Can a Virginia town pass an ordinance preventing two spouses from holding interrelated elected offices at the same time?

Plain-English summary

The Town of Glasgow asked whether it could enact an ordinance preventing spouses from concurrently holding interrelated elected public offices (for example, town council and mayor). The AG said no.

Virginia operates under the Dillon Rule, which limits localities to powers expressly granted, fairly implied, or essential and indispensable. Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010). Glasgow's charter did not grant any authority to restrict candidate eligibility based on spousal status, so the town could not derive the power from its charter.

The bigger problem is the Virginia Constitution. Article II, § 5 sets the qualifications for holding any elective office: a person must have been a resident of the Commonwealth for one year and be qualified to vote for the office. Section 5 lists only three narrow exceptions where the General Assembly can layer in additional restrictions: more restrictive geographic residence requirements for legislative seats, residence non-requirements for designated local offices outside the governing body, and prohibitions on conflicts of interest, dual officeholding, or incompatible activities.

None of those exceptions authorizes a locality to restrict eligibility based on spousal status. The Supreme Court of Virginia has long held that when the Constitution specifies office qualifications, the legislature cannot interfere to add to those qualifications. Black v. Trower, 79 Va. 123 (1884). Prior AG opinions have applied the same rule to bar General Assembly amendments to charters that would add candidate restrictions (1993, 1997, 1991 opinions).

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Article II, § 5 has not been amended in a way that affects this analysis since 2010, but court decisions and AG opinions in this area continue to develop. Anyone considering similar candidate restrictions should review current law.

Common questions

Why are candidate qualifications a constitutional matter?
Because the Virginia Constitution treats the right to seek office as a foundational right that the people, through the constitutional text itself, have already defined. Allowing localities or even the General Assembly to add new qualifications by ordinary legislation would let political majorities narrow the field of who can run, which the constitutional drafters chose to prevent except in narrowly enumerated ways.

What about conflicts of interest? Aren't there rules against family members serving together?
Yes, for some offices. Article II, § 5(c) preserves the General Assembly's power to prohibit "certain conflicts of interest, dual officeholding or other incompatible activities by elective or appointive officials." But that's a power reserved to the General Assembly, not localities. And it has to be exercised by general law, not by a town ordinance.

Could the General Assembly pass a statute barring spouses from interrelated offices?
Possibly, if it falls within the conflict-of-interest exception in Article II, § 5(c). The General Assembly has the authority to address dual officeholding and incompatible activities. The 2010 opinion does not directly answer whether such a statute would be constitutional; it answers only whether a locality can do it (no).

What if the Glasgow charter did contain language about candidate restrictions?
A charter is special state legislation, so a properly drafted charter provision could in some cases authorize specific restrictions. But the AG noted that the Glasgow charter did not contain such a section. Even with charter authority, an ordinance would still have to fit within one of the Article II, § 5 exceptions.

Can voters just choose not to elect two spouses?
Yes. The constitutional restriction is on government-imposed eligibility limits. Voters remain free to vote against any candidate for any reason, including a candidate's marriage to a sitting officeholder.

Background and statutory framework

The Dillon Rule and Article II, § 5 work together here. The Dillon Rule, set out in Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010), and City of Chesapeake v. Gardner Enters., Inc., 253 Va. 243 (1997), requires that local powers be either expressly granted or necessarily implied. Without a grant of authority over candidate eligibility, a locality cannot legislate it.

Article II, § 5 provides:

The only qualification to hold any office of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office, except as otherwise provided in this Constitution.

The three exceptions are: (a) more restrictive geographic residence requirements for General Assembly members or for other governing bodies; (b) authority to make residence non-required for designated local offices other than the governing body; and (c) authority to prohibit "certain conflicts of interest, dual officeholding or other incompatible activities by elective or appointive officials."

