Collegiate Times

With Virginia in play on a national political level for the first time in recent memory, voter registration drives have swept college campuses across the commonwealth. But the combination of students, uneasy registrars and eager registrants led to registration controversies from Blacksburg to Norfolk. Now, state officials say, a consensus has emerged: Virginia college students both from in and out of state can register freely at their college addresses.

Related: Forum on Voter Registration

While saying that state statutes pertaining to voter registration for all Virginians remain unclear, Gov. Tim Kaine said that students will be assumed to establish their domicile, the key legal point necessary for registrars to add them to the voter rolls, through their submission of a voter registration form.

"We don't cross-examine adults," about their reasons for declaring a domicile, Kaine said." And we should treat students the same way."

The events that would eventually forget his consensus began with a misleading memo from Montgomery County registrar Randy Wertz. It ended with the Virginia State Board of Elections Web site that a Syracuse law journal called one of the "scariest" sites for voters on the Internet was revamped and students in 141 of Virginia's 143 counties with the ability to register as they wished.

The road between the two, however, was a rocky one.

RUMBLINGS IN MONTGOMERY COUNTY

Wertz issued press releases on Aug. 25 and Aug. 27 stating that "if you declare your legal residence in another state, do not register to vote in Virginia." His concerns were caused by a spate of phone calls he received from students and their parents in regard to concerns that dependent children would lose their tax status or health care, for example. Resorting to guidelines then-posted on the Virginia State Board of Elections Web site pertaining to issues such as tax dependency status, eligibility for scholarships and health care, Wertz issued the first memo, saying he "wanted to make sure that students were informed about the issues."

Later, Wertz would add that while "the initial wording was a little stronger than it should have been," he felt that, in this case, "no good deed goes unpunished."

Later that week Wertz said that after much deliberation between him and the several campaigns looking to register voters on campus -- notably, the Virginia arm of Barack Obama's Campaign for Change -- he would revise his statements. Wertz then released a subsequent memo stating that registrars are not allowed to give out advice on issues of taxation or scholarship eligibility and would welcome anyone who wishes to register to vote in Montgomery County.

The legal issues at the heart of Wertz's dilemma are many.

To be a registered voter in a given locality, students must prove that they are residents of that locality. Virginia Code 24.2-101 articulates the definition of residence. The law states, "an individual must demonstrate residence in Virginia and an intent to remain in Virginia indefinitely to establish domicile."

There are two principles that determine residency. Residence is defined as both an abode and a domicile. The Virginia State Board of Elections defines an abode as a person's "physical presence in the precinct and locality." This means that a student may claim either their parents' address back home, a piece of property that they personally own or their current residence -- their apartment or dorm room, for example -- as their abode. To establish domicile, a person must express "intent to remain there for an unlimited time." Only one of a person's abodes may be declared domicile.

The concept of domicile cannot be based solely on one factor but an assortment of factors, said Barbara Cockrell, director of operations with the State Board of Elections. Further, as the State Board of Elections puts it, domicile is "a matter of subjective intent known only to that person ... actions alone do not establish domicile."

Questions have arisen, however, as to what students must do if they register to vote at their campus address.

Student Legal Services attorney Bruce Phillips said, "If (students) have one domicile and claim it here then they have to follow the law. They have to get their vehicle registered here, for example ... You could get away with (not registering one's vehicle), but that doesn't mean it's legal."

The address on the driver's license does not determine one's permanent residence, Phillips added, but should reflect it.

While not rebuffing Phillips claims about legality, Campaign for Change Virginia spokesman Kevin Griffis said that Phillips is raising issues that will have no practical significance.

"(Phillips) is being needlessly alarmist by raising all of these dire consequences which in actuality are not connected by statute of voter registration," Griffis said. However, the Campaign for Change is, "not advising anyone on (issues related to the department of motor vehicles), as this is not our concern."

