Bacon's Rebellion

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Election Board Embraces Humpty Dumpty Logic

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by

James A. Bacon
in ,

by Emilio JakseticDespite receiving more than 700 public comments, most of them negative,

Virginia’s State Board of Elections has adopted a regulation eliminating the statutory requirement that absentee ballots received after election day be postmarked by no later than election day. The regulation is effective October 23, 2020. Information about the Board’s action is available here and here.

In a post I made during the run-up to the decision, I discussed how the Board’s “interpretive” regulation violates the plain language of Virginia election law, usurps the constitutional authority of the General Assembly, and sets a precedent for other Virginia officials to violate the rule of law.

In effect, the Board has embraced Lewis Carroll’s “Alice in Wonderland” as a guide to statutory construction and regulatory practice.

In the book, Alice has a conversation with Humpty Dumpty, during which the following exchange occurs:

“‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ “The question is,’ said Alice, ‘whether you can make words mean so many different things.’  ‘The question is,’ said Humpty Dumpty, ‘which is to be the master — that’s all.’”

Following Humpty Dumpty’s reasoning, the State Board of Elections is “clarifying” Virginia election law pertaining to absentee ballots as follows:

mandatory = optional
postmark = no postmark
void ballot = valid ballot

A veritable triumph of Humpty Dumpty “reasoning.” Also a sobering example of Orwellian “Newspeak.”

Given Attorney General Mark Herring’s track record, I fear he will either (1) turn a blind eye to the Board’s risible effort at “clarifying” Virginia election law, or (2) if forced to defend the Board’s regulation in court, he will conjure some excuse — perhaps the COVID-19 pandemic? — to justify ignoring the plain language of Virginia election law and the Board’s flagrant usurpation of the General Assembly’s authority to enact election laws.

If the Board of Elections gets away with this travesty, then Virginians can expect other Virginia officials will eventually follow suit and issue “interpretive” regulations that creatively transform and transmute provisions of other Virginia laws to mean something other than their plain meaning.

Time will tell whether Virginians will speak up and strongly oppose such a brazen assault on the rule of law, or meekly submit to its gradual erosion and demise under repeated “clarifications” by Virginia officials who are unwilling to abide by their oaths of office and treat the law as pliable as silly putty.

Emilio Jaksetic, a Fairfax County Republican, is a retired lawyer.

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22 responses to “Election Board Embraces Humpty Dumpty Logic”

  1. UpAgnstTheWall Avatar
    UpAgnstTheWall

    “Virginia’s State Board of Elections has adopted a regulation eliminating the statutory requirement that absentee ballots received after election day be postmarked by no later than election day.”

    Well, no, they haven’t. This is just a straight up lie. This is the actual language:

    “The ballot shall not be rendered invalid based on a missing or illegible postmark if the ballot is received by the general registrar’s office by noon on the third day after the election…”

    All that does is clarify that ballots received without properly identifiable postmarks will not be considered invalid as long as they’re in by the deadline. It does nothing to change the postmark deadline.

    Again, if this kind of misrepresentation and anti-democratic position is what Virginia conservatives want to focus on that’s your right, but I will be surprised if voters reward you for it.

  2. UpAgnstTheWall Avatar
    UpAgnstTheWall

    “Virginia’s State Board of Elections has adopted a regulation eliminating the statutory requirement that absentee ballots received after election day be postmarked by no later than election day.”

    Well, no, they haven’t. This is just a straight up lie. This is the actual language:

    “The ballot shall not be rendered invalid based on a missing or illegible postmark if the ballot is received by the general registrar’s office by noon on the third day after the election…”

    All that does is clarify that ballots received without properly identifiable postmarks will not be considered invalid as long as they’re in by the deadline. It does nothing to change the postmark deadline.

    Again, if this kind of misrepresentation and anti-democratic position is what Virginia conservatives want to focus on that’s your right, but I will be surprised if voters reward you for it.

  3. djrippert Avatar
    djrippert

    The actual code … ” … any absentee ballot (i) returned to the general registrar after the close of the polls on any election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in the chapter if the voter is found to be entitled to vote.”

    If the postmark is illegible or missing, how can it be “postmarked on or before the date of the election”?

    Seems like black letter law to me. If a postmark is required then a ballot with a missing postmark should not be counted. If the postmark must be on or before the election day and the postmark is illegible then the condition of being postmarked on or before the election day is not met.

    1. UpAgnstTheWall Avatar
      UpAgnstTheWall

      If it was black letter it would categorically describe how to handle illegible and missing postmarks. It doesn’t, so the relevant regulatory body is stepping in to provide clarity.

