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

Senator Mark Obenshain asked whether a candidate whose name had already been printed on the primary ballot, and against whom absentee votes had already been cast, could withdraw before primary election day and still run in the general election as an independent.

Attorney General Jason Miyares answered yes on the threshold legal question and gave the operational caveat that swallows it. "Defeated in the primary," as the phrase is used in Virginia's sore loser law (§ 24.2-520), means losing the nomination on the basis of votes cast while remaining in the contest through the close of polls. A candidate who validly files a written withdrawal notice with the general registrar before the polls close has not been "defeated"; their failure to receive the nomination results from their own choice. So § 24.2-520 does not by itself prevent that candidate from filing as an independent in the general election.

The catch is the filing calendar. Independent candidates must file declarations of candidacy, statements of economic interests, and signature petitions by 7:00 p.m. on the third Tuesday in June, which is the same day primaries are held. So unless the candidate files all the independent-candidate paperwork in parallel with the primary paperwork before the deadline, withdrawing after early voting has begun typically means it is too late to file as an independent. The opinion notes this expressly: "Due to the difficulty associated with meeting these requirements, a late-hour withdrawal, like a defeat, is likely to prevent a candidate from running as an independent candidate for any office."

The opinion also confirms that withdrawal is effective on submission of a complete written notice to the general registrar (the Department of Elections' GREB Handbook lays out the format). Newspaper announcements or press conferences do not count.

What this means for you

If you are a candidate currently running in a Virginia primary

Under the opinion, validly withdrawing from a primary before the polls close does not make you "defeated" under § 24.2-520, so the sore-loser rule does not automatically bar you from running as an independent for the same office. The opinion stresses the practical limit: you must still meet every independent-candidate filing requirement by its deadline, and it notes that "a late-hour withdrawal, like a defeat, is likely to prevent a candidate from running as an independent candidate for any office" because of those requirements.

If you chair a political party committee

The opinion addresses only the sore-loser rule in § 24.2-520 and the meaning of "defeated." It does not analyze how a party fills a vacancy created by a withdrawal; that question is outside its scope.

If you are a general registrar

The opinion states that a candidate's withdrawal is effective upon submitting a complete written notice to the general registrar, following the statutory requirements and the Department of Elections' GREB Handbook, which calls for the candidate's name, signature, the office sought, the election date, and an explicit statement of withdrawal. It finds no statutory deadline cutting off withdrawal before the close of polls on primary day.

If you are a voter who cast an absentee ballot for a candidate who withdrew before primary day

The opinion holds only that a candidate who validly withdraws before the polls close is not "defeated" and so is not automatically barred by § 24.2-520. It does not address how already-cast votes are tallied.

If you are an election-law attorney

The opinion construes "defeated" using its ordinary dictionary meaning ("to win victory over," "overcome"), reasoning that a candidate who withdraws before the close of polls fails to secure the nomination through his own action rather than through the votes, and so "stands upon the same footing as a person who has never filed notice of candidacy." It draws the same line several state courts have drawn in their sore-loser contexts.

Common questions

Q: What is a "sore loser" law and why does Virginia have one?
A: Sore loser laws prevent a candidate who lost a party primary from running as an independent or as a different party's nominee in the general election for the same office. Virginia's version dates to 1932. The federal Supreme Court has upheld such laws in S.C. Green Party (4th Cir.) and Storer v. Brown (1974) against constitutional challenge.

Q: How do you withdraw from a Virginia primary?
A: File a written withdrawal notice with your general registrar. The Department of Elections' GREB Handbook recommends Form ELECT-612.2, but any written notice with your name, signature, the office sought, the election date, and a clear statement that you are withdrawing satisfies the rule. Newspaper announcements and press conferences do not count.

Q: Can you withdraw the day of the primary?
A: Yes, until the polls close. The opinion is express that there is no statutory deadline cutting off withdrawal earlier than 7:00 p.m. on primary day.

Q: If you withdraw and votes were already cast for you, are those votes counted?
A: The opinion does not address how already-cast votes are tallied. It holds only that a candidate who validly withdraws before the close of polls is not "defeated" for purposes of § 24.2-520.

Q: Does § 24.2-520 keep a withdrawn candidate's name off the general-election ballot entirely?
A: The opinion reads § 24.2-520 as keeping off the general-election ballot only the name of a candidate "defeated in the primary." A candidate who validly withdraws is not "defeated," so § 24.2-520 does not by itself bar them; they must still satisfy the separate independent-candidate filing requirements.

Background and statutory framework

Virginia provides two main paths onto the general election ballot for a partisan office: nomination by a political party (§§ 24.2-510 through 24.2-541) or independent candidacy (§§ 24.2-505 through 24.2-509). Both paths require declarations of candidacy, statements of qualification (§ 24.2-501), statements of economic interests (§ 24.2-502), and signature petitions of qualified voters in the relevant district. The deadlines run together: 7:00 p.m. on the third Tuesday in June (§§ 24.2-503, 24.2-507). That date is the same as Virginia's June primary date (§§ 24.2-515, 24.2-515.1).

Section 24.2-520 requires every primary candidate to file a written declaration acknowledging "that, if defeated in the primary, his name is not to be printed on the ballots for that office in the succeeding general election." That is the sore loser rule.

Section 24.2-612.2 (added in 2020) directs the Department of Elections to publish withdrawal procedures in its candidate guidance documents. The General Registrar and Electoral Board (GREB) Handbook implements this. Withdrawals are effective when a complete written notice is filed with the registrar.

The opinion's analytical move is to treat "defeated" as a term whose ordinary meaning excludes voluntary withdrawal. The dictionary definition (Webster's Third) says "defeat" means "to win victory over" or "overcome." A withdrawing candidate is not "overcome" by votes; the candidate exits by choice. The opinion notes that other courts have drawn the same line in their sore-loser contexts.

The opinion's caveat-buried-in-the-footnote about timing is the practical takeaway. Even if § 24.2-520 does not bar the candidate, the parallel filing deadlines for an independent candidacy almost always do.

Citations

• Va. Code Ann. § 24.2-520 (sore loser declaration)
• Va. Code Ann. § 24.2-501, 24.2-502, 24.2-503 (filings and economic interests)
• Va. Code Ann. § 24.2-505, 24.2-506, 24.2-507 (independent candidate filings and June deadline)
• Va. Code Ann. § 24.2-515 (primary date), 24.2-515.1
• Va. Code Ann. § 24.2-612.2 (withdrawal procedures)
• Va. Code Ann. § 24.2-525 (qualified primary candidates printed on ballot)
• 1 Va. Admin. Code § 20-60-40
• Norcop v. Jordan, 216 Cal. 764 (1932)
• Halteman v. Grogan, 233 Ky. 51 (Ct. App. Ky. 1930)
• Anderson v. Celebrezze, 460 U.S. 780 (1983)
• Storer v. Brown, 415 U.S. 724 (1974)
• S.C. Green Party v. S.C. State Election Comm'n, 612 F.3d 752 (4th Cir. 2010)
• 1930-31 Op. Va. Att'y Gen. 56
• 1959-60 Op. Va. Att'y Gen. 145
• 1971-72 Op. Va. Att'y Gen. 181

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