When my Virginia general registrar's four-year term ends, does the electoral board have to reappoint the incumbent, or can it pick someone new?

Subject

Whether an electoral board must reappoint an incumbent general registrar after a four-year term ends.

Plain-English summary

Virginia Attorney General Jason Miyares concluded that an electoral board does not have to reappoint its incumbent general registrar when the four-year term expires. Code § 24.2-110 says registrars serve four-year terms and remain in office until a successor is appointed and qualifies. The AG found no state-law guarantee of another term. A board may seek other applicants and choose a new registrar.

That discretion has limits. The board may not base non-reappointment on political affiliation or another impermissible ground, including race or other legally protected status. The AG says the process for appointing a new registrar must be objective and apolitical. He identifies underperformance and availability of a better candidate as examples of permitted reasons. Whether a particular decision crossed the line depends on facts the opinion does not decide. The opinion addresses appointment at the end of a term; it does not analyze mid-term removal or what questions a board may ask in interviews.

What this means for you

If you serve on an electoral board

You may consider other applicants when the incumbent's four-year term expires. Base the appointment on permitted reasons and use an objective, apolitical process. The AG warns that political motivation can be shown by circumstantial evidence, and a registrar who proves an impermissibly political decision can obtain reinstatement and money damages. The opinion does not set out an interview script or decide any particular appointment dispute.

If you are an incumbent registrar

Reappointment is not automatic at the end of your term. The statute permits you to remain in office until the board appoints a successor who qualifies. The opinion says a board cannot refuse another term for political affiliation or another prohibited reason, but proving the motive in a specific case is a factual question.

If you apply for the position

The board may seek additional applicants when a term expires. The AG says availability of a better candidate can be a permitted reason to replace an incumbent, provided the decision and process are not based on prohibited grounds.

Common questions

Q: Must the board reappoint the current registrar after four years?
A: No. The AG says § 24.2-110 does not guarantee reappointment and allows the board to choose a new registrar after the incumbent's term.

Q: What happens if the term ends before a successor qualifies?
A: The incumbent continues as a holdover. The opinion quotes § 24.2-110 as keeping the registrar in office “until a successor is appointed and qualifies.”

Q: May the board replace a registrar because of party affiliation?
A: No. The opinion says political affiliation is an impermissible ground, and the appointment process must be objective and apolitical.

Q: Does the opinion explain mid-term removal grounds?
A: No. It answers an end-of-term reappointment question and does not analyze removing a registrar before the term expires.

Q: Does the AG approve specific interview questions about election administration?
A: No. The opinion does not discuss interview questions. It states only that the selection process must be objective and apolitical.

Background and statutory framework

The opinion explains that Virginia's counties and cities each have an electoral board, and the board appoints a general registrar every four years. Code § 24.2-110 sets the four-year term and provides for an incumbent to stay until a successor is appointed and qualifies. The AG reads that as a holdover rule, not a right to reappointment.

Federal constitutional limits and protections against discrimination constrain the board's choice. The opinion says the First and Fourteenth Amendments forbid a refusal to reappoint based on political considerations, while a board may still replace an incumbent if it would have taken the action for reasons unrelated to political affiliation. The AG says appointment cannot rest on race, color, religion, sex, national origin, or other protected status. He leaves the motive in any specific appointment for factual resolution.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-023-Byron-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

Jason S. Miyares
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

May 15, 2023

The Honorable Kathy J. Byron
Member, House of Delegates
Post Office Box 900
Forest, Virginia 24551

Dear Delegate Byron:

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, upon the expiration of a general registrar's four-year term of office, an electoral board is required to reappoint the incumbent registrar under § 24.2-110 of the Code of Virginia.

Response

It is my opinion that an electoral board may choose not to reappoint an incumbent general registrar, provided the decision to not reappoint an incumbent general registrar does not rest on impermissible grounds, including political motivations, and provided the process for appointing a new general registrar is objective and apolitical.

Applicable Law and Discussion

The Constitution of Virginia establishes that each county and city shall have "an electoral board composed of three members." Board members are appointed by the circuit court for the jurisdiction in which they serve, with two members representing the political party who received the highest number of votes in the preceding gubernatorial election and the remaining member representing the political party who received the second-highest number of votes in such election.

Electoral boards are charged with carrying out the Commonwealth's election laws. Among other duties, "[e]ach electoral board shall appoint the . . . general registrar for its county or city." The board is required to meet every four years to make the appointment. Once appointed, general registrars largely are "subject to the authority of the electoral board" in the performance of their duties and generally are "deemed to be employees of the county or city in which they serve except as otherwise specifically provided by state law." Code § 24.2-110 expressly provides that, upon appointment, "[g]eneral registrars shall serve four year terms . . . and continue in office until a successor is appointed and qualifies."

"When a statute, as written, is clear on its face, [we] will look no further than the plain meaning of the statute's words." "'[W]e are bound by the plain meaning of that language,' unless 'applying the plain language would lead to an absurd result.'" Although potential appointees must satisfy certain qualification requirements, no provision of state election law restricts an electoral board's authority in making appointments pursuant to the plain language of Code § 24.2-110 at the end of an incumbent's statutory term. I specifically find nothing in state law that requires or guarantees the reappointment of an incumbent general registrar or disallows an electoral board from seeking additional applicants for the position every four years; accordingly, an electoral board may choose to appoint a new general registrar upon the expiration of a four-year term. Code § 24.2-110 merely authorizes the incumbent to remain in office as a holdover until the board appoints a new registrar and the appointee qualifies.

Other law, however, does limit an electoral board's appointment power. Clearly, appointment decisions cannot be made on the basis of "race, color, religion, sex or national origin." Moreover, federal case law imposes certain constitutional limitations on an electoral board's otherwise broad discretion to appoint a new general registrar every four years. These cases generally stand for the proposition that, under the First and Fourteenth Amendments, an electoral board may not decline to reappoint a general registrar to a new four-year term if the electoral board's decision is based on political considerations. These cases do not hold that sitting registrars generally are not subject to replacement upon expiration of their terms. Rather, they acknowledge that replacement can occur "even if the action was motivated in part by political considerations, [provided] it would have been taken in any event for reasons unrelated to political affiliation." I caution, however, that a general registrar who can prove that an electoral board's reappointment decision was due to political reasons can obtain reinstatement and money damages; such political motivation can be proved by circumstantial evidence.

In sum, an electoral board is authorized under Code § 24.2-110 to appoint a new general registrar upon the expiration of the term of the incumbent registrar. The board may replace the registrar for a wide variety of reasons, including for example, underperformance, availability of a better candidate, or any other permitted reason. A board, however, may not refuse to reappoint an incumbent based on prohibited grounds such as race or other legally-protected status or political affiliation. Whether an electoral board's appointment decision is based on political or other impermissible grounds in a particular instance is a fact-specific determination beyond the scope of an opinion from this Office.

Conclusion

Accordingly, it is my opinion that an electoral board is not required to reappoint an incumbent general registrar, but the decision to replace the registrar must not be based on political affiliation or other impermissible grounds. It is further my opinion that the process by which an electoral board seeks to appoint a new general registrar must be objective and apolitical.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General