Can a friend, family member, or volunteer return another voter's sealed mailed absentee ballot to the post office or a drop-off location in Virginia?

Plain-English summary

Delegate Kathy Byron, an opponent of third-party ballot collection, asked the AG whether Virginia law lets someone other than the voter drop the voter's sealed absentee ballot in the mail or at a drop-off location.

The answer turns on a 2021 amendment. Before 2021, § 24.2-707 told "the voter" to "mail it to the office of the general registrar or deliver it personally to the general registrar." That language tied the act of mailing to the voter personally. The 2021 General Assembly rewrote the same rule in the passive voice: "[a] mailed absentee ballot shall be returned" by mail, by the voter in person to the registrar, or to a drop-off location.

Attorney General Jason Miyares concluded that the passive-voice rewrite was deliberate, and that the deletion of "by the voter" from two of the three return paths means the General Assembly removed the personal-delivery requirement for those paths. So a voter can hand a sealed and signed ballot envelope to a friend, neighbor, or volunteer, and that third person can deposit it in the mail or in any of the official drop-off locations (the registrar's office, satellite voter offices, polling places on election day, plus any extras the registrar designates under § 24.2-707.1).

The carve-outs are narrow. The "in person to the general registrar" return path still requires the voter personally; that path also excludes "personal courier service or other individual" from the definition of "mail." For voters who are ill, disabled, or hospitalized, separate provisions in §§ 24.2-703.2 (replacement ballots) and 24.2-705 (emergency ballots) authorize a designated representative to deliver the ballot directly.

The opinion leaves open whether the legislature should change the rule (the AG explicitly disclaims any view on the wisdom of the current framework).

What this means for you

If you are a Virginia voter who received a mailed absentee ballot

You can fill it out, seal it according to the envelope instructions, and ask someone you trust to drop it in the mail or at a drop-off location. The registrar will still validate your signature on the envelope; the third person is just acting as a courier. If you are unsure where the drop-off locations are in your county, every general registrar's office, every satellite voter office, and every polling place on election day all serve as drop-off locations, plus any extras your registrar has designated. Always seal the envelope and complete the affirmation statement on the back yourself before handing it over.

If you are a friend, family member, or volunteer helping someone return a ballot

Take the sealed envelope to a USPS mailbox or post office, a USPS-equivalent commercial mail service, or any official drop-off location. Do not open the envelope. Do not "improve" it. Do not deliver it directly inside the registrar's office in lieu of the voter (use the drop-off receptacle outside the registrar's office or send it by mail). Drop-off locations are open during normal business hours; on election day, the polls accept ballots until 7:00 p.m., and any voter "in line to return an absentee ballot at a drop-off location by 7:00 p.m." may deposit it.

If you organize a get-out-the-vote effort

Virginia, unlike some neighboring states, allows third-party return of mailed absentee ballots. Train volunteers to handle envelopes carefully (no opening, no "completion" of voter affirmation statements, no markings on the envelope). Maintain a chain-of-custody log if you collect ballots in volume; while not required by § 24.2-707, a log protects volunteers if a ballot is later challenged. Stay clear of any incentive program that pays per ballot delivered; that can create vote-buying or fraud allegations.

If you are a general registrar

The opinion confirms that you cannot reject a mailed absentee ballot just because someone other than the voter put it in the mail. Your verification work happens at the affirmation-statement and signature stage under § 24.2-709.1, not at the courier stage. Your office still must staff the in-person delivery counter for voters who choose that route; in-person delivery is the one return path that still requires the voter personally. Train clerks accordingly.

If you are a candidate or campaign organizer

Treat ballot-return assistance as a routine voter outreach service if you offer it. Document instructions you give to voters and volunteers. Avoid offering assistance that drifts into pressure or surveillance (asking to see how the voter marked the ballot is illegal under Virginia's secrecy rules).

If you are a poll worker or precinct chief

On election day, voters or third-party returners can deposit absentee ballots in your precinct's drop-off receptacle until 7:00 p.m. Voters in line at 7:00 p.m. may deposit. Do not refuse a returner who is not the voter; the law no longer requires the voter to make the deposit personally.

Common questions

Q: Is this "ballot harvesting"?
A: That is a contested label. The opinion uses neutral terminology ("third-party return"). Virginia does not impose a numerical limit on how many ballots one person can return, unlike some states (e.g., Arizona). The opinion does not address per-person limits because the General Assembly did not enact one.

