On April 28, 2020, I petitioned the Virginia Office of Inspector General (VOIG) to investigate the Governor of Virginia for voter fraud (case # 18656). The VOIG ruled that my “allegations are not within the authority or scope of OSIG to investigate.” It was recommended by the VOIG that I “contact the Office of the Attorney General and request a legal determination of the Governor’s statements and whether it meets the legal definition of fraud or some other violation.”
I followed the guidance of the VOIG. On October 2, 2020, I requested Virginia Attorney General Mark Herring for a legal determination of Virginia Governor Ralph Northam’s statements and whether they meet the legal definition of fraud or some other violation. Below is that petition.
Request Sent to Virginia Attorney General Mark Herring
I am writing regarding a previous case referral to the Virginia Office of Inspector General (VOIG) in Case # 18656. The VOIG ruled that my “allegations are not within the authority or scope of OSIG to investigate.” It was recommended that I “contact the Office of the Attorney General and request a legal determination of the Governor’s statements and whether it meets the legal definition of fraud or some other violation.”
I, hereby, request that you render “a legal determination of the Governor’s statements and whether it meets the legal definition of fraud or some other violation.” Below are the facts and the gravamen of my allegations.
In Governor Northam’s Executive Order Number Fifty-Five dated March 30, 2020, he ordered all Virginia residents to remain in their places of residence. His order allows them to leave for only the specified reasons listed, such as shopping or seeking medical attention. There is no allowance for voting.
All other reasons for travel not expressly listed in his order are a violation of his order and constitute a class 1 misdemeanor, which subjects the person to arrest, prosecution, and imprisonment for up to one year and a fine of up to $2,500. The problem with his order is that it directly abridges the right of the people to vote.
Article II, Section 1of the Constitution of Virginia provides that “[a]ny person who will be qualified with respect to age to vote at the next general election shall be permitted to register in advance and also to vote in any intervening primary or special election.”
The governor postponed the May General and Special Elections by two weeks, from May 5, 2020, to May 19, 2020. Elections were scheduled in 56 localities across the Commonwealth. Astonishingly, his Executive Order # 55 order remains “in full force and in effect until June 10, 2020.” The problem is that under his Executive Order Number Fifty-Five, any person who leaves his home to travel to a polling site to vote would be subject to arrest for violating that executive order.
How did the governor address this? He encouraged voters to vote in the May Virginia elections via an absentee ballot. And what justification did he advise people to use in the application to vote via an absentee ballot? On his official website, he advised people to lie and state that they must vote using an absentee ballot due to “my disability or illness,” regardless of whether the person is disabled or ill. That official advice to lie can be found on his official website at:
“Governor Northam Postpones Upcoming May Elections in Response to COVID-19: Virginians encouraged to vote absentee by mail” https://www.governor.virginia.gov/newsroom/all-releases/2020/april/headline-856329-en.html
Governor Northam’s official advice to the citizens of Virginia is to commit voter fraud. He stated on his official website:
“The Governor encourages voters to vote absentee by mail if their municipality is holding a General or Special Election on May 19, 2020. The Department of Elections recommends voters who request an absentee ballot use the reason code for having a disability or an illness.”
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“Voters completing a paper application may use reason 2A, ‘my disability or illness’ to complete their form. Voters completing an online application to request an absentee ballot will need to follow the prompts and select ‘I have a reason or condition that prevents me from going to the polls on Election Day.’ They will then have the option to choose ‘my disability or illness’ as the reason for their request.”
He encouraged “voters” to “vote absentee by mail” and to claim as their justification that it is due to “my disability or illness” regardless of whether the person is actually disabled or ill.
Governor Northam told perfectly healthy people to lie and say that they were ill or disabled when they were neither ill nor disabled in order to allow them to skirt the law and fraudulently obtain an absentee ballot to which they were not entitled. He counseled and encouraged people to falsely claim: “I have a reason or condition that prevents me from going to the polls on Election Day,” and to misrepresent that condition as “my disability or illness” when the person has no such disability.
Virginia Code § 24.2-700 (4) allows absentee ballot to:
“Any duly registered person with a disability, as defined in § 24.2-101, who is unable to go in person to the polls on the day of election because of his disability, illness, or pregnancy.”
Virginia Code § 24.2-101 provides:
“‘Person with a disability’ means a person with a disability as defined by the Virginians with Disabilities Act (§ 51.5-1 et seq.).”
“Person with disability” is defined in the Code of Virginia § 51.5-40.1 as “any person who has a physical or mental impairment that substantially limits one or more of his major life activities or who has a record of such impairment.”
Illness is generally defined as an unhealthy condition or disease or period of sickness affecting the body or mind.
