Is a Virginia petition to move city elections from May to November invalid if it does not say whether the new elections fall in odd or even years?

Plain-English summary

Delegate Kelly Convirs-Fowler asked the AG whether a petition filed in the Chesapeake Circuit Court was legally sufficient. The petition sought a November 2019 referendum on whether to move the mayoral, city council, and school board elections from the May general election to the November general election. It read: "Shall the Chesapeake City Code be amended to require Mayoral, City Council and School Board Elections to take place on the first Tuesday in November, a date which is also known as the November general election date?"

The Delegate's concern: § 24.2-222.1(B) requires the ballot question to specify an election cycle, either "in even-numbered or odd-numbered years or as otherwise designated in the petition." The Chesapeake petition didn't designate a cycle. Did that void it?

AG Mark Herring declined to answer the validity question on the merits. Section 24.2-684.1(9) makes the circuit court the decisionmaker: "If the court or authority finds that the filed petitions are valid and sufficient under law, it shall proceed, as provided by law, to order or call for the referendum election. If the court or authority finds that the filed petitions are invalid for any cause, the petitions and the signatures on them shall be invalid for all purposes." Following an established policy, the AG declines to render opinions on matters "reserved to another entity."

The opinion did flag two related issues without deciding them: the petition said the November general election is on "the first Tuesday in November," but § 24.2-101 defines it as "the Tuesday after the first Monday in November"; and the petition framed the question as amending the Chesapeake City Code, while the statutory ballot question concerns whether the City shall change the election date.

A footnote pointed out that the State Board of Elections regulation at 1 VAC § 20-60-20(A) provides that a petition "should not be rendered invalid if it contains an error or omission not material to its proper processing," with a list of material omissions in subsection B.

Currency note

This opinion was issued in 2019. 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.

Background and statutory framework

Virginia elections for city and town mayors and council members default to the May general election (§ 24.2-222). The General Assembly created two ways to move them to November: by local ordinance or by referendum (§ 24.2-222.1(A)-(B)).

The referendum mechanism is laid out in § 24.2-222.1(B). The petition is filed with the circuit court, and the resulting ballot question must follow a prescribed form: "Shall the (city or town) change the election date of the mayor (if so provided by charter) and members of council from the May general election to the November general election (in even-numbered or odd-numbered years or as otherwise designated in the petition)?" Where school board members are elected, the question must also cover them.

The general procedural rules for petitions live in §§ 24.2-684 and 24.2-684.1. The latter section, at subsection (9), gives the court or authority reviewing the petition the power to decide whether it's "valid and sufficient under law." A finding of invalidity makes the petition and its signatures void for all purposes.

The State Board of Elections has issued a regulation at 1 VAC § 20-60-20 about petition form and sufficiency. Subsection A: a petition "should not be rendered invalid if it contains an error or omission not material to its proper processing." Subsection B: lists the omissions that are deemed material.

Section 24.2-101 of the Code defines the November general election as "the Tuesday after the first Monday in November." The petition's use of "the first Tuesday in November" was technically not the same thing (in some years the first Tuesday is before the first Monday, although the difference doesn't show up every year).

Common questions

Q: So is the Chesapeake petition valid or not?
A: The AG didn't decide. That was the point of the opinion: the question goes to the Chesapeake Circuit Court under § 24.2-684.1(9), not to the AG.

Q: What does "material to proper processing" mean in the State Board regulation?
A: 1 VAC § 20-60-20(A) protects petitions from being voided over non-material errors or omissions. Subsection B lists which omissions count as material. The opinion did not analyze whether the missing election cycle designation rose to that level; that's a fact-and-judgment call the court would make.

Q: What's the difference between an "ordinance" change and a "referendum" change?
A: Section 24.2-222.1(A) lets the local governing body change the election date by adopting an ordinance. Subsection (B) is the alternative: voters petition for a referendum, then vote. The two paths produce the same statutory effect; the referendum just routes the decision through the voters rather than the council.

Q: Are May or November elections better for turnout?
A: Outside the scope of this opinion, but the political background is well-known: November general elections have higher turnout, May elections have much lower turnout. Petitions to move local elections to November are typically driven by turnout arguments.

