After the Virginia Supreme Court invalidated McAuliffe's blanket rights-restoration order, did the Richmond Electoral Board have to strike a school-board candidate whose registration was retroactively cancelled?

Plain-English summary

The Chair of the Richmond Electoral Board asked the AG four questions in the wake of the Supreme Court of Virginia's July 22, 2016 ruling in Howell v. McAuliffe, which invalidated Governor McAuliffe's executive orders purporting to restore voting rights to large numbers of Virginians with prior felony convictions. The fallout reached down to local election administration: candidates who had registered to vote relying on those executive orders had their registrations cancelled, and that cascaded into questions about candidacy and petition validity.

Two factual scenarios drove the questions. First, "Candidate A" had a prior felony, had voting rights purportedly restored under the McAuliffe orders, then registered to vote, then qualified for the November 2016 Richmond School Board ballot, and then had his registration cancelled when the Supreme Court of Virginia struck down the orders. Second, "Candidate B" qualified for the mayoral ballot by petition, and at least one of his 50 signatures from one election district had come from a person whose rights restoration was likewise invalidated and whose registration was subsequently cancelled (though apparently restored again).

Attorney General Mark R. Herring answered:

(1) The board was not required to strike Candidate A. Section 22.1-29 measures school board qualifications "at the time of his appointment or election," not at the qualification stage. So if on November 8, 2016, Candidate A was a qualified voter and a bona fide resident of the appropriate district or division, he was eligible. Whether he met those requirements is a fact question for the electoral board and general registrar.

(2) The board was not required to re-examine all petition signatures because of post-filing changes in voter registration. Under § 10.2.5.9 of the General Registrar and Electoral Board Handbook (the GREBook), petition signers must be registered voters "at the time the petition was filed." A prior AG opinion (1971-1972) had said the same. Numerous things can change a voter's registration between petition filing and election day; requiring electoral boards to chase those changes would inject months of uncertainty into the ballot.

Because the AG answered Questions 1 and 2 in the negative (no obligation to remove the candidate or re-examine petitions), he did not need to address the requester's third and fourth questions, which depended on fact-specific scenarios outside the AG's role.

Currency note

This opinion was issued in 2016. 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.

Virginia restoration-of-rights practice has changed materially since 2016. Subsequent governors used a case-by-case process consistent with Howell v. McAuliffe. The 2024 amendments and current procedures may alter the analysis. Section 22.1-29 and § 24.2-506 have also been amended. Election officials should consult current statutes, current Department of Elections guidance, and the most recent GREBook.

Background and statutory framework

Section 22.1-29 sets the qualifications for membership on a school board. The statute fixes those qualifications at the moment of selection: "Each person appointed or elected to a school board shall, at the time of his appointment or election, be a qualified voter and a bona fide resident of the district from which he is selected if appointment or election is by district or of the school division if appointment or election is at large." The trigger is the election, not the qualification process months earlier.

The Supreme Court of Virginia's July 22, 2016 order in Howell v. McAuliffe held that Governor McAuliffe's blanket executive orders purporting to restore voting rights to over 200,000 Virginians with prior felony convictions were unconstitutional. The Court directed the Department of Elections to cancel registrations of voters who registered under those orders. The cascading consequences for candidates who had registered relying on the orders were practical and immediate.

For Candidate A, the AG observed that even though his registration had been cancelled in the wake of Howell, the question for the electoral board was whether he met § 22.1-29's qualifications on election day. The governor could (and did, in many cases) restore individual voters' rights through an individualized process consistent with Howell. If Candidate A was again a qualified voter and a bona fide resident of the district on November 8, 2016, he satisfied the statute. That's a fact determination for the electoral board and general registrar.

For petition validity, the GREBook (the Department of Elections guidance document for general registrars and electoral boards) specifies at § 10.2.5.9 that signers must be registered voters "at the time the petition was filed." A 1971-1972 AG opinion reached the same conclusion: signer qualifications are assessed as of the day the petition is filed (1971-1972 Op. Va. Att'y Gen. 188, 189). The AG noted that requiring registrars and boards to re-examine petitions for post-filing registration changes would leave election officials and candidates in ongoing uncertainty until election day.

The AG also flagged a procedural note. The Richmond Electoral Board is represented by the City Attorney, not the AG; this opinion is issued under the AG's statutory authority to provide official advisory opinions under § 2.2-505, not as legal advice to the board.

Common questions

Q: When are school board candidate qualifications tested in Virginia?
A: Under § 22.1-29, at the time of election (or appointment). The candidate must be a qualified voter and a bona fide resident of the relevant district or school division on election day.

Q: Does a registration cancellation between qualification and election day automatically disqualify a candidate?
A: Not under this opinion. If by election day the candidate is again a qualified voter and bona fide resident, he or she meets § 22.1-29.

Q: Are petition signers' qualifications judged on filing day or election day?
A: On filing day. The GREBook and prior AG opinions are consistent: signer qualifications are assessed as of the day the petition is filed.

Q: Did the electoral board have to re-examine all petitions after Howell v. McAuliffe?
A: The AG concluded no. Petition validity is fixed at filing, not affected by later changes in signer registration status.

Q: Who decides whether a particular candidate meets the residency and voter-qualification requirements on election day?
A: The electoral board and general registrar, applying the facts. AG opinions do not resolve fact-specific application questions.

Q: What happens if the post-Howell registration cancellation is later reversed by an individual restoration?
A: That changes the underlying facts about whether the candidate is a qualified voter. Whether the candidate's status as of election day meets § 22.1-29 turns on the facts then.

