Are the old Virginia Attorney General opinions that applied poll taxes, anti-miscegenation laws, and school segregation still legally valid?

Subject

Whether Virginia Attorney General opinions issued between 1904 and 1967 that applied or interpreted racially discriminatory state laws on poll taxes, literacy tests, white-only primaries, voter registration, anti-miscegenation marriage prohibitions, and school segregation remain valid authority.

Plain-English summary

On the way out of office, AG Mark Herring took a step few Virginia attorneys general had taken before: he formally overruled 58 prior AG opinions issued between 1904 and 1967 that had applied or interpreted Virginia's racially discriminatory laws. Senator Locke and Delegate Bagby had asked whether those opinions remained in effect. Herring answered that they were overruled to the extent they applied or interpreted racially discriminatory state laws.

The opinion is organized around three categories of overruled prior opinions:

1. Voting restrictions. Virginia maintained poll taxes, discriminatory literacy tests, white-only Democratic primaries, and segregated voter registration lists for the first six decades of the twentieth century. Each of these mechanisms was designed to disenfranchise Black Virginians, and AG opinions during this period applied and interpreted them. The opinion lists 23 such opinions on voting restrictions. The U.S. Supreme Court struck down state poll taxes in Harper v. Virginia State Board of Elections (1966), and the Twenty-Fourth Amendment had already abolished federal-election poll taxes.

2. Anti-miscegenation laws. Virginia prohibited interracial marriage until the U.S. Supreme Court struck down those laws in Loving v. Virginia (1967). AG opinions during the prohibition period advised clerks on confirming applicants' race and addressed how interracial marriages from out of state could be "recognized as dissolved." The opinion lists 5 such opinions.

3. School and public segregation. Virginia maintained segregated schools (K-12 and higher education) and Jim Crow public accommodations through the mid-20th century. After Brown v. Board of Education (1954) struck down "separate but equal" in education, Virginia adopted the policy of "Massive Resistance," closing public schools rather than integrating them. AG opinions during this period supported segregation, sometimes with explicit sympathy for segregationist policy. The opinion lists 12 such opinions on school segregation and 7 on Jim Crow segregation in public accommodations and transportation, along with 3 on higher education segregation.

The opinion offers a sober historical assessment. While many of the overruled opinions simply applied the law as it then existed, others "consciously applied [discriminatory laws] to perpetuate or exacerbate injustice." Some referenced contrary federal court decisions and called the outcome "unfortunate." A 1955-56 opinion advocated for Massive Resistance to "save, as far as possible, the public school system from that serious impairment or destruction which mixing of the races would surely bring."

The remedy is simple but symbolically important: the opinions are formally overruled to the extent they apply or interpret racially discriminatory state laws. Where an opinion also contains analysis unrelated to discriminatory law (procedural rules, unrelated statutory questions), that analysis remains valid.

The opinion includes an Attachment A listing all 58 overruled opinions by citation and date.

What this means for you

If you are a Virginia attorney or legal researcher

The opinion holds that the 58 opinions listed in Attachment A are overruled to the extent they apply or interpret racially discriminatory state laws, and that any separate analysis in those opinions unrelated to a racially discriminatory state law is beyond the scope of the overruling and untouched. It states that each of the underlying laws had already been declared unconstitutional or formally abrogated by later constitutional or statutory revision, so the overruling puts the office on record disavowing the discriminatory interpretations.

If you are a civil rights advocate or historian

The opinion is a rare formal acknowledgment by a state attorney general of the office's role in administering racial discrimination. Most state AGs have not undertaken systematic reviews of their own past discriminatory work. Virginia's opinion provides a documentary record and a clear public statement.

The list of 58 opinions in Attachment A is a research roadmap. Each opinion describes a specific legal mechanism (poll tax administration, literacy test scoring, primary participation, marriage license verification, school assignment) and reflects the AG's office's institutional perspective at the time. For research on the legal mechanics of Jim Crow administration in Virginia, this list is a curated starting point.

If you are a Virginia public official

The opinion has no operational effect today; the underlying laws are unconstitutional and unenforceable. Its value is symbolic and historical. If your office holds historical records related to the administration of any of these laws (school records, marriage records, voter rolls), the opinion contextualizes that history.

If a constituent asks about an old AG opinion they have found that appears to apply discriminatory law, you can point them to opinion 21-103 and to Attachment A as the formal disposition.

If you are an educator

The opinion is a primary source useful for teaching Virginia legal history, civil rights, and the role of state government in administering racial discrimination. The categorization (voting, marriage, segregation) maps cleanly to standard civil rights curriculum, and the explicit acknowledgment of AG office complicity is unusual and instructive.

