SD20 - Election Laws--Interim Report

  • Published: 1989
  • Author: General Assembly. Joint Subcommittee
  • Enabling Authority: Senate Joint Resolution 58 (Regular Session, 1988)

Executive Summary:
AUTHORITY FOR STUDY AND BACKGROUND

During the 1988 Session five resolutions were introduced which called for study of one or more aspects of the election laws. These resolutions focused on campaign finance laws, the status of local election personnel, and absentee ballot legislation. The House Committee on Rules ultimately reported a substitute for Senate Joint Resolution No. 58 (Patron: Senator Andrews), and the General Assembly agreed to the 'consolidated study. See Appendix A, SJR 58.

The issue of campaign finance regulation was given immediacy in the 1988 Session as the result of increased campaign spending during the 1987 General Assembly contests. In addition to the several study resolutions, two bills were introduced and carried over to the 1989 Session which provided for public financing in elections for Governor, Lieutenant Governor, Attorney General and the General Assembly. These were Senate Bill No. 298 (Patron: Senator Marye) and House Bill No. 967 (Patron: Delegate Brown) which died in committee at the outset of the 1989 Session.

In addition, the 1988 General Assembly added a new reporting requirement to the Fair Elections Practices Act (FEPA). Senate Bill No. 80 (Patron: Senator Gartlan) was enacted to require political party committees to file a report with the State Board of Elections of any contribution received by them that is designated for a specific candidate. See § 24.1-257.3, Code of Virginia.

Concerns about the status of local election personnel emanate from three sources. First, there has been the litigation that followed the 1981 governor's election and the subsequent shifting to a majority of Democrats on local electoral boards. The federal Fourth Circuit Court of Appeals held that general and assistant registrars cannot be denied reappointment on partisan political grounds and that the defendant electoral board members and general registrars were state agents or employees to the end that state, rather than local, liability insurance coverage applied in the context of the litigation. McConnell and Kilgore v. Adams, et al., 829 F.2d 1319 (1987). The U. S. Supreme Court denied the Commonwealth's petition for review May 16, 1988, and the Fourth Circuit opinion stands. 56 USLW 3789.

Second, the demands for services made on local registrars have increased with state law changes to require more times and sites for registration and with the introduction of more sophisticated registration and election equipment and procedures.

Third, there is a possibility, some say probability, that Congress will act this year to require a uniform poll closing time nationwide. A 9:00 p.m. or later poll closing time in Virginia would mean that two shifts of officers of election might be necessary.

Reflecting some of these concerns, the Voter Registrars Association of Virginia discussed with the Subcommittee the concept of local directors of election who would perform the registrars' duties and the procedural duties of local electoral boards. The boards would be policy, and not administrative, agencies. In some localities the registrar already fulfills this role in practice, and this proposal warrants careful consideration. The directors could be categorized as state employees. Localities now pay the costs of the registrars' offices and assistants. Major cost factors enter the picture if these office costs are transferred to the state or if additional officers are required by extended polling hours.

Absentee ballot laws were reviewed by the Subcommittee. A number of bills were introduced in the 1988 Session, and several were enacted, to tighten procedures for the handling of absentee ballots following problems involving absentee voting during the 1987elections. The two major changes enacted were (i) the requirement that voters who will be absent on election day for vacation or business reasons must apply in person for an absentee ballot and (ii) a provision that absentee ballots must be mailed directly to the voter and not in care of any other person.

Prior to these 1988 changes, a voter applying for an absentee ballot for vacation or business reasons could request an absentee ballot by phone or. mail and apply for his ballot by mail. Ballots could be sent to the voter in care of other parties at any address. Since the 1988 changes, a number of voter complaints have questioned the in-person application requirement and anomolous cases have come to light in applying the revised law. For example, a professor on sabbatical leave and teaching out-of-state must apply in person for an absentee ballot, while a student away in college can write to his home jurisdiction and apply by mail for an absentee ballot.

SUMMARY OF RECOMMENDATIONS

The Subcommittee submits the following recommendations:

I. Campaign finance disclosure. The Subcommittee recommends one revision in the present Fair Elections Practices Act: the law should be amended to restore the requirement that the major political parties file reports of their campaign receipts and expenditures. See Appendix B, p. B 1, Recommended Legislation.

This change will. eliminate a gap in present reporting requirements and produce a more complete picture of how election campaigns are being financed. Virginia's approach to regulating campaign finances has been disclosure -- requiring that information be available to the public to show who is contributing to candidates and who is spending money to influence the election. It is important to know who has contributed directly to the candidates. It is also important to know who is spending money to influence the outcome of the election. Present law requires PACs and others to report and should apply to the political party committees. They are major players in campaigns and in the campaign finance picture.

The Subcommittee is not prepared at this time to go further in its recommendations or to depart from the basic philosophy of Virginia's campaign finance law which is to spread all relevant information about campaign finances on the public record. No evidence was presented to the Subcommittee to justify a prohibition against contributions by any particular group, the setting of limits on the amounts that individuals or groups are allowed to contribute to candidates, or the public financing of campaigns and limiting of campaign spending.