      Since the law for your wishes to not count Virginia ballots isn’t unambiguously on your side perhaps you’d like to offer up a moral reasoning for not counting ballots because of postal error.

      1. TooManyTaxes Avatar
        TooManyTaxes

        Why would it need to include anything about a missing or illegible postmark? The law is clear. To be valid, a ballot outer envelope must contain a valid and legible postmark on or before November 3 and be received no later than three days after November 3.

        The law applies to Democrats, Republicans and Independents equally. It applies to men and woman. It applies irrespective of the color of one’s skin or where one’s ancestors originated.

        The law cannot be changed absent action by the General Assembly and assent of the Governor.

        1. Nathan Avatar
          Nathan

          The U.S. Constitution requires that:

          “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;”

          It’s called the “election clause” and it’s being ignored. Please notice that is says “legislature” not administrators, regulators, or judges.

        2. UpAgnstTheWall Avatar
          UpAgnstTheWall

          The law says absolutely nothing about the postmark being valid and legible. Let’s step through the actual code:

          ” … any absentee ballot (i) returned to the general registrar after the close of the polls on any election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in the chapter if the voter is found to be entitled to vote.”

          So this is a two-step conditional statement:

          Step 1) IF a ballot is received after the polls close but before the absentee deadline
          AND
          Step 2) IF the ballot is postmarked and that postmark is on or before the date of the election
          THEN
          The ballot shall be counted. It says nothing about what to do if the postmark is illegible; now, you can say the assumption should fall either way – that an illegible postmark can be assumed to have been stamped either before or after the close of the polls. The BoE is taking the position that the default assumption is that illegible postmarks were mailed out on time.

          Similarly, if there is no postmark there is no way to tell when it was sent so it can be assumed again either to have happened before or after the deadline. And again the BoE is taking the position that they will default to assuming they were sent before.

          Neither of these assumptions preclude invalidating ballots for other reasons or if they have other evidence of missing the deadline. And to be clear, had the Board decided the other way – that illegible or unpostmarked ballots are assumed to have been sent after the deadline – that would have been an equally legitimate interpretation.

          But what can’t be said is that the decision contravened the statue. If you wish to make a case for why the board should have made different assumptions about the time funky postmarked ballots were sent you’re free to do so. For myself, I think the board made the right call because the more people that have their votes counted the more legitimate the government that forms from them is.

  4. djrippert Avatar
    djrippert

    The actual code … ” … any absentee ballot (i) returned to the general registrar after the close of the polls on any election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in the chapter if the voter is found to be entitled to vote.”

    If the postmark is illegible or missing, how can it be “postmarked on or before the date of the election”?

    Seems like black letter law to me. If a postmark is required then a ballot with a missing postmark should not be counted. If the postmark must be on or before the election day and the postmark is illegible then the condition of being postmarked on or before the election day is not met.

    1. UpAgnstTheWall Avatar
      UpAgnstTheWall

      If it was black letter it would categorically describe how to handle illegible and missing postmarks. It doesn’t, so the relevant regulatory body is stepping in to provide clarity.

      Since the law for your wishes to not count Virginia ballots isn’t unambiguously on your side perhaps you’d like to offer up a moral reasoning for not counting ballots because of postal error.

      1. TooManyTaxes Avatar
        TooManyTaxes

        Why would it need to include anything about a missing or illegible postmark? The law is clear. To be valid, a ballot outer envelope must contain a valid and legible postmark on or before November 3 and be received no later than three days after November 3.

        The law applies to Democrats, Republicans and Independents equally. It applies to men and woman. It applies irrespective of the color of one’s skin or where one’s ancestors originated.

        The law cannot be changed absent action by the General Assembly and assent of the Governor.

        1. Nathan Avatar
          Nathan

          The U.S. Constitution requires that:

          “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;”

          It’s called the “election clause” and it’s being ignored. Please notice that is says “legislature” not administrators, regulators, or judges.

        2. UpAgnstTheWall Avatar
          UpAgnstTheWall

          The law says absolutely nothing about the postmark being valid and legible. Let’s step through the actual code:

          ” … any absentee ballot (i) returned to the general registrar after the close of the polls on any election day but before noon on the third day after the election and (ii) postmarked on or before the date of the election shall be counted pursuant to the procedures set forth in the chapter if the voter is found to be entitled to vote.”

          So this is a two-step conditional statement:

          Step 1) IF a ballot is received after the polls close but before the absentee deadline
          AND
          Step 2) IF the ballot is postmarked and that postmark is on or before the date of the election
          THEN
          The ballot shall be counted. It says nothing about what to do if the postmark is illegible; now, you can say the assumption should fall either way – that an illegible postmark can be assumed to have been stamped either before or after the close of the polls. The BoE is taking the position that the default assumption is that illegible postmarks were mailed out on time.