There is no provision in the absentee ballot statute for a person who fears getting an illness. Fear of becoming ill is neither a disability nor an illness and is not a justification for an absentee ballot under the statute. One cannot obtain an absentee ballot for the reason that someone else is disabled or ill. The person seeking the absentee ballot must, himself, be disabled. He cannot piggy-back on someone else’s disability.
Virginia Code § 24.2-1012 provides:
“Any person who knowingly aids or abets or attempts to aid or abet a violation of the absentee voting procedures prescribed in § 24.2-649 and Chapter 7 (§ 24.2-700 et seq.) shall be guilty of a Class 5 felony.”
Aid and abet is a phrase with a particular meaning in the law. A person aids and abets someone in the commission of a crime if he actively encourages, assists, or supports another in the commission of a criminal act. If the accomplice does something to in some way procure, or incite, or encourage, the act done by the actual perpetrator, then he will be considered an aider and abettor in that crime. See generally Foster v. Commonwealth, 18 S.E.2d 314, 316 (Va. 1942).
Governor Northam advised all voters in Virginia to lie on an official application for an absentee ballot and say that they were disabled or ill regardless of whether they were, in fact, disabled or ill. He provided a link on his website that took the voter to the online form so that the voter could follow the encouragement of the governor to misrepresent his disability. That posted advice from the governor along with the link constitutes active encouragement of voters to commit voter fraud, in violation of Virginia Code § 24.2-1012, which is a class 5 felony under Virginia law.
I have been informed by a Virginia Senator that “[o]n the absentee ballot form there is box to check for COVID-19 and it states you don’t have to have any other reason or prove anything but that you don’t want to come out and vote because of the virus.”
There is no statutory authority for simply checking COVID-19 as a reason. The person must actually be ill or disabled. Indeed, Governor Northam understands that fact because he instructed the voters to “choose ‘my disability or illness’ as the reason for their request.” Code of Virginia § 24.2-700 lists all the persons entitled to vote by absentee ballot. Virginia Code § 24.2-700 (4) allows absentee ballot to “[a]ny duly registered person with a disability, as defined in § 24.2-101, who is unable to go in person to the polls on the day of election because of his disability, illness, or pregnancy.”
That means that the voter, himself, must personally have a disability and that disability makes him physically unable to go to the polls. I.e., it must be, as the governor states, “my disability or illness.” But the governor is allowing an absentee ballot for someone who is able to attend the polls to falsely claim that they have a disability that prevents them from attending the polls. He is encouraging and counseling voters to lie on their application for an absentee ballot.
The absentee ballot statute cites to Virginia Code § 24.2-101 as giving the definition for disability. That code section provides: “’Person with a disability’ means a person with a disability as defined by the Virginians with Disabilities Act (§ 51.5-1 et seq.).”
“Person with disability” is defined in the Code of Virginia § 51.5-40.1 as “any person who has a physical or mental impairment that substantially limits one or more of his major life activities or who has a record of such impairment.”
The voter must have the disability in question. The person does not simply get to choose a disability that they do not have, as the governor suggested. The statute applies only to a “person who has a physical or mental impairment.” A person is not disabled because they may come in contact with another person who is disabled.
The individual, himself, must be suffering from a defined disability which substantially limits a person’s major life activities and makes them “unable” to go in person to the polls. A person who fears getting COVID-19 is able to go the polls. The person does not have a disability. Fear of getting Covid-19 is not a disability. The governor does not have the authority to change that standard for an absentee ballot, checkbox or no checkbox. The standard is found in the Virginia Code, not the governor’s mansion or someone hired by the governor to create an online form.
According to the Virginia Legislative Information System, House Bill 1 allows for an absentee ballot without any stated reason. But that provision of the bill states as a basis for an absentee ballot that the person “requests to vote an absentee ballot by mail for presidential and vice-presidential elections only, for any reason, as entitled by federal law.” The “any reason” provision is limited to presidential elections. Even if it were in effect for the May 2020 (which it was not) it would not apply to the May 2020 Virginia elections because they were not “presidential and vice-presidential elections.”
https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB1ER
Furthermore, House Bill 1 did not go into effect until July 1, 2020.
https://lis.virginia.gov/cgi-bin/legp604.exe?ses=201&typ=bil&val=hb1&ses=201&typ=bil&val=hb1
That means that the law was not in effect for the May 2020 elections. A person, during the May 2020 elections was required to state a reason for an absentee ballot. That is why the governor is advised people to lie on the application and state the reason as “my disability or illness.”
