A Summary of Laws and Facts on Voting in Fairfax County
Article II of the Constitution of Virginia establishes the basic rules regarding voting. Article II grants to the General Assembly the authority and the responsibility to establish and maintain a uniform voter registration system. That Article also authorizes the General Assembly to regulate the time, place, manner, conduct, and administration of general, and special elections, and to make any other law regulating elections not inconsistent with the Constitution. (Article II, § 4.) The General Assembly has implemented its Constitutional authority in Title 24.2 of the Code of Virginia, which contains Virginia’s election laws.
Article II, § 8 provides that each county and city shall have a three-member electoral board. “As far as practicable,” the two political parties that received the highest and next highest number of votes in the next preceding general election shall be represented on each electoral board. The local electoral boards appoint the general registrar. The local electoral boards also appoint the officers of election who work in the polling places and, as with the electoral board itself, the two political parties that received the highest and next highest number of votes in the preceding election shall be represented among the officers of election “as far as practicable.”
Title 24.2 of the Virginia Code contains the laws regulating the administration of elections; election districts, precincts, and polling places; voter registration; the conduct of the election; absentee voting; and all other aspects of elections.
Section 24.2-102 “continues” the Virginia State Board of Elections, a three-member board appointed by the governor subject to confirmation by the General Assembly. Two board members shall be of the political party that cast the highest number of votes for governor at the preceding gubernatorial election. The third board member shall be of the political party that received the next highest number of votes at that election. The political parties entitled to appointments may recommend prospective members to the governor. Board members serve four-year terms, overlapping the governor's term by one year. The governor designates one of the three members of the board as the secretary, who serves as the full-time agency head. The current members of the State Board of Elections are Charlie Judd (chairman), Kimberly Bowers (vice chairman) and Don Palmer (secretary).
The General Assembly directs in Title 24.2 that the State Board of Elections “shall supervise and coordinate the work of the county and city electoral boards and of the registrars to obtain uniformity in their practices and proceedings and legality and purity in all elections. It shall make rules and regulations and issue instructions and provide information consistent with the election laws to the electoral boards and registrars to promote the proper administration of election laws.” Local electoral boards are required to follow (i) the elections laws and (ii) the rules and regulations of the State Board “insofar as they do not conflict with Virginia or federal law.” The State Board of Elections is required to provide training to local electoral board members and general registrars at least annually and to set training standards for officers of election (the poll workers who operate the polling places on election days). Virginia Code § 24.2-103.
Title 24.2 also fills in the broad outlines set forth in Article II, § 8 of the Constitution concerning the roles and responsibilities of local electoral boards, general registrars and elections officers. Local electoral boards are appointed by a majority of the Circuit Court judges for the locality; if a majority cannot agree, the senior judge makes the appointments. The political parties entitled to appointments (as set forth in Article II, § 8 of the Constitution) must file recommendations with the Circuit Court not later than Jan. 15 of each year. Electoral board members serve staggered three-year terms. The electoral board elects one of its members as chairman and another as secretary, each from a different political party. (Virginia Code § 24.2-106) The current members of the Fairfax County Electoral Board are Seth Stark (chairman), Hans von Spakovsky (vice chairman), and Carol Ann Coryell (secretary). Localities pay board members’ compensation, expenses and mileage in accordance with a compensation and expense plan in the general appropriation act enacted by the General Assembly and then the localities are reimbursed by the Commonwealth “as authorized in the act.” (Virginia Code § 24.2-108)
The Fairfax County Electoral Board appointed Cameron P. Quinn as general registrar in 2011 to fill the unexpired term of the previous registrar. General registrars serve four-year terms, after which they may continue in office until a successor is appointed and qualifies. (Virginia Code § 24.2-110) Localities pay general registrars according to a compensation plan in the state appropriation act, and then the localities are reimbursed by the Commonwealth “as authorized in the act.” Local governments are required to provide benefits to registrars and authorized to supplement the general registrar’s salary. (Virginia Code § 24.2-111) General registrars’ duties and powers are generally set out in Virginia Code § 24.2-114. In Fairfax County, the general registrar is the agency head for the county’s Office of Elections. In addition to appointing the general registrar, Virginia law allows local electoral boards to authorize the appointment of assistant registrars. General registrars have the authority to appoint assistant registrars and establish their duties. General registrars may also hire other employees. (Virginia Code § 24.2-112) Local governing bodies fix and pay the compensation for assistant registrars and other employees.
