Elections board clarifies stand-by-your-ad policies

The Virginia Board of Elections has approved a new policy to clarify how candidates who had incorrect disclosure statements were to be notified of violations, how the board would determine how many times a candidate broke the law and how to continue a hearing, among other changes to how the board enforces Virginia’s stand-by-your-ad law.

The changes take effect immediately.

“We’re going to make tweaks to this,” said James Alcorn, board chairman, said at the meeting Wednesday. “This is pretty new for the board and for the department. I’d like to get something out there so we can educate candidates on this.”

There has been some ambiguity in how the board should apply the stand-by-your ad law, policy analyst Arielle Schneider said during a presentation to the board. Several board members acknowledged that enforcing the law has been difficult.

Virginia’s stand-by-your-ad law is part of its campaign finance provisions and closely mirrors the federal version. It leaves some decisions up to the Board of Elections’ interpretation, like what to do when candidates report themselves, which political entities are subject to the law and when it’s appropriate to charge more or less for a violation.

Earlier this summer, the board specifically struggled with television ads from last year’s governor race. Gov. Ralph Northam, a Democrat, and Republican candidate Ed Gillespie filed complaints against each other for several different TV ads each campaign ran. But the board couldn’t tell how often the ads ran or where they ran, so it was hard to know if they should increase the financial penalty.

In the end, the board determined Northam didn’t break the law, but Gillespie did. He was fined $2,000 and paid it in June.

Not every shortcoming of the stand-by-your-ad law was addressed this week.

Board Vice Chair Clara Belle Wheeler said she was still concerned that there was no requirement to hear violations before Election Day, and candidates can still request a continuance that could buy them time until votes are cast.

“If this board finds the candidate is breaking the law … a voter may want to change their vote,” Wheeler said.

She also wanted more clarification on what “good cause” means — the phrase is used several times in the ad law and other campaign finance law, Schneider said.

Elections staff will work on drafting a separate memo to define the phrase.