A Virginia Circuit judge has ruled that Virginia’s last-minute election rule change to allow mail-in ballots to arrive late without a postmark was illegal.
The ruling will permanently prevent the Virginia State Board of Elections from accepting and counting absentee ballots without postmarks it receives up to three days after Election Day, according to the Public Interest Legal Foundation.
“This is a big win for the Rule of Law,” PILF President J. Christian Adams said in a statement.
“This consent decree gives [the plaintiff] 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.”
The case came after the Virginia Board of Elections issued a rule in August that said it would count mail-in ballots without postmarks for up to three days after the November election, the Washington Examiner reported.
Virginia law says that absentee ballots that are received after the closing of the polls but before noon on the third day after the election can be counted if they are “postmarked on or before the date of the election.”
PILF filed a lawsuit against the board of elections in October on behalf of Frederick County electoral board member Thomas Reed, who said he couldn’t enforce the new rules because they violated state law.
The court sided with Reed in a preliminary injunction hearing on Oct. 28.
In its Jan. 13 consent decree, the court said that late ballots without postmarks should be rejected.
“If a late-arriving ballot contains an illegible postmark but USPS barcodes do not indicate a late mailing, it can be accepted,” PILF wrote.
The Supreme Court ruled in October that election officials in Pennsylvania were allowed to receive absentee ballots for three days after Nov. 3 in accordance with the state’s law, The New York Times reported.
“I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election,” Justice Samuel Alito wrote, leaving open the possibility of later action.
“The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.”
Pennsylvania was not the only state to change election rules amid the coronavirus pandemic.
At least 30 states and the District of Columbia made changes to make it easier for voters to cast ballots from home, ABC News reported.
Some of the changes included allowing COVID-19 concerns to be a valid excuse to vote absentee and proactively sending all registered voters applications to request an absentee ballot (or even sending the actual ballots in the mail without a request).
This led to concerns about the potential of election fraud in the 2020 presidential election.
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