Title of Regulation: 1VAC20-50. Candidate Qualification (adding 1VAC20-50-30).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: July 1, 2013.

Agency Contact: Myron McClees, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8949, FAX (804) 786-0760, or email myron.mcclees@sbe.virginia.gov.

Summary:

Chapter 684 of the 2013 Acts of Assembly provides that candidates are given an opportunity to appeal a decision of signature insufficiency and requires the State Board of Elections to develop procedures for the conduct of such an appeal. The regulation provides a process that fills in specific procedures not directly addressed by the legislation, including (i) documents that must be submitted with a notice of appeal, (ii) notary requirements for the notice of appeal, (iii) who bears the burden of proof, (iv) necessary documentation to support claims of eligibility, (v) the number of board members' acquiescence necessary to reverse a previously rendered eligibility determination of a signature, and (vi) the finality of the appeal process.

Changes since publication of the proposed regulation (i) establish electronic mail as the preferred method of notifying a candidate of the time and location of an appeal hearing; (ii) remove the ability of a candidate to provide documents establishing that the petition signer filed certain applications to his local registrar while the locality's voter registration procedures were suspended; and (iii) change the deadline for submission of certain documents to at least two business days before the appeal proceeding, instead of two calendar days.

1VAC20-50-30. Appeals of petition signature insufficiency.

A. Pursuant to the requirements of §§ 24.2-506 and 24.2-543 of the Code of Virginia, a candidate for office, other than a party nominee, may appeal a determination that the candidate has failed to provide the required number of valid petition signatures necessary to qualify to appear on the ballot.

B. Any communication or notice required in this section shall be made in writing and delivered by mail or, unless otherwise prohibited by the Code of Virginia, electronically by electronic mail or facsimile. Notice of appeal from candidates must bear a photographically reproducible notary seal and be received by [ the State Board of Elections prior to ] the deadlines established within this section.

C. A candidate for a county, city, or town office shall file his appeal with the local electoral board. A candidate for any other office shall file his appeal with the State Board of Elections.

D. A candidate for an office other than President of the United States must file his appeal within five calendar days of the issuance of the notice of disqualification.

E. A candidate for President of the United States must file his appeal within seven calendar days of the issuance of the notice of disqualification.

F. The proper body to which the appeal notice was given shall establish the time and place where the appeal will be heard and convey this information immediately to the candidate. [ Electronic mail will be the preferred method of notifying the candidate if such address has been provided by the candidate; otherwise, notice shall be sent by first-class mail. ]

G. The candidate bears the burden of proof in establishing that a sufficient number of signatures from qualified voters were timely provided.

1. The candidate must submit a list containing the rejected signatures to be reviewed and the specific reason for each signature's reconsideration at least two [ calendar business ] days prior to the date on which the appeal will be heard. If the candidate submits no list, or submits a list that contains an insufficient number of names and reconsideration reasons to make up the number of signatures by which the candidate was deemed deficient, no appeal shall be held and the initial determination that the candidate did not qualify for the ballot will be final.

2. The candidate may submit documents clarifying the status of persons whose signatures were rejected for lacking proper registration status or residence.

3. The candidate may submit documents establishing the age of majority for any signer who was listed as ineligible due to status of being a legal minor.

4. The candidate may submit affidavits from persons whose signatures were rejected due to illegibility that attest to their identity. If possible, the affidavits should state the person's name, residence address, and a reasonable description of the location where approached by the circulator to sign the petition.

5. The candidate may not submit documents establishing that a petition signer became registered or updated his voter registration status to the address provided upon the petition after the established candidate filing deadline for the office sought. [ A candidate may provide documents establishing that the petition signer filed a Virginia voter registration application or change of address application to his local registrar during the period in which the locality's voter registration procedures were suspended in accordance with § 24.2-416 of the Code of Virginia. ]

H. Individual signatures reconsidered during the appeal will only count towards the candidate's requisite number if a majority of board members agree that sufficient evidence exists for their inclusion.

I. All determinations of the board before which the appeal is being heard shall be considered final and not subject to further appeal.