Despite 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.