When a Virginia electoral board appoints poll workers, must it actually try to balance the two major parties even in a small county, and does it have to use names submitted by the parties?

Plain-English summary

Delegate John McGuire asked whether the general registrar must accept additional poll-worker nominees submitted by a political party chair, and how strictly the party-parity requirement applies in small counties.

Two answers come out of the opinion. First, on the structural question: appointments are not the registrar's job. Article II, § 8 of the Virginia Constitution and § 24.2-115 vest appointment authority in the electoral board itself. The general registrar has support roles (preparing the staffing plan, administering the oath under § 24.2-115.1, conducting training under § 24.2-115.2, maintaining the public list), but the board does the appointing.

Second, on the parity question: the constitutional and statutory rule is that representation between the two parties that received the highest and next-highest votes in the last general election must be balanced "as far as practicable" at each precinct. Equal representation at precincts with an even number of officers; vary by no more than one at precincts with an odd number. Chief and assistant officers, "whenever practicable," should not represent the same party. If a precinct has officers in groups of three, no more than one-third may be unaffiliated.

Where do the appointees come from? "If practicable, officers shall be appointed from lists of nominations filed by the political parties." But the parties have to file on time: at least 10 days before February 1 each year for the regular February meeting; within 5 business days of the registrar's notice for any later supplemental appointments. If a party fails to file on time, the board has no statutory duty to use its list.

Practicability is the swing concept. The opinion treats it as a fact-specific question that the board must judge in good faith for each appointment cycle. Small jurisdictions get no blanket exemption; the parity duty applies "regardless of population." But the law explicitly contemplates that genuine impracticability (no party nominations, not enough qualified citizens willing to serve) may force the board to appoint unaffiliated citizens, who can serve even as chief or assistant officer when a party rep is unavailable.

What this means for you

If you are an electoral board member

Make the parity rule your default. At your first-week-of-February meeting, walk precinct-by-precinct: count the officer slots, count current Democratic and Republican appointees (or whichever two parties received the top two vote totals last general election), and aim for parity at each precinct. Document the math. When you cannot hit parity, write down why (no nominations on file, no qualified applicants of that party residing in the precinct, training scheduling constraints under § 24.2-115.2). The opinion says practicability is fact-specific; your contemporaneous record is your defense if a party challenges your appointments.

If you are a county or city general registrar

You administer the staffing plan but you do not appoint the officers. Push the appointment decisions back to the board. You can administer oaths, run training, and maintain the public list, but make sure the board votes the appointments. When a chief or assistant slot will be filled by an unaffiliated officer because no party rep is available, give both party chairs the statutory notice (at least 10 days before the election) so each party gets a chance to nominate.

If you chair a county political party committee

File your nominations on time. Late lists do not bind the electoral board. The deadlines:
- For the February regular appointment meeting: file at least 10 days before February 1.
- For supplemental appointments mid-year: file within 5 business days of the registrar's notice.

Keep your list deeper than the slots you expect to fill. If a precinct has 5 officers and you nominate 5, a single nominee dropping out can shift parity. Nominating 8 to 10 names per precinct gives the board flexibility to honor parity even when conflicts arise.

If you are a candidate or campaign

Do not assume that small-county precincts get exempted from parity. They do not. If you see a precinct that is staffed entirely by one party in a small county, the board may have a defensible explanation, but you can ask for it. The statute requires both party chairs to get at least 10 days' notice before any nonaffiliated chief or assistant is designated.

If you are a citizen who wants to be a poll worker but is not affiliated with a party

You can still serve. The law caps unaffiliated officers at no more than one-third of the precinct staff "if practicable," and lets unaffiliated citizens serve as chief or assistant when a party rep is unavailable. Apply through your local registrar's office.

Common questions

Q: My county has fewer than 1,000 voters. Does parity really apply?
A: Yes. The opinion says the parity duty applies "regardless of population." But practicability is judged on the ground: if neither party fields enough qualified residents, the board can fill with nonaffiliated citizens.

Q: What if the chair of one party refuses to submit any names?
A: Then the board has no duty to appoint from that party's list, and may appoint qualified citizens (party-affiliated or not) on its own. Try to attempt parity using the names of voters who self-identify with the silent party at registration; Virginia does not require party registration, so this is harder than in other states.

Q: Does parity have to hold across the whole county or precinct-by-precinct?
A: Precinct-by-precinct. Section 24.2-115 says "at each precinct." A countywide average that masks one-party precincts does not satisfy the rule.

Q: We have an even number of officers at our precinct. How strict is "equal"?
A: Strict. The statute uses "shall be equal" for even-numbered precincts. Only odd-numbered precincts get the "vary by no more than one" cushion.

