HD35 - Report of the Joint Subcommittee Studying Virginia's Election Process and Voting Technologies

Executive Summary:

Study Origin

The 2001 General Assembly crafted a comprehensive study of Virginia's election process and voting technologies in response to the turmoil that followed the 2000 presidential election. Duplicate resolutions combined several proposed studies of Virginia's election laws and operations and passed the General Assembly unanimously. See, Appendix A for text of House Joint Resolution No. 681.

The joint subcommittee's directive lists 15 specific topics for examination and a final comprehensive charge to make any additional recommendations that will contribute to the fairness of elections. The breadth of the study resolution is reflected in the following statement from it:

"....the Commonwealth and its citizens would be well served by a determination of whether additional actions, procedures, guidelines, regulations, policies or systems are necessary or advisable to ensure the orderly, objective, accurate, and fair conduct of elections and resolution of disputes over results before an election crisis occurs...."

Virginia's call for a study in response to the 2000 presidential election mirrored the reactions in numerous states and among many national organizations. (*1) In addition to the many national studies, there have been many federal agency studies and state studies. Access to these studies is available through the Internet. One source for continuous updates on election reform studies and legislation is the Election Reform Information Project. Its Website is http://www.electionline.org/index.jsp.

Work of the Joint Subcommittee

As soon as the joint subcommittee was appointed, it began its survey of Virginia's election process. In May, Delegate James K. "Jay" O'Brien and Senator William T. Bolling were elected Chairman and Vice-Chairman. The Chairman appointed two task forces. Senator Kevin G. Miller chaired Task Force #1 on Technology and Voting Equipment, and Senator Bolling chaired Task Force #2 on Voter Registration and Election Day Processes.

The joint subcommittee held five meetings and the task forces held seven additional meetings. Many invited experts assisted the subcommittee and task forces in their efforts to conduct a comprehensive review of the present election process in Virginia and gain a full picture of reform efforts throughout the country. While it is not possible to list the more than 80 persons who met one or more times with the subcommittee, much appreciation is due to the many public-minded individuals and groups who lent their expertise to the Subcommittee. All subcommittee and task force meetings were open to the public and many useful comments were offered by those in attendance.

A summary for each meeting is carried in Appendix B. That appendix gives an idea of the number and names of the many individuals and groups that offered their views and expertise to the subcommittee and its task forces.

Summaries of the meetings were published on the Internet during the course of the study at http://dls.state.va.us/pubs/legisrec/2001/welcome.htm. At its October meeting, the joint subcommittee received preliminary reports from the task forces. Those reports, recommendations, and draft legislation were published on the Internet at http://dls.state.va.us/election.htm , a site established for the joint subcommittee. The subcommittee solicited, received, and reviewed comments on the task forces' preliminary reports.

At its final meeting on November 29, 2001, the subcommittee reviewed the task force recommendations and endorsed 16 specific proposals. It directed staff to prepare bills to incorporate recommended legislation and requests for budget amendments.

Those specific proposals are set forth in the Recommendations section of this report following some general observations.

General Observations

The joint subcommittee heard numerous comments pointing to existing laws and practices in Virginia that are being touted on the national scene as steps to improve elections and avoid the problems that plagued Florida and other states in the aftermath of the 2000 presidential election. It is worth noting that a number of these assets are already in place in Virginia's election process.

The Virginia Voter Registration System (WRS). Virginia established the current centralized voter registration system in the early 1970s. The Commonwealth brought local voter lists together into one database using names, addresses, and Social Security numbers as the means to eliminate duplicate registrations. The centralized system gives each local general registrar access by computer to the list and to programs in place to provide continuous updates in the system for new voters, voters changing addresses, voters who lose the right to vote through felony convictions or findings of incompetency.

One of the sure reforms to follow the 2000 presidential election is the establishment of centralized statewide voter registration systems in states that do not now have a central system. At present Virginia is one of 21 states (covering 39.2 percent of the voting age population in the United States) that have, or are creating, a computerized central database. A number of the specific proposals discussed below seek to improve Virginia's voter registration system to assure that the lists produced by the system are accurate and reliable. During the past two years, plans for WRS II have been developed to provide a new computer platform and carry the system forward. Funding for WRS II should be made available as soon as practicable.

Provisional or conditional ballots. Significant numbers of voters were turned away from the polls in the 2000 presidential election because their names did not appear on the registered voter lists at the polls. They thought they had registered, but their application was not processed for a number of reasons.

Since the National Voter Registration Act, registrations at motor vehicle offices and by mail have become commonplace. These registrations may be incomplete or delivered too late to be included in the precinct registered voter lists for an election. Many national studies have advocated a provisional ballot that can be voted and held until the polls close. Then election officials can check to verify whether or not the voter is registered. If registered, the ballot will be counted. This solution gives the officials time to check the records and minimizes disputes at the polling place.

Virginia enacted laws in 1975 to provide for a conditional vote by paper ballot when the voter's name did not appear on the registered voter list for the polling place. These votes are held to allow the electoral board to determine if the voter is entitled to vote and will be counted if the voter is found to be properly registered. See, Virginia Code § 24.2-653. The joint subcommittee cautions that election officials should send the voter to his proper polling place if possible and use the conditional vote only in situations where it is not possible to determine the voter's registration status. Continuing efforts to streamline and improve voter registrations through Department of Motor Vehicles facilities are addressed below and also serve to lessen the need for conditional ballots.

Recount standards. A major problem highlighted in Florida in 2000 and pinpointed in many national studies involves the lack of clear procedures and standards to govern the recount process in close elections. Virginia statutes provide for a court-supervised recount process and avoid the scenario that captured media attention in Florida. The nation watched as local election officials conducted ad hoc recounts with no apparent overall standards or procedures to provide uniformity.

The 2001 General Assembly addressed the need for uniformity in recount standards and directed the State Board of Elections to promulgate standards for recounts by September 1, 2002, that would provide for an "accurate determination of votes based upon objective evidence and taking into account the counting device and form of ballots approved for use in the Commonwealth." The State Board issued a comprehensive set of standards August 20, 2001, to guide the courts in the conduct of recounts that might follow the November 2001 elections.

In addition, the 2001 General Assembly directed the State Board to recommend standards for enactment by the 2002 General Assembly. The State Board worked with the joint subcommittee on recount issues. On December 21, the State Board endorsed the proposal (LD 0624872) recommended by the joint subcommittee, described below, and reported in Appendix C which carries the subcommittee's legislative proposals. The State Board noted that it will continue to review the standards that it promulgated in August to incorporate changes made by the General Assembly in the recount statutes.
(*1) The Subcommittee had the benefit of many comprehensive reports by national groups: "Counting All the Votes: The Performance of Ejection Technology in the United States" (University of California, Berkeley); "An Agenda for Election Reform, Policy Brief" (The Brookings Institution, Thomas E. Mann); "Voting - What Is, What Could Be" (Caltech/MIT Voting Technology Project, July 2001); "Building Consensus on Election Reform" (The Constitution Project, August 2001); "Election 2000: Review and Recommendations by the Nation's Elections Administrators" (The Election Center, National Task Force on Election Reform, July 2001); "Report and Recommendations to Improve America's Election System" (National Association of Counties, National Commission on Election Standards and Reform, May 2001); "State-by-State Election Reform Best Practices Report" (National Association of Secretaries of States, August 1, 2001); "To Assure Pride and Confidence in the Electoral Process" (The National Commission of Federal Election Reform, August 2001); "Voting in America" (National Conference of State Legislatures Election Reform Task Force).