If you are a state legislator

The opinion does not call for legislative action; the underlying laws have all been formally repealed. The historical record may be useful when considering questions of remediation, monument removal (the opinion cites Taylor v. Northam on the Robert E. Lee statue and City of Charlottesville v. Payne on Confederate monuments), and other contemporary policy questions about reckoning with Virginia's segregation history.

Common questions

Q: Were the listed opinions actually overruled, or just acknowledged as based on bad law?
A: Formally overruled. The opinion uses operative language: "[t]he prior opinions of this Office applying these racially discriminatory practices used in election laws are all hereby overruled" (and similar for marriage and segregation). Within the legal effect AG opinions have (persuasive, not binding), the overruling is real.

Q: Do the overruled opinions still have any historical significance?
A: Yes, but only as historical documents. They show how Virginia officials administered discriminatory law. They are not legal authority for anything today.

Q: Why did AG Herring issue this opinion on his way out of office?
A: The opinion was issued January 12, 2022, just days before the change in administration. The timing reflects a decision to formalize the overruling as a final act of the Herring administration. Successor AGs have not disturbed the opinion.

Q: Does this opinion overrule everything from those 58 opinions?
A: Only the parts dealing with racially discriminatory state laws. The footnote 1 of the opinion is specific: "Analysis in the listed opinions that does not deal with a racially discriminatory state law is beyond the scope of this opinion." Some opinions have severable content that may still be valid.

Q: Why were poll taxes considered discriminatory if they applied to all voters?
A: Poll taxes operated as economic barriers to voting, and they were specifically designed and applied to disenfranchise Black Virginians, who in the early 20th century had much lower incomes than white Virginians due to systematic economic discrimination. The U.S. Supreme Court in Harper v. Virginia State Board of Elections (1966) struck down poll taxes specifically because they tied voting rights to economic resources, violating the Equal Protection Clause.

Q: What was "Massive Resistance"?
A: A policy adopted by Virginia state government in the late 1950s to evade the Brown v. Board of Education school desegregation ruling. Virginia closed public schools in some counties (notably Prince Edward County) rather than integrate them, and the General Assembly enacted legislation cutting off state funding to integrated schools. The policy was struck down in federal litigation (Griffin v. County School Board of Prince Edward County, 1964), and Virginia eventually integrated under federal supervision.

Q: Are there other states whose AGs have done similar reviews?
A: A small number of state AGs have made similar formal acknowledgments. The systematic review of 58 prior opinions in Attachment A is unusual in its scope.

Background and statutory framework

The constitutional and federal-statutory framework that invalidated the underlying Virginia laws is well-documented. Key milestones:

• Twenty-Fourth Amendment (1964): Prohibits federal-election poll taxes.
• Civil Rights Act of 1964: Bars discrimination in public accommodations and employment.
• Voting Rights Act of 1965: Federal protection against state voting discrimination.
• Harper v. Virginia State Board of Elections (1966): Struck down state-election poll taxes.
• Loving v. Virginia (1967): Struck down anti-miscegenation laws.
• Brown v. Board of Education (1954) and Brown II (1955): Struck down "separate but equal" in education.
• Griffin v. County School Board (1964): Struck down Virginia's Massive Resistance school closures.
• Green v. County School Board (1968): Required actual desegregation, not just formal nondiscrimination.

Virginia formally repealed many of the discriminatory statutes over the following decades. The opinion footnote 31 catalogs the relevant repeal acts: 1970 (poll tax statutes), 1968 (segregation of voter registration and poll tax lists; anti-miscegenation), 1971 (school segregation statute).

The opinion situates the overruling within the modern AG office's civil rights work: the establishment of Virginia's first Office of Civil Rights, the involvement in removing the Richmond Robert E. Lee statue (Taylor v. Northam), and broader anti-discrimination work in housing, employment, and education. The framing positions the overruling as part of an ongoing institutional reckoning.

The opinion is notable for what it does not do. It does not formally apologize on behalf of the office, does not propose remediation or reparations, and does not address the broader question of how to acknowledge the harm done. Those are policy questions outside the AG opinion format. What it does is the legal act that an AG opinion can do: formally overrule the prior opinions.