Emily Ross, Tech University Registrar said that voter registration "plays a small part in determining residence for tuition purposes. There are a lot of things to look at."

However, individual circumstances vary widely and should be investigated by the students themselves before a decision to register to vote is made, said Liz Emanual, Campaign for Change youth vote director, in a September press conference in Blacksburg.

In addition to Virginia statute, at least two court cases, one at the U.S. Supreme Court and another at the Virginia Supreme Court, affect voter registration policy.

In the case of Sachs v. Horan, which took place in Fairfax County in 1996, Monica Horan, General Registrar for Fairfax County, canceled Daniel Sachs' voter registration because she believed he had left the area of his original registration. Sachs was registered to vote in Fairfax in 1984. He had bought a house in Springfield in 1991. Three years later, Sachs rented a house in Washington County and subsequently leased out his house in Springfield. He still paid property taxes to Fairfax County for his house and also had his vehicle registered in Fairfax County.

 On Feb. 13, 1995, Horan notified Sachs' of her intent to cancel his voter registration because of his out-of-county residence. Though he applied for an absentee ballot to vote in the general election of 1995, the registrar notified Sachs that his voter registration had been canceled. The notice of cancellation was sent to his address in Springfield, not his address in Washington County.

When Sachs appealed the decision, the court found that he had failed to provide evidence of domicile, thus ruling that his registration was properly canceled. In this case, it was established that registrars have the right to deny voter registrations based on the criteria they see fit to apply in a given case.

Alternatively, however, this case may move to reinforce student-voting rights. Scott Pluta, head of voter protection for Virginia's Campaign for Change, saw the situation as analogous to students' situations when moving away from home -- they maintain ties to property and an area they once inhabited and may still return to. Yet a registrar determined that, for all intents and purposes, the "center of their universe" had shifted to another point.

A 1979 case involving Prairie View A&M, a historically black university west of Houston, appears to affirm student voting rights. In that case, the local registrar was found to be illegally distributing a survey to students at Prairie View A&M, asking them a litany of questions involving residence, intent to remain in the local county and the time the student had spent at the university. Many voter registration groups cite this ruling as proof that students should be immune to such questionnaires or further scrutiny -- the same as ordinary citizens.

VIRGINIA'S HISTORY OF VOTER  REGISTRATION ISSUES

Kent Willis, executive director for the Virginia American Civil Liberties Union, said that confusion over student voting rights is nothing new to Virginia.

"The problem is exacerbated by the fact that registrars in Virginia have a great deal of autonomy," Willis said. "If you are a student in some parts of Virginia, the registrar does not question your registration. In other parts, registrars actively create obstacles for students."

Willis said that the ACLU has been watching this issue for eight to nine years. In most instances where registrars have aggressively blocked students from voting there appear to be a large number of registered students.

"If students register in large numbers, resistance builds up," Willis said.

Willis cited several examples of student voter registration conflict that have taken place in Virginia in which student voter registration had become an issue because of how the registrars treated the students.  

In early 2004, the Williamsburg city council tried to pass an ordinance that would create new restrictions aimed at reducing the number of students living in rental properties. This would have made it more difficult for students to share a house and split the rent. Eventually, a student decided to run for city council. In order to do that, he would have had to be a registered voter. The Williamsburg Registrar's Office had refused to register students.

Luther Lowe, an out-of-state William and Mary student in 2004, decided that he wanted to be a resident to receive in-state tuition. He moved to Virginia and signed up for a six-year commitment to the Virginia National Guard. When he attempted to register in Williamsburg, the registrar told him to register in Arkansas, where his parents lived.

Serene Alami, another William and Mary student who grew up in Roanoke, attempted to register in Williamsburg, but the registrar said that she had to register at her parents' address in Roanoke.

Lowe and Alami, along with Seth Saunders, were represented by the ACLU for not being allowed by the Williamsburg registrar to register to vote in that locality. The registrar considered them "temporary" residents based on questionnaires the students were required to complete. Questions on these forms ranged from tax dependency to vehicle registrations.

