Can a Virginia voter demand that their ballot be counted by hand instead of by a scanning machine?

Subject

Whether Article II, § 3 of the Virginia Constitution gives an individual voter the right to demand that a cast ballot be counted by hand instead of by machine.

Plain-English summary

The Chair of the Hanover County Electoral Board asked AG Jason Miyares whether the Virginia Constitution gives voters a personal right to choose hand counting over machine counting. The answer is no.

Article II, § 3 of the Virginia Constitution sets out the "Method of voting." It says, in relevant part, that "[i]n elections by the people . . . [v]oting shall be by ballot or by machines for receiving, recording, and counting votes cast." The AG focused on a single word: "or." In ordinary English the word "or" is disjunctive. It signals that two alternatives are equally available, and using one means the other does not have to be used. The Constitution authorizes voting by ballot, and it authorizes voting by machines, and either method satisfies the constitutional command.

Voters do have a right to cast a vote and have it counted. They do not have a right to pick the counting method. That choice is left to the General Assembly under Article II, § 4, which gives the legislature broad authority over the time, place, manner, conduct, and administration of elections.

The General Assembly has used that authority to require ballot scanner machines at every precinct in every election under § 24.2-626(A). Direct-recording electronic machines (the touchscreen-only kind) are prohibited under § 24.2-626(B). Paper ballots that get hand counted are limited by § 24.2-646.1 to a specific list of situations: when paper is the only ballot in the precinct, when voting equipment is broken or unavailable, when a voter is voting outside the polling place under § 24.2-649.1, when a voter casts a provisional ballot, when an absentee paper ballot is used, and in certain federal and presidential elections. There are also other circumstances where hand counting kicks in, including recounts (§ 24.2-802.2), risk-limiting audits (§ 24.2-671.2), and when a scanner is not available (§ 24.2-642(B)).

The AG also addressed the practical backdrop. The Virginia Department of Elections issued an Official Advisory on March 4, 2024, telling localities that voters cannot demand that their ballot be hand counted instead of run through electronic counting machines. The opinion concludes that ELECT's guidance does not conflict with Article II, § 3.

What this means for you

If you are a voter who wants your ballot counted by hand

You do not have a constitutional right to choose. The election officer will provide the ballot prescribed for that precinct (almost always a scannable paper ballot) and § 24.2-1011 requires you to vote on the ballot you are given. If you refuse to use a scanner, you do not get a hand count of your individual ballot. The remedies available to you are political (lobby the General Assembly to change the system) or, in narrow cases, legal (challenge the result in a recount, where hand counting may apply to specific ballots, under § 24.2-802.2). Election integrity concerns are legitimate, but the venue for those concerns is statutory, not a personal demand at your polling place.

If you are a member of an electoral board or general registrar

Treat any voter request to "count this by hand" as a request that does not have a legal basis you must honor. Tell the voter their ballot will be processed through the precinct's scanner, point them to the post-election audit and recount procedures if they want assurance about counting accuracy, and document the request if it escalates. Risk-limiting audits under § 24.2-671.2 and recounts under § 24.2-802.2 are the formal channels where hand counting comes into play, and you should be ready to explain them.

If a precinct experiences a scanner outage, § 24.2-642(B) allows manual counting at the direction of the electoral board. That is the operational backstop, not a voter-by-voter election. The AG opinion does not change any of those existing procedures; it confirms that they are constitutionally sufficient.

If you are a candidate or campaign

If your campaign is hearing complaints about machine counting, this opinion is the AG's current answer. The path to a hand-count regime in Virginia is legislative, not constitutional. If you believe a specific machine count was wrong, your remedy is the recount process under § 24.2-800 et seq.; the AG opinion confirms the General Assembly's broad authority but does not foreclose recount-stage hand counting in the situations the statutes already provide.

If you are an election integrity advocate or journalist

The AG's reasoning rests on the disjunctive "or" in Article II, § 3 and on the General Assembly's regulatory authority under Article II, § 4. The opinion does not address whether a particular machine has been certified properly, whether tabulation chain-of-custody was maintained, or whether risk-limiting audits are running on schedule. Those are separate factual and policy questions. If you are investigating those areas, this opinion narrows the constitutional terrain but leaves the operational and audit terrain wide open.