Q: What about the federal Election Mail provisions or USPS rules?
A: Those govern timing and routing in the postal system but do not change who may put the envelope in the mail. The AG's opinion is about Virginia law only.

Q: Can a notary or postal employee refuse to handle someone else's absentee ballot envelope?
A: A USPS or commercial carrier accepting the envelope as ordinary mail does not need to know whether the depositor is the voter. The envelope is mail; the carrier handles it like any other piece. Drop-off staff at registrar offices likewise should accept the deposit without requiring the depositor to attest they are the voter.

Q: Are there special rules for hospitalized voters or voters in nursing homes?
A: Yes. Section 24.2-705 authorizes an "emergency absentee ballot" for voters confined to a hospital or similar facility because of an unexpected medical condition; a "designated representative" can deliver the ballot. Section 24.2-703.2 covers replacement ballots for voters with disabilities. Both paths predated the 2021 amendment and operate alongside the new rule.

Q: Does this opinion legalize someone filling out the ballot for the voter?
A: No. The opinion is strictly about who can deposit a sealed ballot envelope after the voter has marked it. Marking the ballot for another voter is governed by separate rules; § 24.2-704 covers assistance for voters who need it.

Q: My county registrar told me only the voter could drop off the ballot. Were they wrong?
A: After this opinion, that guidance is incorrect for the mail-and-drop-off paths. The voter remains the only person who can hand a ballot directly to the registrar in person. Confirm the current Department of Elections guidance before relying on county-level instructions.

Background and statutory framework

Virginia provides three ways to vote: in person at the precinct on election day, in person during the 45-day absentee voting window, or by mailed absentee ballot. The mailed-absentee process starts with an application under § 24.2-701, the registrar mailing the ballot under § 24.2-706, the voter marking the ballot at home (the voter must "mark and refold the ballot . . . without assistance and without making known how he marked the ballot"), the voter sealing the inner ballot envelope and signing the affirmation statement on the outer envelope, and finally the return.

Before 2021, § 24.2-707 directed "the voter" to "mail it to the office of the general registrar or deliver it personally to the general registrar." The General Assembly amended that text in 2021 (Special Session I, Chapter 522) to a passive-voice formulation: "A mailed absentee ballot shall be returned (i) by mail to the office of the general registrar, (ii) by the voter in person to the general registrar, or (iii) to a drop-off location established pursuant to § 24.2-707.1."

The textual canon governing this kind of edit is that "the General Assembly intended its statutory amendments to effectuate a change in law" (Hartford Underwriters Ins. Co.). The "by the voter" qualifier appears once (path ii) and not at all in paths (i) and (iii). Reading "by the voter" into paths (i) and (iii) would render the explicit "by the voter" in path (ii) redundant, which courts disfavor (Shoemaker v. Funkhouser).

The opinion ties this to a comparative analysis: when the legislature wants to require personal action by the voter, it knows how to say so explicitly (Morgan v. Commonwealth). The 2021 omission of that personal-action language from two of three paths is "an unambiguous manifestation" of legislative intent.

The drop-off framework is built out by § 24.2-707.1: every general registrar's office and every satellite voter office is automatically a drop-off location during early voting; on election day, every polling place is also a drop-off location; and registrars may designate additional drop-off sites. Department of Elections guidance sets the security standards for those locations.

Citations

• Va. Code Ann. § 24.2-707 (return of mailed absentee ballots)
• Va. Code Ann. § 24.2-707.1 (drop-off locations)
• Va. Code Ann. §§ 24.2-701, 24.2-701.1, 24.2-706
• Va. Code Ann. §§ 24.2-703.2, 24.2-705 (disability and emergency provisions)
• Va. Code Ann. § 24.2-709 (closing time for return)
• Va. Code Ann. § 24.2-709.1 (registrar verification duties)
• 2021 Va. Acts ch. 522 (Spec. Sess. I) (passive-voice rewrite)
• Manu v. GEICO Cas. Co., 293 Va. 371 (2017)
• Hartford Underwriters Ins. Co. v. Allstate Ins. Co., 880 S.E.2d 786 (Va. 2022)
• Morgan v. Commonwealth, 881 S.E.2d 795 (Va. 2022)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-033-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 202 North Ninth Street
Attorney General Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
October 26, 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 Virginia law permits a third party to collect mailed absentee ballots from voters in order to then return the ballots to the general registrar via mail or designated drop-off locations.

