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 at the end of a four-year term, and the limits on the board's discretion to pick someone else.

Plain-English summary

In Virginia, every county and city has a three-member electoral board. One of the board's core jobs is to appoint the general registrar, the official who runs voter registration and many of the day-to-day mechanics of elections. Registrars serve four-year terms.

Delegate Kathy Byron asked whether the board, when that four-year term runs out, has to reappoint the sitting registrar. Attorney General Jason Miyares answered no. The plain text of Code § 24.2-110 says registrars "serve four year terms," with no language requiring the board to keep an incumbent past that term. The board can choose to reappoint the incumbent, or it can choose a new applicant.

But the AG was careful to flag the limits. Federal civil rights law (Title VII), Virginia's local-government anti-discrimination statute (§ 15.2-1500.1), and a line of Fourth Circuit cases under the First and Fourteenth Amendments mean that the board cannot refuse to reappoint a registrar because of race, religion, sex, national origin, or political affiliation. Sales v. Grant and McConnell v. Adams both held that for First Amendment patronage purposes there is "no constitutional difference between a patronage refusal to rehire and a patronage dismissal." If the registrar can prove the non-reappointment was politically motivated, including through circumstantial evidence, the registrar can win reinstatement and money damages.

Bottom line: state law gives the board discretion to replace the registrar at the end of the term, but that discretion has to be exercised through an objective and apolitical process for legitimate reasons.

What this means for you

If you sit on a Virginia electoral board

The opinion holds the board has discretion at the end of a four-year term and is not required to reappoint the incumbent. It lists "underperformance, availability of a better candidate, or any other permitted reason" as legitimate grounds to choose someone new. The limit it draws is that the board may not refuse to reappoint based on race or other legally protected status or on political affiliation, and it states the appointment process "must be objective and apolitical." Whether a particular decision crosses that line is, in the opinion's words, "a fact-specific determination beyond the scope of an opinion from this Office."

If you are an incumbent general registrar approaching the end of your term

The opinion makes clear reappointment is not automatic; the holdover clause in § 24.2-110 keeps you in office only "until a successor is appointed and qualifies." The opinion also states that a registrar who can prove the non-reappointment was due to political reasons "can obtain reinstatement and money damages," and that such motivation "can be proved by circumstantial evidence."

If you are running for general registrar against an incumbent

The opinion confirms the board may seek additional applicants and appoint a new registrar at the end of the incumbent's term. It also holds the board may not base that decision on political affiliation, so a partisan-driven appointment is the kind the opinion identifies as impermissible.

If you are a county or city attorney advising the electoral board

The opinion has two halves worth conveying to the board: the state-law holding that no provision of election law requires reappointment of an incumbent under § 24.2-110, and the limits barring decisions based on protected status or on political affiliation under the First and Fourteenth Amendments. The opinion's stated standard is that the appointment process be "objective and apolitical."

If you are a Virginia voter

The opinion addresses internal procedure: your local electoral board has discretion at four-year intervals to keep or replace the general registrar, but the opinion holds it cannot make that decision on partisan or discriminatory grounds. It does not change voter rights.

Common questions

Q: Does the registrar automatically stay in office until a new one is picked?
A: Yes. Code § 24.2-110 says registrars continue in office "until a successor is appointed and qualifies." So if the board has not yet selected and qualified a new appointee when the four-year term ends, the incumbent serves as a holdover.

Q: Can the board fire a registrar mid-term for any reason?
A: No. The AG distinguishes the appointment power at the end of the term from the removal power during the term. Mid-term removal is limited to specific statutory grounds under § 24.2-109(A), generally failure to be properly certified or to discharge the duties of the office. End-of-term non-reappointment is broader, subject only to the constitutional and civil rights limits.

Q: What does "based on political considerations" mean in the cases the AG cites?
A: The opinion explains that under the First and Fourteenth Amendments an electoral board may not decline to reappoint a registrar based on political considerations. It also notes a defense: 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." So mixed motives are not a categorical loss.

Q: Can the board ask candidates about their views on election administration?
A: Yes. Asking about substantive views on running registration, complying with HAVA, handling provisional ballots, all of that is fair. The line is asking about partisan affiliation or extracting promises that imply partisan favor.

Q: What is the remedy if a registrar wins a political-non-reappointment claim?
A: McConnell v. Adams confirmed reinstatement and money damages. The damages can include back pay and attorney's fees if the suit is brought under § 1983 (with § 1988 fees) or Title VII.

Background and statutory framework

Virginia structures election administration through a constitutional electoral board in each county and city, composed of three members appointed by the local circuit court. Two members come from the political party that won the most recent gubernatorial election; the third comes from the party that finished second. The board, in turn, appoints the general registrar under § 24.2-109(A).

Code § 24.2-110 sets the registrar's term at four years. The General Assembly chose deliberate language: registrars "shall serve four year terms" and "continue in office until a successor is appointed and qualifies." That second clause is a holdover provision, not a guarantee of reappointment.

The federal limits come from two sources. Title VII (42 U.S.C. § 2000e-2(a)(1)) and Virginia's local government employment non-discrimination statute (§ 15.2-1500.1) bar appointment decisions based on race, color, religion, national origin, sex, pregnancy, age, marital status, disability, sexual orientation, gender identity, or military status. The First Amendment, as applied through Sales v. Grant and McConnell v. Adams in the Fourth Circuit, bars decisions based on political affiliation when the position is not policymaking in the patronage-immune sense.

The AG cites a 1970-71 Virginia AG opinion taking the same position on the appointment power, plus older Virginia Supreme Court cases (Johnson v. Mann from 1883 and Burnett v. Brown from 1952) recognizing the legislature's authority to define officeholder tenure. The opinion thus represents continuity, not new ground, on the state-law side, and reaffirms federal limits that have been in place since the 1980s.

Citations and references

Statutes:

• Va. Code Ann. § 24.2-110 (general registrar terms)
• Va. Code Ann. § 24.2-106 (electoral board composition)
• Va. Code Ann. § 24.2-109 (appointment and removal of registrar)
• Va. Code Ann. § 15.2-1500.1 (local government employment non-discrimination)
• 42 U.S.C. § 2000e-2 (Title VII)

Cases:

• Sales v. Grant, 158 F.3d 768 (4th Cir. 1998) (mixed-motive standard for First Amendment patronage claims)
• McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987) (no constitutional difference between patronage refusal to rehire and dismissal; affirmed reinstatement of general registrars)
• Chester v. Wise Cnty. Electoral Bd., 1997 U.S. App. LEXIS 17394 (4th Cir. 1997) (termination based solely on political affiliation violates First Amendment)
• Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Title VII applies to state and local government employers)

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