TITLE 1. ADMINISTRATION
Title of Regulation: 1VAC20-60. Election Administration (adding 1VAC20-60-90).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Public Hearing Information: No public hearing is currently scheduled.
Public Comment Deadline: September 13, 2023.
Effective Date: September 28, 2023.
Agency Contact: Ashley Coles, Agency Regulatory Coordinator, Department of Elections, Washington Building, 1100 Bank Street, First Floor, Richmond, VA 23219, telephone (804) 864-8933, or email ashley.coles@elections.virginia.gov.
Basis: Pursuant to § 24.2-103 A of the Code of Virginia, the State Board of Elections is required to make rules and regulations, issue instructions, and provide information consistent with the election laws to the electoral boards and registrars to promote the proper administration of election laws.
Purpose: Upon receipt of a removal petition, the general registrar must review the petition and determine its sufficiency; must certify the petition within 10 business days and promptly file such certification with the clerk of the circuit court; and must state the number of signatures required, the number of signatures on the petition, the number of valid signatures, along with any signatures found to be invalid, and any material omissions from the petition.
In order to ensure uniform standards are applied for the review of material omissions on petitions and ensure due process for officers that may be removed, the State Board of Elections must promulgate a regulation indicating material omissions on a petition for the removal of an officer. This protects the welfare of citizens by ensuring their elected representatives are only petitioned to be removed from office through uniform and consistent standards.
Rationale for Using Fast-Track Rulemaking Process: This regulation is expected to be noncontroversial because it is consistent with the requirements for material omissions on referendum petitions (1VAC20-60-20) and material omissions for candidate petitions (1VAC20-50-20). Chapters 663 and 664 of the 2023 Acts of Assembly set out the procedures by which an elected officer, or officer who has been appointed to fill an elective office, may be removed from office. The chapters require, among other provisions, that the State Board of Elections certification of a removal petition state (i) the number of signatures required, (ii) the number of signatures on the petition, (iii) the number of valid signatures, along with any signatures found to be invalid, and (iv) any material omissions from the petition. As a result, the State Board of Elections must adopt a regulation outlining what constitutes a material omission on a removal petition.
Substance: Chapters 663 and 664 of the 2023 Acts of Assembly require general registrars to indicate what the material omissions are on an officer removal petition. This regulatory action creates 1VAC20-60-90, addressing material omissions and listing the specific items that qualify as material omissions on a removal petition and specific items that are not material omissions on a removal petition.
Issues: The advantages to the public, general registrars, and the Commonwealth are uniform standards that will be applied regarding petition signatures on a petition of the removal of an officer and this regulatory action ensures consistency. Additionally, the public will have a form already created for the removal petition. There are no known disadvantages to the public or the Commonwealth.
Department of Planning and Budget's Economic Impact Analysis: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.1
Summary of the Proposed Amendments to Regulation. As a result of the Chapters 6632 and 6643 2023 Acts of Assembly (legislation), the State Board of Elections (Board) proposes to establish standards outlining what constitutes material and nonmaterial omissions on a petition for removal of an elected officer.
Background. The legislation sets out the procedures by which an elected officer, or an officer who has been appointed to fill an elective office, may be removed from office. This legislation applies to all elected or appointed Commonwealth, constitutional, and local officers, except officers for whose removal the Constitution of Virginia specifically provides.4
As it pertains to the Board and local general registrars, the legislation requires that (i) the general registrar review a petition for removal on a form prescribed by the Board and determine its sufficiency; (ii) if sufficient, the general registrar certify the petition within 10 business days and promptly file such certification with the clerk of the circuit court; and (iii) the certification state the number of signatures required, the number of signatures on the petition, the number of valid signatures, along with any signatures found to be invalid and any material omissions from the petition.
Consequently, the Board proposes to establish a form in the regulation and descriptions of material and nonmaterial omissions. Omissions that would be considered material include missing name (or some variation of the name) of the officer, failing to identify the jurisdiction in which the officer serves, missing signatures, etc. Omissions that would not be considered material include using an older form, missing a birthday, or placing signature on the print line and printing the name on signature line, etc. According to the Board, the amendments in this action are consistent with the requirements for material omissions on referendum petitions (1VAC20-60-20) and material omissions for candidate petitions (1VAC20-50-20).
If the petition meets all requirements, the general registrar certifies to the clerk of the court whether the required minimum number of signatures has also been met, which on a removal petition is 10% of the votes cast in the last election for that office. However, the general registrars do not review the petition for content or merit, but instead only for form and procedure and whether it meets the requirements as laid out by law and this regulation. If certified to the court, the Commonwealth's Attorney reviews the content and merits and decides on whether to pursue the petition or not.
Estimated Benefits and Costs. The amendments outline what constitutes material and nonmaterial omissions on a petition for the removal of an officer and provide guidance to the general registrars as to how to evaluate a petition for certification. As such, the proposal should help ensure the information provided to general registrars, circuit courts, and Commonwealth Attorneys are in uniform and consistent formats and contain the same type of information. These changes should help avoid potential administrative cost due to possible errors and the potential for Board staff to receive unnecessary questions from general registrars. Without the proposed standards, registrars may not uniformly review petition signatures or may have many questions. Additionally, signatures on a petition for the removal of an officer may be qualified or disqualified for different reasons which would directly impact whether the required minimum 10% of the votes is met.