II. Local election personnel. The Subcommittee believes that a possible restructuring of the local electoral boards and registrars offices deserves further study. A resolution is submitted to continue this Subcommittee to explore how a system of local directors of election might operate and the fiscal impact of changing present funding provisions. See Appendix B, p. B 6.

III. Absentee ballot laws. A proper balance must be maintained between the goal of providing absentee ballots to those who cannot vote in person on election day and the need to prevent misuse of absentee ballot procedures. Testimony before the Subcommittee indicated that the 1988 change to provide that a ballot can be sent only to the applicant appears to be working well. The practice of having multiple absentee ballots sent to one person has been stopped.

On the other hand, many voters have been inconvenienced by the reinstatement of the requirement that persons who will be away on vacation or business on election day must apply in person for an absentee ballot. The in-person application requirement was adopted to prevent voters from voting in concert with a third party and to allow the voter .to cast his absentee ballot in person in advance of the election.

The Subcommittee proposes a compromise approach to this problem. First, repeal the in-person application requirement. Second, require the applicant who will be away on vacation or business to state where he will be on election day. Present law requires this type of information from all other categories of absentee ballot applicants. It is hoped that requiring this information under oath on the application will discourage casual abuse by persons who state they will be absent on election day when that is not the case. See Appendix B, p. B 8.

IV. Miscellaneous matters. Several other issues were brought to the Subcommittee's attention, and legislation is recommended on the following issues:

§ 24.1-1(2). Definitions; candidate. The present definition of candidate is broadly stated and can be construed to include write-in candidates as well as persons seeking party nomination, party nominees, and independent candidates who qualify for the ballot by petition. Generally a write-in candidate has not participated in the campaign process and may not have consented to being identified as a candidate for office. An amendment is proposed to except write-in candidates from the definition. The effect of the amendment will be to provide that write-in candidates will not be entitled to have a representative present when ballots are counted and will. not be entitled to purchase registered voter lists. A write-in candidate who accepts contributions for his campaign or makes campaign expenditures would still be required to file campaign finance reports and would be a candidate for purposes of recount and contest procedures. See Appendix B, p. B 13.

§ 24.1-1(5). Definitions; special elections. Present law in § 24.1-165 prohibits the holding of a referendum on a primary election day. There is no parallel prohibition on holding a special election on a primary: day. to fill a vacancy in an office. Since only one party may be conducting a primary, it would be unfair to call a special election on the primary date when voters who do not wish to participate in the primary of that political party may be reluctant to go to the polls. Voter turnout could be adversely affected. See Appendix B, p. B 14.

§ 24.1-21. Investigations of election practices. This Section provides that the Attorney General shall appoint a committee to investigate election law violations when requested by a Commonwealth's attorney or local electoral board member. The amendment prohibits state and local officials, officers and employees from serving on the committee, but allows them to assist the committee. Since a number of these officials, officers and employees, particularly at the state level, answer informal inquiries concerning election law violations and give advice on administration of the election laws, it is more appropriate that they serve only in an advisory capacity to an investigatory committee. Otherwise, there may be some hesitancy on the part of individuals and election personnel to ask for advice from officials and employees who could serve in a formal investigatory capacity, and it is important that election law administrators maintain free and easy communication with all election administrators and citizens. See Appendix B, p. B 17.

§ 24.1-79.3. Forfeiture of office upon conviction of a felony. This section should be amended to provide that forfeiture of elective office shall occur upon conviction and sentencing for commission of a felony, rather than after "all rights of appeal have terminated." A voter loses his right to vote upon conviction and sentence, and an elected official must be qualified to vote for his office in order to hold office under Article II, § 5, of the Constitution. As now written, § 24.1-79.3 conflicts with the constitutional requirement that the elected official must be qualified to vote for the office in order to hold that office. See Appendix B, p. B 19.

§ 2.1-121.1. (New) A number of challenges to local redistricting plans have occurred since the 1981 redistricting cycle. The state has a legitimate concern that revisions in local election districts are made in compliance with state constitutional standards of equal population, compactness and contiguity and the state statutory mandate to follow defined physical features for boundary lines.

The ability of the state and localities to use Census Bureau data, population reports and maps, hinges on precinct and district lines that follow either legal boundaries (e.g. city boundaries) or roads, rivers, and other clearly identifiable physical features. The state has cooperated with the Census Bureau to assure that the data used in redistricting is complete and equally available to all persons interested in the redistricting process. One aspect of this state program is to lay the groundwork for redistricting plans that will result in identifiable districts and precincts and a more orderly election process for the voters.

The Subcommittee proposes a statutory authorization and directive for the Attorney General to represent the state's interest in situations when the potential remedy in a redistricting case could impinge on legitimate state policy. See Appendix B, p. B 20.