          Similarly, if there is no postmark there is no way to tell when it was sent so it can be assumed again either to have happened before or after the deadline. And again the BoE is taking the position that they will default to assuming they were sent before.

          Neither of these assumptions preclude invalidating ballots for other reasons or if they have other evidence of missing the deadline. And to be clear, had the Board decided the other way – that illegible or unpostmarked ballots are assumed to have been sent after the deadline – that would have been an equally legitimate interpretation.

          But what can’t be said is that the decision contravened the statue. If you wish to make a case for why the board should have made different assumptions about the time funky postmarked ballots were sent you’re free to do so. For myself, I think the board made the right call because the more people that have their votes counted the more legitimate the government that forms from them is.

  5. Emilio Jaksetic Avatar
    Emilio Jaksetic

    Your question should be addressed to the Virginia General Assembly. It passed the law and was capable of addressing whatever contingencies it thought pertinent. If you believe the postmark requirement is too draconian, then you can petition the General Assembly to amend the statute. As noted in my first posting (cited in the second posting), there is no provision in Virginia law that authorizes Virginia officials to ignore, circumvent or change the laws enacted by the General Assembly. Any perceived oversights or concerns about the adequacy of statutes can, and should, be addressed and handled by the General Assembly.

  6. Emilio Jaksetic Avatar
    Emilio Jaksetic

    Your question should be addressed to the Virginia General Assembly. It passed the law and was capable of addressing whatever contingencies it thought pertinent. If you believe the postmark requirement is too draconian, then you can petition the General Assembly to amend the statute. As noted in my first posting (cited in the second posting), there is no provision in Virginia law that authorizes Virginia officials to ignore, circumvent or change the laws enacted by the General Assembly. Any perceived oversights or concerns about the adequacy of statutes can, and should, be addressed and handled by the General Assembly.

  7. Steve Haner Avatar
    Steve Haner

    Unlikely to impact any 2020 contests, not the federal ones. But in 2021, count on it mattering in numerous smaller legislative and local elections. This is an open invitation to gin up some fake ballots on the morning after, and get them in the late delivery pile. Next step will be moving the delivery deadline from the Friday after Election Day into the next week, but that will take a Code change.

    Interesting how both parties are using the USPS as a scapegoat when it suits their purposes. Clearly it cannot be trusted to affix postmarks!

    UATW is the one not telling the truth. It is exactly correct that this change eliminates the requirement for a visible postmark, or any postmark. That is what it does. To say otherwise is the lie. You have to put all the pieces together. This is why it also a great concern that valid blank ballots just get mailed out willy nilly or that two ballots are stuffed in one outgoing envelope. To do the fraud credibly you first need blank ballots. “Moral reasoning?” The purpose of the postmark rule is to prevent voting after Election Day.

    1. UpAgnstTheWall Avatar
      UpAgnstTheWall

      I’ve addressed the statutory issue above in my response to TMT so I won’t waste everyone’s time doing it again.

      A deadline isn’t a moral imperative, Steve.

      The type of ballot stuffing you’re talking about is incredibly rare in any given election in any given location. The odds of getting struck by lightning comparison gets tossed about willy nilly even though the direct study was about in-person fraud, but even when the Heritage Foundation tried to debunk it (https://www.heritage.org/election-integrity/commentary/no-election-fraud-not-unlikely-lightning-strike) their anecdotes made electoral fraud and getting struck by lightning equally rare.

      So, odds of getting struck by lightning: 1 in 500,000.
      Registered voters in Virginia: 5,896,141 (I’m going to round down to 5,000,000 for ease of comparison).

      Since we’re talking about the choice to disenfranchise voters based on faulty or missing postmarks to safeguard against electoral fraud you have to ask – is it more likely there will be 10 or more cases of voter fraud (10 in 5,000,000) or more likely there will be 10 or more ballots with messed up postmarks ( 10 in 5,000,000).

      It becomes clear the risk of disenfranchisement is greater from assuming that ballots with illegible or missing postmarks than from someone attempting voter fraud.

      And that makes sense! Ballot stuffing is an incredibly stupid way to try to steal an election, especially in the USA. Recounts are a thing, so to your point you have to wait until after the initial results come in to make sure you stuff enough not to trigger one. But if it’s too close you can’t stuff so many ballots that there are more ballots than registered voters. And you can’t stuff before because if too many people are seen voting twice someone will notice. And the other side is watching, too! So if they see a sudden reversal of fortune in the days after the election the first thing they’re doing is getting in front of a judge. That’s why the people who try this stuff always get caught, which is why the odds of a voter being successfully disenfranchised this way are even lower than the case I laid out above.