In addition to the general registrar, the electoral board appoints officers of election. Officers of elections (“EOs”) serve three-year terms, or until their successors are appointed. Virginia law requires at least three EOs for each precinct – one chief, one assistant chief, and at least one officer. EOs must be registered to vote in Virginia and “insofar as practicable” qualified to vote in the precinct where he or she serves. Just as with the State Board of Elections and the electoral boards, the political parties are entitled to be represented among EOs. The two political parties whose candidates at the preceding gubernatorial election had the highest and next highest number of votes are entitled to representation by an equal number of officers or, if the precinct has an odd number of officers, with a variance of no more than one. “If practicable,” the electoral board shall appoint the officers from lists of nominations filed by the political parties entitled to appointments. Parties shall file the nominations with the secretary of the electoral board no later than Jan. 21 each year. The electoral board may appoint additional citizens who do not represent any political party to serve as officers but not as the chief officer or the assistant chief officer. “If practicable,” no more than one-third of the total number of officers appointed for each precinct may be citizens who do not represent any political party.
Fairfax County employed 2,984 EOs for the 2012 General Election. Chiefs are paid $200, assistant chiefs are paid $150, and officers are paid $100. The county paid approximately $321,000 for the services of these officers of election during the 2012 General Election.
Precincts and Polling Places
The General Assembly has granted to the governing body of each county and city the authority and duty to establish by ordinance as many precincts as it deems necessary, subject to certain restrictions (Virginia Code §§ 24.2-307 and 24.2 310):
- Precincts must be composed of compact and contiguous territory and have clearly defined and clearly observable boundaries.
- When a county precinct is established, it cannot have fewer than 100 registered voters.
- When a precinct is established, it cannot have more than 5,000 registered voters.
- When the number of voters who voted in a precinct in a presidential election exceeds 4,000, the general registrar must notify the governing body, which must revise the boundaries within six months.
- Polling places must be within the locality and either in precinct or within one mile of the precinct boundary.
- Polling places must be accessible to persons with disabilities.
- Polling places are to be located in public buildings “whenever practicable.”
Fairfax County has 238 precincts, by far the largest number of any jurisdiction in Virginia. (The jurisdiction with the next largest number is the City of Virginia Beach, with 95 precincts.) Because the Board of Supervisors establishes precincts and polling places by ordinance, any changes to precincts and polling places that are to be implemented for the November general election should be proposed to the Board no later than June and adopted by the Board no later than July, to allow sufficient time for advertisement, public hearing and the federal “preclearance” process, which is explained below under Section 5 of the Voting Rights Act of 1965, as Amended.
Localities are required by state law to acquire and pay for voting machines from among voting systems that have passed national and state certification testing. (See Virginia Code § 24.2-626.)
- In 2003, the county began using WinVote touchscreen Direct Recording Electronic (DRE) machines in all precinct polling places.
- In 2007, the General Assembly enacted legislation prohibiting localities from acquiring additional DREs.
- In 2008, Fairfax County began purchasing AccuVote optical scan machines for use in precinct polling places (AccuVote machines had previously been used only in the Central Absentee Precinct). However, the optical scan machines are not ADA (Americans With Disabilities Act) compliant, and so the county provides at least one DRE in each polling place to serve voters with disabilities.
Subsequent legislation relaxed the prohibition to allow localities to acquire DREs to supplement their stock in certain circumstances and for the expressed purpose of providing accessible voting equipment. The county’s stock of DREs is dwindling as machines break down, because the vendor is out of business and replacement parts are no longer available.
