In the heat of the Presidential campaign, and with Virginia suddenly up for grabs, Virginia election secretary Nancy Rodrigues and her staff made a little noticed change in election procedures involving college students. This change was done at the behest of the Obama for President campaign. Sources inside the Virginia State Board of Elections tell us that nakedly partisan views of those ordering the change were well known. And ironically, the change may dilute the voting strength of African-Americans in Richmond, Charlottesville and Newport News. 
When the policy was changed in 2008, it was an administrative change. But now Nancy Rodridgues has sought to enshrine the change in the SBE regulations. This permanent change potentially invites a lawsuit under Section 2 of the Voting Rights Act because the change dilutes the votes of African American voters. This change comes from an office which has faced numerous charges of racial discrimination against African-Americans in the last few years.
What is the change? SBE told county voter registrars that they no longer should make any inquiry of college students whether their “domicile” in the college town is bona fide. Instead, they should just take a college student’s word for it that they live there. SBE Policy 2009-005 relaxes the residency requirements for voting that were set forth in prior statutes and regulations. Those regulations were in place for decades, and enforced by local and county registrars without any significant problems. The policy was upheld repeatedly in cases like Kegley v. Johnson and Alami v. City of Williamsburg.
University students, under the State Board of Elections’ new regulation, would be allowed to vote in their college district even if they do not have intent to remain in that area indefinitely, which, until SBE Policy 2009-005, was considered a Constitutional requirement to vote in Virginia.
Before the change, all voters were asked a series of questions about their domicile. These questions were perfectly legal and proper. They did not offend any provision of the Voting Rights Act. The questions involved “financial independence, business pursuits, employment, income sources, residence for income tax purposes, residence of parents, spouse and children, if any, leasehold, sites of personal and real property owned by the person, motor vehicle and other personal property registration, and other factors reasonably necessary to determine the qualification of a person to register or vote.”
The changes abandoned any inquiry into where a person really lives. Living at home all summer? No problem. Claimed as a dependent on daddy’s taxes? Who cares. You car is registered in Arlington? No big deal. Sign here.
How did this change have a partisan effect? Well in the fall of 2008, the Democratic Party was desperate to tinker with the electoral rules to maximize turnout of college voters. So eventual DNC Chairman and Governor, Tim Kaine, through Larry Roberts, asked Nancy Rodrigues, whom Kaine appointed to the position when he was governor, to implement this change. It meant that college students, many of whom lived at home, found themselves at college where their votes were suddenly important. They were too busy with classes and football on weekends to go home to register to vote, or to vote. So making this change allowed a last minute wave of college student registration among a population notoriously hard to motivate. Nancy got it in place just in time for the Presidential election. Governor Tim Kaine must have been very pleased with her efforts.
We will have a more detailed report in the future about the efforts by Governor Kaine and Larry Roberts to influence the policy of the SBE on behalf of a partisan political campaign. We have emails and internal documents regarding this coordination. Stay tuned.
And Governor Bob McDonnell's administration doesn’t think there is any harm in keeping a partisan like Nancy Rodrigues and her staff in place running the machine for the upcoming midterm. More on that in a future article somewhere.
Sources tell Election Law Center that on election night, cheering erupted from the offices of the top officials in the SBE when the election was called. Nothing is wrong with personally held political beliefs. But I served in an office where integrity and impartiality were part of the job duties. One would never openly cheer an election result in that office. If they did, they would loose credibility. People I knew to be democrats and people I knew to be liberals understood you don’t express political views, you don’t shame your reputation by taking sides in the course of your duties.
Again, it is folly to think openly partisan bureaucrats can run the midterm elections without harming the process. Something could be done about it, Tuesday.
So how does eliminating an inquiry into true residency have a partisan impact? It opened the floodgates on college campuses. And it paid off. Charlottesville, for example, became a waterfall of support for the Democratic ticket. Remember, there is nothing wrong with students voting and they certainly could have registered and voted at home. But to alter the process late in the game when a state suddenly falls into play implicates the credibility and impartiality of the office.
Whether you are a democrat or a republican, we should all be concerned. Elections should be impartial. Your ox may be gored next.
Imagine the outcry if an SBE altered the residency rules of a bastion of transients, say at Ft. Belvior or the navy base in Norfolk. Imagine if it was done a few weeks before the election at the request of Republican National Committee Chair Jim Gilmore when he served in that position. Imagine if Gilmore had asked a Secretary whom he appointed to change the policy on military residency. The dying dead trees media in the Commonwealth would have rightfully exploded. But not a peep from our newspapers on Tim Kaine doing the same thing.
Now Nancy Rodrigues wants to enshrine this corrupt and corrosive change to electoral credibility. The citizens of Virginia should oppose her change so their elections are not gamed in the same way Ohio Secretary of State Jennifer Brunner allowed her elections to be gamed by phony transient registrations and voting (on the same day no less) during the 2008 election.
There is also a good chance this change by Secretary Rodrigues dilutes African-American votes. Sure, the change was precleared but no serious analysis was conducted. It will be different this time when she submits the regulation to the Justice Department, and it must be submitted because it alters an existing regulation. When a regulation is changed, it must be submitted. Even if it is precleared, plaintiffs may sue.
Why? Because it makes it harder for African-American candidates to win local and state elections. It dilutes the votes of African-American voters in and around college towns.
For example, the African-American voting strength in the 71st House district could drop a full 10 percent from 52 percent to 42 percent if this change takes full effect. Without question, such a drop would constitute a change justifying an objection under Section 5 of the Voting Rights Act as well as a lawsuit under Section 2 of the Voting Rights Act. The same impact repeats itself throughout the Commonwealth in a myriad of state and local races.
A great deal more data exists beyond House-71, but is beyond the scope of this posting.
Promoting voter participation for young voters throughout our state is commendable. But the students should vote where they live. This should not be done, however, by substantially decreasing the voting power of long-time African American residents in jurisdictions that are predominantly inhabited by African Americans, but that just happen to have a predominantly white university within their borders.
This change demonstrates a number of important issues. First, the State Board of Elections is willing to use the office to obtain partisan ends. It is a cautionary tale for the few people left in the administration defending the tenure of Nancy Rodrigues and her executive director. She isn’t worth defending, and with an upcoming midterm, blind faith isn’t worth the risk. The sun won’t necessarily come out tomorrow.
Second, the SBE doesn’t care about perceptions of bias, and this is a dangerous thing for fair elections. Swiftly implementing a policy at the request of the national DNC or RNC chairman on the eve of an election is completely out of bounds. Open displays of enthusiasm inside the office serve as a warning to the defenders of the office – what will they cheer next?
Third, even if you decide to rig the electoral system as the SBE is doing, you better not do it at the expense of African-American voters. Federal law has something to say on the issue. The Federal law even allows for attorney’s fees. Instead of the SBE sending police officers to roam the office or collect cell phones at home from employees, if they implement this policy, they might need the money to pay plaintiff’s lawyers.