If a Virginia primary candidate withdraws after their name appears on the primary ballot and absentee voting has begun, are they barred by the 'sore loser' law from running as an independent in the general election?

Plain-English summary

Virginia Attorney General Jason Miyares concluded that a candidate who validly withdraws from a primary before polls close is not “defeated in the primary” under Virginia Code § 24.2-520. That section prevents a defeated primary candidate's name from appearing on the succeeding general-election ballot for the same office. Withdrawal before the close of polls is different from losing on the basis of votes cast while still in the contest. The opinion reaches this conclusion even when the candidate's name is already on the primary ballot and absentee voting has begun.

The withdrawn candidate is not automatically barred by § 24.2-520 from seeking the same office as an independent. They still must satisfy every independent-candidate filing requirement and deadline. The AG did not decide whether a particular candidate can meet them or predict that a withdrawal after early voting usually makes compliance impossible. He gave no specific independent filing deadline in this opinion.

What this means for you

If you are a primary candidate considering withdrawal

A valid withdrawal before polls close means § 24.2-520 will not treat you as defeated. Submit a signed written notice of withdrawal to the general registrar of the county or city where you reside. The opinion says the notice must be received and describes additional identifying information in the Department of Elections' handbook. If you intend to run as an independent, check all filing documents and deadlines separately; this opinion does not excuse or extend them.

If you administer candidate filings

The AG reads the withdrawal law as applying to primary candidates and finds no earlier statutory cutoff for a valid withdrawal before polls close. He says a written notice must reach the candidate's general registrar. For general-election ballot access, the withdrawn candidate still must file the required independent-candidate documents with the appropriate official by the applicable statutory deadlines.

If you voted absentee for the candidate

The opinion answers only whether the candidate is “defeated” for the sore-loser provision after a valid withdrawal. It does not decide how votes already cast are counted.

Common questions

Q: Is a withdrawn primary candidate automatically barred from the general election as an independent?
A: No. A valid withdrawal before polls close is not a primary defeat under § 24.2-520. The candidate must still qualify independently under the separate requirements.

Q: Does early absentee voting change that answer?
A: No. The request assumed absentee voting had begun, and the AG still concluded that a valid withdrawal before election day is not a defeat under the sore-loser provision.

Q: Is a news announcement enough to withdraw?
A: The opinion describes a signed written notice declaring the intent to withdraw, received by the general registrar. It does not treat a public announcement as the prescribed filing.

Q: Did the AG say the independent filing deadline falls on primary day?
A: No. The opinion requires filing every document by its applicable statutory deadline but states no specific calendar time for those filings.

Q: Can the candidate meet the independent requirements after withdrawal?
A: The opinion does not decide that factual question. It says the candidate must meet the independent-candidate requirements for their name to appear on the general-election ballot.

Background and statutory framework

Code § 24.2-520 requires a primary candidate to acknowledge that, if defeated in the primary, their name will not appear on the succeeding general-election ballot for that office. The AG interprets “defeated” to mean remaining in the race through election day and losing on the basis of votes. A candidate who withdraws before polls close exits by their own action instead.

The opinion explains that withdrawal requires a signed written notice received by the general registrar, and it describes the Department of Elections' handbook procedure. It found no withdrawal deadline earlier than the close of polls for the scenario presented. Independent candidacy remains subject to its own documents and deadlines, which the opinion does not calculate for any individual candidate.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-032-Obenshain-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
September 14, 2023

The Honorable Mark D. Obenshain
Member, Senate of Virginia
Post Office Box 555
Harrisonburg, Virginia 22803

Dear Senator Obenshain:

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 a candidate who has qualified for a primary election and who withdraws before election day, but after his name has appeared on the ballot and after absentee voting has begun, can be "defeated" in the primary such that his name cannot be printed on the ballot in the succeeding general election pursuant to § 24.2-520 of the Code of Virginia.

Response

It is my opinion that a candidate who validly withdraws before election day but after his name has appeared on the ballot and after absentee voting has begun will not be "defeated" in the primary such that his name cannot be printed on the general election ballot pursuant to § 24.2-520 of the Code of Virginia.

Applicable Law and Discussion

Virginia law directs that "[o]nly a person fulfilling all the requirements of a candidate shall have his name printed on the ballot for the election" of the office the candidate is seeking. Prospective candidates will be named on such ballot upon either qualifying as an independent candidate or as a party nomination. No law expressly renders these distinct means of ballot access mutually exclusive.

Generally applicable requirements for candidacy include the timely filing of a "statement of qualification" and "a written statement of economic interests." In conjunction with a mandated declaration of candidacy, prospective independent candidates must file a petition for candidacy that meets the form and signature requirements prescribed by statute. The name of an independent candidate will not be printed on the ballot unless the statutory requirements are met. The names of party nominees appear on the ballot once the nominee has been selected in the manner chosen by the political party or otherwise determined by law.

