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

Virginia Attorney General Jason Miyares concluded that electoral boards, rather than general registrars, appoint officers of election. In making those appointments, boards must try to secure equal representation for the two qualifying political parties at each precinct to the extent practicable. This duty applies to every city and county, regardless of population. The opinion calls parity a primary policy goal, but says it is not absolute.

Code § 24.2-115 describes equal party representation at precincts with an even number of officers and a difference of no more than one at precincts with an odd number. The AG reads those details with the constitutional and statutory practicability limits. When parity is infeasible, a board may appoint unaffiliated officers; one may serve as chief or assistant when a party representative is unavailable for that position.

If practicable, appointees should come from nominations filed by the qualifying parties on time. The opinion says a party that misses the filing period does not trigger the board's duty to appoint from that party's list. Whether appointments from a properly filed list are practicable in a particular situation is a factual question the AG did not decide.

What this means for you

If you serve on an electoral board

You are responsible for appointing election officers and must make an effort to achieve party parity at each precinct to the extent practicable. Use timely party nomination lists when practicable. The opinion permits unaffiliated officers if representation cannot practicably be achieved; it gives no blanket exemption for a small jurisdiction.

If you are a general registrar

The appointment decision belongs to the electoral board. The opinion says the registrar has related duties, including notifying party representatives when the board intends to designate an unaffiliated chief or assistant so the parties can submit additional names. It does not transfer appointment authority to the registrar.

If you nominate poll workers for a political party

File names within the time periods the opinion describes. For regular February appointments, nominations are due at least 10 days before February 1. When the board needs additional officers later, the party has five business days after notice to file nominations. The board must draw from properly filed lists if practicable; a late list does not trigger that duty.

Common questions

Q: Does a small county get an exception from party parity?
A: No. The AG says the duty applies regardless of population. The board must still pursue parity to the extent practicable under its circumstances.

Q: Must an even-numbered precinct have exactly equal party representation in every case?
A: The statute describes equality for even-numbered precincts, but the AG says the parity directives apply only to the extent practicable and are not absolute. Whether equal representation is practicable in a particular precinct is a factual question.

Q: Must the board use every name submitted by a party?
A: No such unconditional duty appears in the opinion. The board must appoint from properly filed party lists if practicable. A party that misses the statutory deadline does not trigger that list-based duty.

Q: May the board appoint an unaffiliated chief or assistant?
A: Yes, when a representative of an entitled party is unavailable for the position. The opinion says the registrar must notify both parties of the plan so they have an opportunity to nominate additional people.

Background and statutory framework

Article II, § 8 of the Virginia Constitution vests appointment of officers of election in each electoral board and directs representation of the two leading political parties “as far as practicable.” Code § 24.2-115 implements that direction at precinct level. It specifies the even- and odd-numbered parity targets, nomination procedures, and circumstances for appointing unaffiliated officers.

The AG emphasizes that the statute's repeated “if practicable” and “to the extent practicable” language makes parity a qualified duty. It applies at each precinct in all jurisdictions, but a board may use unaffiliated officers when party representation is not feasible. The opinion leaves application of that factual standard in an individual appointment cycle unresolved.

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