Q: Can the chief and assistant be from the same party?
A: "Whenever practicable, [the assistant] shall not represent the same political party as the chief officer." When no opposite-party representative is available for the assistant slot, the board can designate an unaffiliated assistant after giving both parties the 10-day notice and an opportunity to submit additional nominations.

Q: What happens if the parties' nominations come in late?
A: The board's duty to appoint from those lists is not triggered. The board still must aim for parity to the extent practicable, but it can use other qualified applicants.

Q: Is the question of whether parity was "practicable" at a given precinct judicially reviewable?
A: The opinion treats it as a question of fact, but courts have entertained challenges. Document board deliberations carefully; the standard from Dovel v. Bertram and prior AG opinions is good-faith effort, not perfect outcomes.

Background and statutory framework

Article II, § 8 of the Virginia Constitution establishes the electoral board structure and directs the appointment of "officers of election" by each electoral board. The Constitution embeds the party-parity duty: "[i]n the appointment of [] officers of election, representation, as far as practicable, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and next highest number of votes."

Section 24.2-115 implements this constitutional command. It directs each electoral board, at its February regular meeting, to appoint officers for terms beginning March 1 (generally three-year terms). Each precinct gets at least three officers, with one designated chief and one assistant. The board may add nonpartisan citizens, capped at one-third per precinct if practicable. Officers are paid by the locality, but compensation rates are set by ordinance.

The statute structures party participation around scheduled deadlines:
- Initial appointments: parties file nominations at least 10 days before February 1.
- Supplemental appointments: parties file within 5 business days of the registrar's notice.
- Pre-election notice for nonaffiliated chiefs/assistants: at least 10 days before the election.

A 2009 amendment (chapter 874) shifted "may" to "shall" for additional appointments when the board determines they are needed. That moved supplemental appointments from discretionary to mandatory.

The constitutional and statutory text uses "shall consider," "shall appoint," and "shall ensure" against "as far as practicable" and "if practicable" qualifiers. The opinion harmonizes the mandatory and discretionary language by treating parity as a primary policy goal that the board must pursue in good faith, knowing that demographic and logistical realities may foreclose perfect compliance.

Citations

• Va. Const. art. II, § 8
• Va. Code Ann. § 24.2-115
• Va. Code Ann. § 24.2-115.1, 24.2-115.2
• Va. Code Ann. § 24.2-114(2), 24.2-114(18), 24.2-101, 24.2-118
• Va. Code Ann. § 24.2-307 (precinct size)
• 2009 Va. Acts ch. 874
• Dovel v. Bertram, 184 Va. 19 (1945)
• Town of Madison, Inc. v. Ford, 255 Va. 429 (1998)
• Sansom v. Bd. of Supervisors, 257 Va. 589 (1999)
• 2006 Op. Va. Att'y Gen. 52
• 1974-1975 Op. Va. Att'y Gen. 158
• 1970-1971 Op. Va. Att'y Gen. 140

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-031-McGuire-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Jason S. Miyares
Attorney General
October 2, 2023

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

The Honorable John J. McGuire, III
Member, Virginia House of Delegates
11357 Nuckols Road #156
Glen Allen, Virginia 23059

Dear Delegate McGuire:

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 inquire regarding the appointment of officers of elections under Code § 24.2-115. You specifically ask whether general registrars, when practicable, must strive to ensure parity of party representation for officers of election and whether, when facing a lack of parity, general registrars "must accept additional and qualified officers of elections, if provided by the chairs of the political parties." You further inquire to what extent any requirement to achieve party parity applies to a county with a small citizenry.

Response

It is my opinion that the appointment of election officers must be done with an effort to ensure party parity among appointments to the extent practicable and that appointees are to be chosen, to the extent practicable, from nominations provided by the respective qualifying political parties pursuant to law. It is my further opinion that the duty to ensure party parity to the extent practicable applies to every city or county, regardless of the size of the jurisdiction.

Applicable Law and Discussion

The Constitution of Virginia provides for the appointment of officers of election to assist with overseeing the conduct of elections. Specifically, Article II, § 8 establishes that "[e]ach electoral board shall appoint the officers of election and general registrar for its county or city." In accordance with this provision, the General Assembly enacted Code § 24.2-115, which directs that "[e]ach electoral board . . . shall appoint officers of election." The plain language of these provisions reflects the intent of the framers to vest the power to appoint election officers in the local electoral board. Thus, as an initial matter, I must clarify that, although the General Assembly has charged general registrars with certain tasks related to election officers, the appointment of election officers ultimately is the responsibility of the electoral board.

Code § 24.2-115 sets forth the procedures the electoral board must follow in making its appointments. It directs the electoral board, at its regular meeting in the first week of February, to appoint officers of election for those whose terms are scheduled to expire. "Not less than three competent citizens shall be appointed for each precinct[,]" and for each precinct, "[t]he electoral board shall ensure that one officer is designated as the chief officer of election and one officer is designated as the assistant."

