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Please Note: We share this information with the hope that it aids pro-democracy activists by highlighting specific process points to monitor for any subversive efforts. Due to the sensitivity of this information and the potential for it to be exploited by bad actors, this page and the links within it should not be shared outside of the pro-democracy community.
If you have any questions or feedback on these identified vulnerabilities, please contact us at info[@]informingdemocracy[dot]org.
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Virginia election procedures are largely prescribed by statute and regulation, with additional guidance provided by the State Board of Elections. This leaves limited discretion in the hands of local Electoral Boards, General Registrars, and election staff. Additionally, Virginia law provides the State Board of Elections with strong corrective measures for mis- or mal-administration, including the power of the State Board to remove local officials for a failure to discharge their duties. Va. Code Ann. §§ 24.2- 103(E), 24.2-234. This makes it unlikely that even election deniers or subverters serving in an official role could fully undermine a Virginia election.
However, this structure also means that if a majority of State Board of Elections members were to support such subversive efforts they could do significant damage to the integrity of the election. State law would likely limit what damage could be done, but such a situation – where both county and state officials blatantly violated state law – could lead to delays and leave resolution in the hands of the courts. Based on their actions in 2022 and 2023, however, so far we do not believe that the State Board of Election has a majority of election deniers or anti-democracy actors and, therefore, we feel confident that the protection in Virginia laws are likely to stand up to any attempted subversion efforts.
Efforts to slow down or interfere with the canvass process have occurred in other states and is one common tactic employed by election deniers as a part of a broader scheme to undermine our electoral system. “2nd Arizona County;” “Election Deniers Playbook.” This poses some concern in Virginia as it may be possible for members of an Electoral Board who are intent on interfering with or undermining election outcomes to delay the canvas. However, canvass meetings in Virginia are pro forma. There are also a number of safeguards that allow for State Board intervention to protect the process. Therefore, it is very unlikely bad actors could significantly delay or stop this process.
Electoral Boards require two of three members to be present to constitute a quorum. Va. Code Ann. § 24.2-107. Therefore, if an Electoral Board had multiple members who wanted to slow down, or attempt to stop finalization of the vote count and certification of an election, they might attempt to do so by simply not showing up for the meeting. This effort would likely prove ineffective in the long run because 1) by statute the canvass can only be delayed three days, and 2) if the Electoral Board attempted to delay beyond that period the State Board has the power to petition for the removal of any member of an Electoral Board who is not discharging their duty. Va. Code Ann. §§ 24.2-679(A), 24.2-103(E). However, the removal process requires a majority vote by the State Board followed by court proceedings. Va. Code Ann. §§ 24.2-103(E), 24.2-234. Therefore, while it is highly unlikely the vote counting process could be stopped using this approach, it could lead to a noticeable delay that could serve to undermine confidence in the counting process.
More concerning perhaps would be if the State Election Board were to attempt to delay the canvass, refuse to certify or simply refuse to use their enforcement powers to resolve any issues at the county level. Statewide certification is also ministerial and statute clearly states by what date the state canvass must begin. However, should a majority of the State Board of Elections choose to take the subversive action of refusing to certify, litigation would almost certainly be necessary to resolve the situation and ensure the election is decided according to the will of the voters.
There is considerable uniformity in the counting and certification process in Virginia. The Virginia Code provides detailed guidance on most steps in this process, and where there are gaps, the State Board of Elections is tasked with ensuring (1) uniformity in the “practices and proceedings;” and (2) “legality and purity in all elections.” Va. Code Ann. § 24.2-103(A). They do this through coordination, training, and issuing rules and regulations, as well as giving supplemental guidance, often acting through the Virginia Department of Elections, which is headed by the Commissioner of Elections. Va. Code Ann. § 24.2- 103(A)-(D), (H).
Electoral Boards and General Registrars have discretion over a couple of decisions relating to how and when absentee ballots are processed that might affect how quickly absentee ballots are counted. First, by statute, the Electoral Board may decide whether to open one or multiple Central Absentee Precincts in its locality. Va. Code Ann. § 24.2- 712(A). This could theoretically affect ballot processing speed, permitting some localities to publish counts sooner than others. However, in practice, it is more common for Electoral Boards to open only one location and to simply add more staff to that Central Absentee Precinct if needed. [1] “2023 ID VA Survey.”
Second, the General Registrar has some discretion over when to start preprocessing absentee ballots. They must begin on October 31, 2023, but can begin as soon as ballots start being received. Va. Code Ann. § 24.2-709.1(B). Theoretically, this could affect when localities complete their count and release results. However, in reality it is unlikely that discretion will have an impact. Regulations require all localities to have a minimum of two preprocessing meetings and further require a third preprocessing meeting on the Monday before the election if they are “unable to process all ballots in their possession on the morning of either the Friday or Saturday before election.” 1 VAC 20-70-40(3). Therefore, under these regulations Registrar’s offices may accumulate at most three days of absentee ballots before starting final preprocessing on Election Day.
In line with its powers under Va. Code Ann. § 24.2-114 and additional duties delegated by its respective Electoral Board, the General Registrar may set procedures, consistent with statute and Department of Elections guidance, relating to poll officer conduct and training, poll operation and logistics, and security and chain of custody. [2] “GREB Ch 1” at 6-7, 22, 38-39. The delegation of duties is typically done with both board and Registrar meeting to agree on a list, which is then duly adopted at a public board meeting. The handbook for General Registrars and Directors of Elections recommends that boards and registrars meet annually to review the list of duties and determine if changes are needed. “GREB Ch 1” at 7.
Many of these local variations on their face are primarily logistical or administrative in nature. However, some, like material pick-up procedures, can also have chain of custody implications. The local variation in these practices and procedures does not on its own increase the vulnerability of Virginia’s counting and certification process but it could make it easier for a bad actor to create a local vulnerability or exploit a weakness in local procedure. Alternatively, it could be seen as a strength. In a conversation with Registrars on challenges and best practices at the VRAV Conference, a former VRAV president spoke about the value of large counties because they have the resources to experiment with different setups and procedures. “VRAV Notes.” It creates a form of “local federalism” where larger counties can experiment with new procedures, and if successful, smaller jurisdictions can follow their lead and adopt best practices.