AG Mark Herring Files Brief Defending Safe Voting by Mail Against Attacks From Conservative Activists Engaged in Thinly Veiled Voter Suppression

From AG Mark Herring’s office:

Late yesterday, Attorney General Herring filed a brief defending safe voting by mail against attacks from conservative activists who are engaged in thinly-veiled voter suppression by trying to force Virginians to choose between their health and the right to vote. These Republican-aligned activists want to force more Virginians to vote in-person during the COVID pandemic, or force Virginians to simply not vote because they fear for their safety and the safety of others. Their suit would disenfranchise tens of thousands of Virginians by changing the rules in the middle of an election in which absentee ballots have already been mailed and cast.

Vote-by-mail has been encouraged by Governor Northam, Attorney General Herring and the CDC to help protect the health and safety of voters, election officials, poll workers, and the general public while still ensuring Virginians can exercise their constitutional right to vote. Voting by mail in light of COVID-19 has even been embraced by conservative states like Alabama and Arkansas.

Issuing the preliminary injunction that the plaintiffs seek would have catastrophic consequences by making voting harder, disenfranchising tens of thousands of Virginians who fear that their health and safety would be compromised if they voted in person, or those who are concerned about infecting others at the polls. The relief plaintiffs seek would throw the election process into chaos while in the middle of an active election cycle where “ballots have been available to qualified absentee voters since Saturday, May 9” in some places and Friday, May 8 in others and at least 66,113 absentee ballots have already been sent out to Virginians.

The case is Curtin v. Virginia State Board of Elections and it is before Judge Alston in the Alexandria Division of the Eastern District of Virginia.

Other key passages from the brief are highlighted below:

…the challenged actions protect not only citizens’ right to vote, but also the health and safety of voters, poll workers, election officials, and others who would otherwise be at risk from a highly contagious virus. [Page 1]

The specific guidance that plaintiffs challenge—permitting voters concerned about contracting COVID-19 to select reason “2A My disability or illness” to obtain an absentee ballot (the COVID-19 Guidance)—represents a critical part of the Commonwealth’s efforts to protect people from COVID-19. [Page 5]

[The challenged] actions sought to: (1) prevent further spread of the disease, and protect the health and welfare of voters, poll workers, and election officials; (2) promote voter participation to allow all qualified voters the opportunity to cast a ballot; and (3) maintain the uniformity, accessibility, and security of the electoral process. [Page 6]

…the challenged absentee guidelines were issued more than two months ago but plaintiffs waited until after the absentee voting period was already underway before bringing this case. Because judicial intervention at this point would cause confusion and seriously disrupt an absentee voting period that has already begun, the Court should stay its hand and deny the requested relief. [Page 30]