Fairfax County, Va., lawsuit involved absentee-ballot applications, not ballots

With polls of the Virginia gubernatorial race showing a nailbiter on the eve of the election, some social media users shared assertions of election fraud before any votes had even been counted.

The Gateway Pundit, a conservative website, published an article on Oct. 30 headlined, "Another Virginia Election, Another Election Steal – Virginia’s Fairfax County Reportedly Not Requiring Last Four Digits of SSN’s on Absentee Ballots."

The story went on to assert that "Fairfax County is not requiring the last four digits of Social Security Numbers on absentee ballots in this election."

However, this is a garbled and incorrect reading of a lawsuit filed in the closing days of the race. Most importantly, absentee ballots were not called into question; applications for absentee ballots were. (Gateway Pundit did not reply to an inquiry for this article.)

The article was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

The Virginia Institute for Public Policy, a conservative group, filed a lawsuit in Fairfax County court on Oct. 20. It alleged that Fairfax County — a populous and, in recent elections, Democratic-leaning county in suburban Washington, D.C. — was breaking a provision of Virginia law that requires that absentee ballot applications include the final four digits of the applicant’s Social Security number.

Before we go any further, it’s important to note that, despite the assertion in the Gateway Pundit, the suit addressed absentee ballot applications, not absentee ballots. 

In fact, there is no requirement for any part of a Social Security number on actual absentee ballots being cast. By law, absentee ballots from any county or jurisdiction in Virginia must include the voter’s name, address, signature, and a witness’ signature. (If there is a problem with any of these elements, a voter can officially clarify, or "cure," the mistake with an elections office through the first Friday following the election.)

As for the lawsuit, it’s a bit more complicated.

On Oct. 29, the Friday before Election Day, Fairfax County Circuit Judge Michael Devine dismissed the case on procedural grounds, namely that the Virginia Institute for Public Policy didn’t have "standing" to file a lawsuit because it couldn’t show direct harm. (A formal ruling was unavailable on Nov. 1, the court told PolitiFact, but WTOP radio reported the ruling based on a journalist who was in the courtroom at the time, and neither side in the case challenged this characterization.)

Because the case was dismissed on procedural grounds, the substance of either side’s arguments were not resolved. However, here’s a rundown of what each side argued.

The plaintiffs pointed to a provision of Virginia law that says that absentee ballot applications "shall" include "the applicant's printed name and the last four digits of the applicant's Social Security number."

"When absentee ballots are sent to the wrong individuals, it leads to disenfranchisement," said Lauren Bowman, a spokesperson for the Public Interest Legal Foundation, which represented the Virginia Institute for Public Policy. 

In its legal response, Fairfax County's election office countered with a different provision of state law that says, "In reviewing the application for an absentee ballot, the general registrar shall not reject the application of any individual because of an error or omission on any record or paper relating to the application, if such error or omission is not material in determining whether such individual is qualified to vote absentee."

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The county argued that the registrar has some discretion in what is considered material. The county office "need not rely on SSN information for identity verification when Defendant can verify the applicant's name or address and compare his or her signature to the voter's signature on file within the registrar's office," its legal filing argued.

In a legal document, the county stipulated to having approved some absentee ballot applications this year in cases where the last four digits of a Social Security number was missing. (The stipulation document never made it into the official court record because the case was dismissed before the merits of the suit were considered.)

Scott O. Konopasek, the director of elections for Fairfax County, told PolitiFact that 652 applications were approved without inclusion of the four Social Security digits. But Konopasek argued that those approvals were permitted.

"The allegation in the suit was that we were issuing ballots to people who were not entitled to get a ballot because they left the Social Security number blocks blank," he said. "But we determine people’s eligibility to vote every day. When we looked at their address, their name, and their signature, they matched. We knew they were who they said they were without having the Social Security numbers."

The article said that "Fairfax County is not requiring the last four digits of Social Security Numbers on absentee ballots in this election."

The article garbled the nature of a lawsuit against Fairfax County’s elections office. Under state law, absentee ballots do not require Social Security numbers when they are cast. Instead, the lawsuit challenged voter applications to secure an absentee ballot, rather than the ballots themselves.

Fairfax County acknowledges approving some absentee ballot requests that did not include partial Social Security numbers, as long as the applicant’s identity could be confirmed through other information. The county argues that this is within its discretion under the law, while the plaintiffs who filed the suit say the county can’t go around the Social Security number requirement in the law. A county court dismissed the case on procedural grounds before deciding whether the plaintiffs or the defendants had the law on their side.

This claim contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.