Virginia AG: Overseas ballots must be counted

Chris Rizo Oct. 28, 2008, 2:21am

Robert McDonnell (R)

NORFOLK, Va. (Legal Newsline)-Absentee ballots cast by Virginians living abroad and members of the U.S. military must be counted by elections officials even though they don't comply with a state law, Attorney General Robert McDonnell said.

The legal opinion issued Monday by the Republican attorney general came after controversy erupted last week over the Fairfax County registrar's determination that dozens of federal ballots, which are used by Americans abroad, could not be counted because they don't comply with a state law requiring a witness to list his or her name and address.

In his opinion to the State Board of Elections, McDonnell said a federal elections law that governs overseas military voting supersedes state law.

"The conduct of federal elections is a federal function and states have no inherent or reserved powers over federal elections," McDonnell wrote.

McDonnell's legal opinion was requested by state Delegate Bill Janis, R-Henrico.

From Legal Newsline: Reach reporter Chris Rizo at

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