Can a Virginia political party still nominate by convention if it excludes deployed soldiers, college students out of state, or voters with disabilities?

Plain-English summary

House Minority Leader Todd Gilbert asked the AG whether the 2021 amendment to § 24.2-509(A) means political parties in Virginia can no longer nominate by convention. The AG said no, conventions aren't banned outright, but they can't be used if they would, in practice, exclude five groups of voters: active-duty military, voters temporarily living outside the United States, students attending school or college, voters with a disability, and voters quarantined under a public-health order.

The statute doesn't prohibit any particular method (convention, primary, caucus, party canvass) on its face. What it bans is the "practical effect" of a method on those five categories. So:

• A standard one-day in-person convention almost certainly does exclude many in those groups (you can't be there if you're deployed in a war zone), and would violate the statute.
• A convention with proper absentee balloting, accommodations for voters with disabilities, and a mechanism for service members to participate remotely could still be legal.
• The party has to fund and run any accommodations itself, since the state only funds and conducts primaries.

There is also a DOD-imposed wrinkle: active-duty military members are prohibited by DOD Directive 1344.10 from "participating" in partisan political conventions beyond mere attendance. The AG concluded that means a convention-based nomination that doesn't make alternatives available to military members has the "practical effect" of excluding them regardless of how the party tries to accommodate them.

What this means for you

If you are a Virginia political party official planning a nomination method

The 2021 amendment changed the legal landscape. You can still choose between primary, convention, canvass, mass meeting, or caucus, but your choice has to be defensible against the test of "practical effect of excluding" the five covered voter groups. A few practical filters:

• A traditional one-day, one-location convention that requires physical presence to vote almost certainly fails the test for deployed military and many voters with disabilities. Add a robust remote-participation mechanism, or pick a different method.
• "Firehouse primary" / party canvass concentrated at one or a few locations with no absentee option will likely fail too, for the same reason.
• A state-run primary is the simplest path to compliance, since the Department of Elections already handles military, overseas, and disability accommodations under existing statute (§§ 24.2-451 to -470).
• Your party plan must be funded by your party (Fitzgerald v. Alcorn). If you choose an alternative method, the cost of accommodating covered voters falls on the party, not the Commonwealth.

The AG flagged DOD Directive 1344.10 as a structural problem for conventions: active-duty service members can't "participate" beyond attending, so a convention nomination that depends on participation arguably cannot be made compliant for them at all. If your party is determined to keep a convention, you may want legal review on whether the participation barrier for service members can be overcome.

If you are a covered voter (military, overseas, student, person with a disability, or quarantined)

The statute gives you a basis to insist on a nomination method that doesn't shut you out. If your party announces a convention that requires physical presence with no remote alternative, you (or someone with standing) can challenge the choice under § 24.2-509(A). The remedy is not specified in the statute, but a court could enjoin the method or order accommodations.

For active-duty military, the opinion notes that the DOD and the Virginia Department of Elections make extraordinary efforts to accommodate state-run primaries (notice to service members, expanded absentee request deadlines, electronic ballot requests). The 2021 amendment reaches party-run nomination methods, which the opinion says must address the same challenges in a like manner.

If you are a candidate considering whether to run

Under the opinion, the nomination method affects whether covered voters in a candidate's base can participate. A convention that requires physical presence at a single location and date can have the practical effect of excluding active-duty military, overseas voters, students, voters with disabilities, and quarantined voters, which § 24.2-509(A) forbids.

If you are an election attorney

The opinion does two important things. First, it confirms that the 2021 amendment didn't ban conventions on their face. The test is the practical effect on covered voters, not the nominal method. Second, it imports DOD Directive 1344.10 into the state-law analysis, which is unusual and creates a structural problem for conventions: service members literally cannot "participate" in a partisan convention beyond passive attendance, so even a heroic effort at remote accommodation may not save a convention method as to that group.

The opinion declined to address party-plan interpretation or fact-specific scenarios, citing the long-standing limits on AG advisory opinions. Litigation will be where the boundaries get drawn.

