Can a Virginia city council or board of supervisors block early in-person voting from starting on the 45-day mark?

Plain-English summary

Virginia held a referendum on April 21, 2026 about a proposed constitutional amendment letting the General Assembly redraw congressional districts mid-decade. By state law, in-person absentee voting was scheduled to open 45 days before, on March 6, 2026.

Several local governing bodies, unhappy with the underlying amendment, passed resolutions telling their county registrar and electoral board not to open early voting until April 16, 2026 (just five days before the election). At least one resolution also tried to withhold county facilities and county money for early voting.

Attorney General Jay Jones concluded that all of those moves are unlawful. The 45-day window in § 24.2-701.1(A) is mandatory, not directory: the statute says voting "shall be available" 45 days before any election, and contrasts that with permissive "may" language for Sunday voting elsewhere in the same section. Local registrars and electoral boards have no discretion to delay. And local governing bodies, under the Dillon Rule, have no statutory grant of power to interfere with the registrar's election-administration duties or to defund a legally-required election function. Boards of supervisors that disagree with a state law have to challenge it in court, not by resolution.

What this means for you

If you are a Virginia voter

You are entitled to vote in person at your registrar's office (or a designated satellite office) during the full 45-day window before any election, including referendums. If your county's electoral board or board of supervisors tries to delay or shorten that window, you can vote at the registrar's office on schedule under state law. The opinion makes clear that any local resolution attempting to block early voting "has no legal effect."

If you are a county general registrar

You are statutorily required to open in-person absentee voting on the 45-day mark and to keep it open during regular business hours through 5:00 PM the Saturday before the election. A resolution from the board of supervisors does not relieve you of that duty. The opinion is direct: a registrar who fails to open voting on time is "fail[ing] to perform the duties of [your] office as required by state law," with consequences ranging from State Board removal proceedings under § 24.2-103 to a misdemeanor conviction for willful neglect of election duty under § 24.2-1001(A). If a local resolution conflicts, follow the statute.

If you serve on a local electoral board

Same answer as for registrars: the 45-day window is non-discretionary. Your discretion runs only above the statutory floor (you may add Sunday hours, you may add satellite offices), not below it. The board cannot delegate away its statutory obligation; even if you delegate execution to the registrar, the legal responsibility remains with the board.

If you sit on a board of supervisors or city council

The opinion squarely holds that you have no Dillon Rule authority to delay or block in-person absentee voting. The election code grants you exactly one specific lever over in-person absentee voting: the establishment of additional satellite offices under § 24.2-701.2(A). It does not grant you the power to slow down, shorten, or defund the baseline 45-day window. You also cannot withhold county-owned facilities or county funds to force the result; § 24.2-600 says counties and cities "shall" pay the cost of conducting elections, with no discretion to pick which election activities they fund.

If your board has a constitutional or policy objection to a state-mandated election (a referendum on a proposed constitutional amendment, for instance), the opinion is explicit that the right move is judicial relief, not a resolution. State statutes carry a strong presumption of constitutionality, and you must comply unless and until a court of competent jurisdiction enjoins enforcement.

If you are a voting rights attorney

The opinion creates a clean record for plaintiffs: any local resolution attempting to delay the 45-day window is "invalid" and "would have no legal effect." Combined with the State Board's standing to seek judicial relief under § 24.2-103(F), this opinion is a roadmap for either a registrar-initiated declaratory judgment action or a State-Board-initiated mandamus when a county tries this in the future.

Common questions

Q: Does the 45-day window apply to referendums and special elections, or only to general and primary elections?
A: All of them. The opinion cites § 24.2-101 (defining "special election" to include referendums) and § 24.2-681 (special elections are held under the same regulations as general elections). The 45-day rule applies to "any election."

Q: Can a board of supervisors stop the registrar by simply not paying for it?
A: No. Section 24.2-600 makes funding the cost of conducting elections mandatory at the county and city level. The opinion is explicit that counties cannot pick and choose which election activities they will fund, and cites a 2014 AG opinion holding that the registrar's authority to hire temporary employees is not contingent on board appropriation approval.

Q: What if the local governing body believes the underlying election or amendment is unconstitutional?
A: They have to go to court. The opinion holds that local officials cannot use their own constitutional interpretations to justify defying a state statute; statutes carry a strong presumption of constitutionality and stay in effect until a court invalidates them.

Q: What discretion do registrars and electoral boards actually have over absentee voting?
A: Discretion to expand above the floor, not below it. They may, for example, offer Sunday absentee voting (the statute uses "may" for that). They cannot reduce the 45-day window or shorten regular business hours below the statutory minimum.

Q: What enforcement mechanisms are available against an electoral board or registrar that refuses to open early voting?
A: The State Board of Elections can initiate removal proceedings against the official, can seek judicial relief to compel compliance, and the official can be charged with a misdemeanor for "willful neglect" of an election duty under § 24.2-1001(A).

Q: Does this opinion apply only to the April 2026 referendum, or generally?
A: The factual prompt was the April 2026 referendum, but the legal holding is general. The 45-day mandatory floor and the Dillon-Rule limit on local-governing-body interference apply to every Virginia election going forward.