If you are an election law attorney

The opinion is a textualist reading of "by ballot or by machines" anchored in Old Dominion Committee for Fair Utility Rates v. State Corp. Comm'n, 294 Va. 168 (2017), and the long line of Virginia constitutional construction cases (Moore v. Pullem, Carlisle v. Hassan). It also draws on the 1968 Commission on Constitutional Revision report explaining that "ballots or machines, or both, in any combination" were intended to be available. Note that the AG cites prior AG opinions from 1955-56 and 1964-65 reaching the same result under earlier statutory schemes; the consistency over time is part of the analysis. As a practical matter, the opinion forecloses a personal-right argument under Article II, § 3 but says nothing about an as-applied challenge to a specific tabulation procedure.

Common questions

Q: Does this mean Virginia never hand counts ballots?
A: No. Hand counting happens in defined situations: precincts where paper ballots are the only ballots in use, scanner outages, certain absentee paper ballots, provisional ballots, certain federal and presidential elections (§ 24.2-402, § 24.2-453), recounts under § 24.2-802.2, and risk-limiting audits under § 24.2-671.2. What you cannot do is have an individual ballot pulled from the scanner queue at your request and counted by hand.

Q: Can I refuse to vote on the scanner ballot and demand a paper ballot?
A: Section 24.2-1011 requires you to vote on the ballot the election officers give you. Outside the statutory exceptions in § 24.2-646.1, that ballot will be the scannable ballot used at your precinct.

Q: What about the voting machines themselves? Are they constitutional?
A: Yes. The opinion notes that voting machines have been constitutionally permitted in Virginia since 1902, and the Supreme Court of Virginia in Falls Church Taxpayers League v. City of Falls Church, 203 Va. 604 (1962), recognized "the broad nature of authority" associated with the use of voting machines.

Q: Can the General Assembly change the rules to require hand counting?
A: Yes. Under Article II, § 4 the General Assembly has the power to regulate the time, place, manner, conduct, and administration of elections. The current default of machine counting is a statutory choice and could be revised by legislation.

Q: What about touchscreen voting machines?
A: Direct recording electronic machines (touchscreens that record the vote electronically without producing a paper ballot) are prohibited in Virginia under § 24.2-626(B). The current system is paper ballots scanned by ballot scanner machines.

Q: How do I make sure my ballot was counted?
A: Risk-limiting audits and recounts are the formal verification channels. Talk to your registrar about your county's post-election audit schedule. The AG opinion does not address audit specifics.

Q: What if my precinct's scanner breaks on Election Day?
A: Section 24.2-642(B) allows manual counting at the direction of the electoral board when an operable scanner is not available. That is a precinct-wide procedure, not a per-voter election.

Background and statutory framework

The Virginia Constitution sets the floor for elections in two key sections. Article II, § 3 ("Method of voting") authorizes voting "by ballot or by machines for receiving, recording, and counting votes cast." Article II, § 4 ("Powers and duties of General Assembly") gives the legislature broad authority to regulate election administration "not inconsistent with this Constitution."

The General Assembly's implementing scheme is built around § 24.2-626(A), which requires localities to provide for the use of electronic voting systems at all precincts for every election. Section 24.2-101 defines "voting system" to include "ballot scanner machines" (electronic counting machines into which a voter inserts a marked ballot to be scanned and tabulated) and direct recording electronic machines (currently prohibited under § 24.2-626(B)).

Paper ballots have a defined role under § 24.2-646.1. The statute says paper ballots are used only when (1) they are the only ballot in use in the precinct; (2) a voter is voting outside the polling place under § 24.2-649.1 (which covers curbside voting and other outside-the-polls scenarios); (3) the voter is casting a provisional ballot; (4) voting equipment is inoperable or otherwise unavailable; (5) for absentee voting under § 24.2-700 et seq.; or (6) in presidential or federal elections under § 24.2-402 or § 24.2-453. Section 24.2-1011 reinforces this by providing that a voter "is required to vote the particular ballot provided by the officers of election."

Hand counting itself appears in three additional places: § 24.2-642(B) (manual counting when an operable scanner is not available), § 24.2-802.2 (hand counting of certain ballots in a recount, including ballots rejected by a scanner), and § 24.2-671.2 (hand counting as necessary in a risk-limiting audit).

The constitutional construction principles. The opinion applies the standard Virginia rule that constitutional language is read by its plain meaning when clear (Scott v. Commonwealth, 247 Va. 379 (1994)), that statutes and constitutions are construed by ordinary rules of grammar (Moore v. Pullem, 150 Va. 174 (1928)), and that the constitution is read as a whole (Carlisle v. Hassan, 199 Va. 771 (1958)). The disjunctive "or" line of authority is well established in Virginia and the Fourth Circuit (Dollar Tree Stores v. Tefft, Rush v. Kijakazi).

