- The Washington Times - Tuesday, October 28, 2008

Virginia Attorney General Robert F. McDonnell on Monday said federal absentee ballots from military voters overseas must be counted, following a local registrar’s decision to set some ballots aside in an attempt to follow state law.

In a seven-page advisory opinion delivered to the state Board of Elections, Mr. McDonnell said Virginia law requires overseas military voters submitting a Federal Post Card Application and Federal Write-In Absentee Ballot (FWAB) to include the name and address of a witness on the application envelope.

But he said federal law pre-empts the state provision requiring that certain absentee ballots include the witness’s printed name and address. He said state registrars must count ballots that do not have the information.

“Finally, it is my opinion that general registrars may not reject a [FWAB] submitted by overseas military voters for the Nov. 4 federal election, that does not include a printed name and address for the person who signs the witness statement, unless the voter is unable to sign the application due to a physical disability or inability to read or write,” wrote Mr. McDonnell, a Republican.

The opinion follows a decision by Fairfax County General Registrar Rokey W. Suleman II to set aside a number of federal write-in ballots that did not contain a witness address because of the provision in Virginia law.

The move drew criticism from Virginia Republicans, who said Mr. Suleman was taking away the right to vote from military members.

“We’re following the letter of Virginia law,” Mr. Suleman told the Associated Press last week.

Officials said Mr. Suleman’s move resulted in roughly 100 of the ballots being set aside in the county. The attorney general and the state elections board were working to determine whether there was a discrepancy between state and federal law.

The board is likely to consider Mr. McDonnell’s findings at its meeting Tuesday.

McDonnell spokesman J. Tucker Martin said he expects the board to consult the attorney general’s opinion in making its decision on whether the ballots should be counted.

“All Virginians who spoke out when they heard of the possibility that our servicemen and women’s ballots were in danger of being voided should be very proud of themselves this afternoon,” state Delegate L. Scott Lingamfelter, Prince William Republican, said following the release of Mr. McDonnell’s opinion Monday.

The state elections board said Virginia since 2002 has required that “all FWAB serving simultaneously as an absentee-ballot application and as an absentee ballot require both a witness’s signature and an address in order to be counted in the general election.”

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