Common questions

Q: Does the 2021 amendment ban political conventions?
A: No, not on its face. The AG was clear that the statute "does not contain a per se prohibition against any particular method of nominating candidates." It bans methods whose "practical effect" is to exclude covered voters. A convention with sufficient remote participation could in theory pass the test.

Q: Who are the "covered voters" the statute protects?
A: Five categories in § 24.2-509(A): (1) active-duty members of a uniformed service as defined in § 24.2-452; (2) people temporarily residing outside the United States; (3) students attending a school or institution of higher education; (4) people with a disability; and (5) people who have, or may have been exposed to, a communicable disease of public health threat as defined in § 32.1-48.06.

Q: Why is active-duty military special compared to the other categories?
A: The DOD itself, under Directive 1344.10, prohibits active-duty service members from "participating" in partisan political conventions beyond passive attendance. They can't help run a campaign, can't vote in conventions while in uniform, and can't engage in partisan political fundraising. So even if a party tries to set up remote participation, the federal regulation blocks the service member from participating, which by definition means the method has the practical effect of excluding them.

Q: Can the party offer absentee ballots or remote voting for a convention?
A: Yes, and if it wants to use a convention method legally, it likely has to. The AG pointed to the accommodations the DOD and the Virginia Department of Elections make for state-run primaries (notice to service members, expanded absentee request deadlines, electronic ballot requests) as the kind of effort a party would need to match for covered voters in an alternative method.

Q: What happens if a party uses a method that excludes covered voters anyway?
A: The statute doesn't spell out a remedy, but a court could enjoin the use of the method, order accommodations, or potentially invalidate the resulting nomination. Standing and process would be litigated on the facts. The AG noted this is fact-specific and outside the scope of an advisory opinion.

Q: When did the statute change, and why?
A: The opinion explains that the amendment was based on legislation Delegate Dan Helmer introduced in 2021 and took effect January 1, 2024. The AG notes the new language was enacted in the wake of the COVID-19 pandemic and the restrictions it placed on public gatherings, but adds that the statute has broader effect: it covers not only health-related concerns but other reasons eligible participants might be unable to take part.

Background and statutory framework

Virginia law has long given political parties broad discretion to choose their own nomination method. Section 24.2-508 gives parties the right to nominate their candidates, and § 24.2-509(A) gives party authorities the right to decide whether nomination happens via state-run primary or by another method like a convention, caucus, mass meeting, or canvass. The General Assembly funds and conducts primaries (§§ 24.2-512 to -538), but the party itself funds and conducts any alternative method (Fitzgerald v. Alcorn).

Pre-2021, the only constraint on the party's choice was federal constitutional doctrine and case law. The Supreme Court has held that states have a strong interest in widening democratic participation (Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)), and the Ninth Circuit had upheld state laws favoring primaries (Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992)). But Virginia statute left method choice largely to the party.

The 2021 amendment (effective January 1, 2024) injected a substantive limit: the chosen method cannot have the "practical effect of excluding participation" by the five covered groups. The AG read this as a substantive, fact-driven test rather than a flat prohibition on any particular form.

The Uniform Military and Overseas Voters Act (§§ 24.2-451 to -470) is the operational template for what an accommodating method looks like in primaries. Among other things, it requires publication of election notices to service members, accelerated absentee-ballot deadlines, and electronic ballot delivery. A party-run alternative method would need to reach a comparable accommodation level to satisfy § 24.2-509(A) for the covered groups.

Citations and references

Statutes:

• Va. Code Ann. § 24.2-509 (method of nomination, as amended)
• Va. Code Ann. § 24.2-452 (uniformed services definition)
• Uniform Military and Overseas Voters Act §§ 24.2-451 to -470

Cases:

• Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) (U.S. Supreme Court): states may require parties to use democratic nomination processes.
• Lopez Torres, 552 U.S. 196 (2008) (U.S. Supreme Court): states may require party-candidate selection through processes favorable to insurgents.
• Fitzgerald v. Alcorn, 285 F. Supp. 3d 922 (W.D. Va. 2018), aff'd 913 F.3d 393 (4th Cir. 2019): Virginia funds primaries; parties fund other methods.