The 1902 to present trajectory. The Constitution of 1902 separated the methods into two sections: § 27 (voting by ballot) and § 37 (legislative authority to provide for voting machines). The 1971 Constitution combined them into a single Article II, § 3. The 1968 Commission on Constitutional Revision report described the new provision as encompassing "both mechanical and electronic devices" and as allowing "ballots or machines, or both, in any combination (including future kinds of voting machines)."

Citations and references

Constitution:
- Va. Const. art. II, § 3 (Method of voting)
- Va. Const. art. II, § 4 (General Assembly authority)

Statutes:
- Va. Code Ann. § 24.2-101 (definitions)
- Va. Code Ann. § 24.2-626 (electronic voting systems)
- Va. Code Ann. § 24.2-642 (scanner unavailability)
- Va. Code Ann. § 24.2-646.1 (paper ballot situations)
- Va. Code Ann. § 24.2-671.2 (risk-limiting audits)
- Va. Code Ann. § 24.2-802.2 (recount hand counting)
- Va. Code Ann. § 24.2-1011 (voter must use provided ballot)

Cases:
- Old Dominion Committee for Fair Utility Rates v. State Corp. Comm'n, 294 Va. 168 (2017) (constitutional construction; plain meaning)
- Falls Church Taxpayers League v. City of Falls Church, 203 Va. 604 (1962) (broad authority for use of voting machines)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (constitutions written to be understood by voters)
- Dollar Tree Stores, Inc. v. Tefft, 69 Va. App. 15 (2018) (disjunctive "or")

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-023-Carter-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares
Attorney General

November 27, 2024

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

Mr. Michael C. Carter
Chair, Electoral Board of Hanover County
Post Office Box 470
Hanover, Virginia 23069
Dear Mr. Carter:
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 Article II,§ 3 of the Constitution of Virginia affords Virginia voters the right to
choose to have their cast ballot counted by hand rather than counted by machine.
Response

It is my opinion that Virginia voters do not have a constitutional right to have their ballots hand
counted.
Applicable Law and Discussion

The Constitution of Virginia secures qualified Virginians the right to vote in elections. 1 As indicated
by its title, Article II, § 3 of the Constitution contains provisions related to the "Method of voting." 2 It
provides, in pertinent part, that "[i]n elections by the people, ... [v]oting shall be by ballot or by machines
for receiving, recording, and counting votes cast."3
"It is a general rule that the words of a Constitution are to be understood in the sense in which they
are popularly employed, unless the context or the very nature of the subject indicates otherwise."4 Thus,
"we are guided by the principle that the Constitution was written to be understood by the voters;"5 and
1 See VA. CONST. art. I, § 6 ("That all elections ought to be free; and that all men, having sufficient evidence of

permanent common interest with, and attachment to, the community, have the right of suffrage .... "); VA. CONST.
art. II,§ 1 (setting forth the qualifications to vote).
2 VA. CONST. art. II, § 3.
3 Id. (emphasis added). The remainder of Article II,§ 3 contains provisions that govern the form of ballots, ensure

secrecy in casting votes, and allow for in person and absentee voting.
4 Old Dominion Comm. for Fair Util. Rates v. State Corp. Comm'n, 294 Va.

McAuliffe, 292 Va. 320,368 (2016)).
5 Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008)).

168, 185 (2017) (quoting Howell v.

Mr. Michael C. Carter
November 27, 2024
Page2
"[w]hen constitutional language is clear and unambiguous, a court must give the language its plain meaning
6
. . . ."
As such, "[t]he same rules which govern the construction of statutes[] are applicable to the
construction of constitutions, and the meaning and purpose of [a section] are to be elicited from the terms
employed therein, if possible, calling to our aid the ordinary rules of grammar." 7 Constitutional provisions
"should be interpreted so as to carry out the general principles of the government and not defeat them." 8
Article II, § 3 provides that "[v]oting shall be by ballot or by machines for ... counting votes cast."
In its ordinary sense, "[t]he word 'or' is a disjunctive that provides an alternative."9 Said otherwise, the
"disjunctive 'or' usually ... separates words or phrases in the alternate relationship, indicating that either
of the separated words or phrases may be employed without the other." 10 It is thus used "to indicate
alternative choices, [and] 'impl[ies] an election to do one of two things.'" 11 There is no constitutional
mandate that a vote, once cast, be counted manually. Accordingly, the plain language of Article II, § 3
simply sets forth two equally acceptable alternative methods for voting, including the counting of votes. 12
Moreover, although qualified Virginians have the right to cast a vote and to have that vote counted,
no part of Article II, § 3 grants a voter the right to choose the method by which his vote is counted. Rather,
Article II, § 4 of the Constitution directs the General Assembly to "regulate the time, place, manner,
conduct, and administration of ... elections" and provides that the legislature "shall have power to make
any other law regulating elections not inconsistent with this Constitution." 13 The Supreme Court of Virginia
has recognized "the broad nature of authority" associated with the use of voting machines. 14 I therefore
conclude that, provided a counting method authorized under Article II, § 3 is employed, the directive that
"[v]oting shall be by ballot or by machines for ... counting votes" is satisfied. 15
6

