Judge: Virginia Can't Count Ballots With Missing Postmarks

A judge ruled Wednesday that Virginia elections officials cannot count absentee ballots with missing or illegible postmarks unless they can confirm the date of mailing through a barcode, granting an injunction requested by a conservative legal group.

The Public Interest Legal Foundation sued the Virginia Department of Elections and members of the Virginia State Board of Elections earlier this month, challenging a regulation that instructed local election officials to count absentee ballots with unreadable postmarks — as long as the ballots are received by noon on the Friday after Election Day, Nov. 3.

The lawsuit alleged the regulation violates a 2020 state election law that says absentee ballots postmarked by Nov. 3 and received by Nov. 6 will be counted.

At issue was an instruction given to local election officials that says a ballot with an unreadable or missing postmark should still be counted if the voter signed and dated the security envelope used for absentee ballots by Election Day.

Attorneys for the Public Interest Legal Foundation, which filed the lawsuit on behalf of Thomas Reed, a member of the Frederick County Board of Elections, argued a voter's signature and date of signing is not an official confirmation of mailing by the U.S. Postal Service. Robert Hess, the chairman of the Winchester Republican Committee, is also a plaintiff in the lawsuit.

Lawyers for the state had argued that the election law does not specifically address what should happen if the return envelope containing an absentee ballot has no postmark or the postmark is illegible. They said the regulation was aimed at providing clarity to local elections officials and voters.

"Requiring each ballot that does not have a postmark — through no fault of the voter — to be thrown out, regardless of when the ballot was actually mailed, risks disenfranchising Virginian voters. This is especially troubling during a presidential election year," attorneys with Attorney General Mark Herring's office argued in court documents.

A spokeswoman for Herring did not immediately return calls seeking comments on the judge's ruling and whether the state will appeal.

Under the regulation, if a return envelope has an unclear postmark, the registrar was instructed to look at the Intelligent Mail barcode to determine whether it was mailed by Election Day. If the barcode shows the ballot was mailed after polls closed on Election Day, the ballot would be considered invalid.

If there is no evidence from the barcode when the ballot was mailed, the registrar was instructed to look at the date when the voter signed the security envelope. If the envelope was signed on or before Election Day, the ballot would not be considered invalid and would be counted.

But after listening to arguments Wednesday in Frederick Circuit Court, Judge William Warner Eldridge IV ruled that if the barcode does not indicate whether the ballot was mailed by Election Day, the ballot cannot be counted. The judge said state election law makes it clear that the envelopes must have a postmark and elections officials cannot create an exception that would allow for self-authentification by the voter, said Christopher Marston, an attorney for Hess.

"It's important that we have a consistent rule that matches the statute and not an additional rule that's sort of made up by the board," Marston said.

It is unclear what impact the ruling could have on election results in Virginia. Marston said the judge noted it is impossible to estimate how many absentee ballots could have missing or illegible postmarks.

"Counting a ballot without a postmark or indication of mailing through the bar code is against the law," said J. Christian Adams, president of the Public Interest Legal Foundation, which represented Reed in the lawsuit.

"I am pleased that the judge stopped a practice that was contrary to the law," he said.

State laws on absentee ballot deadlines have been a major issue in the presidential election. Last week, the U.S. Supreme Court upheld a Pennsylvania state court order extending the absentee ballot deadline. But on Tuesday, the high court sided with Republicans to prevent Wisconsin from counting mailed ballots that are received after Election Day.