Judge rules Virginia elections board violated law with late absentee mail-in ballot rule

Last August, the Virginia Board of Elections issued a rule that would've allowed elections officials to count late mail-in ballots that arrived without a postmark up to three days after the November election. On Monday, a state judge ruled that the board's decision was illegal.

Virginia Circuit Court Judge William Eldridge said that Virginia's mail-in ballot rule violated state elections law and issued an injunction preventing the state from adopting the rule for future elections, the Daily Caller reported. The judge's decision was announced by the Public Interest Legal Foundation (PILF), a legal group representing Frederick County electoral board member Thomas Reed in his case against the state mail-in ballot law.

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

The Virginia Board of Elections issued its election guidance to county boards on Aug. 4, 2020, notifying them that any ballots "received by the general registrar's office by noon on the third day after the election ... but does not have a postmark, or the postmark is missing or illegible" were not to be rendered invalid. But a week later, the elections board decided that such ballots should be counted.

On Oct. 13, PILF filed a lawsuit against the state elections board on behalf of Reed, who argued that he would not enforce the directive because it violated state law.

The relevant Virginia statute states: "Any absentee ballot returned to the general registrar after the closing of the polls on election day but before noon on the third day after the election and postmarked on or before the date of the election shall be counted." Reed's lawyers argued that a plain reading of state law prevents ballots that lack a postmark from being counted.

Two weeks later on Oct. 28, 2020, the court sided with Reed in a preliminary injunction hearing, issuing an order that prevented the state of Virginia from accepting and counting late absentee ballots that were missing postmarks.

The result is that none of the contested ballots were counted in the November election and Judge Eldridge's final ruling siding with Reed over the Virginia elections board will not change the outcome.

The ruling, however, will apply to future elections in Virginia, including the November 2021 gubernatorial and state legislature elections.