Scott v. Commonwealth, 247 Va. 379, 384 (1994).

7 Moore v. Pullem, 150 Va. 174, 195-96 (1928) (internal citations omitted).
8 Id. at 194.
9 Dollar Tree Stores, Inc. v. Tefft, 69 Va. App. 15, 25 (2018). See also 1985-86 Op. Va. Att'y Gen.

111, 112 ("The
word 'or' in a statute is presumed to signify a disjunctive intent."); 1997 Op. Va. Att'y Gen. 16, 17 ("The use of the
disjunctive indicates that two separate alternatives were intended[.]").
10 Rush v. Kijakazi, 65 F.4th 114, 119 (4th Cir. 2023) (quoting 1A NORMAN SINGER & SHAMBIE SINGER,
SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 21:14 (7th ed. 2022)), cert. denied, 144 S. Ct. 999 (2024);
accord 2001 Op. Va. Att'y Gen. 161, 163, 164 n.16 (citing 1A NORMAN J. SINGER, SUTHERLAND STATUTORY
CONSTRUCTION § 21.14 (5th ed. 1993) for the proposition that the "disjunctive 'or' usually separates words in alternate
relationship, indicating that either of [the] separated words may be used without [the] other").
11 2016 Op. Va. Att'y Gen. 135, 139 (quoting In re J.C.W., et al., Children, 318 Ga. App. 772, 782 (2012)).
12

See Old Dominion Comm., 294 Va. at 185.

13 VA. CONST. art. II, § 4. "[N]o one provision of the Constitution is to be separated from all the others and to be

considered alone," Pierce v. Dennis, 205 Va. 478,482 (1964) (quoting City of Portsmouth v. Weiss, 145 Va. 94, 106,
107 (1926)); rather, "[t]he constitution must be viewed and construed as a whole .... " Carlisle v. Hassan, 199 Va.
771, 776 (1958) (citing Barbour v. Grimsley, 107 Va. 814 (1907)).
14 Falls Church Taxpayers League v. City of Falls Church, 203 Va. 604, 611

(1962) (further acknowledging that
the use of such machines may render compliance with otherwise applicable voting requirements unnecessary).
15

The use of machines in voting has been constitutionally permitted in Virginia since 1902, when the Constitution
provided in separate sections, that "[a]ll elections by the people shall be by ballot" and that "[t]he General Assembly
may provide for the use ... of machines for receiving, recording, and counting the votes cast [in elections.]" VA.
CONST. of 1902, §§ 27, 37. In considering revisions to the Constitution in 1968, the Commission on Constitutional
Revision commented that, under the subsequently adopted, redrafted single provision, "Voting is required to be by
ballot or voting machines, the latter term encompassing both mechanical and electronic devices. It is intended that

Mr. Michael C. Carter
November 27, 2024
Page3
The General Assembly calls for votes to be counted manually when they are cast by "paper ballot,"
as defined for use in the Elections Title of the Virginia Code. 16 The General Assembly has limited the
authority to use paper ballots to specific situations. 17 Outside of one of the statutorily enumerated
circumstances, the use of paper ballots, i.e., hand-counted ballots, is not permitted. 18 Instead, the General
Assembly has directed localities to "provide for the use of electronic voting systems," i.e., ballot scanner
machines, at all their precincts for every election. 19 The General Assembly also has enacted separate
provisions related to the counting of votes cast via paper ballot and those cast via authorized voting
systems. 20 In exercising its broad power to regulate elections in this manner, the General Assembly has

ballots or machines, or both, in any combination (including future kinds of voting machines), may be used in
elections." REPORT OF THE COMMISSION ON CONSTITUTIONAL REVISION, HOUSE Doc. No. 1 at 113 (Jan. 1, 1969).
16 VA. CODE ANN. § 24.2-101 (Supp. 2024). Although sometimes used interchangeably in common parlance, the
Code thus generally distinguishes between a "paper ballot" and a "printed ballot," which "means a tangible ballot that
is printed on paper and includes both machine-readable ballots and paper ballots." Id. (emphasis added).
17