On April 27, 2004, The ACLU filed suit on behalf of four William and Mary students  arguing the students right to vote where they lived, a case it eventually won.

REGISTRAR 'CAN'T EVEN FATHOM' RECORD NUMBERS

On July 31, 2008 Montgomery County held 47,604 voters. On October 1, the number increased to 51,796 voters. While the number may not seem like a titanic increase, Wertz said that, on average, voter rolls stay roughly consistent from year to year, especially in more transient communities such as those that house large universities.

This influx of voter registration forms filled up by students is causing hassle in the Montgomery County Government Center.

At one point, Wertz had received 3,000 in one week's time. Registrars from other districts and volunteers have been staffing the registrar's office nearly around the clock, often working through the weekends and until 7 p.m. or 8 p.m. to process all of the new registrations. Wertz said he "can't even fathom the number" of eventual registrations.

In the 2004 election, 45,079 citizens were registered to vote in Montgomery County, up from 41,063 in 2000. In Blacksburg alone the tally was 14,779 on July 1, 2008. The number rose to 14,821 on Aug. 1, 2008 and 15,401 on Sept. 1, 2008. The total number of registered voters in Blacksburg in the 2004 election, as of Sept. 1, 2004, was14,166.

These numbers may have been exacerbated by a surfeit of misinformation from voter registration drives concerning absentee balloting. Wertz expressed concern over reports reaching him from students and parents about misinformation coming from campaigners.

Campaigners are reported to have been "telling people that they should not vote absentee. That by voting absentee their votes would not be counted. 'The only time that absentee ballots are counted is when it's a tight race,' (campaigners) were telling people," Wertz said.

Cockrell said that these allegations are "absolutely untrue. Voting by absentee ballot is the same as voting in person at the polls. Absentee ballots are accounted for at the polling office and are counted at 7 p.m. when the polls close. The only way an absentee ballot would not be counted would be if there was any missing information."

Cockrell speculates that the myth that absentee ballots are either not counted or counted only when the elections are close comes from the uncertainty that follows from, "putting your vote in the mailbox."

ELECTION DAY PRESSURE

Republican Del. Dave Nutter said that he had seen polling data suggesting that 80 percent of Virginians may turn out to vote on Election Day. The high voter registrations in the several different districts is sure to cause long lines on Election Day, Wertz said. Further, a spike in registrations from the E-1 district, encompassing the majority of student residence halls on the south side of campus, from 3,526 registered voters on June 3 to 4,829 on Oct. 1, makes E-1 the largest voting precinct in Montgomery County.

Elected officials, political parties and poll workers alike foresee a crowded Nov. 4. The Election Day pressure could have been averted by splitting the polling place that will absorb the majority of on-campus voting registrations, St. Michael's Lutheran Church on Merrimac Road. Splitting a polling place is allowable under federal election law if the registrar asks for the polling place to be split two months before the election. However, on Sept. 4 voter registration drives were not in full swing and Wertz did not anticipate such a surge in registrations.

To quicken the pace at the polls, students should attempt to bring their voter registration card, mailed to the address at which they registered, with them to the polling site. Failing this, any first-time voter will have to produce a form of government-issued identification -- a driver's license or a Hokie Passport -- or proof of their local residence, such as a utility bill or car registration.

Voters who have voted previously in a federal election at a given precinct and do not bring proper identification will be asked to sign an "affirmation of identity" statement, validating under penalty of perjury that the potential voter is the voter on the roll books. This voter will be allowed to vote in a normal fashion. First-time voters, however, without some form of identification will be asked to fill out the identity statement. Then, these voters will cast a provisional ballot, a paper ballot that will be counted along with absentee ballots at the close of polls if no irregularities arise.

Cockrell gave an idea of what would happen in the case of overcrowded polls. Voters, Cockrell said, should be prepared to wait in long lines. If a voter arrives at the poll and is in line by 7 p.m. on the day of election, his or her vote will be counted.