Background and statutory framework

Virginia's local election infrastructure is constitutionally divided. Each county and city has a three-member electoral board (Va. Const. art. II, § 8), appointed by the chief judge of the local circuit court. The electoral board appoints a general registrar (§ 24.2-110(A)) who runs day-to-day election administration. Boards of supervisors and city councils are separate elected bodies that handle most other county or city business but have only a narrow set of election-related powers.

The General Assembly enacted § 24.2-701.1 to create a uniform statewide window for in-person absentee voting: 45 days before any election, ending at 5:00 PM the Saturday before. The statute uses "shall" deliberately for that floor and "may" for optional expansions like Sunday voting. Under standard statutory construction, that contrast signals an intentional distinction between mandatory and discretionary provisions.

Virginia's Dillon Rule means localities have only the powers expressly granted by the General Assembly, those necessarily implied, and those essential and indispensable. Any reasonable doubt is resolved against the local governing body. Section 24.2-701.2(A) gives boards of supervisors authority to establish satellite voting offices; that is the only express grant of any local-governing-body power over in-person absentee voting. Under the Dillon Rule, the absence of any other grant means boards have no power to delay, shorten, or defund the baseline 45-day window.

Section 1-248 reinforces the framework by declaring state law supreme over conflicting local resolutions. Where a local resolution and a state statute "cannot coexist," the statute wins.

Citations and references

Statutes:
- Va. Code Ann. § 24.2-701.1 (Mandatory 45-day in-person absentee window)
- Va. Code Ann. § 24.2-701.2 (Satellite offices)
- Va. Code Ann. § 24.2-103 (State Board oversight)
- Va. Code Ann. § 24.2-600 (Counties and cities pay election costs)
- Va. Code Ann. § 1-248 (Supremacy of state law)

Cases:
- Sinclair v. New Cingular Wireless, 283 Va. 567 (2012) - local resolutions inconsistent with state law are preempted
- Bland-Henderson v. Commonwealth, 303 Va. 212 (2024) - interpretation of "shall" depends on legislative context and contrast with "may"
- Richmond v. Confrere Club, 239 Va. 77 (1990). Dillon Rule of strict construction for local powers

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2026/26-007-Surovell-and-Price-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

Jay Jones, Attorney General
202 North 9th Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services 800-828-1120

March 4, 2026

The Honorable Scott A. Surovell
Member, Virginia Senate
Post Office Box 289
Mount Vernon, Virginia 22121

The Honorable Marcia "Cia" Price
Member, Virginia House of Delegates
Post Office Box 196
Newport News, Virginia 23607

Dear Senator Surovell and Delegate Price,

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 a series of questions relating to the roles of local governing bodies, local electoral boards and registrars with regard to the implementation of early voting in an upcoming referendum election scheduled for April 21, 2026. For the sake of expediency, I've chosen to answer your inquiry by focusing on two questions that I consider the most important in providing the clarity you seek. You inquire whether local electoral boards, or general registrars have the discretion to decline, delay, suspend, or otherwise fail to initiate in-person absentee voting for an election. You also ask whether local governing bodies (i.e. Boards of Supervisors, City Councils) have authority to prevent election officials from administering in-person absentee voting for an election.

Background

During the 2026 legislative session, the General Assembly approved a proposed amendment to the redistricting provisions of the Constitution of Virginia. The proposed amendment would permit the General Assembly to modify the state's congressional districts before October 31, 2030, in the event another state engages in mid-decade redistricting. A referendum on the proposed amendment is scheduled for April 21, 2026, with in-person absentee voting set to begin on March 6, 2026.

In response, the governing bodies of several localities approved resolutions attempting to delay the start of in-person absentee voting for the referendum. At least one county adopted a resolution "direct[ing]" its local electoral board and general registrar "not to commence early voting" until April 16, which is 41 days after in-person absentee voting is scheduled to begin. That same resolution also attempts to withhold any "County-owned facilities" and "County resources" for in-person absentee voting until April 16.

Applicable Law and Discussion

I. Discretion of Local Election Officials

The Constitution of Virginia mandates that each county and city maintain a three-member local electoral board. Members are appointed by the chief judge of the local circuit court, with the partisan makeup of the board determined by the results of the most recent gubernatorial election.

Electoral boards are charged with "perform[ing] the duties assigned" under Virginia election law. These duties are expansive and include "the preparation of ballots, the administration of absentee ballot provisions, the conduct of the election, and the ascertaining of the results of the election." While boards may delegate certain duties, they remain legally responsible for any statutory obligation.

A general registrar is an official appointed by the local electoral board to serve as the locality's director of elections. Registrars must execute a statutory list of duties that cover virtually all aspects of voter registration and election administration, as well as any other duties "prescribed by the electoral board."

