I am running as an independent candidate in Virginia. Do petition signatures my volunteers collected on January 1 of the election year count toward my ballot-access total?
Plain-English summary
The Spotsylvania County Electoral Board chairman asked Attorney General Jason Miyares two practical questions about candidate petitions:
- If a person collects signatures on a petition page on January 1 of the election year, do those signatures count toward the minimum number an independent candidate needs to get on the November ballot?
- If a candidate has already been certified to the ballot but it then turns out enough signatures were invalid that the candidate no longer qualifies, what happens?
Miyares answered the first question with a strict reading of the statute. Section 24.2-506(A) says petitions must be "signed by the number of qualified voters specified [by law] after January 1 of the year in which the election is held." The word "after" means later in time. January 1 is not "after January 1," so signatures collected on January 1 do not count. Only signatures from January 2 and onward qualify.
He pointed to two reinforcing observations. First, the General Assembly knows how to write "on or after" when it wants both the trigger date and later dates to count, and it used "on or after" in many other election-law provisions (electronic pollbooks, certain referendum petitions, PAC filings). The legislature's choice of "after" instead of "on or after" in § 24.2-506(A) was deliberate. Second, the Department of Elections' own petition forms instruct signers that the date signed "must be after January 1st of [the] election year." Administrative practice tracks the AG's reading.
He also noted that the regulation governing petition-signature review (1 VAC 20-50-20) treats some kinds of irregularities as immaterial (a missing year on a date, for example) but the lack of any date is immaterial only when the page can affirmatively be shown to fall within the qualifying period using surrounding signatures' dates. Reviewers are explicitly instructed not to count a signature where the date cannot be established to fall within the permitted period.
On the second question, Miyares declined to give a one-line answer because the right action depends on facts and timing. § 24.2-504 says non-qualified candidates' names "shall not be printed upon any official ballots." If the candidate is disqualified before ballots go to print, the answer is straightforward: print the ballots without the disqualified candidate. After ballots have gone to print or been mailed (Virginia absentee voting starts 45 days before election day), § 24.2-612.1 gives the Department of Elections discretion to direct electoral boards on whether to reprint, correct, or notify voters. Federal court decisions like Perry v. Judd and Curtin v. State Board of Elections recognize that late-stage corrections can be administratively burdensome and that courts may decline to disrupt the status quo. If a disqualified candidate ends up on the ballot anyway and wins the election, the AG cited a 1959-60 opinion to say the right to qualify and hold office cannot be successfully challenged on the ground that the name was printed on the ballot.
What this means for you
If you are an independent candidate or your campaign is collecting petition signatures
Do not start signature collection until January 2. Any pages dated January 1 will not count, regardless of how many signatures are on them. Instruct your circulators in writing about this rule. The cost of a January 1 page is throwing away every signature on that page.
Build a buffer above the statutory minimum. The Spotsylvania question came up because a candidate was challenged after certification and it turned out invalid signatures dropped the count below the minimum. If you are right at the minimum, you are exposed to exactly that scenario. Most experienced campaigns aim for 1.5x to 2x the minimum to cushion against verification challenges.
If you are already in the middle of a challenge process and your January 1 signatures were counted, this AG opinion supports excluding those signatures. Cite it in your response or in any litigation.
If you are a registrar or electoral board member
Apply the after-January-1 rule strictly when you verify petition signatures. The petition page itself states that the date signed must be after January 1 of the election year, so signers and circulators are on notice. The AG opinion gives you cover when a candidate or campaign argues that January 1 signatures should count.
If a date is missing entirely, the regulation (1 VAC 20-50-20(D)(8)) lets you treat it as immaterial only if previous and subsequent dated signatures on the same petition page bracket the missing date within the qualifying window. Otherwise, the signature does not count.