Q: What is the "first Tuesday after the first Monday" thing about?
A: It's just the federal and Virginia rule for fixing the November general election date. The opinion flagged the petition's use of "first Tuesday" instead, without deciding whether that mismatch alone invalidated the petition.

Q: Why won't the AG decide this kind of question on the merits?
A: A longstanding AG policy, cited in the opinion (2009 Op. Va. Att'y Gen. 138, 141), avoids opinions on matters "reserved to another entity." Petition sufficiency was statutorily reserved to the circuit court, so the AG stayed out.

Q: What happens if the court finds the petition invalid?
A: Under § 24.2-684.1(9), the petitions and the signatures "shall be invalid for all purposes." Sponsors would have to start over with a new petition that fixes the defect.

Citations

The opinion cites § 24.2-101 (defining the November general election), § 24.2-222 (May election default), § 24.2-222.1(A)-(B) (changing the election date), § 24.2-684 and § 24.2-684.1(9) (filing and judicial review of petitions), and 1 VAC § 20-60-20 (Board of Elections regulation on petition sufficiency). It also references a 1992 Virginia AG opinion at 113 confirming circuit-court authority over petition sufficiency, and a 2009 opinion at 138 on the AG's policy of declining matters reserved to other entities.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/DelConvirs-Fowler-opinion18-068.pdf

Original opinion text

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

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

May 17, 2019

The Honorable Kelly K. Convirs-Fowler
Member, House of Delegates
Post Office Box 406
Richmond, Virginia 23218

Dear Delegate Convirs-Fowler:
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 a petition for a referendum to change municipal election dates is legally sufficient if it does not designate an election cycle as described in § 24.2-222.1(B).

Background
You relate that a petition has been filed with the Clerk of the Chesapeake Circuit Court pursuant to § 24.2-684.1, seeking a referendum to be held November 5, 2019, on the question of whether to move the mayoral, city council, and school board elections from the May general elections to the November general elections. You enclose a copy of an unsigned page of the petition, which states the question as follows: "Shall the Chesapeake City Code be amended to require Mayoral, City Council and School Board Elections to take place on the first Tuesday in November, a date which is also known as the November general election date?" You ask whether the language of this question is legally sufficient in light of § 24.2-222.1(B), which directs that the language of the ultimate ballot question must include an election cycle as designated in the petition (e.g., an election cycle based on odd-numbered or even-numbered years).

I note the petition states that the November general election is held on the first Tuesday in November; however, § 24.2-101 of the Code of Virginia defines the November general election as occurring "on the Tuesday after the first Monday in November." I also note the petition states that the question involves an amendment to the Chesapeake City Code, whereas the ballot question mandated by state law concerns only whether the City shall change the election date. These components of the petition, however, are not under consideration here.

Applicable Law and Discussion
State law requires that city or town elections of mayors and council members be held in May. Such elections may be moved from the May to November general election date by either local ordinance or referendum. Section 24.2-222.1(B) sets forth a mechanism for filing a petition for a referendum to require a city or town to change the election dates for the council, and where applicable, the election dates for the mayor and school board, from May to November. Following a successful petition, the statute provides that the question to be placed on the ballot must identify an election cycle "in even-numbered or odd-numbered years or as otherwise designated in the petition."

As you relate, the referendum question as stated on the petition filed with the Clerk does not designate an election cycle. Whether this omission invalidates the petition is a question for "the court or authority" reviewing the petition. Section 24.2-684.1(9) provides that "[i]f the court or authority finds that the filed petitions are valid and sufficient under law, it shall proceed, as provided by law, to order or call for the referendum election. If the court or authority finds that the filed petitions are invalid for any cause, the petitions and the signatures on them shall be invalid for all purposes."

Attorneys General historically have declined to render advisory opinions when the request "requires the interpretation of a matter reserved to another entity ...." Because the final determination of the validity of the referendum petition lies with the court, I decline to render an opinion on whether the petition is invalid.

Conclusion
Section 24.2-684.1(9) provides that the validity of a referendum petition must be decided by the court or authority reviewing the petition. Therefore, based on established policy, I decline to render an opinion on the validity of the referendum petition at issue.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General