The Center for Election Confidence, Inc. (CEC) submitted nine regulatory comments urging key election integrity, transparency, and voter confidence reforms to the Virginia State Board of Elections (Board) in response to the periodic review of election regulations mandated by Va. Code Ann. §§ 2.2-4007.1 and -4017, 1 VAC 20-10-120, and (Virginia) Executive Order 19 (2022).

The following sections of Title 1 of the Virginia Administrative Code were subject to this periodic review. CEC was the only organization to submit regulatory comments.

• 20-10 (“Public Participation Guidelines”);
• 20-20 (“General Administration”);
• 20-40 (“Voter Registration”);
• 20-45 (“Absent Military and Overseas Voters”);
• 20-50 (“Candidates for Office”);
• 20-60 (“Election Administration”);
• 20-70 (“Absentee Voting”);
• 20-80 (“Recounts and Contested Elections”); and
• 20-100 (“Ranked Choice Voting”).

Across all sections, CEC urges the Board to remove outdated references to previous editions of the Virginia Code, provide accurate and updated citations, and engage in continual review to ensure these regulations always track the most current version of Virginia statutory law. CEC also urges the Board to promulgate regulations in all areas mandated by the Virginia Code.

Section 20-20, General Administration

CEC urges the Board to codify a process for the investigation and resolution of informal complaints concerning election administration, as the present regulatory language only provides that the Board provide a response to “all voter complaints” while the statutory language references complaints by “any person”. Further, the existing regulatory section does not provide for any process for the actual investigation or resolution of such complaints. CEC urges the Board to resolve these issues with a comprehensive complaint investigation, transfer, and resolution process.

In addition, the present VA Code permits an exception to the Virginia FOIA under Va. Code Ann. § 24.2-107 whereby public access or notice requirements do not apply when two or more electoral board members being present while “ballots, election materials, or voting equipment are being prepared” unless “discussion or deliberation takes place that would otherwise constitute a meeting.” However, the amount of “discussion or deliberation” for FOIA to apply is not defined. As such, in the interest of promoting election transparency, CEC urges the Board to draw a bright line between two or more electoral board members “engaging merely in the execution of physical preparations for the upcoming election”, for which FOIA would not apply, and “discussing the applicability or implementation of policies or otherwise performing adjudication or administrative tasks assigned to it by relevant law or regulation”, which would be subject to transparency requirements under the law.

Section 20-40, Voter Registration

The Virginia Code requires notification to out-of-state election officials upon registering an applicant with a previous voting registration domicile outside Virginia. The Code does not, however, specify the form or publication of such notification. As such, CEC urges the Board to require that such notifications be sent to the previous registration jurisdiction within three days of an individual’s successful application for registration as a Virginia voter, and that the Board use a written form that complies with the federal National Voter Registration Act’s list maintenance requirements so that the previous registration jurisdiction may treat the notification as the registrant’s request to be removed from their voter registration list.

Further, so that election officials across the Commonwealth may use the SAVE Program to research the citizenship status of those who apply to register to vote in Virginia, CEC urges the State Board to initiate the rulemaking required by law to include provisions concerning (1) access to the SAVE Program by both ELECT and General Registrars, (2) the application and confirmation of results provided by the SAVE Program, (3) the use of such confirmed information relating to a registrant’s status as a non-citizen with respect to their removal from Virginia’s voter registration lists, and (4) the ability of registrants flagged as possible non-citizens by the SAVE Program to contest such a designation for voter registration purposes.

Section 20-60, Election Administration

Section 20-60 contains two different “material omissions” sections, creating the possibility or likelihood that these two sections may be interpreted or develop differently on an inadvertent basis. The existence of two parallel sections for related purposes creates confusion for the public and makes interpreting the requirements of 1 VAC 20-60 more difficult. Thus, CEC urges the Board to consider consolidating these and all material omissions sections to ensure uniformity, understandability, and transparency.

Further, in the interest of transparency and voter confidence, CEC urges the Board to amend Section 20-60 to permit any person authorized to be present in a polling place to capture photographs or other recordings of results tapes, security seals, and other important papers and equipment, before and after the close of polls, so long as such capture would not reasonably violate the privacy of the ballot of any voter or would not reasonably disturb the peace or meaningfully impact the administration of the election at that location.

In addition, CEC encourages the Board to revise Section 20-60 to codify the currently informal guidance concerning the timely availability of provisional ballot logs and to codify current guidance concerning the observation of the “post-election precinct” for late-arriving ballots. The uniform ability to observe such activity and the uniform availability of  provisional ballot logs are important transparency reforms that promote voter confidence and will also aid the Board in meeting the requirements of Va. Code Ann. § 24.2-103 to “supervise and coordinate the work of the county and city electoral boards and of the registrars to obtain uniformity in their practices and proceedings and legality and purity in all elections.” Without formalization and codification of currently informal guidance into regulation, there will be a patchwork of practices by various election boards across the Commonwealth.

Section 20-70, Absentee Voting

Section 20-70 also contains a “material omissions” section regarding absentee ballots. As mentioned previously, the Virginia Administrative Code contains numerous “material omissions” sections with respect to the administration of elections. This overlap throughout the Code creates a likelihood that these sections may be interpreted or develop differently on an inadvertent basis. The existence of parallel sections for related purposes creates confusion for the public and makes interpreting the requirements of 1 VAC 20-70 more difficult. Thus, CEC urges the Board to consider consolidating this and all material omissions sections to ensure uniformity, understandability, and transparency.

Further, Section 20-70 includes a requirement that “notice is given to the local political party chairs of the times and places for processing absentee ballots in sufficient time to allow for the authorized party representatives to be present” but does not include a specific baseline for this timeliness requirement. Thus, CEC recommends that the Board update this Section to include a minimum notice requirement of twenty-four (24) business hours before a pre-processing meeting may occur to ensure uniformity among electoral board practices.

In addition, while Section 20-70 requires an “outer absentee envelope” and a “return envelope” for absentee voting, Fairfax County did not comply with these provisions in the 2024 general election—leading to ballot secrecy concerns reported widely in the news media. This discrepancy plainly reduces voter confidence. As such, the Board must take steps to actively enforce the provisions of the existing regulation. The Board should consider whether this Section’s language should be updated to expressly prohibit the use of single-envelope absentee ballot return systems.

Lastly, given on-going uncertainty surrounding the permissibility of “ballot harvesting” by third-party groups, CEC urges the Board to promulgate a regulation that interprets Va. Code Ann. § 24.2-707 in accordance with the apparent intent of the General Assembly to prohibit such third-party ballot collection pursuant to the Board’s statutory responsibility to “ensure that major risks to election integrity are (i) identified and assessed and (ii) addressed as necessary to promote election uniformity, legality, and purity.” Va. Code Ann. § 24.2-103.