Response

It is my opinion that, under § 24.2-707 of the Code of Virginia, a mailed absentee ballot may be returned, at the request of the voter, by a third party through the mail or at a drop-off location.

Applicable Law and Discussion

Virginia law provides several methods by which a qualified voter may cast a ballot in an election conducted in the Commonwealth. In addition to voting in person, either at the polls on election day or at a designated location within 45 days of election day, Virginia voters may cast a "mailed absentee ballot." To vote via mailed absentee ballot, a voter first must submit an application for such ballot to the local general registrar. "If the application has been properly completed and signed and the applicant is a registered voter of the precinct in which he offers to vote, the general registrar shall . . . send" to the voter an unmarked absentee ballot and other required materials. The voter is then entitled to fill out the mailed absentee ballot with his choice of candidates. The voter is then instructed to "(a) enclose the [mailed absentee] ballot in the envelope provided for that purpose, (b) seal the envelope, (c) fill in and sign the [voter compliance affirmation] statement printed on the back of the envelope, (d) enclose the ballot envelope and any required assistance form . . . , and (e) seal that envelope."

Code § 24.2-707 governs the return of mailed absentee ballots to the general registrar. Ballots returned outside "the procedures set forth in this section" are void. Prior to 2021, the law expressly directed the voter, after sealing the ballot envelope, to "mail it to the office of the general registrar or deliver it personally to the general registrar." Current law provides that "[a] mailed absentee ballot shall be returned" in one of three ways: "(i) by mail to the office of the general registrar, (ii) by the voter in person to the general registrar, or (iii) to a drop-off location established pursuant to § 24.2-707.1." Regardless of which return method is used, the general registrar, upon receipt of every returned mailed absentee ballot, is required to mark the date of receipt in the voter's record and verify completion of the required voter affirmation statement; all returned mailed absentee ballots are subject to this review prior to being unsealed, scanned, or counted.

You ask whether Virginia law thus permits someone other than the voter to deliver completed mailed absentee ballots to the mail carrier or drop-off location on the voter's behalf.

"When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." "[W]here possible, every word of a statute must be given meaning." In applying the plain language of a statute, "we must give 'proper grammatical effect . . . to the arrangement of words in a sentence of a statute,' and we must presume that the General Assembly understood basic rules of grammar when drafting the statute[.]" Moreover, when an amended statute is at issue, it is presumed that the General Assembly intended its statutory amendments to effectuate a change in law.

Unlike its previous iteration, which directed "the voter" to "mail . . . or deliver [his ballot] personally" to the registrar, current § 24.2-707 is written in the passive voice, whereby the statute initially refers to ballot returns more broadly and not specifically to any agent who is to facilitate the return. Per the terms of the current statute, the execution of none of the return methods, other than in-person delivery, is limited to being performed "by the voter." The Code does not otherwise restrict how a completed ballot is to be transferred from the voter to the mail service or drop-off location for ultimate return to the general registrar. As the Supreme Court of Virginia has observed, when the law intends for a specific action to be taken by a voter personally, such intent can be incorporated with ease. I therefore conclude that there is no general prohibition under Virginia law against the employment of a third party to assist a voter in returning his ballot via mail or drop-off location.

[Footnote: Although a third party generally is precluded from personally delivering a voter's completed ballot to the registrar, see § 24.2-707 (providing for "in person" delivery by the voter and excluding delivery by "personal courier service or other individual" from the definition of "mail"), the Code permits, in very narrowly prescribed circumstances, a qualified authorized designee to return a ballot directly to the registrar on a voter's behalf. See §§ 24.2-703.2 (providing for issuance and casting of replacement absentee ballots under specified conditions when necessary due to illness or disability of the voter); 24.2-705 (providing for issuance and casting of emergency absentee ballots under specified conditions when necessary due to medical emergencies of the voter or his close family members).]

Conclusion

Accordingly, it is my opinion that, under current Virginia law, a third party, upon request of the voter, may return a mailed absentee ballot through the mail or at a drop-off location.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General

[Footnote: In reaching this conclusion I render no opinion on the wisdom of the current statutory framework governing mailed absentee ballots. This Office recognizes that "[t]he wisdom and propriety of [] statute[s] come within the province of the legislature."]