Wertz has made several moves to lower election congestion. First, the polling books, weighty tomes that hold the names of all registered voters for a given precinct, have been split from the customary single book into three separate books.

Second, an officer of election -- known in other states as a poll worker -- will be responsible for each voting machine in St. Michael's, rather than the customary one-worker-per-machine ratio. Lastly, Wertz has added several voting machines to the E-1 arsenal. The State Board of Elections has hired 30,000 officers of election to run the polls and aims to hire more, said James Alcorn, policy adviser for the state board of elections.

An issue that could thwart these preventive measures is a practice known as voter caging. The procedure for challenging a voter's registration in Virginia is as follows: Virginia Code 24.2-651 states that "any qualified voter may, and the officers of election shall, challenge the vote of any person who is listed on the poll book but is known or suspected not to be a qualified voter."

Officers of elections can, however, remove anyone from a polling place for being unduly disruptive of the voting process, Wertz said.

A political tactic with a history of challenging minority voters, the practice involves the challenging of voter rolls of a given locale in the hopes of disenfranchising legitimate voters. While not necessarily illegal, challenging can pose significant problems in terms of discounting those without documentation and may cause general frustration, leading to longer lines.

In Ohio in 2004, 35,000 people were challenged while going to the polls. While representatives of both Republican and Democratic parties have said that neither side has plans to challenge voters, the flood of student voters and students' typical leftward leanings may leave the question of voter caging heavy on the minds of some.

"If Virginia proves to be, as many speculate, a battleground state, the stakes are higher. The games are dirtier. If we see come Election Day, Virginia could come in play; unfortunately we will probably see some attempts to prevent people from voting," Willis said.

WHERE DOES VOTER REGISTRATION GO FROM HERE?

One aspect of Virginia's open-armed registration policy is the potential for voter fraud. Students who live out of state and who do not offer obvious clues to registrars concerning their out-of-state status could, conceivably, vote in person in Blacksburg and by absentee at an out-of-state location. Within the commonwealth, the Virginia Election and Registration and Information System prevents multiple votes from being cast under a single name. However, because no national voter system exists, interstate fraud is nearly impossible to detect.

"We don't have a way to check," whether voters are registered in multiple states, Wertz said. "It's a disaster."

Another upshot is pending conflict with local officials. Nutter said that roughly every five years the town of Blacksburg has seen a Tech student run for the town council. While he lauded student voting as a movement toward "being part of a community," the case of Williamsburg looms large in the sense that pushback from entrenched town officials may occur if students do seriously engage their local political scene. Nutter also said while national elections are never decided by a single vote, local elections -- such as state delegate Madison Reeves' 9-vote victory or a Radford Commonwealth's attorney race that was decided by a single vote -- could be affected by students registering to vote in their college communities.

Lastly, the consensus on student voting is a fragile one. Because the actual statutes remain vague, the future of the collegiate franchise rests on the continuation of the political perspective. While the state board of elections calls itself a bipartisan entity, the three members of the board are apportioned by political party with the governor's party taking two of the three seats.

While Alcorn said that "the state Board of Election is an independent policy board and it would be inappropriate for the governor to interject into this board," the fact remains that without a decisive change in the legal statute, a change of governance could result in an abrupt change in voting policy.

Wertz said that the Voter Registrar's Association of Virginia intends to introduce legislation in the spring General Assembly session to implement voter registration guidelines on the model of North Carolina; however, he was not optimistic about the legislation's chances. Alcorn said that several measures have died in the state assembly since the issues with voting in Williamsburg in 2004.

Most tellingly, perhaps, is the case of Nutter, a Tech graduate whose district encompasses the Corporate Research Center and most of Christiansburg.

"I haven't gotten a single call," asking for legislation, he said.

Related video: Voter registration forum at Virginia Tech.