Military absentee votes will be counted in Fairfax County, Virginia thanks to an opinion just issued by Virginia’s Attorney General Bob McDonnell. The just-issued opinion smacks down the partisan effort by Fairfax registrar Rokey Suleman who — contrary to federal law — was requiring military absentee ballots to show the address of the witness countersigning the ballot.
O’Donnell’s opinion finds that federal law preempts the Virginia law which requires the ballots to show witnesses’ addresses.
The press release from O’Donnell’s office says:
McDonnell Opinion: Count all Absentee Military Ballots
Opinion Finds Federal Law Preempts State Law; Federal Ballots without Witness Address Are Lawful, Must be Counted
FAIRFAX – Attorney General Bob McDonnell released a formal opinion today concluding that federal absentee ballots from overseas military voters lacking the printed name and address of a witness must be counted. The opinion affirms that federal law preempts state law, thus clarifying the state and federal statutes regarding the issue. The confusion centered over whether a state law requiring a witness’s printed name and address controls federal absentee ballots or the federal law governs this issue. The opinion was requested by Delegate Bill Janis (R-Henrico).
In the formal opinion the Attorney General finds, “It is…. my opinion that the applicable provision of Virginia law, Sec. 24.2-702.1(B), interpreted to require an overseas military voter submitting only a Federal Write-in Absentee Ballot to include the printed name and address of the person who signs the witness statement is preempted by the provisions of the (federal) Uniformed and Overseas Citizens Absentee Voting Act. Finally, it is my opinion that general registrars may not reject a Federal Write-In Absentee Ballot submitted by overseas military voters for the November 4, 2008 federal election that does not include a printed name and address for the person who signs the witness statement…..”
Approximately 100 Federal Write-In Absentee Ballots have been set aside in Fairfax County pending a legal conclusion regarding the discrepancy between state and federal law. Additional Federal Write-In Absentee Ballots may also have been received in other jurisdictions. The Federal Write-In Absentee Ballot is most commonly used by members of the military who are stationed overseas and have not received a state absentee ballot. It is a means by which service members can be guaranteed a vote in federal elections.
A copy of this formal opinion was provided to the State Board of Elections this afternoon.
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