Thursday, February 28, 2008

RICHMOND (AP) — Virginia’s presidential primary would have been the young woman’s first time to vote, and she sobbed into her cell phone when she realized that she couldn’t make it to the polls before they closed at 7 p.m.

Nancy Rodrigues, head of the State Board of Elections, remembers it vividly because her office received the teen’s wrenching call.

It might sound simple enough to keep affected precincts open longer in such emergencies, but state law doesn’t allow it, and a legislative fix is proving difficult.

The Board of Elections got more than 600 calls during the Feb. 12 primary as freezing roadways worsened Northern Virginia’s notorious traffic from impossible to impassable.

“They started coming in at 3:30 in the afternoon,” Miss Rodrigues told the Senate Privileges and Elections Committee on Tuesday as she described the day’s ordeal. “All but 35 were from Fairfax County.”

In all, Miss Rodrigues surmised, thousands of Virginians likely missed their say in important Republican and Democratic presidential primaries. Nearly 1.5 million people voted, or slightly more than one-third of the 4.4 million eligible, making it by far Virginia’s largest primary turnout.

Across the Potomac River in Maryland, more than 10,000 people similarly afflicted by the weather were able to vote when officials kept the polls open an additional 90 minutes because of the conditions.

Miss Rodrigues said she talked to registrars in affected areas, then huddled with the board’s lawyers to assess the options. There were none.

If Maryland could give its voters an extra 1½ hours, Gov. Tim Kaine reasoned, Virginia should be able to do no less, and he sent down legislation that might make it possible. It was introduced Feb. 21 by freshman Sen. George L. Barker, Fairfax Democrat.

“The problem we have is we don’t have a provision in [state law] for extending the hours at the polls when those types of emergencies occur,” Mr. Barker told the committee.

Under his bill, the Board of Elections secretary or the state political party chairmen could ask a judge to allow voting for up to four hours beyond the 7 p.m. closing time in an emergency declared by the president or the governor, or in the event of any disaster that “directly interferes with the electoral process.”

Such calamities aren’t uncommon. When a line on the Metro subway system broke down Nov. 7, it stranded Virginians who were rushing home to vote in that day’s state legislative elections. Officials sought a delayed poll closing.

“Both Democratic and Republican party officials went to a Circuit Court judge in Alexandria to ask to have the hours extended because of that situation. The judge said, ‘Show me where in the [law] I have authority to do this,’ ” Mr. Barker said.

“Their response was, ‘We’re asking you to do this, but there’s nothing in the [law] that says you can do this,’ and his response was, ‘Well, I’m not going to do anything,’ ” he said.

Perhaps the judge fathomed the mind-boggling intricacies and potential conflicts that the senators realized Tuesday when they began debating how to identify which precincts would work overtime.

In Maryland, elections chief Linda H. Lamone asked Anne Arundel Circuit Judge Ronald A. Silkworth to extend the polling hours at about 7 p.m. on primary day after receiving calls from voters who complained that the foul weather had created traffic gridlock, delaying their arrival at polls. The judge approved a court order about 10 minutes later to keep the polls open statewide past the initial 8 p.m. closing time until 9:30 p.m.

Extending voting hours on a locality-by-locality basis sounds fine, but what happens when the offices being filled are elected by districts that cross from one locality into another?

Virginia Sen. A. Donald McEachin, Henrico Democrat, posed this all-too-plausible scenario:

Richmond’s flood-prone Battery Park neighborhood is inundated in an election-day storm, and high water traps voters for hours. A judge gives voters in Democrat-friendly Richmond a couple of extra hours. Neighboring Chesterfield County, which votes Republican, doesn’t get the extra time. A state House or Senate district — perhaps both — takes in both localities and part of another. In a tight race in a swing district, the extension in Richmond effectively gives Democrats two extra hours to muster their vote than the Republicans.

The crazy quilt of local, legislative or congressional districts overlapping and passing through numerous city and county boundaries could consume wide swaths of the state. Democrats and Republicans on the committee proffered amendment after amendment in an effort to guide the process, only to spot a flaw in each and discard it.

Mr. McEachin and Sen. Mark D. Obenshain, Harrisonburg Republican, both politically sophisticated lawyers, shuddered at the potential for confusion, inequity and mischief.

“I mean,” Mr. Obenshain said in frustration, one hand kneading his forehead, “how do you define an affected region?”

For now, the bill leaves it up to Circuit Court judges, on short notice, to determine the affected precincts. That leaves Mr. McEachin uneasy.

“I think judicial discretion is the last thing we want in this. I think we need to be as specific with the court as we possibly can. I don’t think the judges want any part of this,” he said.

The committee’s 10-5 vote for the bill advances it to a full Senate vote as early as tomorrow but not without an array of floor amendments in another bid to address lingering concerns about the bill.

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