In conducting elections, both electoral boards and general registrars must strictly comply with state law. This requirement is reflected throughout the election code, which establishes mechanisms for enforcing compliance when officials fail to discharge their statutory duties. For example, the State Board of Elections, which supervises local officials to ensure "legality" in all elections, can initiate "removal" proceedings against an election officer who does not follow state law, or can seek judicial relief "for the purpose of ensuring that elections are conducted as provided by law." Similarly, an election officer may be convicted of a misdemeanor for the "willful neglect" of "any duty . . . enjoined by law relative to any election." Accordingly, local election officials have a clear and unequivocal obligation to conduct elections as required by state election law.

While election officials have duties that involve discretion, the baseline availability and timeline for in-person absentee voting are governed by explicit, non-discretionary statutory mandates. The Code of Virginia states that in-person absentee voting "shall be available on the forty-fifth day prior to any election and shall continue until 5:00 p.m. on the Saturday immediately preceding the election." Furthermore, in-person absentee voting "shall be available during regular business hours," and the electoral board "shall provide for [it] in the office of the general registrar or a voter satellite office."

The statute's frequent use of "shall" does not, by itself, establish a mandatory obligation rather than a merely directory one. Whether "shall" is mandatory in a statute depends on the General Assembly's intended meaning, which is discernable from the context, and purpose of the relevant statute. Here, the General Assembly manifested its clear intent by contrasting mandatory and discretionary language within the same section. The state provides that in-person absentee voting "shall" be available 45 days before Election Day, but that a local electoral board "may" offer absentee voting on Sundays. When the legislature uses "shall" in one part of a statute and "may" in another, the presumption is that the distinction is deliberate.

Thus, the plain text establishes a mandatory floor for in-person absentee voting, providing election officials with limited discretion only to expand options above that floor. Local election officials must ensure that voters can vote absentee in-person at the local registrar's office starting 45 days before Election Day, during regular business hours, and during specified hours on the two Saturdays preceding the election. Any election official that fails to implement these exact requirements fails to perform the duties of their office as required by state law.

II. Authority of Local Governing Bodies

The principle of state law supremacy in Virginia is well-established. Section 1-248 of the Code of Virginia states that "[t]he Constitution and laws . . . of the Commonwealth shall be supreme" and it prohibits localities from enacting resolutions that are "inconsistent" with state law. When a local resolution and a state statute conflict, "the statute must prevail." Conflicts arise when a state statute and local resolution "cannot coexist" with one another. An irreconcilable conflict exists when a local governing body "forbid[s] what the legislature has expressly, licensed, authorized, or required."

Furthermore, in determining whether a local governing body has authority to take a particular action, Virginia follows the Dillon Rule of strict construction. Localities possess "only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable." If a "power cannot be found" in the express words or implication of a statute, "the inquiry is at an end." Furthermore, any reasonable doubts about whether a locality has a particular power, "must be resolved against the local governing body." When a locality enacts a resolution that "exceeds the scope of [its] authority, the [resolution] is invalid."

Given the supremacy of state law, localities have no authority to prevent election officials from performing their statutory duties. Since all electoral boards and registrars are required by statute to open absentee voting in-person 45 days prior to Election Day, any local resolution directing officials to delay initiating in-person absentee voting until just 5 days before Election Day cannot coexist with state law. Consequently, that local resolution would have no legal effect.

In addition, the election code provides local governing bodies extremely limited authority over in-person absentee voting. That authority relates only to the establishment of additional offices for in-person absentee voting, known as "satellite offices." Tellingly, the statutory provisions mandating the baseline availability and timing of in-person absentee voting do not contain any reference to local governing bodies. Under the Dillon Rule, this statutory structure indicates that local governing bodies possess no authority to delay or prevent the initiation of in-person absentee voting at the registrar's office. Any local resolution that attempts to exert that power exceeds the scope of the local governing body's authority and is invalid.

Similarly, local governing bodies cannot attempt to undermine in-person absentee voting by refusing to provide necessary funds. The election code explicitly directs that "the cost of conducting elections . . . shall be paid by counties and cities." The law does not grant counties and cities the discretion to pick and choose which election activities they will fund. Responsibility for conducting elections in accordance with state law is vested in electoral boards and registrars, and local governing bodies are statutorily bound to fund their implementation.

Finally, local governing bodies cannot use their own independent constitutional interpretations to justify interfering with state-mandated elections. Acts of the General Assembly carry a strong presumption of constitutionality. If local officials question the constitutionality of a statutory duty, they must seek a resolution in an appropriate judicial proceeding. Unless and until the legislature repeals a statute, or a court of competent jurisdiction invalidates it, local governing bodies and constitutional officers must comply with that statute.

Conclusion

It is my opinion that electoral boards and general registrars must provide for in-person absentee voting 45 days prior to any Election Day and possess no discretion to delay or fail to initiate voting on this timeline outside a valid court order expressly enjoining such administration and issued by a court of competent jurisdiction. Furthermore, any local resolution, regardless of the locality's stated justification for its adoption, attempting to prevent election officials from implementing in-person absentee voting contradicts state law and is legally invalid.

With kindest regards, I am,
Very truly yours,

Jay Jones
Attorney General