Practical effects of the Supreme Court's voting rights ruling

(This article appeared originally on Virginia Politics on Demand on June 25, 2013.)

Coby Dillard has already summarized what the U.S. Supreme Court did, and did not, do in its ruling Tuesday morning in the case of Shelby County, Alabama v. Holder, Attorney General, in striking parts of the Voting Rights Act of 1965 (as reauthorized by Congress in 2006).

What I would like to explain is what practical effect this will have on voting in the Commonwealth of Virginia, one of the nine states covered under Section 5 of the Voting Rights Act, requiring pre-clearance by the U.S. Department of Justice for virtually all legal and regulatory changes in voting procedures and elections.

With a few exceptions, all counties and cities in Virginia must seek permission from the federal government before making any changes in the way they conduct elections. The most recent exception is Hanover County, which was "bailed out" of the pre-clearance requirement, as explained in a news release posted by the Department of Justice on Monday:

The Justice Department announced today that it has reached an agreement with Hanover County, Va., that will allow for the county, a covered jurisdiction under the special provisions of the Voting Rights Act, to bail out from coverage under these provisions. Bailout will exempt Hanover County, along with the town of Ashland, from the preclearance requirements of Section 5 of the Voting Rights Act. The agreement is in the form of a consent decree filed today in the U.S. District Court for the District of Columbia and must be approved by the court....

“In the department’s view, the county has met the requirements necessary for bailout. We reached this conclusion after thoroughly reviewing information provided by the county as well as information gathered during the Department’s independent investigation,” said Matthew Colangelo, Deputy Assistant Attorney General for the Civil Rights Division. “We appreciate the county’s cooperation in the resolution of this matter.”

The bail-out process has always been an option for localities covered by Section 5 of the Voting Rights Act, but it is expensive and time-consuming and requires the attention of numerous officials from the Electoral Board to the city or county attorney. The Electoral Board in Charlottesville (on which I serve) has considered applying for a bail-out several times over the past few years, but the expense -- the equivalent cost of a general election, or more -- plus the fact there was no guarantee of success deterred us from initiating the process.

That said, a Huffington Post headline today -- "The Last Voting Rights Act Bailout Ever Went To Hanover County, Va." -- suggests that the bail-out question is moot, unless Congress comes up with a formula that meets constitutional muster and restores Section 4 of the Voting Rights Act, so that the pre-clearance provisions of Section 5 can again be implemented.

On a practical level, ending the pre-clearance requirements will make it much easier for election officials in Virginia to do their jobs. While much attention has been paid to how the Supreme Court's ruling affects things like congressional and other legislative redistricting or statewide voter ID laws, the ripples of Shelby County v. Holder will be felt in countless tiny ways on topics that seldom make the headlines.

For instance, every time a polling place is moved from one location to another, Section 5 of the Voting Rights Act required us to seek permission from the Justice Department, a process that had to be approved at least 30 days prior to the move's taking effect. (In reality, permission had to be granted even earlier, because of the cascade of tasks that must be completed before election day, including the commencement of absentee voting, sending out voter registration cards with new information, posting advertisements in newspapers alerting voters about the changes, etc.)

To give you a sense of how detailed this pre-clearance process could be, consider this example. Some Charlottesville voters currently cast their ballots in the cafeteria of Johnson Elementary School. If we needed to move the voting location to the school's library down the hall, we would need Justice Department pre-clearance.

Buying new voting machines, making technical adjustments to precinct boundaries, moving the office of the General Registrar -- all these had required pre-clearance by the U.S. Department of Justice.

Each of those items required action by the Electoral Board, the General Registrar, the City Attorney, and (in most cases) City Council. They took time and energy away from other tasks that need to be done to assure fair, transparent, honest, and efficiently-run elections.

I will leave to others to debate the political implications of the Supreme Court's decision Tuesday. As for the practical effects, the Court has removed a tremendous burden -- some might even say nuisance -- from the shoulders of election officials across the country. For that we can be grateful.

How did Charlottesville untie its June 11 primary election?

(This article appeared originally on Virginia Politics on Demand on June 17, 2013.)