Federal regulation:

• DOD Directive 1344.10 (political activities by members of the armed forces), available via DOD.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-003-Gilbert-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

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 16, 2024

The Honorable C. Todd Gilbert
Minority Leader, Virginia House of Delegates
General Assembly Building, Room 1401
201 North 9th Street
Richmond, Virginia 23218

Dear Leader Gilbert:

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 inquire whether Code § 24.2-509(A) operates to prohibit a political party from selecting methods other than a state-run primary as a means of nominating a candidate for office.

Response

It is my opinion that, under § 24.2-509(A), a political party may not select a nomination method that de facto requires covered voters to be physically present to participate or that otherwise has the practical effect of excluding their participation.

Applicable Law and Discussion

Virginia law recognizes that political parties in the Commonwealth may "provide for the nomination of [their] candidates, including the nomination of [their] candidates for office in case of any vacancy." More specifically, the "duly constituted authorities" of each party "shall have the right to determine the method by which a party nomination" for an elected office occurs. A political party may choose to nominate its candidate through a state-run primary, which is conducted and funded by the Commonwealth according to state law. Alternatively, a party may nominate its candidate "by methods other than a primary." When a party opts out of a state-run primary, the party must use one of the alternate methods authorized by the party, as set forth in the party plan. Historically, other "[o]ptions include (but are not limited to) a party convention; a mass meeting, also known as a 'caucus'; and a party canvass or unassembled caucus, also known as a 'firehouse primary.'"

In addition to a primary, which is open to "[a]ll persons qualified to vote," the current plans for the Democratic and Republican parties in Virginia authorize the parties to nominate their candidates for certain offices via a more limited party canvass, caucus, or convention. "A party canvass resembles a primary but is party-run and closed to non-members." In comparison, "[c]onventions and [caucuses] occur at a single location and are similar to legislative assemblies governed by parliamentary procedures." A convention differs from a caucus in that, while a convention will "require Party members to elect delegates to participate in the nomination process," a caucus does "not involve representative delegates." Regardless of which alternative method is chosen, once chosen, the alternative methods must be "conducted according to the [pertinent] provisions of the appropriate party plan."

Although "[a] party can use any method available to it by law and by its party plan to select its nominees[,]" choosing a selection process is a "political privilege subject to regulation by the legislature." Accordingly, "[c]ase law makes it clear that the rights of political parties to nominate 'whomever they want, however they want,' is not absolute." Indeed, courts recognize that regulation of the nomination process is linked to "a strong governmental interest in widening participation in the democratic process" and they have upheld statutes generally favoring a primary over other nominating methods.

Your inquiry specifically involves the application of newly effective provisions of § 24.2-509(A). Based on legislation introduced by Delegate Dan Helmer in 2021, the General Assembly amended § 24.2-509(A) to add language that prohibits a party from selecting a particular nomination method when the method does not meet certain participation rule requirements. Per the amendment, as of January 1, 2024, a party may not select a nomination method

if such method will have the practical effect of excluding participation in the nominating process by qualified voters who are otherwise eligible to participate in the nominating process under that political party's rules but are unable to attend meetings because they are (i) a member of a uniformed service, as defined in § 24.2-452, on active duty; (ii) temporarily residing outside of the United States; (iii) a student attending a school or institution of higher education; (iv) a person with a disability; or (v) a person who has a communicable disease of public health threat as defined in § 32.1-48.06 or who may have come in contact with a person with such disease.

You ask whether this language operates to preclude a political party from using nominating methods other than a state-run primary.

The "primary objective" in construing a statute is "to ascertain and give effect to legislative intent[.]" Legislative intent, in turn, must be gathered from the words used in the statute, and "[w]hen a statute's language is plain and unambiguous, courts are bound by the plain meaning of that language." Nevertheless, when applying statutory language, courts "consider 'the evil sought to be corrected by the legislature' when it adopted the pertinent language."