The operative law governing absentee ballots for the May 2020 elections is Virginia Code § 24.2-700 . The pertinent provision under paragraph 4 allows absentee ballot for “[a]ny duly registered person with a disability, as defined in § 24.2-101, who is unable to go in person to the polls on the day of election because of his disability, illness, or pregnancy.”
Governor Northam cites as his authority for his Executive Orders #53 and #55 as being “Article V, Section 7 of the Constitution of Virginia, by § 44-146.17 of the Code of Virginia.” Article V, Section 7 of the Virginia Constitution states that “[t]he Governor shall take care that the laws be faithfully executed.”
That is the governor’s principal obligation. The laws he is to faithfully execute are the laws that are found in the Virginia Code. The supreme law of the land of Virginia is the Constitution of Virginia and the Constitution of the United States. Governor Northam has taken an oath to “support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia.” § 49-1 Code of Virginia.
The emergency provisions of § 44-146.17 of the Code of Virginia allows the governor “to proclaim and publish such rules and regulations and to issue such orders as may, in his judgment, be necessary to accomplish the purposes of this chapter.”
That authority does not allow him to repeal or rewrite statutes already on the books. Indeed, Article V, Section 7 of the Constitution of Virginia obligates him to faithfully execute the laws of Virginia. The emergency powers statute in the Virginia Code § 44-146.17 does not (indeed it cannot) relieve him of that constitutional obligation to faithfully execute Virginia Code § 24.2-700 (4).
A recent decision by the Supreme Court of Texas may be helpful in deciding the legal issues in this case under Virginia law.
Tex. Elec. Code § 82.002 provides in pertinent part: “A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.82.htm
That is similar (but not identical) language to that found in the Virginia Code. The pertinent section of Virginia Code § 24.2-700 (4) allows absentee ballot to: “Any duly registered person with a disability, as defined in § 24.2-101, who is unable to go in person to the polls on the day of election because of his disability, illness, or pregnancy.”
In both the Texas and Virginia statutes, the condition allowing an absentee ballot must be a physical condition precedent. Neither law provides for an absentee ballot for a prospective illness. The Supreme Court of Texas handed down a ruling stating that very fact.
On May 20, 2020, the Supreme Court of Texas in In Re State of Texas, No. 20-0394, ruled that “a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail within the meaning of § 82.002(a).” Id. at 24.
https://www.txcourts.gov/media/1446711/200394.pdf
There is a difference in the language in the statutes. The Texas statute uses the terms “sickness or physical condition,” whereas the Virginia statute uses the terms “disability, illness, or pregnancy.” The Texas statute’s words “physical condition” are less precise than the Virginia statute’s word “disability.” The Supreme Court of Texas, though, seemed not to perceive much difference and viewed “physical condition” as virtually synonymous with “disability.” The Texas statute itself falls under the heading of “disability.” The Supreme Court of Texas stated that “‘disability’ is not merely a heading; it is the determinative word the absentee voting statutes used for fifty years.” Id. at 21 n.58.
The Supreme Court of Texas explained:
“‘Disabled’ normally means ‘incapacitated by or as if by illness, injury, or wounds’. The phrase, ‘physical condition’, must be read in this light. In no sense can a lack of immunity be said to be such an incapacity. Accordingly, we conclude that a lack of immunity to COVID-19 is not itself a ‘physical condition’ for being eligible to vote by mail within the meaning of § 82.002(a).” Id. at 21.
While the Texas Supreme Court decision, of course, is not binding regarding the interpretation of the language of a Virginia statute, it does offer some guidance. And the Texas Supreme Court ruling adds force to the authority we do have in the Virginia statute the defines ‘disability’ in its absentee ballot law. That Virginia statute parallels the Supreme Court of Texas’ ruling. Virginia Code § 24.2-101 provides:
“‘Person with a disability’ means a person with a disability as defined by the Virginians with Disabilities Act (§ 51.5-1 et seq.).”
“Person with disability” is defined in the Code of Virginia § 51.5-40.1 as “any person who has a physical or mental impairment that substantially limits one or more of his major life activities or who has a record of such impairment.”
Illness is generally defined as an unhealthy condition or disease or period of sickness affecting the body or mind. As in Texas, in Virginia, the person claiming a disability must himself be physically disabled as a condition precedent to obtaining an absentee ballot. There is no provision in the absentee ballot statute for a person who fears getting an illness. Fear of becoming ill is neither a disability nor an illness and is not a justification for an absentee ballot under the statute. One cannot obtain an absentee ballot for the reason that someone else is disabled or ill. The person seeking the absentee ballot must, himself, be disabled. He cannot piggy-back on someone else’s disability.
Thank you brother Edward for your continued effort to ensure Governor of Virginia remains subject to the law and be taken to task for his continued violation.