Citations and references

Constitutional provisions:

• 1902 Va. Const. §§ 18, 19, 20, 21, 22, 38 (poll taxes and literacy tests, now superseded)
• U.S. Const. amend. XIV (Equal Protection)
• U.S. Const. amend. XV (right to vote regardless of race)
• U.S. Const. amend. XXIV (poll tax prohibition for federal elections)

Key cases:

• Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (U.S. Supreme Court; poll tax)
• Loving v. Virginia, 388 U.S. 1 (1967) (U.S. Supreme Court; anti-miscegenation)
• Brown v. Bd. of Education, 347 U.S. 483 (1954) (U.S. Supreme Court; school segregation)
• Griffin v. County School Bd. of Prince Edward Cty., 377 U.S. 218 (1964) (U.S. Supreme Court; Massive Resistance)
• Taylor v. Northam, 862 S.E.2d 458 (Va. 2021) (Virginia Supreme Court; Robert E. Lee statue)

Federal statutes:

• Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241
• Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437

Virginia repeal legislation:

• 1968 Va. Acts ch. 97, 143 (segregated voter registration)
• 1968 Va. Acts ch. 318 (anti-miscegenation statutes)
• 1970 Va. Acts ch. 462 (poll tax statutes)
• 1971 Va. Acts ch. 102 (school segregation statute)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-103-Locke-and-Bagby-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

January 12, 2022

The Honorable Mamie E. Locke
Member, Senate of Virginia
Post Office Box 9048
Hampton, Virginia 23670

The Honorable Lamont Bagby
Member, Virginia House of Delegates
Post Office Box 406
Richmond, Virginia 23218

Dear Senator Locke and Delegate Bagby:

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 have asked whether Attorney General opinions that relied upon or promoted racially discriminatory laws are still in effect.

Background

A comprehensive search of the records of this Office, which go back generally to 1883, reveals that between 1904 and 1967, Virginia's Attorneys General issued multiple opinions applying or interpreting racially discriminatory state laws. These included laws imposing poll taxes and other racial restrictions on voting; laws prohibiting interracial marriage; laws mandating segregation in public schools; and laws establishing Jim Crow-style segregation in public transportation, places of public accommodation, and other social spaces.

These opinions represent part of the long history of racial injustice in Virginia that disenfranchised Black citizens and stood as a bar to their political and social advancement. While many of these opinions simply applied the law without further comment, some sympathized with racially discriminatory laws and consciously applied them to perpetuate or exacerbate injustice. Thus, while these opinions may vary individually as to whether, or to what extent, they show support for racially discriminatory state laws, each of them in some way supported the continuation of a legal system that heavily discriminated against Black Virginians, and some actively championed it.

A list of the relevant opinions found is attached to the end of this opinion as "Attachment A." It is important to note that some of the opinions listed contain separate or additional analysis that is unrelated to a racially discriminatory state law. The following discussion focuses on these opinions to the extent they deal with racially discriminatory state law.

Discussion and Analysis

The Commonwealth's history is marred with the persistent legacy of slavery and racial injustice. Through the Civil Rights movement and the development of federal Equal Protection doctrine, Virginia has made important strides towards approaching racial equality. Sadly, past Virginia Attorneys General have often promoted racist policies, as when the Commonwealth opposed interracial marriage in Loving v. Virginia. But in recent years, the Office of Attorney General has become an active force for equality, among other actions, establishing Virginia's first Office of Civil Rights, removing barriers to the removal of Richmond's Robert E. Lee statue before the Supreme Court of Virginia and other symbols of Confederate propaganda, and opposing discrimination in housing, employment, and education.

The 58 opinions listed in Attachment A cover a variety of topics including unconstitutional hurdles to election participation, denials of the right to marriage, and segregation. These opinions represent a wide span of Virginia history and shed important light on the history of racism in Virginia.

1. Unconstitutional Hurdles to Election Participation: Poll Taxes, Literacy Tests, White-Only Democratic Primaries, and Segregated Voter Registration Lists

As the United States Supreme Court has declared, the constitutional maxim of equal protection under the law commands the equal treatment of all persons in the exercise of the franchise, regardless of race:

"A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races."

For many decades, however, Virginia placed overwhelming barriers to the franchise on the basis of race. For example, Virginia had a very long history of imposing poll taxes as a method of disenfranchising Black residents. Virginia retained the practice until 1966, when the United States Supreme Court ruled that state poll taxes were unconstitutional in Harper v. Virginia State Board of Elections. Numerous Attorney General opinions were issued during the period Virginia's poll tax laws were in place, either applying or construing these laws that imposed a financial barrier to the franchise.

In addition to poll taxes, Virginia law contained other measures explicitly designed to prevent Black residents from voting. The Constitution of 1902 contained a type of literacy test that required applicants to prove they could write their name, age, date and place of birth, residence and occupation, without assistance. Applicants were also required to be able to give a "reasonable explanation" of any part of the state constitution. These requirements played upon Black individuals' diminished access to education, itself a result of entrenched discrimination. They applied regardless of whether those who desired to vote had already demonstrated a high level of civic engagement and commitment to duty in their lives. A 1920 opinion, for instance, concluded that Black soldiers who served in World War I, but who could not read, "are not entitled to register and vote by virtue of their service, but must comply with the [literacy] provisions contained in section 20 of the Constitution."

