A group of voters is suing Virginia election officials over a loosening of restrictions on absentee ballots for next month’s statewide primary, arguing that the state can’t allow voters to use the coronavirus pandemic as an excuse to vote by mail.
State elections officials and Gov. Ralph Northam have encouraged voters to use absentee ballots for the June 23 primary to prevent the spread of the virus at polling places. Because state law requires voters to list a reason why they can't vote in person on Election Day, the Virginia State Board of Elections has advised voters they can choose the “disability or illness” option on the form.
The federal lawsuit was filed last week by conservative attorney Jim Bopp on behalf of six northern Virginia voters. Bopp has filed a similar lawsuit on behalf of voters in Nevada.
The Virginia lawsuit says that expanding absentee balloting is unnecessary to combat COVID-19.
“The same social distancing and good hygiene practices — which are effective for preventing the spread of the virus when going out for essential services, like grocery shopping and other essential services — are also an effective way to prevent the spread of the virus for in-person voting,” the lawsuit states.
The lawsuit also says that a dramatic increase in absentee ballots “would be a logistical nightmare and increases the risk of disenfranchisement.”
“Due to the sudden surge in absentee ballots that will result from the Plan, many voters will be disenfranchised because requested ballots never arrive or arrive too late and filled-out ballots get lost or are delayed in the return process,” the lawsuit states.
It also argues that allowing people to vote by absentee ballot if they do not have a disability or illness encourages them to make a false statement, which is punishable as a felony.
Attorneys for Virginia, however, say state law allows absentee voting during a state of emergency.
In a brief filed Wednesday, Virginia Attorney General Mark Herring argues that the state began telling voters in March that they could vote by absentee ballot because of the coronavirus, so changing course now could cause confusion and disenfranchisement.
“And the stakes here are even higher than in a typical case because the challenged actions protect not only citizens’ right to vote, but also the health and safety of voters, poll workers, election officials, and others who would otherwise be at risk from a highly contagious virus,” attorneys for the state argue.
Herring’s spokeswoman, Charlotte P.L. Gomer, said the “conservative activists” who filed the lawsuit “are engaged in thinly-veiled voter suppression by trying to force Virginians to choose between their health and the right to vote. ”
“Their suit would disenfranchise tens of thousands of Virginians by changing the rules in the middle of an election in which absentee ballots have already been mailed and cast,” Gomer said.
The Lawyers’ Committee for Civil Rights Under Law filed a friend-of-the-court brief supporting the state's position.
“Virginia officials are attempting to do right by its voters by increasing access to mail ballots for the upcoming primary. Elderly and immune-compromised voters should not have to choose between risking their health and exercising their constitutional right to vote," said John Powers, counsel in the committee's Voting Rights Project, in a statement.
Virginia’s General Assembly passed a law earlier this year allowing no-excuse absentee voting, but it will not go into effect until July 1.
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