"November 8, 2005

Kent Willis
Executive Director ACLU of Virginia
6 North Street Suite 400 Richmond VA 23219

RE: Voters' Rights on Election Day

Dear Mr. Willis,

The State Board of Elections appreciates the effort you have taken and displayed in your news release and letter to Virginia's general registrars to ensure that no eligible voter is turned away at the polls on election day because he or she was unable to present identification. As you know, the State Board of Elections, as well as the local electoral boards, general registrars, and officers of election, are fully engaged in carrying out the requirements of Virginia election law which allows voters who are unable to present an identification to vote after completing an Affirmation of Identity swearing under penalties for false statements that they are the named registered voter who they claim to be.

To this end, the State Board of Elections has engaged in extensive training efforts for the local electoral boards and general registrars, who in turn have targeted training to officers of election, to ensure that any voter who is unable to present an identification is offered the ability to sign an Affirmation of Identity and vote normally on the voting equipment in use at the polling place. This training includes the process outlined in §24.2-643 of the Code of Virginia whereby each officer must ask each voter for his or her full name and current address and ask each voter to present an allowable form of identification. If the voter is unable to present identification, officers of election are instructed to inform the voter he or she must sign an Affirmation of Identity form and will then be allowed to vote normally on the voting equipment. This statute and procedure have been pre-cleared by the United States Department of Justice (DOJ) under the Voting Rights Act of 1965 as amended. While we appreciate your recommendations to alter this procedure to require officers to first affirmatively announce to voters that they do not need identification, to do so would run contrary to the Code of Virginia and subsequent procedures which have been pre-cleared by DOJ.

In addition to these procedures outlined in the Code of Virginia, the State Board produces posters which are required to be used in each polling place listing the Voter's Rights and Responsibilities and the identification requirements and the right of any voter to vote without identification after signing the Affirmation of Identity. This information is posted on the State Board of Elections website (www.sbe.virginia.gov) and has been disseminated throughout the Commonwealth. If there are any reports where these Code requirements and procedures are not being carried out, please report these instances to the State Board of Elections, and the local general registrar and electoral board, so that we can follow up on the matter.

In your letter to general registrars and your news release, you also express your concern that a specific statute of Virginia election law which you state was meant to "prevent electioneering" or prevent individuals from "'actively influencing the votes of others after they enter the polling place." You cite a portion of §24.2-604 of the Code of Virginia by stating that it is unlawful "to solicit or in any manner attempt to influence any person in casting his vote" within the 40 foot prohibited area from the entrance of a polling place. You further assert that a misinterpretation of this specific prohibition has lead to instances where voters were prohibited from displaying or exhibiting campaign materials. To clarify this matter, I point your attention to the remaining prohibitions listed in §24.2-604 A and D which respectively state:

DURING THE TIMES THE POLLS ARE OPEN AND BALLOTS ARE BEING COUNTED, IT SHALL BE UNLAWFUL FOR ANY PERSON (i) to loiter or congregate within 40 feet of any entrance of any polling place, (ii) WITHIN SUCH DISTANCE TO GIVE, TENDER, OR EXHIBIT ANY BALLOT, TICKET, OR OTHER CAMPAIGN MATERIAL TO ANY PERSON or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering the polling place. (Emphasis added)

IT SHALL BE UNLAWFUL FOR ANY AUTHORIZED REPRESENTATIVE, VOTER, OR ANY OTHER PERSON IN THE ROOM TO (i) hinder or delay a qualified voter; (ii) give, tender, or EXHIBIT ANY BALLOT, TICKET, OR OTHER CAMPAIGN MATERIAL TO ANY PERSON; (iii) solicit or in any manner attempt to influence any person in casting his vote; (iv) hinder or delay any officer of election; or (v) otherwise impede the orderly conduct of election. [Emphasis added.]

As you can see, this section clearly prohibits the display or exhibiting of campaign material within the 40-foot prohibited zone and within the polling place by any person including voters. In a busy election year, this is perhaps the one area that is free from campaign advertisements and materials in which a voter can vote in a private and independent manner without being bombarded with exhibitions of campaign material.

The State Board of Elections was unaware of any polling place that was not enforcing these prohibitions and thank you for bringing this to our attention. Officers of election are advised to attempt to reach an accommodation with any voter who is exhibiting campaign material in order to allow that voter to cast his or her ballot without displaying such campaign material within the 40-foot prohibited zone, but the officers of election are bound by the plain meaning of the law which prohibits a person from exhibiting campaign material.

I hope this letter has clarified these matters for you concerning the implementation of Virginia election law and the State Board of Election's commitment to allow all eligible and qualified voters the right to vote within the scope of these laws on Tuesday, November 8th.

Sincerely,
Jean R.Jensen
Secretary, State Board of Elections"