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GOP Challenges New Virginia Absentee Voting Rule

Two voters cast ballots in school
Voters cast their ballots last year. (Crixell Matthews/VPM News)

The Republican Party of Virginia and a conservative legal group with a history of making accusations of voter fraud without evidence are challenging a new Virginia voting rule in a hearing set for Wednesday.

The lawsuit centers on a new state law that requires that a ballot postmarked on or before Election Day to be counted by a registrar if it arrives by noon on the third day following elections -- this year, Friday, November 6. 

In August, the State Board of Elections passed a new rule saying ballots missing a postmark should also be counted, clarifying a matter they said the original law left unclear. The Board’s two Democrats argued the guidance would help reduce the risk of disenfranchising voters amid a surge in mail-in voting. 

The conservative Public Interest Legal Foundation (PILF) and the Republican Party are representing a Fredricks County election official and a Winchester County GOP chair in arguing the Board overstepped its mandate. Logan Churchwell, a spokesman for the group, disagreed that the law needed changing. He said that if lawmakers wanted to update the law to respond to the pandemic, they had time to do so before the session adjourned in mid-March.

“We’re not talking about a decades-old law put together by legislators who couldn’t put Wuhan on a map,” Churchwell said. 

PILF has a history of attacking the credibility of voter rolls and making unsubstantiated claims of voter fraud, according to investigations from the podcast Reveal and ProPublica. In 2016 and 2017, the group published two reports naming thousands of Virginians PILF claimed had voted despite being noncitizens, sparking a defamation lawsuit. In a settlement, PILF was forced to retract many of its claims and apologize to the defendants. In a separate case in 2018, a federal judge in Florida called PILF’s claims of widespread voter fraud “misleading.”

Charlotte Gomer, a spokesperson for Democratic Attorney General Mark Herring, connected the lawsuit to voter suppression.

“Attorney General Herring has made voter protection and safety a top priority during this unprecedented election cycle and he intends to vigorously defend this rule in court and fight the Republicans’ blatant attempt to suppress votes,” said Gomer in an email. 

In their meeting earlier this month, the Board slightly altered its previous guidance. The new rule requires registrars to first check an Intelligent Mail barcode on ballots without a postmark to try to determine when it was mailed. If one isn’t available, the rule says they should check the date on which the ballot’s envelope was signed. 

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.
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