Virginia Attorney General Mark R. Herring.
Attorney General Mark R. Herring has warned state election officials that their new definition of what constitutes a valid photo ID, as proposed by the State Board of Elections, would likely lead to unconstitutionally unequal treatment of voters.
“The language as drafted by the Board of Elections could cause confusion at the polls, lead to unequal treatment of voters in violation of the Equal Protection Clause of the 14th Amendment, and potentially prevent qualified voters from casting a ballot,” Herring said in an email Tuesday.
“I strongly encourage the board to reject the proposed language to make certain our elections remain as open and fair as possible.”
Charles E. Judd, chairman of the State Board of Elections, and Sen. Mark D. Obenshain, R-Harrisonburg, sponsor of the voter ID law, fired back Tuesday, alleging that Herring’s analysis has no legal standing and is purely political.
The attorney general’s assessment was part of the regulatory review to ascertain that proposed regulations comply with the law. The board is scheduled to meet today to further discuss the new definition following a 21-day public comment period on the issue, which has sparked comments from hundreds of Virginians.
In June, weeks before Virginia’s new voter ID law went into effect, the elections board determined that expired but otherwise valid forms of identification permitted under the new mandate will be accepted at the polls.
But following concern from Obenshain, the board decided to reopen the public comment period and explore whether the agency has legal authority to determine what forms of ID are valid.
Under the new language, the board defines as “valid” for all purposes of voter identification documents that have “legal effect, (are) legally or officially acceptable or of binding force” and appear to be “genuinely issued by the agency or issuing entity appearing upon the document where the bearer of the document reasonably appears to be the person whose photograph is contained thereon.”
The new definition allows for such documents to be accepted for up to 30 days after expiration. Under the initial policy, expired forms of identification would have always been considered valid at the polls.
The legal analysis by the Attorney General’s Office found that while the new proposal would achieve the goal of ensuring that expired ID are not considered “valid” for the purpose of voting, it would be “problematic for unintended reasons,” because it would classify unexpired identification as invalid in some circumstances.
“For example, a local election official would be unable to determine, when presented with a Virginia driver’s license that had not expired, whether or not such license has ‘legal effect’ or is ‘officially acceptable or of binding force,’” the report says.
It states that the license could have been suspended or revoked and thus would not qualify under the proposed definition.
“Consequently, an impossible burden is placed on the election officials with a high likelihood of varying interpretation as to the validity of the identification as presented by voters,” the analysis concludes.
On his Facebook page, Obenshain called Herring’s analysis “part of a disturbing pattern, already the norm in Washington and increasingly prevalent in Richmond, in which the executive branch blithely disregards or disingenuously reinterprets laws it doesn’t like.”
Obenshain, who narrowly lost the 2013 election for attorney general to Herring, wrote that the Attorney General’s Office argues that since it’s not possible for an officer of election to identify every conceivable invalid ID, then, for equal protection purposes, it cannot make determinations about the validity of any ID.
“This goes far beyond the new photo ID law; it cuts deeply into prior laws regarding voter identification and sets the stage for further challenges to any ID requirement whatsoever, despite a string of court cases upholding laws like the one we have in Virginia,” Obenshain wrote.
“It is manifestly not the job of the attorney general to manufacture challenges to laws he is sworn to defend,” he wrote.
Judd said in a phone interview that a disclaimer at the bottom of the analysis, which says that the Attorney General’s Office is unable to issue a formal opinion on the issue, is proof that Herring is simply stating a position. “This is political to us,” he said.
Judd, who previously had supported allowing expired driver’s licenses for voter identification purposes, said that in today’s meeting he will move to keep in place the new guidelines saying that if a photo ID is not valid for its intended purpose, it is not valid for voting.
Judd added that he expects to see the General Assembly take on this issue in the 2015 session and clarify what constitutes a valid ID under Virginia law.
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Twitter: @MSchmidtRTD
mschmidt@timesdispatch.com (804) 649-6537 Twitter: @MSchmidtRTD