Long-standing case law: "[w]hen the Virginia Constitution specifies qualifications for an office, that specification is an implied prohibition against legislative interference to change those qualifications." Black v. Trower, 79 Va. 123, 125-26 (1884). Prior AG opinions have applied this rule to invalidate proposed restrictions (1993 opinion: charter amendment restricting mayoral candidates; 1997 opinion: condition imposed by board of supervisors on appointed replacement; 1991 opinion: statutory two-term limit on local governing body).

Citations

• Va. Const. art. II, § 5
• Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010)
• City of Chesapeake v. Gardner Enters., Inc., 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997)
• Black v. Trower, 79 Va. 123, 125-26 (1884)
• 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 394-95 (1974)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-059-Simons.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 26, 2010

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Thomas M. Simons, Esq.
Town Attorney, Town of Glasgow
202 South Randolph Street
Lexington, Virginia 24450

Dear Mr. Simons:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether, under Article II, § 5 of the Virginia Constitution, the town of Glasgow can enact an ordinance preventing spouses from concurrently holding interrelated elected public offices.

Response

It is my opinion that the General Assembly has not authorized localities to enact an ordinance preventing spouses from concurrently holding interrelated public offices and, therefore, such an ordinance would be impermissible under Article II, § 5 of the Virginia Constitution.

Applicable Law and Discussion

In determining the validity of a local government's exercise of legislative authority, Virginia follows the Dillon Rule of strict construction that "provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." "When a local ordinance exceeds the scope of this authority, the ordinance is invalid." You indicate that the Town Charter does not contain a section that would authorize such an ordinance. Therefore, the Town could not derive any authority to enact such an ordinance from its Charter.

Moreover, Article II, § 5 of the Constitution of Virginia provides that

[t]he only qualification to hold any office of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office, except as otherwise provided in this Constitution.

Section 5 contains three exceptions that authorize the General Assembly to impose some restrictions on the general qualification requirement. None of these exceptions nor any other provision in the Constitution authorizes a locality to restrict eligibility for the office of a local governing body based on his or her status as a spouse of a current member of the governing body. As prior opinions of the Attorney General and other authority have concluded, neither the General Assembly nor a governing body may impose requirements on candidates for election to the governing body beyond those specified in the Virginia Constitution.

Conclusion

Accordingly, it is my opinion that the General Assembly has not authorized localities to enact an ordinance preventing spouses from concurrently holding interrelated public offices and, therefore, such an ordinance would be impermissible under Article II, § 5 of the Virginia Constitution.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

The three exceptions to the qualifications to hold elective office in Article II, § 5 are: (a) the General Assembly may impose more restrictive geographical residence requirements for election of its members, and may permit other governing bodies to impose more restrictive geographical residence requirements for election to such governing bodies; (b) the General Assembly may provide that residence in a local governmental unit is not required for election to designated local offices, other than the governing body; and (c) the section does not limit the power of the General Assembly to prohibit certain conflicts of interest, dual officeholding or other incompatible activities by elective or appointive officials.

See 1993 Op. Va. Att'y Gen. 44, 45-46 (Article II, § 5 prohibits General Assembly from amending city's charter to provide that, in popular election of mayor, only elected members of city council or candidates for election to city council are eligible to be candidates for separate election as mayor). The Supreme Court of Virginia has long held that when the Virginia Constitution specifies qualifications for an office, that specification is an implied prohibition against legislative interference to change those qualifications. Black v. Trower, 79 Va. 123, 125-26 (1884). See also 1997 Op. Va. Att'y Gen. 36, 36-37 (a condition imposed by board of supervisors, when appointing a replacement member to the board, prohibiting the appointed replacement from later seeking election to the board is unconstitutional and void); 1991 Op. Va. Att'y Gen. 53, 54-55 (statute imposing a limit of two terms on members of local governing body imposes an additional qualification in violation of Virginia Constitution). See also 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 394-95 (1974) (qualifications for elective office prescribed in Virginia Constitution can neither be added to nor subtracted from except as expressly provided in Virginia Constitution).