Former Virginia Commissioner of Elections files brief in support of absentee ballot accommodations made by Commonwealth in wake of COVID-19

“Plaintiffs now ask this court for truly extraordinary relief, to disrupt this ongoing primary election in the midst of a global pandemic,” Cortés said. “A change in the election process now would cause severe disruption, create great uncertainty and confusion and further tax the elections administration system.”

In March, Commissioner of Elections, Christopher Piper issued guidance permitting and encouraging voters to cast absentee ballots in an effort to safeguard public health and limit the spread of the coronavirus. Voters were encouraged to use the “illness and disability” (2A) reason for their absentee ballot requests, because the state’s new no-excuse absentee voting law will not take effect until July 1, 2020. The lawsuit filed by Thomas Curtin earlier this month aims to rescind the state’s COVID-19 guidance for voters, disallowing the global health pandemic as a reason to vote absentee.

In his brief, Cortés highlights the ways in which the injunction, if granted, would cause chaos in Virginia by disrupting the state’s ongoing elections and forcing election officials to revisit requested ballots and those already cast. This move would jeopardize the health of residents and disenfranchise thousands of Virginians.

The last-minute attempt to block absentee voting would be particularly harmful to Black and Brown communities, which are disproportionately impacted by the coronavirus, noted Judith Browne Dianis, executive director of Advancement Project National Office. “Every Virginia voter should be afforded the opportunity to vote by absentee ballot due to COVID-19,” Dianis said. “Black and Brown Virginians have disproportionately contracted and died from coronavirus and forcing these voters and other vulnerable populations to risk their health to vote in-person is amoral and wrong. Communities of color are historically less likely to vote-by-mail and limiting their ability to cast an absentee ballot forces them to choose between their health and their right to vote. We strongly urge the court to rule against Thomas Curtin.”

The plaintiffs incorrectly point to fears of “voter dilution” as a reason for seeking to disrupt the absentee voting process, Cortés said. “Those voters who have requested to vote absentee are eligible voters and seek only to change the mechanism by which they vote, which is reasonable under the circumstances given the unknowns associated with the transmission and spread of the coronavirus. The guidance does not in any way change any eligibility requirements for voters in Virginia.”

“Virginians should not be put in life-threatening danger from COVID-19 based on unsubstantiated claims that mail-in voting will cause huge amounts of voter fraud,” Cortés said. “Voters in every community in the Commonwealth deserve to stay healthy while casting their ballot safely, just as the Board of Elections has allowed them to do with the 2A reason. The only reason the plaintiffs want the court to block voters from using 2A during this pandemic is because they know more people will vote if they can do so safely. This rationale should shock the conscience of all reasonable people.”

As the brief points out, courts around the United States have agreed to show increased deference to government actions during pandemics like COVID-19. While the plaintiffs argue that Virginia's legislative inaction for the June election means the General Assembly wants to limit voters to plaintiffs’ harsh reading of the excuse-based absentee voting system, the reality is exactly the opposite. Beginning July 1, days after the June election, a new state law will take effect abolishing the excuse requirement for absentee voters. Put simply, the General Assembly doesn't need to put its stamp of approval on temporary guidance for which box to check during a pandemic when it had already debated and decided that no check boxes were needed at all.

“Mr. Cortés has first-hand experience overseeing the absentee ballot process in the Commonwealth,” said Jason Leonard, partner at Hogan Lovells. “We hope that his unique perspective and experience will be helpful to the court in deciding this important voting rights issue.”

In addition to serving as Virginia’s first Commissioner of Elections from 2014-2018, Cortés served as chairman of the Board for the Electronic Registration Information Center and as chairman of the U.S. Election Assistance Commission Standards Board, among other positions.

The Hogan Lovells team included partners Jason Leonard and David Dunn in New York, partners Jon Talotta, N. Thomas Connally in Northern Virginia, and senior associate Allison Funk and associate Peter Bautz in New York.

The Amicus Brief (see Appendix A) is available here.

The Declaration by Cortés is here.