(CNN) – Virginia’s Attorney General is weighing in on the conflict between federal law and a Virginia statute that could have caused some absentee ballots from overseas to be rejected by Fairfax County, Virginia.
Federal law allows members of the U.S. military and other voters living overseas to vote in the general election using a federal write-in absentee ballot. The problem has been caused by the fact that when a Virginia voter decides to use the federal write-in absentee ballot both as a ballot to cast a vote and as an absentee ballot application, a separate Virginia law requires that the paperwork submitted by the voter include the address of the person acting as a witness for the voter.
But here’s the issue: neither the federal absentee write-in ballot itself nor its instructions mentions Virginia’s requirement that the witness’s address be included. In fact, the ballot form doesn’t even have a space to write down the witness address which Virginia requires.
Click here to see the federal write-in absentee ballot
In a formal legal opinion issued Monday night, Robert McDonnell concluded that federal law controls over the conflicting Virginia law. The opinion clears the way for roughly 60 overseas absentee ballots in Fairfax County to be counted in next week’s election returns and perhaps more ballots in the same predicament throughout Virginia.
Click here to read McDonnell's opinion
A mini-controversy had been brewing, with Fairfax County Registrar Rokey Suleman at its center, about the possibility that ballots from members of the military serving overseas would not be counted in next week’s presidential election. “I am getting e-mails from people offering to buy my tombstone,” Suleman said Monday about the anger that has been directed at him over the ballot controversy. Suleman also told CNN that so far 63 overseas ballots submitted to Fairfax County, Virginia were potentially caught up in the legal snag that the Virginia AG’s legal opinion has resolved.
The Virginia State Board of Election is set to take up the matter of the overseas ballots at a meeting Tuesday. The Board is likely to follow McDonnell’s opinion and direct Suleman and other county registrars across the state to accept federal write-in absentee ballots that are valid under federal law which but did not comply with additional requirements imposed by Virginia law.
–CNN's Carol Costello contributed to this report