Citations and references

Virginia statutes:

• Va. Code Ann. § 22.1-29 (school board qualifications)
• Va. Code Ann. § 24.2-506 (candidate petitions)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• Howell v. McAuliffe, No. 160784, 2016 Va. LEXIS 107 (July 22, 2016)

Administrative materials:

• General Registrar and Electoral Board Handbook (GREBook), Va. Dep't of Elections

Prior AG opinions:

• 1971-1972 Op. Va. Att'y Gen. 188

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-043-Stevens.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

August 26, 2016

Ms. Cherlyn Starlet Stevens
Chair, City of Richmond Electoral Board
900 East Broad Street, Room 105
Richmond, Virginia 23219

Dear Chair Stevens:

I am in receipt of your August 23, 2016 letter, requesting my opinion on four questions related to the Electoral Board's duties "with respect to determining the eligibility of two individuals who seek to stand for election on November 8 to local offices in the City" of Richmond in light of the Supreme Court of Virginia's July 22, 2016 order in the matter of Howell v. McAuliffe. [1] Specifically, your letter requests guidance with respect to two factual scenarios. [2] I will respond to your questions in the order in which they are set forth in your August 23 letter. [3] Please note that your questions require fact-specific analysis; accordingly, you and your Electoral Board must review the facts in light of the information provided in this letter to determine how to proceed in each case.

Question 1: You inquire whether the Electoral Board is "legally required to remove the name of Candidate A from the ballot because his registration to vote was invalid at the time he filed his statement of qualification[,] or for any other reason."

Section 22.1-29 of the Code of Virginia establishes the qualifications for membership on a school board. Pursuant to the statute, "[e]ach person appointed or elected to a school board shall, at the time of his appointment or election, be a qualified voter and a bona fide resident of the district from which he is selected if appointment or election is by district or of the school division if appointment or election is at large ...." [4]

In light of this statutory language, Candidate A will meet the requirements for election to the City of Richmond School Board if, at the time of the November 8 general election, Candidate A is (1) a qualified voter and (2) a bona fide resident of the appropriate district or school division. This is a factual, and not a legal determination, and the Electoral Board and General Registrar must ascertain whether Candidate A meets these requirements. In the event that the Electoral Board and General Registrar conclude that Candidate A meets these requirements, the Electoral Board is not required to remove Candidate A's name from the ballot.

Question 2: You inquire whether the Electoral Board "legally [is] required to reexamine the signatures on all petitions submitted by candidates for office who are required by law to file with the general registrar of the City of Richmond."

As noted in § 10.2.5.9 of the General Registrar and Electoral Board Handbook, [5] a "person who signs a candidate's petition must be a registered voter ... at the time the petition was filed by the candidate." This language is consistent with a prior opinion of this Office, which concluded that the qualifications of individuals who sign or circulate candidate qualification petitions "are to be judged as of the day the petition was filed." [6]

Numerous factors can lead to a change in voter registration status after candidates file petitions under § 24.2-506 of the Code of Virginia, and to require general registrars and electoral boards to review the registration status of voters who signed these petitions for all possible registration changes following the initial certification under § 24.2-506 would place both election officials and candidates in an ongoing state of uncertainty until election day arrived. Where the Electoral Board has examined the petitions submitted by candidates for office and concluded that these petitions contained the signatures of a sufficient number of registered voters, the Electoral Board is not legally required to reexamine the signatures due to later changes in status of the voters who signed those petitions.

Consistent with your request, because the answers to Questions 1 and 2 are not in the affirmative, it is not necessary for me to answer Questions 3 or 4. Additionally, as the answers to both Question 3 and 4 require the Electoral Board to consider factual information specific to the scenarios you have presented, I can express no opinion about the status of any individual candidate.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] No. 160784, 2016 Va. LEXIS 107 (July 22, 2016).

[2] According to your letter, the first factual scenario is as follows: Candidate A was previously convicted of a felony, had his rights purportedly restored by the Governor's Executive Orders, and subsequently registered to vote and qualified as a candidate for the School Board of the City of Richmond. After Candidate A qualified to appear on the ballot, the Supreme Court of Virginia found the Governor's Executive Orders unconstitutional in Howell v. McAuliffe, and Candidate A's voter registration was cancelled pursuant to the Court's Order.
Your second factual scenario is as follows: Candidate B seeks election to the office of Mayor of the City of Richmond. Candidate B submitted, among other required qualification documents, a petition containing a sufficient number of voter signatures and qualified as a candidate. Your letter notes that "[i]t has been reported by the media that the petition[] submitted by Candidate B contain[s] exactly 50 signatures from one of the nine election districts [in the City of Richmond] and that one such signature is that of a person whose restoration of civil rights was invalidated by the Virginia Supreme Court's decision, whose registration to vote was accordingly cancelled, and whose civil rights have now apparently been restored once again."

[3] You note that, with respect to Candidate A, you first sought guidance from the Department of Elections, and your letter references this guidance, in part, as advising that the Electoral Board "seek legal counsel prior to removing a candidate certified as qualified by your office ...." Please note that this opinion is provided pursuant to the Attorney General's authority to issue official opinions as provided by § 2.2-505 of the Code of Virginia, and not in a capacity as counsel to the Electoral Board for the City of Richmond, as the Electoral Board is represented by the City Attorney for the City of Richmond.

[4] VA. CODE ANN. § 22.1-29 (2011) (emphasis added).

[5] The General Registrar and Electoral Board Handbook (also known as the "GREBook") is a guidance document prepared by the Department of Elections, available at: http://townhall.virginia.gov/L/GetFile.cfm?File=C:\TownHall\docroot\GuidanceDocs\132\GDoc_SBE_5273_v3.pdf.

[6] 1971-1972 Op. Att'y Gen. Va. 188, 189.