Per its terms, the statute, as amended, prohibits a party from using a nominating process that has the "practical effect of excluding participation" by five enumerated categories of qualified voters. Section 24.2-509(A) does not contain a per se prohibition against any particular method of nominating candidates. Rather, the focus of the prohibition is the "practical effect" of a particular method, if chosen. Accordingly, whether § 24.2-509(A) prohibits a particular nominating method depends on whether the process chosen, in practice rather than in theory, excludes participation by the covered voters.

I note that the new language of § 24.2-509(A) was enacted in the wake of the COVID-19 pandemic and the ensuing restrictions imposed on public gatherings. One effect of the amendment is to ensure a party selects a nomination method that does not have the practical effect of excluding those qualified voters, who despite otherwise being eligible to participate under party rules, would be unable to participate because of such restrictions. The statute, however, has broader effect in that it considers not only health-related concerns, but also other reasons that eligible participants might not be able to participate in a nominating process.

Participation in each of the above alternative nominating contests, party canvass, caucus, and convention, historically has depended on the participants' personal attendance and physical presence: voters in a party canvass must physically cast their votes at designated locations and caucuses, and conventions often require attendance in person in a designated place and on a given date until a winner is declared. In amending § 24.2-509(A), the General Assembly afforded protection to voters whose physical presence is more likely to be rendered impractical due to their falling within one of the enumerated classes; accordingly, the new terms of the statute make clear that a political party may not use a nomination method that limits their participation by requiring them to be physically present at a designated location.

Section 24.2-509(A) encompasses more than simply physical presence: it forbids those nomination processes that have the "practical effect of excluding" covered voters from participation. To illustrate, I will comment on the first category of covered voters, active-duty members of the uniformed services, whose duty requirements can create substantial limitations on the ability to participate (or even communicate) with a party conducting its own nomination process. For example, an effort to allow participation remotely or through some form of absentee ballots necessarily would have to account for and allow participation of those serving in combat zones or deployed on submarines. I note that with regard to state-run primaries, the Department of Defense (DOD) and the Virginia Department of Elections make extraordinary efforts to address these challenges, including providing notice to servicemembers about voting options, expanded absentee ballot request deadlines, and an ability to request an absentee ballot electronically. A political party's failure to address these challenges in a like manner when nominating a candidate through an alternate method could have the practical effect of excluding participation by military personnel, in violation of § 24.2-509(A).

I must note an additional challenge specific to participation by active-duty members of a uniformed service. The DOD currently limits their ability to "engage in partisan political activity." Per DOD Directive 1344.10, partisan political activity includes any "[a]ctivity supporting or relating to candidates representing... State political parties"; and "member[s] of the Armed Forces on active duty shall not... [p]articipate in partisan political fundraising activities... rallies, conventions..., management of campaigns, or debates, either on one's own behalf or on that of another, without respect to uniform or inference of official sponsorship, approval, or endorsement." Participation beyond "mere attendance" and spectatorship at a convention is thus prohibited. Accordingly, a nominating method, including a convention, that, by virtue of this regulation, operates to preclude participation by active-duty service members in the nominating selection process contravenes § 24.2-509(A): its "practical effect" is to exclude covered voters, irrespective of physical capacity.

In sum, as of January 1, 2024, political parties are prohibited by § 24.2-509(A) from using a nominating method to the extent the method, in effect, excludes participation of covered voters. Consequently, any nomination process, including a convention, that precludes them from participating in the nominating process, whether by requiring the voter's physical presence at a designated location or other factor, is impermissible. As with many state laws regulating candidate nomination processes, current § 24.2-509(A) thus "enhance[s] the democratic character of the election process" by ensuring that eligible covered voters have access to candidate nomination procedures.

Conclusion

Accordingly, it is my opinion that, under Code § 24.2-509(A), a political party may not select a nomination method, including a convention, that de facto requires covered voters to be physically present to participate or that otherwise has the practical effect of excluding their participation.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General