The effort to disenfranchise Black individuals included limiting participation in primary elections. Virginia's Democratic Party once had a written party plan that limited participation in Democratic primaries to white voters. In the 1920s, the Party asserted that Section 228 of the Virginia Code, which permitted parties to fix the qualifications of persons who participated in their primaries, permitted this racial restriction. Several opinions issued during the period this plan was in place concluded that "party authorities have the right to prescribe that only white persons shall participate in the primary."

Finally, Virginia law also required that both poll tax lists and voter registration lists were required to be segregated by race. This was, in essence, a bureaucratic tool to help facilitate the unequal treatment of voters by election officials. One opinion issued in 1954 quoted and applied a state law permitting a loose-leaf filing system for voter registration "with white sheets recording the names of white voters and buff sheets for recording the names of colored voters."

The historical usage of poll taxes, discriminatory literacy tests, white-only Democratic primaries, and the use of segregated voter registration lists to disenfranchise Black individuals was and is wrong and unconstitutional. Opinions tied to disenfranchisement must be acknowledged as bad precedent, like the statutes and constitutional provisions they interpreted. The prior opinions of the Office applying these racially discriminatory practices used in election laws are all hereby overruled.

2. Unconstitutional Denial of the Right to Marry: Anti-Miscegenation Laws

As is well known, Virginia prohibited interracial marriages for a very long period of time, leading to the landmark decision Loving v. Virginia in 1967. Many of the opinions from previous Attorneys General provide advice to officials on applying anti-miscegenation laws, including for example, advice to a Clerk issuing marriage license on how to assure both applicants were "white," and advice to a requestor on how an interracial marriage could be recognized as dissolved. However, as the United States Supreme Court held:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.

The prior opinions of this Office applying or interpreting Virginia's formerly-in-place anti-miscegenation laws are all hereby overruled.

3. Unconstitutional Denial of Equal Participation in Society: Segregation in K-12 Schools, Higher Education, and Jim Crow Laws

Denying Black children and adults equal access to public education was part of the continual process of keeping Black Americans on the fringes of society. Virginia's history of school segregation goes back to the first establishment of public schools in 1870, the continuation of a long history of denial of equal educational opportunities that began with prohibitions to universal literacy. Although schools for Black children were ostensibly required to be "equal" to schools for white children, this was almost never the case, and Black children suffered from poor educational facilities and outcomes. Many of the opinions from the early to mid-1900s fully supported state segregation laws, often with a tone of overt sympathy to segregation. One such opinion referenced a United States Supreme Court opinion that invalidated certain racial segregation laws and called the outcome "unfortunate." In 1909, an opinion was issued suggesting that school officials could be justified in considering integration to be "exceedingly injurious."

In 1952, an opinion was issued regarding Clyde Harper Jones, a Black man who had applied for admission to a graduate program at the College of William and Mary. The opinion concluded that regardless of whether Mr. Jones met the academic qualifications for entry into the college, "the College . . . would have no right to accept the applicant for admittance" under state law.

Later, following the landmark Brown v. Board decision, an opinion issued in 1956 strongly advised against integration of public school athletic contests: "Virginia and a number of her sister states are endeavoring to protect and defend their rights against the unwarranted encroachments of the Federal Government." Virginia's defiance of equality under the law led the state to close down all public schools to avoid compliance with Brown. Another opinion issued advice on how to execute Massive Resistance on the state legislative level: stating that some solution must be found that would "save, as far as possible, the public school system from that serious impairment or destruction which mixing of the races would surely bring," and "[t]he defense to be conducted hereafter must be one against the crippling and disastrous effects of the decision of the Federal Supreme Court." Virginia's wrongheaded defiance of the law crippled the opportunities of a generation of students; the rationales underlying it were wrong and they are all hereby overruled.

Conclusion

Each of the racially discriminatory laws interpreted or applied in the opinions discussed throughout has been declared unconstitutional and/or formally abrogated by subsequent constitutional or statutory revision by the General Assembly. The opinions listed in Attachment A are hereby overruled to the extent they apply or interpret racially discriminatory state laws.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

ATTACHMENT A

[The original opinion includes Attachment A listing 58 historical AG opinions by citation and date issued, organized chronologically from 1904 to 1967. See the linked PDF for the complete list with footnoted explanations of each entry's scope.]