Federal law bars local elections officials from rejecting overseas ballots due to a technicality in filling out the absentee forms, Virginia Attorney General Robert McDonnell said Monday, rebuffing Fairfax County officials who said state law prevented them from counting dozens of military votes.
McDonnell, a Republican, issued an advisory opinion ahead of a State Board of Elections meeting today that will decide the fate of about 100 federal write-in ballots in Fairfax. County officials had earlier estimated the number of ballots twice that figure.
The overseas voters, many of them members of the military, had sought to cast their ballots with a single form — the federal write-in absentee ballot — but didn’t include the address of the person witnessing those ballots, which is required by state law.
The ballots offered no space for including that address, however, and made little indication that it was required. Fairfax County Registrar Rokey Suleman said he had no choice but to reject the ballots because of the incomplete information. The decision drew the ire of Republicans, who pointed to his office’s on-site visit to the county jail as evidence that prisoners were getting better access to the ballot box than armed services members.
“I’m reviewing [McDonnell’s opinion] with the county attorney, and I’m happily awaiting guidance from the State Board of Elections in the morning as to how to proceed,” Suleman told The Examiner Monday.
McDonnell’s opinion is advisory and came at the request of Del. Bill Janis, R-Glen Allen. In it, he argued that the state law is overridden by the federal Uniformed and Overseas Citizens Absentee Voting Act, which prevents registrars from rejecting the ballots.
“Let’s hope that the Fairfax County registrar holds true to saying he really wants to count these votes and now will count them,” said Fairfax County Supervisor Pat Herrity, a Republican who held a news conference last week announcing the problem.
McDonnell is expected to be the Republican nominee for Virginia governor in 2009. Herrity is expected to run for chairman of the Fairfax County Board of Supervisors if current Chairman Gerry Connolly is elected to Congress next week.
