Virginia Abandons Policy to Accept Late Ballots Without Postmarks

Published On: January 25th, 2021

County Election Official Wins Permanent Injunction Against Virginia Accepting Late Ballots with No Postmark

(RICHMOND, VA.) – January 25, 2021: The Public Interest Legal Foundation (PILF), on behalf of Thomas Reed, a local electoral board member, announced a court-approved consent decree to permanently prevent the Virginia State Board of Elections from accepting absentee ballots received up to three days after Election Day without postmarks in violation of Virginia law. (Reed v. Virginia Dept. of Elections).

This is a big win for the Rule of Law,” PILF President and General Counsel J. Christian Adams said. “This consent decree gives Mr. Reed everything he requested – a permanent ban on accepting ballots without postmarks after Election Day and is a loss for the Virginia bureaucrats who said ballots could come in without these protections.”

Existing Virginia statute (24.2-709) is clear: “any absentee ballot returned to the general registrar after the closing of the polls on election day but before noon on the third day after the election and postmarked on or before the date of the election shall be counted…” (emphasis added).

The defendants’ guidance to local election boards on August 4, 2020, stood contrary to Virginia law, particularly allowing ballots received within the Election Day plus-3 window even if they do not “have a postmark, or the postmark is missing or illegible.”

The plaintiff sought declaratory and injunctive relief from the Circuit Court of the County of Frederick that:

  1. Instructions issued by the defendants conflict with specific Virginia statute;
  2. A postmark dated on or before Election Day be required for acceptance;
  3. The Intelligent Mail Barcode system by the USPS be used to verify date of mailing in the cases of missing or illegible postmarks; and,
  4. Enjoin the defendants from issuing any further instructions that conflict with existing Virginia statutes.

On October 28, 2020, the Court ruled for Reed in a preliminary injunction hearing that Virginia could not accept and count late absentee ballots missing postmarks and USPS barcodes could not indicate date of mailing.

The consent decree, entered by the Court on January 13, 2021, sets forth that late ballots missing postmarks be rejected. If a late-arriving ballot contains an illegible postmark but USPS barcodes do not indicate a late mailing, it can be accepted.

A signed copy of the consent decree may be read, here.

The plaintiff for this action was Thomas P. Reed, a Frederick County Board of Elections Member.

The Public Interest Legal Foundation won the only injunction against a state in 2020 in stopping the acceptance of late ballots without postmarks. PILF is leading the nation in enforcing election integrity laws and the National Voter Registration Act, having brought cases in North Carolina, Pennsylvania, Michigan, Maryland, Florida, Mississippi, Texas, and Maine and filed amicus briefs in litigation across the nation.

The case was filed in the Circuit Court of the County of Frederick, Virginia. The case number was 20-622. Counsel for the Public Interest Legal Foundation is J. Christian Adams. Winchester-based Phillip S. Griffin II serves as co-counsel.

Public Interest Legal Foundation (PILF) is a 501(c)(3) public interest law firm dedicated to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections.

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