      So the BoE made the right call. Will a few lazy votes make it through? Absolutely, but in a representative democracy – to paraphrase William Blackstone – better to have ten tardy votes counted than one punctual vote thrown out.

    2. djrippert Avatar
      djrippert

      “UATW is the one not telling the truth. It is exactly correct that this change eliminates the requirement for a visible postmark, or any postmark. That is what it does. To say otherwise is the lie.”

      Of course that’s right. Actually quite simple. UATW was wrong and can’t admit it.

      1. UpAgnstTheWall Avatar
        UpAgnstTheWall

        I have no problem admitting when I’m wrong, I did so just this morning on this very blog.

        Now run along and go back to trying to figure out how to shoehorn the attainments of (some subgroups) of Asian Americans into this thread.

  8. Steve Haner Avatar
    Steve Haner

    Unlikely to impact any 2020 contests, not the federal ones. But in 2021, count on it mattering in numerous smaller legislative and local elections. This is an open invitation to gin up some fake ballots on the morning after, and get them in the late delivery pile. Next step will be moving the delivery deadline from the Friday after Election Day into the next week, but that will take a Code change.

    Interesting how both parties are using the USPS as a scapegoat when it suits their purposes. Clearly it cannot be trusted to affix postmarks!

    UATW is the one not telling the truth. It is exactly correct that this change eliminates the requirement for a visible postmark, or any postmark. That is what it does. To say otherwise is the lie. You have to put all the pieces together. This is why it also a great concern that valid blank ballots just get mailed out willy nilly or that two ballots are stuffed in one outgoing envelope. To do the fraud credibly you first need blank ballots. “Moral reasoning?” The purpose of the postmark rule is to prevent voting after Election Day.

    1. UpAgnstTheWall Avatar
      UpAgnstTheWall

      I’ve addressed the statutory issue above in my response to TMT so I won’t waste everyone’s time doing it again.

      A deadline isn’t a moral imperative, Steve.

      The type of ballot stuffing you’re talking about is incredibly rare in any given election in any given location. The odds of getting struck by lightning comparison gets tossed about willy nilly even though the direct study was about in-person fraud, but even when the Heritage Foundation tried to debunk it (https://www.heritage.org/election-integrity/commentary/no-election-fraud-not-unlikely-lightning-strike) their anecdotes made electoral fraud and getting struck by lightning equally rare.

      So, odds of getting struck by lightning: 1 in 500,000.
      Registered voters in Virginia: 5,896,141 (I’m going to round down to 5,000,000 for ease of comparison).

      Since we’re talking about the choice to disenfranchise voters based on faulty or missing postmarks to safeguard against electoral fraud you have to ask – is it more likely there will be 10 or more cases of voter fraud (10 in 5,000,000) or more likely there will be 10 or more ballots with messed up postmarks ( 10 in 5,000,000).

      It becomes clear the risk of disenfranchisement is greater from assuming that ballots with illegible or missing postmarks than from someone attempting voter fraud.

      And that makes sense! Ballot stuffing is an incredibly stupid way to try to steal an election, especially in the USA. Recounts are a thing, so to your point you have to wait until after the initial results come in to make sure you stuff enough not to trigger one. But if it’s too close you can’t stuff so many ballots that there are more ballots than registered voters. And you can’t stuff before because if too many people are seen voting twice someone will notice. And the other side is watching, too! So if they see a sudden reversal of fortune in the days after the election the first thing they’re doing is getting in front of a judge. That’s why the people who try this stuff always get caught, which is why the odds of a voter being successfully disenfranchised this way are even lower than the case I laid out above.

      So the BoE made the right call. Will a few lazy votes make it through? Absolutely, but in a representative democracy – to paraphrase William Blackstone – better to have ten tardy votes counted than one punctual vote thrown out.

    2. djrippert Avatar
      djrippert

      “UATW is the one not telling the truth. It is exactly correct that this change eliminates the requirement for a visible postmark, or any postmark. That is what it does. To say otherwise is the lie.”

      Of course that’s right. Actually quite simple. UATW was wrong and can’t admit it.

      1. UpAgnstTheWall Avatar
        UpAgnstTheWall

        I have no problem admitting when I’m wrong, I did so just this morning on this very blog.

        Now run along and go back to trying to figure out how to shoehorn the attainments of (some subgroups) of Asian Americans into this thread.

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