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Virginia Judge Clarifies Rules Around Late Mail-In Ballots

Poll worker hands out a ballot
A poll worker hands out a ballot in 2019. (Crixell Matthews/VPM News)

A Frederick County circuit court judge struck down parts of a new rule on mail-in absentee voting on Wednesday but preserved other elements of it.

The ruling hinges on a new Virginia law that allows a mail-in absentee ballot to be counted through Friday at noon so long as it is postmarked on or before Election Day. In August, the State Board of Elections added regulation specifying that ballots missing postmarks should also be counted so long as they meet the Friday deadline. 

That ruling was challenged by the Republican Party of Virginia and the conservative Public Interest Legal Foundation, which argued on behalf of a local GOP chair and election official, respectively, that the Board had overstepped its authority. 

Judge William Eldridge IV ruled that a ballot that is signed by a voter on or before Election Day can be counted even if its postmark is illegible, upholding one element of the Board’s new rule. It can also be counted if it's missing a postmark but the Intelligent Mail Barcode from USPS shows it was mailed on or before Election Day.

Ballots missing a postmark entirely should not be counted if the barcode is unclear on when it was sent, according to Eldridge’s ruling. His opinion did not elaborate on the rationale for his decision.

The decision resolves a point of ambiguity for some election officials. Richmond’s electoral board voted on Tuesday night to separate non-postmarked mail-in ballots until they felt more certain about what to do with them.

The case is one of many challenges to pandemic-related voting changes brought by the Republican Party and conservative groups like PILF, which has a history of making unsubstantiated claims of voter fraud

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