While last [June]'s primary elections were ho-hum throughout most of the Commonwealth of Virginia -- only 144,435 voters cast ballots in the Democratic contest for lieutenant governor, or 2.6 percent of possible registered voters -- the situation was different in Charlottesville, which had the most crowded ballot among Virginia's 134 counties and cities.

While a handful of localities had primary contests for the House of Delegates, Charlottesville was the only city with several local offices on the ballot. In addition to the top-of-the-ticket choices for lieutenant governor and attorney general, Charlottesville's Democratic voters also chose among candidates for commonwealth's attorney, commissioner of the revenue, and city council. (There were no Republican candidates on the ballot. The local GOP nominated two candidates for City Council, Mike Farruggio and Buddy Weber, in a late-April mass meeting.)

Charlottesville City Council candidate Wes Bellamy speaks to news media after his defeat

 Incumbent Commonwealth's Attorney Dave Chapman beat former Commonwealth's Attorney Steve Deaton in a landslide. (Chapman was first elected in 1993, when he defeated Deaton narrowly in a Democratic caucus. He has never faced a general-election opponent.)

Newcomer Todd Divers more narrowly defeated fellow newcomer Jonathan Stevens for the party nod for Commissioner of the Revenue. (They were both seeking to succeed retiring Lee Richards, another incumbent Democrat who never had a general election opponent.)

Chapman will again be unopposed in November but Divers will have two independent candidates running against him, Taneia Dowell and John Gunter.

The real fireworks came in the City Council race, which was not decided until Friday afternoon because of an exact tie between two candidates on election night.

There were five candidates seeking two nominations by the Democratic party. One was incumbent Kristin Szakos, who took first place handily.

When the results for Charlottesville's nine physical precincts were tabulated, it looked like the second-place finisher would be Bob Fenwick, who had 1,025 votes while third place was held by Wes Bellamy, with 1,006 votes.

City Council candidate Bob Fenwick speaks to news media after his narrow win was announced

All that was left to tally were the 201 ballots cast in the Central Absentee Precinct. Of those, 178 voters had cast their ballots in person on the eSlate electronic system and 24 paper ballots had been returned by mail. (One of those paper ballots was disqualified, so only 23 were counted.)

As the memory card with the machine totals was inserted into the tally computer, we knew the race would be close between Fenwick, who had twice before run as an independent candidate for City Council, and Bellamy, a first-time candidate. Little did we know how close it would be.

After the electronic absentee votes were added to the total, the count was Fenwick, 1,081, and Bellamy, 1,080. If nothing else, we knew a recount was a distinct possibility.

All that was left were the hand-counted paper absentee ballots. I watched over the shoulder of one of the election officials as she read the numbers off the statement of results so they could be added to the spreadsheet of all the other votes. Reading ahead, I exclaimed aloud, "Oh my god! There's going to be a tie."

Indeed, Fenwick received another 7 votes and Bellamy another 8 votes, so that they were tied: 1,088 to 1,088. What would happen next?

Well, there were still provisional ballots to be counted. There were five from Walker Precinct that we were fairly sure would qualify because they had been cast when there was a malfunction of the electronic pollbook early in the morning of election day. There were three others that we knew about, plus one or two "provisional ID" ballots that were issued because the voter failed to bring an acceptable identification document to the polls pursuant to the new voter ID law that took effect in 2012.

We learned at the canvass the next day that there were a total of 12 provisional ballots.

In the meantime, we were exploring the possibilities for what would happen if the election turned out to be an exact tie. It turns out Virginia election law is quite clear about this, which comes as a surprise because so much else about the code is rather muddy.
§ 24.2-674 says:

If two or more persons have an equal number of votes for any county, city, town, or district office, and a higher number than any other person, the electoral board shall proceed publicly to determine by lot which of the candidates shall be declared elected.

The term "by lot" is not specifically defined, but it is generally meant to be any game of chance, usually a coin toss but the category also includes drawing straws, a roll of dice, a hand of poker or blackjack, or even rock-paper-scissors.

When the canvass met on Wednesday morning, we had to move from our usual location in a small conference room in the voter registration office to a much larger room in the basement of City Hall. Observers from the Democratic party -- including local chair Jim Nix -- and both the Fenwick and Bellamy campaigns were there. The local news media were there in force: both TV stations, three local newspapers, and at least one radio station sent reporters and photographers.

