to petition to the Governor. Individuals that met these criteria prior to July 15, 2013 may need to contact the Secretary of the Commonwealth to register their personal information to confirm eligibility and receive an official restoration of rights letter from the Governor. Your rights have not been restored unless you have received an official notification from the Governor. Individuals with violent felony convictions An individual who has lost their right to vote as a result of a violent felony conviction must petition the Governor to have their civil rights restored. 101 Under the current petition process, a person must meet the following requirements to be eligible to have their voting rights restored: 102 The person must have been convicted of a violent felony in a Virginia court or a federal court within the Commonwealth; The person must have paid all costs, fines, and/or restitution or any obligations to any other court, including traffic courts; The person cannot have a Driving While Intoxicated (DWI) conviction within the past 5 years immediately preceding the petition; and The person must have been released from supervised probation for at least five years, and have had no other convictions (felonies or misdemeanors) during that time (a conviction for a misdemeanor will re-start the waiting period). If a person meets the above eligibility requirements, they may file a petition directly with the Governor. The restoration process takes at least 60 days from the time the application is deemed complete, which may be up to several weeks after receipt. There is no right of appeal if a petition is denied, but the petitioner may reapply in 1 year. 103 The current Governor, or any future governors, may change or revoke this rights restoration process at their discretion. However, persons who have had their civil rights restored by the current Governor or past Governors will not lose those rights when the petition process changes, unless convicted of another felony. If an individual was convicted by a court outside of Virginia, they should look to the law in their state of conviction. 104 Their rights may have been automatically restored in the state in which they were convicted. If a person s civil rights were automatically restored in that state, their civil rights are considered restored and they can therefore vote in Virginia if otherwise eligible. 105 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 20
For questions on Restoration of Rights, please contact: Advancement Project Virginia Rights Restoration Project 1220 L Street NW, Suite 850 Washington, DC 20005 (202) 728-9557 takebackmyvote@advancementproject.org Candice Reid Restoration of Rights Director Office of the Secretary of the Commonwealth Post Office Box 2454 Richmond, Virginia 23218-2454 (804)786-2441 What are the procedures for removing names of persons who have been found mentally incompetent? Each month, the clerk of each circuit court provides the State Board of Elections with a complete list of all persons who have been found mentally incompetent during the preceding month. 106 The monthly list includes the person s name, address, social security number, date and place of birth, and date of adjudication. 107 The State Board of Elections sends the information to the appropriate general registrars, who must cancel the registration of those included on the monthly list. 108 What may a voter do if they learn their name has been removed from the registered voters list in error? If a voter believes that their name has been removed from the list of registered voters in error, they should contact their local registrar. For contact information of local voter registration offices, see Virginia Election and Registration Information System (VERIS) website, https://www.voterinfo.sbe.virginia.gov/publicsite/public/ft2/publiccontactlooku p.aspx. Before removing a voter from the voter registration list based on allegations that the voter is improperly registered, the general registrar must give the voter an opportunity to testify regarding their eligibility to vote. 109 If the general registrar proceeds to cancel a voter s registration after hearing such testimony, the voter has the right to appeal to the circuit court of the county or city in which they offered to register by filing a written petition with the clerk of the court, within 10 days after the cancellation. 110 Once the petition is filed, the clerk of the court must bring the petition to the attention of the chief judge immediately so that a hearing on the petition can be scheduled. 111 The hearing must be heard as soon Virginia Voter Protection Laws in a Nutshell, September 6, 2013 21
as possible, taking precedence over all of the court s other business. 112 If the applicant loses the hearing on the petition, the next appeal must be made to the Supreme Court of Virginia. 113 Additionally, under federal law, if a person believes that their registration was improperly cancelled, the person may submit a written complaint to the chief state election official. 114 If the complaint is not corrected within 90 days (or within 20 days if the cancellation occurred within 120 days before the date of a federal election), the person may bring a civil action in an appropriate district court for declaratory or injunctive relief. 115 If the cancellation occurred within 30 days before the date of an election, the person does not have to submit a written complaint to the chief state election official before bringing a civil action. 116 Who may obtain a list of registered voters? The following persons or entities may obtain lists of registered voters from the State Board of Elections, at a reasonable price: 117 State or federal courts for jury selection purposes; Candidates (to further their candidacies); Political party committees or officials (for political purposes only); Political action committees that have filed a current statement of organization with the State Board of Elections or the Federal Elections Commission (for political purposes only); Incumbent officeholders (to report to their constituents); and Nonprofit organizations that promote voter participation and registration (for that purpose only). The lists must not contain the social security number, or any part thereof, of any registered voter unless the list is furnished to: (1) a state or federal court for jury selection purposes, or (2) the Chief Election Officer of another state permitted to use social security numbers. 118 Virginia Voter Protection Laws in a Nutshell, September 6, 2013 22
ABSENTEE VOTING Who is permitted to vote by absentee ballot? Virginia does not have no-excuse absentee voting; instead, a voter must request an absentee ballot for certain reasons. A registered voter who will be absent from the county or city in which they are entitled to vote on Election Day may vote by absentee ballot in any election in which they are qualified to vote if they are: 119 Absent due to business (personal or professional) or vacation; An active duty United States uniformed service member or a United States merchant marine, or a spouse or dependent residing with such a service member; Living temporarily outside of the United States, or the spouse or dependent residing with such a person; or A student attending a school or an institution of learning, or their spouse. Additionally, a registered voter may vote by absentee ballot in any election for which they are qualified to vote if they are unable to go to the polls on Election Day because they are: 120 Confined while awaiting trial or for having been convicted of a misdemeanor, provided that the trial or release date is scheduled on or after the third day preceding the election. (Any person who is awaiting trial and is a resident of the county or city where they are confined may also, on their request, be taken to the polls to vote on Election Day if their trial date is postponed and they did not have an opportunity to vote absentee); A member of an electoral board, registrar, election officer, or custodian of voting equipment; Unable to go to the polls because of a physical disability or physical illness; Unable to go to the polls because they are primarily and personally responsible for the care of a family member who is ill or has a disability and who is confined at home; Unable to go to the polls because of a religious obligation; or A person who, in the regular and ordinary course of business, will be at work and commuting to and from their home to their place of work for at least 11 of the 13 hours that the polls are open. Any registered and qualified voter may request an absentee mail ballot for presidential and vice-presidential elections only for any reason, as entitled by federal law, by choosing that option in Part A of the absentee ballot Virginia Voter Protection Laws in a Nutshell, September 6, 2013 23