Businesses and Other Entities Affected. All elected officials and all officials appointed to fill an elective office, except officers for whose removal the Constitution of Virginia specifically provides, are subject to a removal petition. However, removal petitions are filed with the circuit courts, not with the Board or the agency. Therefore, there is no estimate for how many removal petitions are filed. Additionally, the proposed regulation applies to petitioners and petition circulators. No affected entity appears to be disproportionately affected.
The Code of Virginia requires the DPB to assess whether an adverse impact may result from the proposed regulation.5 An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposal would mainly help provide guidance and consistency in evaluating and certifying an accurate petition count. Thus, no adverse impact is indicated.
Small Businesses6 Affected.7 The proposed regulation does not appear to adversely affect small businesses.
Localities8 Affected.9 All circuit courts in Virginia that receive a certification from the general registrar regarding the number of signatures on an officer removal petition and all general registrars required to review an officer removal petition would be affected. The proposed regulation does not introduce costs for local governments.
Projected Impact on Employment. The proposed regulation does not appear to affect employment.
Effects on the Use and Value of Private Property. No effect on the use and value of private property or real estate development costs is expected.
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1Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.
2https://lis.virginia.gov/cgi-bin/legp604.exe?231+ful+CHAP0663&231+ful+CHAP0663
3https://lis.virginia.gov/cgi-bin/legp604.exe?231+ful+CHAP0664&231+ful+CHAP0664
4See § 24.2-230 of the Code of Virginia.
5Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.
6Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."
7If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.
8"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.
9Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Department of Elections concurs with the Department of Planning and Budget's economic impact analysis.
Summary:
The amendments add (i) a new section that outlines what constitutes a material or nonmaterial omission on a petition for the removal of an officer; and (ii) a form to submit a petition for removal of an officer to the State Board of Elections.
1VAC20-60-90. Material omissions from officer removal petitions and petition signature qualifications.
A. Pursuant to the requirements of §§ 24.2-233 and 24.2-235 of the Code of Virginia, a petition or a petition signature should not be rendered invalid if it contains an error or omission not material to its proper processing.
B. The following omissions are always material, and any petition containing such omissions shall be rendered invalid if:
1. The petition submitted is not the double-sided document, or a double-sided copy thereof, provided by the State Board of Elections;
2. The petition does not have the name, or some variation of the name, and the office of the officer to be removed on the front of the form;
3. The petition fails to identify the applicable jurisdiction in which the officer serves;
4. The petition does not have the specific reasons or grounds for removal on the form;
5. The circulator has not signed the petition affidavit and provided the circulator's current address;
6. The circulator is a minor or a felon whose voting rights have not been restored;
7. The circulator has not signed the petition the circulator circulated in the presence of a notary;
8. The circulator has not had a notary sign the affidavit for each petition submitted;
9. A person other than the circulator signed the petition affidavit;
10. The notary has not affixed a photographically reproducible seal;
11. The notary has not included the notary's registration number and commission expiration date; or
12. Any combination of the scenarios of this subsection exists.
C. The following omissions related to individual petition signatures are always material, and any petition signature containing such omission shall be rendered invalid if:
1. The signer is not qualified to cast a ballot for the office for which the petition was circulated;
2. The signer is also the circulator of the petition;
3. The signer provided an accompanying date that is subsequent to the date upon which the notary signed the petition;
4. The signer did not sign the petition; or
5. The signer provided an address that does not match the petition signer's address in the Virginia voter registration system, unless the signer provided an address that is within the same precinct where a voter is currently registered in the Virginia voter registration system, and the signer can be reasonably identified as the same registered voter.
D. The following omissions shall be treated as nonmaterial provided the general registrar can independently and reasonably verify the validity of the petition or signature:
1. An older version of the petition is used (provided that the information presented complies with current laws, regulations, and guidelines);
2. The name of the officer to be removed and office title are omitted from the back of the petition;
3. The circulator has not provided the circulator's year of birth in the affidavit;
4. The signer omits the signer's first name, provided the signer provides a combination of the signer's first or middle initials or a middle name and last name and address that matches a qualified voter within the Virginia voter registration system;
5. The signer provided a derivative of the signer's legal name as the signer's first or middle name (e.g., "Bob" instead of "Robert");
6. The signer prints the signer's name on the "Print" line and prints the signer's name on the "Sign" line;
7. The signer fails to provide the date but a period of time that qualifies can affirmatively be established with previous and subsequent dates provided by other signers upon the petition page; or
8. The signer fails to provide the year when signing the petition.
E. A signature upon a petition shall be included in the count toward meeting the petition signature requirements only if:
1. The petition signer is a qualified voter who is maintained on the Virginia voter registration system either (i) with active status or (ii) with inactive status and qualified to vote for the office for which the petition was circulated;
2. The signer provides the signer's name; and
3. The signer provides an address that matches the petition signer's address in the Virginia voter registration system, or the signer provides an address that is within the same precinct where a voter is currently registered in the Virginia voter registration system, and the signer can be reasonably identified as the same registered voter.
NOTICE: The following forms used in administering the regulation have been filed by the agency. Amended or added forms are reflected in the listing and are published following the listing. Online users of this issue of the Virginia Register of Regulations may also click on the name to access a form. The forms are also available from the agency contact or may be viewed at the Office of Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.
FORMS (1VAC20-60)
Commonwealth of Virginia Petition of Qualified Voters For Referendum, SBE-684.1(1) (rev. 5/2011)
Request for a Risk-Limiting Audit, SBE 671.2(D) (rev. 8/2022)
ELECT 233 Petition for the Removal of an Officer (rev. 5/2023)
VA.R. Doc. No. R23-7597; Filed July 25, 2023