Virginia law makes clear that, "[i]n appointing [] officers of election, representation, as far as practicable, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and next highest number of votes." The General Assembly has specified that "[t]he representation of the two parties shall be equal at each precinct having an even number of officers and shall vary by no more than one at each precinct having an odd number of officers." Although "[t]he electoral board may appoint additional citizens who do not represent any political party to serve as officers[, [I]f practicable, no more than one-third of the total number of officers appointed for each precinct may be citizens who do not represent any political party."

To achieve the directed parity in party representation, the Code instructs that "[i]f practicable, officers shall be appointed from lists of nominations filed by the political parties entitled to appointments." Such nominations are to be filed with "the electoral board at least 10 days before February 1 each year." In addition, when designating chief and assistant officers, "[t]he officer designated as the assistant for a precinct, whenever practicable, shall not represent the same political party as the chief officer for the precinct." Nevertheless, the Code explicates that "where representatives for one or both of the two [entitled] political parties . . . are unavailable, citizens who do not represent either of those two political parties may be designated as the chief officer and the assistant chief officer."

Accordingly, in response to your first inquiry, I must conclude that Virginia law sets forth party parity as a primary policy goal in the appointment of election officers. That directive, however, is not absolute; as evident from the plain language of the applicable constitutional and statutory provisions, the preferred outcome of parity is required to be achieved only to the extent "practicable." The law thus recognizes that there may be instances where the desired parity might not be able to be attained.

The law thus provides that equal party representation is to be ensured to the extent practicable. When achieving such parity is infeasible, however, electoral boards are permitted to appoint unaffiliated election officers, and such appointed officers may serve as chief or assistant officers when a party representative is unavailable for that position at a particular precinct. Nevertheless, when a need to designate an unaffiliated chief or assistant arises, Code § 24.2-115 expressly directs the general registrar to notify the representatives of both parties of the intention to use nonaffiliated officers "so that each party shall have the opportunity to provide additional nominations."

Section 24.2-115 clearly contemplates that the appointments made by the electoral board at its February meeting might be insufficient to meet the requirements, including parity, that it otherwise imposes. The law directs that "[a]dditional officers shall be appointed in accordance with this section at any time that the electoral board determines that they are needed or as required by law." In such instances, the political parties must be informed that further appointments will be made, and "the party shall file its nominations . . . within five business days." As with the February appointments, "[i]f practicable, . . . officers appointed after the electoral board's regular meeting . . . shall be appointed from lists of nominations filed by the political parties entitled to appointments."

Reading § 24.2-115 in its entirety, it is apparent that the General Assembly, to promote the mandated goal of equal party representation, has empowered the entitled political parties to nominate potential appointees to serve as their representatives. When a party has chosen to provide nominations, the electoral board, "if practicable" must appoint persons from the lists filed by the parties. The parties, however, must file their nominations with the electoral board or general registrar within the timeframes prescribed by the General Assembly. If a party fails to timely provide a list, the electoral board's duty to make appointments based on party requests is not triggered.

Accordingly, in response to your second inquiry, I conclude that, to the extent an electoral board is compelled to appoint additional election officers to address any insufficiencies, the electoral board, as with its February meeting, must appoint officers from properly filed lists provided by the parties, when practicable. Whether such appointments are practicable in a particular set of circumstances is a factual question beyond the scope of an opinion of this Office.

You further inquire regarding the applicability of the party-parity requirement to counties with a small citizenry. Although other portions of Virginia's election laws contain special provisions based on population, I can find no law providing an exemption from the election-officer parity requirements established under Article II, § 8 of the Constitution and Code § 24.2-115. Rather, at least three officers of election must be appointed "for each precinct" and, as set forth above, the rules for party representation apply "at each precinct" to the extent practicable. Although, in the absence of any other provision exempting smaller jurisdictions, this language allows for no blanket exception to the application of the parity rule based on population, the Code does take population into account in directing how localities are to establish their voting precincts. Moreover, as stated above, to the extent demographics or a lack of available party representatives make parity no longer "practicable" for any particular election in a jurisdiction, the Code expressly allows for the appointment of nonaffiliated election officers. I therefore conclude that the electoral board of every city or county, regardless of population, must appoint its officers of elections so as to secure party parity to the extent practicable.

Conclusion

Accordingly, it is my opinion that, when appointing officers of election, an electoral board must make its appointments with an effort to ensure party parity among appointments to the extent practicable and that appointees are to be chosen, to the extent practicable, from nominations provided by the respective qualifying political parties pursuant to law. It is my further opinion that the duty to ensure party parity to the extent practicable applies to every electoral board, regardless of the size of the jurisdiction.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General