Court Approves AG Mark Herring’s Agreement to Promote Safe Absentee Voting by Mail in November

RICHMOND (August 21, 2020) – Attorney General Mark R. Herring today announced that a federal court has approved a consent decree negotiated by his office that will promote public health and participation in elections by encouraging safe absentee voting by mail in the November election. Under the terms of the approved consent decree, the Commonwealth will accept absentee ballots without the signature of a witness “for voters who believe they may not safely have a witness present while completing their ballot.” The order was approved by Judge Norman K. Moon despite the objections of the Republican Party of Virginia, which intervened in the case and opposed the proposed agreement.

“This agreement is another big win for Virginia voters and for democracy, and it’s another important step in ensuring that we can have free, fair, safe elections this fall despite the challenges presented by the COVID pandemic,” said Attorney General Herring. “Safe voting has been one of my top priorities for the last six months because no one should ever have to choose between their health and their fundamental right to cast their vote.”

In approving the agreement, Judge Moon found that “The same reasons that motivated the Court to approve the parties’ previous consent decree carry even more force today, as the pandemic has resurged.” Attorney General Herring previously reached an agreement, also approved by Judge Moon, to promote safe voting by mail for the June 23^rd primaries by allowing for the acceptance of absentee ballots without a witness signature “for voters who believe they may not safely have a witness present while completing their ballot.”

Judge Moon wrote that despite the Republican Party of Virginia’s objections to this commonsense agreement, “every indication before the Court is that the June primary was conducted without the witness signature requirement and without any corresponding increase in voter confusion or election fraud—the RPV has not provided any evidence to the contrary…” He also wrote that “the RPV has not brought forth any evidence that would permit the Court to overcome its presumption of good faith and fair dealing in the settlement negotiations between the Plaintiffs’ and State Defendants—instead, it relies on speculation and circumstantial evidence.”

In a joint brief in support of the agreement, Attorney General Herring and the plaintiffs stated that the agreement advances “the public interests of ensuring access to the ballot, election integrity, and promoting public health during the COVID-19 pandemic, just as did the consent decree approved by this Court for the June 23 primaries.” They asserted that the agreement “reflects sound public health judgment and the need for safe participation in exercising the fundamental right to vote,” and is even more vital given that even more Virginians and Americans have been infected by COVID since the June primaries and the fact that COVID transmission will continue to be a challenge in November.

In explaining the importance of the agreement, Attorney General Herring and the plaintiffs wrote that “many voters in Virginia who live alone are not able to both comply with social distancing protocols and have an individual witness their absentee ballot, and are unable to vote in-person, meaning that they would not be able to cast a vote or have their vote counted in November without this consent decree’s elimination of the witness requirement for these individuals. And this protection of the right to vote will happen without harming election integrity, especially ‘when considering all of the other means of combatting voter fraud integrated into the absentee-voting system.’”

The brief also highlighted the many other safeguards to ensure security on absentee ballots including “a plethora of other Virginia laws [that] ensure proper absentee voting including provision of identifying information, a signed attestation confirming identity, eligibility, and lack of double-voting, and a check of the ballot against the list of ballot requests.”