During Virginia's early voting period, can I carry a gun in or near the local registrar's office, a satellite voter office, or a central absentee precinct? And does the 40-foot rule cover the whole building or just the voting area?

Subject

Locations such as central absentee voter precincts, voter satellite offices, and offices of general registrars that are used as the designated location for early voting are considered "polling places" such that the prohibitions of § 24.2-604(A)(iv) apply. The prohibitions of § 24.2-604(A)(iv) do not apply to the entire building that houses a polling place, but rather to the 40-foot boundary around the discrete portion of that building used as the polling place.

Plain-English summary

In 2021, House Bill 2081 amended Va. Code § 24.2-604(A) to make it a Class 1 misdemeanor to knowingly possess a firearm within 40 feet of any building (or part of a building) used as a polling place while polls are open or within an hour before opening or after closing. The Albemarle County Electoral Board asked two questions about how that rule applies during the early voting period: (1) are central absentee voter precincts, voter satellite offices, and registrar offices "polling places" for purposes of the firearm ban during early voting, and (2) does the 40-foot ban cover the whole building or just the polling part?

The Attorney General answered yes to question one and "just the polling part" to question two. The statutory definition of "polling place" in § 24.2-101 (the structure containing the one place where voters of a precinct may vote) covers any designated early-voting location. Once a registrar's office, satellite office, or central absentee precinct is the designated place where early voting happens, it is a polling place. The 40-foot exclusion zone, however, runs around the portion of the building used for voting and the entrances/exits to it, not the whole structure (unless another statute imposes a broader rule, like the school-property firearm ban under § 18.2-308.1).

What this means for you

For voters in Virginia

The opinion holds that during early voting it is unlawful to knowingly possess a firearm within 40 feet of a designated early-voting location (a registrar's office, voter satellite office, or central absentee voter precinct) while the polls are open and within one hour before opening or after closing. It holds the 40-foot zone runs around the portion of the building used as the polling place, including its entrances and exits, not the entire structure, unless a broader ban such as the school-property rule in § 18.2-308.1 applies.

For registrars and electoral boards

The opinion holds that once a registrar's office, voter satellite office, or central absentee voter precinct is the designated early-voting location, it is a "polling place" under § 24.2-101, so the § 24.2-604(A)(iv) firearm ban applies there during early voting just as it does at an Election Day polling place. It holds the 40-foot zone attaches to the polling-place portion of the building and its entrances and exits, not the whole building.

For law enforcement

The opinion holds that a violation of § 24.2-604(A)(iv) is a Class 1 misdemeanor, applying when a firearm is within 40 feet of the polling-place portion of a building (including early-voting sites during the early-voting period) while the polls are open or within one hour of opening or closing. It notes that where the polling place is in a school building, firearm possession is already prohibited across the property under § 18.2-308.1(B).

For people with concealed handgun permits

The opinion does not discuss a permit exception; § 24.2-604(A)(iv) as quoted in the opinion contains none.

Common questions

When does the firearm ban around polling places apply?
While the polls are open, while ballots are being counted, and within one hour before opening or after closing. Va. Code § 24.2-604(A).

Does the ban apply during the early-voting period, or only on Election Day?
Both, at the early-voting site. Once a location is designated for early voting, it is a polling place for purposes of § 24.2-604(A)(iv) during the hours the polls are open for early voting.

How far is "40 feet"?
Forty feet from any building, or any part of a building, used as a polling place, including the entrances and exits.

Does the ban cover the whole building or just the voting room?
Just the part used as a polling place and its entrances and exits, plus the 40-foot perimeter around that area. Exception: school buildings, where firearms are already barred under § 18.2-308.1 across the whole property.

Is there an exception for concealed handgun permit holders?
No. The statute does not include one.

What about law enforcement?
The opinion does not address any law-enforcement exemption to § 24.2-604(A)(iv).

What's the penalty?
Class 1 misdemeanor under § 24.2-604(G).

What other voter-intimidation rules apply?
Section 24.2-906(A)(iv) bars hindering, intimidating, or interfering with any qualified voter from casting a ballot, regardless of location. Section 24.2-1005 imposes criminal and civil penalties for voter intimidation.

Background and statutory framework

The 2021 amendment via H.B. 2081 was part of a broader Virginia legislative response to voter intimidation concerns at polling places. The General Assembly chose a 40-foot zone around the polling-place portion of a building as a clear, measurable rule, paired with the existing rules against campaigning and congregating within 40 feet of a polling place entrance.

Section 24.2-101 defines "polling place" as "the structure that contains the one place provided for each precinct at which the qualified voters who are residents of the precinct may vote." Early voting (also called absentee voting in person) is governed by §§ 24.2-701.1 (timing) and 24.2-701.2 (satellite offices). Central absentee voter precincts are established under § 24.2-712. In Albemarle County, the central absentee precinct sits on the first floor of the County Office Building at 1600 5th Street, Charlottesville, with the early-voting room (Room A) inside the same building.