They all had to sit through the tedium of the canvass -- which I described to Ed Sykes of NBC29 as akin to "watching paint dry" -- as we checked the paperwork from all the precincts. In the process, we found two discrepancies that had not been recorded on election night that had not affected the outcome of any race. It was not until 11:00 a.m. that we opened the main event, the provisional vote precinct. That is what everyone -- candidates, party officials, and journalists -- was waiting for.

In the event, we found seven regular provisional ballots and disqualified one of them because the voter was registered in Albemarle County. Six of them were accepted as valid and we counted the votes. Bob Fenwick picked up three more votes and Wes Bellamy received none. The count now stood at Fenwick, 1,091; Bellamy, 1,088.

At that point, it became necessary to discuss what we would do with the remaining four provisional ballots, which had been cast because the voters, whose names were properly on the pollbook, had shown up at their precincts on Tuesday without appropriate identification.

The law says that those voters have until noon on the Friday following the election to present their IDs to the electoral board. They can do so in person, by fax, by U.S. Postal Service, or by commercial delivery service but not by having it delivered by a third person (such as a family member.)

Wanting to speed up the process as much as possible, the Electoral Board readily agreed to the suggestion that the four voters be contacted by telephone or email to remind them that they had the opportunity to bring their IDs to the office.

Later in the day, a local talk-radio host complained that this was "coddling" the voters and that making those telephone calls might even be illegal, and wondered what the State Board of Elections would have to say about the Electoral Board's action.

The propriety of the Electoral Board's directing the general registrar to make these phone calls is unquestionable. There is a section of the administrative code of Virginia, 1VAC20-60-60, which states plainly:

The electoral board or general registrar may attempt to contact an individual who has voted a provisional ballot when required by § 24.2-643 of the Code of Virginia and remind the individual that he is permitted to provide a copy of a form of identification as specified in subsection B of § 24.2-643 of the Code of Virginia to arrive no later than noon on the Friday after election day. However, there shall be no requirement that the electoral board or general registrar contact such individual.

The statutory authority for this provision is found in § 24.2-103 of the Code of Virginia.

That said, it should be pointed out that this is all new territory for election officials. The voter ID law took effect on July 1, 2012. (A new one will supersede it on January 1, 2014.) There was never a need prior to the November 2012 election to even consider telephoning voters about their missing IDs. The form each voter fills out on the envelope containing a provisional ballot, however, includes a space for a telephone number, so even without the clear guidance set out in the administrative code, the implication by the design of the form is that the State Board of Elections intended that the phone number be available for use by Electoral Boards and registrars.

Even so, callers to that radio program were complaining as late as Monday afternoon about the "dubious" practice of the Electoral Board to request that phone calls be made to expedite the completion of the canvass and election process.

When the board reconvened on Friday afternoon at 1:30 p.m., the crowd of observers was slightly thinner than it had been on Wednesday, but there were still more people present than at a "normal" canvass. Three of the four voters had provided an ID, so their votes would be counted.

In the end, Bob Fenwick received two more votes while his nearly-equal opponent, Wes Bellamy, received none from the provisional precinct. Fenwick ended up the winner by five votes, 1,093 to 1,088, and Bellamy graciously conceded and said he would not seek a recount, which would be within his rights as a losing candidate when the difference between the two was less than 0.5 percent of the total. He explained that, having observed the Electoral Board's canvass, he trusted the accuracy of the results.

All in all, the 2013 Democratic primary election in Charlottesville brought a lot more tension and excitement than had ever been anticipated or wanted. (The election official's prayer: "Dear Lord, we don't care who wins, as long as it's by a big margin.") Still, having seen a precise tie on election night, observing the rare occasion of an election decided "by lot" would have been an unforgettable event, one that is unlikely to happen again in Charlottesville for a long, long time.

As for the rest of the Commonwealth, a tie is still a mathematical possibility. So watch out.

NOTE: Virginia Politics on Demand contributor Rick Sincere has served on the Electoral Board for the City of Charlottesville since March 2004.