Virginia law sets minimum numbers of voting machines per polling place as follows:
DRE voting machines:
- In each precinct having not more than 750 registered voters, 1;
- In each precinct having more than 750 but not more than 1,500 registered voters, 2;
- In each precinct having more than 1,500 but not more than 2,250 registered voters, 3;
- In each precinct having more than 2,250 but not more than 3,000 registered voters, 4;
- In each precinct having more than 3,000 but not more than 3,750 registered voters, 5;
- In each precinct having more than 3,750 but not more than 4,500 registered voters, 6;
- In each precinct having more than 4,500 but not more than 5,000 registered voters, 7.
Virginia Code § 24.2-627(A).
Optical Scan voting machines:
- At least one voting booth with a marking device for each 425 registered voters or portion thereof and at least one counting device. Virginia Code § 24.2-627(B).
Fairfax County has 315 AccuVote (optical scan) voting machines and 1,019 WinVote (DRE/touch screen) machines in working order.
A Virginia voter may vote by absentee ballot, either in person or by mail, if he or she meets specific requirements as set out in detail in Virginia Code §§ 24.2-700 and 24.2-705. Fairfax County absentee in-person voters may cast their ballots in the office of the general registrar or in one of the absentee satellite voting locations provided throughout the county. Briefly summarized, voters in the following categories are allowed to vote absentee:
- Persons who, in the regular and orderly course of their business, profession, or occupation or while on personal business or vacation, will be absent from the county or city in which they are entitled to vote;
- Members of a uniformed service on active duty and temporarily residing outside of the United States, and spouses and dependents residing with them.
- Students, and their spouses, who will be absent from the county or city in which they are entitled to vote on Election Day.
- People with disabilities who are unable to go in person to the polls on the day of election because of the disability, illness, or pregnancy.
- People who are incarcerated while awaiting trial or for having been convicted of a misdemeanor.
- Members of an electoral board, registrars, officers of election, and custodians of voting equipment.
- People who are unable to go to the polls on Election Day because they are primarily and personally responsible to care for an ill or disabled family member who is confined at home.
- People who cannot go the polls on Election Day because of religious obligations.
- People who will spend at least 11 hours of the 13 hours that the polls are open at work and commuting in the regular and orderly course of their business, profession or occupation.
- Law enforcement officers, firefighters, including volunteer firefighters, search and rescue personnel, and emergency medical services personnel.
- Party or candidate authorized representatives (often called poll watchers) who are serving inside a polling place on Election Day.
Virginia law allows emergency absentee ballots in certain circumstances. People who become incapacitated on or after the seventh day preceding an election; people who become hospitalized on or after the 14th day preceding the election; people who become obligated after 12:00 noon on the Saturday preceding the election to certain business or personal commitments that preclude their voting in person; and officers of election who are assigned to a precinct other than their own after 12:00 noon on the Saturday preceding the election may make late applications. (Virginia Code §§ 24.2-705, 24.2-705.1, and 24.2-705.2.)
Absentee ballots must be made available to absentee voters not later than 45 days before any election. (Virginia Code §§ 24.2-612.) Therefore, for the 2013 General Election, absentee ballots must be prepared, approved by the State Board of Elections, printed and ready to send no later than Sept. 20, 2013.
Section 5 of the Voting Rights Act of 1965, as Amended.
Numerous federal laws also regulate the voting process in Fairfax County, the Commonwealth, and throughout the nation. Of primary importance in Virginia is Section 5 of the federal Voting Rights Act of 1965, as amended. Section 5 prohibits the implementation of any change affecting voting in a covered jurisdiction, which includes every locality in Virginia except for a handful that have “bailed out” of coverage, until either the U.S. Department of Justice or the U.S. District Court for the District of Columbia has reviewed the change to determine whether the change has either a discriminatory purpose or effect. Fairfax County submits all changes affecting voting to the U.S. Department of Justice for administrative review, a process called “preclearance,” that usually takes 61 days. As a result, all changes made that affect voting must be made months in advance of Election Day, or whenever they must be implemented, to allow for this additional review. When other formal processes are required to enact the change – such as ordinance amendments – changes must be made far in advance of Election Day in order to complete all of the prerequisite steps in time for Election Day.