The AG's analysis applied the plain text of the polling-place definition to any of the statutory early-voting venues, then read the 40-foot prohibition narrowly to apply to the polling-place portion of the building, not the entire structure. He cited a string of cases on the foundational importance of voting (Yick Wo v. Hopkins, 118 U.S. 356 (1886); Reynolds v. Sims, 377 U.S. 533 (1964); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)) but the actual interpretive work was straightforward statutory construction.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 18.2-308.1 (firearms on school property)
• Va. Code § 18.2-308.2:2 (definition of "firearm")
• Va. Code § 24.2-101 (definitions of polling place, precinct)
• Va. Code § 24.2-604 (firearm and intimidation prohibitions at polling places)
• Va. Code § 24.2-701.1; § 24.2-701.2 (early voting; voter satellite offices)
• Va. Code § 24.2-712 (central absentee voter precinct)
• Va. Code § 24.2-906; § 24.2-1005 (voter intimidation penalties)
• 2020 Op. Va. Att'y Gen. 53
• Yick Wo v. Hopkins, 118 U.S. 356 (1886)
• Reynolds v. Sims, 377 U.S. 533 (1964)
• Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)
• Etheridge v. Med. Ctr. Hosps., 237 Va. 87 (1989)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-040-Wurzer-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

September 1, 2021

Mr. Peter Wurzer
Chairman, Albemarle County Electoral Board
401 McIntire Road, Room 130
Charlottesville, Virginia 22902

Dear Mr. Wurzer:

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

Issues Presented

You ask two questions regarding a provision in House Bill 2081 ("H.B. 2081") that prohibits a person from "knowingly possess[ing] any firearm as defined in § 18.2-308.2:2 within 40 feet of any building, or part thereof, used as a polling place." Specifically, you ask the following:

1. "[D]uring 'early voting,' prior to the date of a general, special, or primary election, are central absentee voter precincts, voter satellite offices, and offices of general registrars 'polling places,' and thus subject to the firearm prohibition?"

2. "[T]hat prohibition refers to the 'building, or part thereof, used as a polling place.' Where a polling place only takes up a part of the building that hosts it, does the prohibition apply to the entire building or only to those areas used for polling and access to the polls?"

Applicable Law and Discussion

H.B. 2081, effective July 1, 2021, amended § 24.2-604(A) to read in pertinent part:

During the times the polls are open and ballots are being counted, or within one hour of opening or after closing, it is unlawful for any person . . . (iv) to knowingly possess any firearm as defined in § 18.2-308.2:2 within 40 feet of any building, or part thereof, used as a polling place.

Any person violating the provisions of § 24.2-604(A) "is guilty of a Class 1 misdemeanor." As I stated last fall,

In our democratic system of governance, the right to vote is "a fundamental political right." Voting both ensures "a representative form of government" and also "preserv[es] . . . other basic civil and political rights." "[T]he right to exercise the franchise in a free and unimpaired manner" is therefore a "bedrock" principle in any "free and democratic society." Intimidation of citizens who are seeking to vote is both illegal and antithetical to one of the basic promises that binds us together: that of democratic self-governance.

Your questions relate to the application of this statute during the early voting period, beginning this year on September 17, 2021. Section 24.2-101 defines "[p]olling place" as "the structure that contains the one place provided for each precinct at which the qualified voters who are residents of the precinct may vote." That section also defines "[p]recinct" as "the territory designated by the governing body of a county, city, or town to be served by one polling place."

A county or city may designate one or more voter satellite offices for absentee voting in person prior to Election Day, and it is required to establish one or more central absentee voter precincts for counting absentee ballots on Election Day. Albemarle's central absentee voter precinct is "established on the first floor of the Albemarle County Office Building [at] 1600 5th Street, Charlottesville."

By statute, absentee voting in person, also known as early voting, begins 45 days prior to any election and continues until the Saturday before Election Day. Early voting in Albemarle County is permitted 45 days prior to each election in Room A at the 5th Street Albemarle County Office Building.

Your first question is whether central absentee voter precincts, voter satellite offices, and offices of general registrars are considered "polling places" during the period of early voting prior to each election for purposes of the firearm prohibition in § 24.2-604(A)(iv). Applying the definition of "polling place" provided by the General Assembly in § 24.2-101, the aforementioned locations are "structure[s] that contain[] the one place provided" for qualified voters to cast their ballots. If the central absentee voter precincts, voter satellite offices, and offices of general registrars are designated locations for early voting in the locality, they are "polling places" as defined in § 24.2-101. Therefore, it is my opinion that firearms are prohibited at central absentee voter precincts, voter satellite offices, and offices of general registrars where they are the designated locations for early voting in the locality, in the same way that firearms are prohibited at polling places when the polls are open on Election Day.

With regard to your second question, § 24.2-604(A)(iv) prohibits the knowing possession of a firearm "within 40 feet of any building, or part thereof, used as a polling place." For those polling places that are not located in school buildings where the possession of a firearm is already prohibited by § 18.2-308.1(B), it is my opinion that the firearm prohibition in § 24.2-604(A)(iv) applies to the 40-foot boundary around the portion of the building being used as a polling place, including any entrances and exits, and not the entire building. That interpretation is consistent with the prohibitions in § 24.2-604(A) against campaigning and congregating within 40 feet of the entrance to a polling place. And regardless of any person's geographical location, it remains unlawful "to hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a . . . ballot."

Conclusion

It is my opinion that locations such as central absentee voter precincts, voter satellite offices, and offices of general registrars that are used as the designated location for early voting are considered "polling places" such that the prohibitions of § 24.2-604(A)(iv) apply. Further, it is my opinion that the prohibitions of § 24.2-604(A)(iv) do not apply to the entire building that houses a polling place, but rather to the 40-foot boundary around the discrete portion of that building that is used as the polling place.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General