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chrisfay says
Agreed, but those exceptions exists when it is caused by third party applications or proprietary code such as the moz round corners. However none of these exceptions apply to those themes mentioned and others out there.

I think this is the current rule from what I understand. It needs to validate unless you are using reasonable hacks that justifiably invalidate the markup or css (ie your example).

EDIT : @Jeffrey: You beat me to it :)

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