Your opinion request involves party nominations conducted via primary election. Candidates seeking to have their names printed on a primary ballot are subject to filing requirements similar, but not identical, to those imposed on independent candidates seeking general ballot access. Those who "meet[] all the qualifications and fulfill[] all the requirements of a [primary] candidate, and . . . [have] complied with the rules and regulations of [their] party, shall have [their] name printed on the ballot provided for the primary election." Pertinent here, Code § 24.2-520 provides that, in filing the "written declaration of candidacy" required of primary candidates, a prospective party nominee must acknowledge "that, if defeated in the primary, his name is not to be printed on the ballots for that office in the succeeding general election." This provision is commonly referred to as a "sore loser law."

The focus of your inquiry is the application of this provision to a candidate who, after his name has been printed on the primary ballot, no longer wants to pursue the primary nomination. More specifically, the candidate intends to withdraw his candidacy for party nominee after in-person absentee voting has commenced but before the polls close on election day. As the issue underlies your question, I first address the ability of a prospective party nominee to withdraw under these circumstances.

Virginia law provides generally for the withdrawal of "[a] candidate who has qualified to have his name printed on the ballot for an election." No such candidate will "be deemed to have withdrawn . . . until he has submitted a signed written notice declaring his intent to withdraw from such election and that notice has been received by the general registrar . . . of the county or city in which [the candidate] resides." The pertinent statutory language does not limit its applicability to specified types of candidates or elections or otherwise distinguish between primary and general and special elections. No additional statutory provisions govern candidate withdrawal.

The General Assembly, however, has instructed the Virginia Department of Elections (Department) to "include in its candidate guidance documents the requirements and process for candidate withdrawal." Pursuant to its mandate, the Department has set forth withdrawal procedures in its principal guidance document, the General Registrar and Electoral Board Handbook (GREB Handbook). Section 16.7.1 of the GREB Handbook directs candidates seeking to withdraw from an election to submit to their respective general registrar either ELECT-612.2 Candidate Withdrawal Form or "any written notice of withdrawal" that includes "the candidate's name, the candidate's signature, the office the candidate was seeking and the election date." The notice also "must specifically state that [the candidate is] withdrawing as a candidate."

In addition to not expressly limiting which candidates may withdraw, neither the Code of Virginia nor the GREB Handbook imposes a deadline by which a candidate must withdraw. Accordingly, in the absence of any time restrictions, it appears that a candidate's withdrawal is effective simply upon submitting a complete notice of withdrawal to the general registrar. Accordingly, it is my opinion that a qualified candidate who follows both the statutory requirements and the instructions contained in the GREB Handbook may validly withdraw at any point prior to the closing of the polls on the day of the primary election.

You ask whether a withdrawn primary candidate who already may have received votes may be deemed to be "defeated" in a primary election for purposes of § 24.2-520. The "primary objective" in construing a statute is "'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." When a term is not defined in a statute, that term must be "given its ordinary meaning, given the context in which it is used." Further, "we 'assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words.'"

Webster's Third New International Dictionary defines "defeat" as "to win victory over," or "overcome." The conditions that constitute "defeat" vary based on the type of contest involved. In the particular electoral context you describe, a candidate is said to have been "defeated" when he remains in the contest throughout election day and is overcome on the basis of the votes cast. If a candidate withdraws before the close of polls, he is not said to have been "defeated" because his failure to secure nomination results from his own actions rather than the number of votes tallied in his favor. Indeed, upon withdrawal, a candidate "stands upon the same footing as a person who has never filed notice of candidacy." Therefore, even if absentee voting has begun, a candidate who validly withdraws from a primary before election day is not "defeated" as that term is used in § 24.2-520.

Accordingly, § 24.2-520 does not automatically preclude a primary candidate who has withdrawn from the party nomination process under the circumstances you present from seeking, as an independent candidate, election to the same office at the succeeding general election. Nevertheless, the withdrawn primary candidate still must meet all the statutory requirements otherwise applicable to independent candidates in order to have his name printed on the general election ballot. The candidate must file every required document with the appropriate official by the applicable statutory deadlines. Whether a particular candidate has satisfied these requirements is a question of fact that is beyond the scope of an advisory opinion of this Office.

Conclusion

Accordingly, it is my opinion that a candidate who withdraws before election day but after his name has appeared on the ballot and after absentee voting has begun will not be "defeated" in the primary such that his name cannot be printed on the general election ballot pursuant to § 24.2-520 of the Code of Virginia.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General