Court: Virginia rule that allowed late ballots with missing postmark was illegal

There’s some fresh news from the “Where Were You in November” department this week. In Virginia, Republicans and Democrats have been continuing a feud in the courts over “emergency rules” passed by the Democrats to allow greater numbers of mail-in ballots to be counted during the last election. One of those changes allowed ballots arriving after election day and without a postage mark indicating when they were mailed to be counted. Now a circuit court judge has ruled that the rule in question violates state statutes and the practice will be banned in the future. The lawsuit leading to this decision was brought by the Public Interest Legal Foundation (PILF). This update comes from the Daily Caller.

Virginia Circuit Court Judge William Eldridge ruled the state’s late mail-in ballot law violated state statute and permanently banned the law in future Virginia elections, the Public Interest Legal Foundation (PILF) announced Monday. PILF sued the state’s board of elections in October on behalf of Thomas Reed, a Frederick County, Virginia election official.

“This is a big win for the Rule of Law,” PILF President and General Counsel J. Christian Adams said in a statement. “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.”

Every state gets to create its own laws in terms of how elections are handled (within constitutional limits, anyway). But once those laws are in place, they have to be followed. If Virginia wanted to allow those types of rejected ballots to be accepted they could have proposed the matter in the legislature. But that’s not what happened. The Board of Elections made a decision to alter the rules in August (barely three months before the election) and simply sent that “guidance” around to election officials around the state.

The judge has determined that the rule is in direct violation of existing law. Currently, mail-in ballots that arrive in the mail prior to noon on the third day after the election can be counted. But the law specifies that the envelope the ballot arrives in must be postmarked, showing that it was mailed prior to the election. Ballots without postmarks or ones that are postmarked after the election do not qualify.

So, does this change anything in terms of the 2020 results? The answer is no. The same judge had ruled on October 28th that the rule must be placed on hold while the case proceeded. Therefore, no late ballots without qualifying postmarks were counted. If the ruling had gone the other way, it might have affected the totals, but Biden carried the state by nearly 500,000 votes. It would be very surprising if there were that many disputed ballots that had been rejected under these specific criteria.

The ruling will impact this year’s elections, however, barring any reversal of this decision on appeal or a change in the state’s voting laws during the next legislative session. I don’t have a problem with states allowing ballots that are mailed by election day since that’s pretty much the same thing as showing up at your polling place on time, at least in theory. But you have to be able to confirm that the voter completed and submitted it on time. This wouldn’t be much of an issue if there were only a normal number of ballots arriving by mail. But here we have once again seen how flooding the system with literally millions of mail-in ballots all at once leads to nothing but more problems, as so many of us predicted before this entire debacle unfolded.