If a candidate has been certified and you later find a disqualifying number of invalid signatures, contact the Department of Elections immediately. The next steps depend on how close to election day you are, whether absentee ballots have been mailed, and whether ballots have been printed. § 24.2-612.1 gives Elections the discretion to choose between reprinting, correcting, and notifying voters. The General Registrars and Electoral Boards Handbook (cited at § 16.5.3) describes the in-system corrections you can make through VERIS.
If you are a Commonwealth's Attorney or counsel to an electoral board
The opinion confirms two principles that often surface in election litigation. First, plain-meaning canons govern signature-rule disputes; you do not need to look for legislative history to interpret "after January 1." Second, the right remedy after late-stage disqualification is administrative discretion under § 24.2-612.1, not an automatic ballot reprint. Federal courts (Perry, Curtin, Marcellus, Tittle, all in the cited footnote) have repeatedly recognized that maintaining the status quo can be appropriate when challenges land near election day.
If you are a political party chair
For primary candidates, § 24.2-525(A) imposes a parallel rule. The same January 1 / January 2 distinction applies to primary candidate petitions, with a distinct filing deadline (§ 24.2-522). Educate party-chairperson volunteers on both rules.
If you are a journalist covering ballot-access disputes
The takeaway is that the rule on signature-date eligibility is sharp and well-established (the AG cites a 2018 Virginia circuit court case, Democratic Party v. Piper, that already applied this rule), but the rule on what to do when a certified candidate becomes disqualified is fact-specific and discretionary. Stories about late-stage challenges should focus on the timing, the size of the disqualifying gap, and what the Department of Elections has authority to do, not on a single bright-line rule.
Common questions
Q: Why does January 1 not count? Isn't it the start of the new year?
A: It is. But the statute says "after January 1," and the AG took "after" to mean "subsequent in time to" or "at a later time than." January 1 is itself the day, not a later day. So the qualifying window starts January 2.
Q: Does this same rule apply to primary candidates and to referendum petitions?
A: For primary candidates, yes. § 24.2-521(A) parallels § 24.2-506(A). For referendum petitions, the rule is different: § 24.2-684.1 uses "on or after January 1, 1994," which the AG cited as evidence the legislature knows how to use that phrase when it wants both the trigger date and later dates to count.
Q: What if my petition page is dated December 31 of the prior year?
A: It does not count, for the same plain-language reason. December 31 is before January 1, so it is not "after January 1" of the election year.
Q: I missed the January 2 cutoff. Can I just re-collect signatures dated correctly?
A: Yes, as long as you can complete enough valid signatures by the third Tuesday in June filing deadline. The petition is filed all at once, so you can include valid pages collected in May after invalid early pages are discarded.
Q: What if my date format is just "January 2024" without a day?
A: The regulation (1 VAC 20-50-20(D)(9)) treats omission of just the year as immaterial. Omission of the day is not specifically addressed. Reviewers will look for surrounding signatures and dates to determine if the page falls within the qualifying period. Best practice is to use complete MM/DD/YYYY dates on every signature.
Q: Can the electoral board disqualify a candidate after certification?
A: The opinion confirms that the General Assembly contemplated post-certification disqualification (citing § 24.2-612.1), so yes, but the actions available depend on timing. Before ballots are printed, the candidate's name simply does not appear. After ballots are printed or absentee voting has begun, the Department of Elections decides between reprinting, correcting, and notifying voters.
Q: What if the disqualified candidate's name stays on the ballot and wins?
A: A 1959-60 AG opinion cited here says the right to qualify and hold the office cannot be successfully challenged on the basis that the name was printed on the ballot. The election results stand.
Background and statutory framework
Virginia's election law is in Title 24.2. § 24.2-504 sets the foundational rule that only candidates fulfilling all qualifications shall have their name on the ballot. § 24.2-506 imposes the petition requirement on independent candidates and sets the after-January-1 timing rule. § 24.2-521 imposes parallel rules on primary candidates. § 24.2-507 sets the third-Tuesday-in-June filing deadline for petitions for November general elections.