As expressly provided by § 24.2-646.1,
The official paper ballot shall be used by a voter to cast his vote only in one of the following
circumstances:
1. The official paper ballot is the only ballot in use in the precinct.
2. The official paper ballot is used by voters voting outside of the polling place pursuant to § 24.2-649.1.
3. The voter is casting a provisional ballot.
4. The voter is provided an official paper ballot or copy thereof pursuant to § 24.2-642 when voting
equipment is inoperable or otherwise unavailable.
5. The official absentee paper ballot voted in accordance with (§ 24.2-700 et seq.).
6. The voter is provided an official paper ballot for a presidential election pursuant to § 24.2-402 or for
federal elections pursuant to § 24.2-453.

18

"[A] statute stating the manner in which something may be done ... also evinces the legislative intent that it not
be done otherwise." 1990 Op. Va. Att'y Gen. 132, 133. See 1955-56 Op. Va. Att'y Gen. 78, 78 (responding in the
negative to the question whether a precinct using voting machines was permitted to furnish paper ballots to voters
preferring to use such ballot because under the statutory scheme then in effect "the utilization of voting machines was
intended as a substitute for ... voting by paper ballots"); 1964-65 Op. Va. Att'y Gen. 112, 113 (advising against
permitting "voters to vote with paper ballots where a voting machine is being used" except in specific circumstances
authorized by statute). See § 24.2-1011 (2023) (providing that a voter is required to vote the particular ballot provided
by the officers of election).
19

Section 24.2-626(A) (2023). The Code defines "voting system[s]" to include "direct recording electronic
machines," § 24.2-101; however, the use of such machines, which are "machine[s] on which a voter touches areas of
a computer screen, or uses other control features, to mark a ballot and his vote is recorded electronically," id., is
currently prohibited in Virginia. Section 24.2-626(B). A "ballot scanner machine" is an "electronic counting machine
in which a voter inserts a marked ballot to be scanned and the results tabulated." Section 24.2-101.
20

Compare §§ 24.2-665 & -666 (2023) (paper ballots), with §§ 24.2-657 & -658 (2023) (voting systems). I note
that while the General Assembly generally has mandated the use of machines to tally votes, the legislature has made
allowances for manual counting in extraordinary circumstances that it has determined warrant such method. See
§§ 24.2- 642(B) (2023) (providing that "ballots may be counted manually or as directed by the electoral board" when
an operable scanner is not available); 24.2-802.2 (2023) (providing for the hand counting of certain ballots, e.g., ballots
rejected by a scanner, when conducting a recount); 24.2-671.2 (2023) (allowing for hand counting as necessary upon
conduction of a risk-limiting audit).

Mr. Michael C. Carter
November 27, 2024
Page4
provided that Article II, § 3's directive that voting be "by ballot or by machines" is met, and no voter rights
are infringed when a cast vote is counted by machine rather than by hand. 21
In sum, the Constitution of Virginia establishes alternatively acceptable methods for voting in the
Commonwealth, and Article II, § 3 expressly contemplates the use of "machines for receiving, recording,
and counting votes cast." Moreover, I find nothing in the plain language of Article II, § 3 that confers upon
voters a right to choose to have their votes counted via a particular method.
Conclusion

Accordingly, it is my opinion that Virginia voters do not have a right under Article II, § 3 of the
Constitution of Virginia to have their votes counted by hand rather than machine. 22
With kindest regards, I am,
Very truly yours,

Jason S. Miyares
Attorney General

21

"Whenever a statute is enacted by the legislature, it is a legislative declaration that it is a constitutional
enactment, and when approved by the Governor it is an executive declaration to the same effect." Weiss, 145 Va. at
104.
22

Your inquiry arises from the questioning by some of guidance issued by the Virginia Department of Elections.
ELECT's Official Advisory of March 4, 2024 (available upon request from ELECT), contained the statement, "Voters
do not have the authority to request that their ballot be hand counted as an alternative to utilizing electronic voting or
counting machines." In light of the conclusion reached in this Opinion, I further conclude that this guidance does not
conflict with Article II, § 3 of the Constitution of Virginia.