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

Virginia's political parties may choose a state-run primary or another nomination method authorized by their party plans. House Minority Leader C. Todd Gilbert asked whether an amendment to the nomination statute prohibits methods other than a primary.

Attorney General Jason Miyares answered that no particular method is barred by name. A party may not, however, choose a method that in practice requires covered voters to be physically present or otherwise has the practical effect of excluding them from the nomination process. The amendment protects otherwise eligible voters who cannot attend meetings because they are active-duty uniformed service members, temporarily outside the United States, students, people with disabilities, or people affected by a specified communicable disease.

The opinion says conventions, caucuses, and party canvasses have historically depended on physical presence. It also says a party's efforts to accommodate service members must account for circumstances such as combat-zone or submarine deployment. The Department of Defense and Virginia's Department of Elections make special efforts to allow military participation in state-run primaries; a party's failure to address comparable challenges in another method could exclude service members in practice.

The AG identifies another barrier: a Defense Department directive bars active-duty service members from participating in partisan political conventions beyond mere attendance and spectatorship, “without respect to uniform or inference of official sponsorship, approval, or endorsement.” A convention that consequently prevents them from participating in candidate selection contravenes the Virginia statute, irrespective of whether they could physically attend.

What this means for you

If you plan a party nomination

Evaluate whether the chosen process actually permits otherwise eligible covered voters to participate. The opinion says a method that de facto requires physical attendance, including a convention, is impermissible when it excludes those voters. It does not decide whether a particular party plan or proposed accommodation satisfies the statute.

If you are an active-duty service member

The opinion says the Defense Department directive restricts participation in partisan conventions beyond attendance and spectatorship without regard to whether you wear a uniform. The AG treats that restriction as relevant to whether a party's nomination method has the practical effect of excluding you from selection.

If you are another covered voter

The opinion says the statute protects eligible participants who cannot attend meetings because of the listed circumstances. Its test asks about actual participation in the nomination process. It does not decide a specific voter's claim or a court remedy.

Common questions

Q: Does the amendment ban every convention?

A: No. The opinion says the statute contains no per se prohibition on a particular method. A convention is impermissible to the extent its practical effect is to exclude otherwise eligible covered voters.

Q: Is physical attendance the only issue?

A: No. The opinion says the statute also reaches other factors that prevent covered voters from participating. It uses the Defense Department directive's restriction on active-duty members' partisan-convention participation as an example.

Q: Does the military restriction apply only when a member is in uniform?

A: No. The directive language quoted in the opinion applies “without respect to uniform or inference of official sponsorship, approval, or endorsement.” The opinion says participation beyond mere attendance and spectatorship at a convention is prohibited.

Q: Can a party use absentee or remote participation?

A: The opinion discusses those possibilities but does not approve a particular design. It says the party would need to account for service members whose deployments limit participation or even communication.

Q: Did the AG decide what remedy follows a violation?

A: No. The opinion answers which kinds of nomination methods a party may select under the amended statute. It does not prescribe a judicial remedy.

Background and statutory framework

The opinion says Virginia parties historically could use a primary or a party-authorized alternative, including a convention, caucus, or party canvass. A state-run primary is conducted and funded by the Commonwealth; a party conducts an alternative method according to its party plan.

The amendment effective January 1, 2024, prohibits a method whose practical effect is to exclude otherwise eligible voters in the five specified groups. The AG emphasizes the method's operation in practice. A method is not saved merely because the law or party plan does not expressly exclude those voters.

The opinion discusses active-duty service members in detail. Deployment can make participation or communication difficult, and a Defense Department directive restricts partisan-convention participation beyond attendance. The AG concludes that a method, including a convention, cannot be used when such factors prevent covered voters from taking part in the nomination process.

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