The State Board of Elections is authorized by § 24.2-506(B) to set petition-review standards. The implementing regulation, 1 VAC 20-50-20, sets out which kinds of irregularities are immaterial (missing year on date, certain other minor errors) and which are material (signature missing, date entirely undeterminable, signer not registered).
The Department of Elections (ELECT) operates VERIS, the Virginia Election and Registration Information System. ELECT's General Registrars and Electoral Boards Handbook documents the procedures that registrars use to verify petitions and to process late-stage candidate changes. ELECT's standard petition form (Form ELECT-506/521) instructs the signer that the date signed "must be after January 1st of [the] election year," tracking the AG's reading.
When a certified candidate becomes disqualified, § 24.2-612.1 provides the framework for the Department of Elections to direct electoral boards. The provision contemplates the realistic situation where ballots are already printed or absentee voting has started; the Department's options are to direct reprinting, deletion of the candidate's name, or notice to voters. Federal court decisions (Perry v. Judd, Curtin v. State Board of Elections, Tittle v. State Board of Elections, Marcellus v. State Board of Elections) have all recognized that election-law challenges arriving near the election can be denied on equitable grounds because of the disruption a late change would cause.
Citations and references
Statutes:
- § 24.2-506, Va. Code Ann. (independent candidate petitions)
- § 24.2-504, Va. Code Ann. (ballot-printing eligibility)
- § 24.2-612.1, Va. Code Ann. (ballot correction on disqualification)
- § 24.2-200, Va. Code Ann. (term commencement dates)
- § 24.2-701.1, Va. Code Ann. (45-day absentee voting)
- 1 VAC 20-50-20 (petition signature standards)
Cases:
- City of Hampton v. Williamson, 887 S.E.2d 555 (Va. 2023) (statutory construction primary objective)
- Democratic Party of Va. v. Piper, 102 Va. Cir. 478 (2018) (each signature must be after January 1)
- Perry v. Judd, 471 F. App'x 219 (4th Cir. 2012) (election-law challenges near ballot printing are particularly disruptive)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-048-Curtis-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
202 North Ninth Street
Richmond, Virginia 23219
December 21, 2023
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
Jason S. Miyares
Attorney General
Mr. Dustin Curtis
Chairman, Spotsylvania County Electoral Board
Post Office Box 2819
Woodbridge, Virginia 22195
Dear Mr. Curtis:
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 ask whether petition signatures collected on January 1 count towards the minimum number of signatures required for an independent candidate to gain access to the ballot for a succeeding November general election. You also seek guidance regarding what actions should be taken in the event a disqualifying number of signatures are proven invalid after a particular individual has been certified as an independent candidate.
Response
It is my opinion that signatures collected on January 1 do not count towards the minimum number of signatures required to be collected by independent candidates seeking to have their name printed on the ballot. It is my further opinion that what actions may be available in the scenario you describe is dependent on the attendant facts and circumstances and therefore is a question beyond the scope of an opinion of this Office.
Applicable Law and Discussion
Under Virginia's election laws, "[o]nly a person fulfilling all the requirements of a candidate shall have his name printed on the ballot . . . ." One such requirement is the filing of a petition for candidacy. Each petition must contain a minimum number of signatures of qualified voters; the minimum number depends on the office sought. An independent candidate seeking office at a November general election must file his completed petition with the local registrar by 7:00 p.m. on the third Tuesday in June. In requiring the signed petitions, the General Assembly specifically has directed, among other conditions, that the petitions be "signed by the number of qualified voters specified [by law] after January 1 of the year in which the election is held." You ask whether signatures collected on January 1 comport with this requirement.
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." "[W]ords not defined in a statute are to be construed according to their ordinary meaning," given the context in which they are used. The ordinary meaning of the term "after" is "[s]ubsequent in time to; at a later time than." This definition, when applied to the language at hand, clearly indicates that the required signatures must be collected on a date that is "subsequent ... to" or "at a later time than" January 1. Because January 1 makes up an entire day, rather than a specific time of day, only January 2 and later dates can be said to be "after" January 1. I therefore must conclude that a petition signature obtained January 1 was not "signed by the . . . voter[] . . . after January 1 of the [relevant] year" as contemplated under Virginia law.
