Virginia's attorney general: Count overseas ballots

WASHINGTON

The state should count the absentee votes of military members and other Virginians overseas even if they do not provide the address of the person who witnessed their vote, state Attorney General Bob McDonnell said Monday.

In an opinion to the State Board of Elections, McDonnell said a federal law designed to lower barriers to overseas voting effectively overrules a state law that requires the listing of a witness address on some absentee ballots.

"The conduct of federal elections is a federal function and states have no inherent or reserved powers over federal elections," McDonnell wrote.

McDonnell's opinion came on the eve of a Board of Elections meeting in Richmond that is expected to produce a formal ruling on whether the state will count the ballots. The number of votes involved is unclear because local registrars typically don't inspect absentee ballots until Election Day.

At issue are ballots cast using a federal form, the Federal Write-in Absentee Ballot, that allows overseas voters to simultaneously request an absentee ballot and cast their votes.

The federal ballot is intended as a backup or substitute for a pair of state forms that break the process into two distinct steps: a mailed-in ballot application and the actual ballot.

Both the state and federal forms call for the signature of a witness to provide verification that the signature on the ballot is that of the actual voter.

But when the voter opts for the federal form, Virginia also requires the address of the witness. The federal form does not note that requirement, however, and McDonnell said that the state should not attempt to enforce it.

While Hampton Roads area registrars have said that most local voters use the state forms, some voters opt for the federal ballot. Still others use both the state and federal forms, filling out and submitting the federal ballot, which can be downloaded from the Internet, out of concern that delays in overseas mail will keep votes submitted on the state form from being received by Election Day.

McDonnell's opinion drew praise from the campaign of Republican presidential nominee John McCain, which had complained last week that the state's address requirement threatened to disenfranchise military voters. A statement issued by the campaign said McDonnell "has properly recognized the right for our men and women in uniform to cast a write-in ballot while serving our nation."

The Board of Elections advised registrars last week that votes submitted on the federal form and lacking a witness address should be invalidated unless the voter has also applied for a state form. On that basis, the registrar in Fairfax County, the state's most populous locality, had set aside about 100 ballots.

Dale Eisman, (703) 913-9872, dale.eisman@pilotonline.com