An examination of other parts of the Code of Virginia affirms that a signature obtained January 1 is not equivalent to one collected after January 1. In other provisions of Virginia's election law, the General Assembly has used the phrase "on or after" to specify instances in which a particular action may be carried out either "on" or "after" a discrete day. Courts generally consider differences in language in related statutes to be "quite telling." Had the General Assembly intended to allow for the collection of signatures to begin on January 1, it could have said so. Accordingly, the fact that it has not supports the conclusion that the timeframe allotted for qualifying signatures does not extend to those collected prior to January 2, including those obtained on January 1.
Although some irregularities in candidate petitions can be deemed immaterial to candidate qualification, I conclude that signatures collected on January 1 of the relevant election year will not count towards the minimum number of signatures required for ballot access. When read with the prescribed filing deadlines, the plain language directing that the petition be signed by voters "after January 1," serves to establish fixed, equally binding time frames for the collection of signatures. Accommodation for signatures collected outside these dates would circumvent the express intent of the General Assembly, as articulated above. In contrast, strict adherence to these clearly defined time requirements not only effectuates the legislative intent, but it also promotes fairness in the treatment of those seeking office. I therefore conclude that only those signatures collected on January 2 or later will count towards a potential candidate's signature requirement.
In addition, regulations that set forth limited circumstances under which "a petition or a petition signature should not be rendered invalid" by virtue of an immaterial error or omission do not expressly address the instant question. The lack of any date on a signature, however, is deemed immaterial only when "a period of time that qualifies can affirmatively be established with previous and subsequent dates provided by other signers on the petition page." Moreover, in detailing the petition verification process, official guidance materials instruct reviewers as follows: "Do not check signatures when the date signed cannot be established to be within the permitted time period for the petition." The prescribed petition form itself states that the "Date Signed" "Must be after January 1st of [the] election year." The language used in implementing the statutory date requirement thus further evinces that timely execution of the signature is essential to its status as a qualifying signature. Consequently, I conclude that signatures obtained outside the permitted statutory time frame do not count towards a candidate's minimum number of required signatures. Whether a particular signature, however, has been collected on a qualifying date is a question of fact that is beyond the scope of an opinion of this Office.
With respect to your second question, I must advise that the law is clear that the name of a candidate who is not qualified to have his name printed on the ballot "shall not be printed upon any official ballots." Accordingly, if a person seeking office is officially deemed no longer qualified to be a ballot candidate, prior to the "drop dead" date to begin printing ballots in order to meet applicable ballot-availability deadlines, then no ballots with the non-qualifying person shall be printed or used, and only ballots without the person's name printed can be made available to voters. When those deadlines have passed, however, the Department of Elections is vested with the authority, after "tak[ing] into account the time available before the election and the status of the ballots for the election[,]" to use its discretion "to direct the electoral boards on how to proceed to print the ballot without the candidate's name, correct the ballot to delete the candidate's name, or provide notice to voters" that the individual is not qualified to appear on the ballot. Courts recognize that administrative burdens and voter confusion can render late-hour corrections inappropriate and, on that basis, maintain the status quo. Regardless of what action, if any, is taken, should an unqualified candidate erroneously appear on the ballot and receive the majority of votes cast, he will be elected and "his right to qualify and hold the office cannot be successfully challenged upon the ground that his name was printed on the ballot" under these circumstances.
Conclusion
Accordingly, it is my opinion that signatures collected on January 1 do not count towards the minimum number of signatures required to be collected by prospective independent candidates seeking to have their name printed on the ballot for election to local office at a November general election. What actions are available when a disqualifying number of signatures are proven invalid after a particular individual has been deemed a qualified candidate depends on the specific attendant facts and circumstances.
With kindest regards, I am,
Very truly yours,
Jason S. Miyares
Attorney General