When a Virginia polling place can't be used on Election Day because of an emergency, what's the legal process for moving voters to an alternative location?

Plain-English summary

A Virginia local electoral board needed to move a polling place close to a general election. Section 24.2-306(A) generally prohibits changing voting precincts (or polling places) "within 60 days next preceding any general election," so an inside-the-blackout change has to come through a different statutory route. Delegate David Nutter asked the Attorney General what process is required to move a polling place based on an emergency.

Acting AG William Mims pointed to § 24.2-310(D), which provides the emergency exception. The statute requires four steps:

1. An actual emergency. The polling place must be made "unusable or inaccessible" by an "emergency," which the AG read using ordinary dictionary definitions: an "unforeseen combination of circumstances or the resulting state that calls for immediate action." That means rare, unforeseen events, not foreseeable problems that the locality has known about for months. The AG specifically flagged in a footnote that Delegate Nutter's facts described a polling place problem identified as early as November 2008, and noted that letting the matter sit until close to the next election "is troubling because it has the effect of avoiding the application of § 24.2-306(A)."

2. Local electoral board selects an alternative. Note the actor. Under § 24.2-307 the board of supervisors or city council usually establishes polling places by ordinance. But § 24.2-310(D) assigns the emergency relocation decision to the local electoral board itself, not the local governing body. The electoral board is the body that runs elections; the General Assembly chose it to act in emergencies.

3. Prior approval by the State Board of Elections. The State Board must approve both the existence of the emergency and the alternative polling place. The "prior" qualifier in the statute matters: the State Board's approval has to come before the change is implemented, not as ratification afterward.

4. Voter notice "appropriate to the circumstances of the emergency." Once the State Board approves, the local electoral board gives notice. The statute does not prescribe a specific form or medium; the notice must fit the emergency. A sudden building collapse on Election Day requires more aggressive notice (radio, signs at the closed location, election workers directing voters) than a planned closure with weeks of warning.

The opinion also notes that the alternative polling place is used only for as long as the original is unusable. Once the original is functional again, the precinct returns there. The opinion does not say whether returning requires a new round of State Board approval, but the implication is that the alternative is genuinely temporary.

The opinion expressly does not address federal Voting Rights Act preclearance requirements, which (in 2009, before Shelby County v. Holder) generally required Virginia changes in election practice or procedure to be submitted to the Department of Justice. A local board moving a polling place would have had to consider that separate federal layer.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. In particular, the federal preclearance regime under the Voting Rights Act referenced in the opinion was substantially altered by Shelby County v. Holder, 570 U.S. 529 (2013), after this opinion was issued.

Background and statutory framework

Virginia election administration is split between the local governing body (board of supervisors or city council), the local electoral board (an appointed three-member body), and the State Board of Elections. The local governing body has primary statutory authority to establish voting precincts and polling places by ordinance under § 24.2-307. The local electoral board has operational authority over the conduct of elections.

The default rules:

• § 24.2-305(A) sets the framework for establishing voting precincts.
• § 24.2-306(A) prohibits changes in voting precincts (and polling places, per AG opinion practice) "within 60 days next preceding any general election." This 60-day blackout is designed to give voters certainty about where to vote in the run-up to a general election.
• § 24.2-307 assigns ordinance authority over precinct and polling place establishment to the board of supervisors or city council.

Section 24.2-310(D) is the emergency carve-out. It allows a polling place move inside the 60-day blackout when an emergency makes the polling place unusable or inaccessible. The statute reassigns the operational decision from the governing body to the electoral board, presumably because emergencies often occur close enough to Election Day that the electoral board's smaller, election-focused structure can move faster than a board of supervisors meeting on a regular cycle.

The AG used standard Virginia statutory construction: undefined terms take ordinary meaning (here, Webster's Third New International Dictionary); statutes addressing the same subject are read together (in pari materia); plain language controls when unambiguous. The footnote about the underlying facts (problem identified November 2008, only addressed near the next general election) is a not-so-subtle warning that abusing the emergency exception to evade the 60-day blackout would not survive scrutiny.

Common questions

Can the local governing body (not the electoral board) move a polling place under § 24.2-310(D)?

No. The statute specifically assigns the alternative-polling-place selection to "the electoral board," which under § 24.2-101 means the local electoral board. The local governing body acts under § 24.2-307 by ordinance, outside the 60-day blackout. The emergency-relocation statute deliberately moves the decision to the electoral board.

How emergent does the emergency have to be?

The AG's reading is strict. "Emergency" means an unforeseen combination of circumstances calling for immediate action. A polling place problem known months in advance and not addressed until close to Election Day is not an emergency; it's a planning failure. The footnote in the opinion is explicit that the local board's delay in the underlying facts was troubling because it looked like an evasion of § 24.2-306(A).

What kind of notice satisfies 'appropriate to the circumstances'?

The opinion does not list specific media. Practical considerations: notice should reach voters in the affected precinct, be timed close enough to Election Day that voters will remember it, and address the actual transportation/access change. A radio announcement plus signs at the closed polling place plus signs at the new polling place is a common pattern. The statute gives flexibility but expects the notice to fit the situation.

Does the State Board have to approve in advance, or can it ratify after the fact?

The statute uses the phrase "prior approval of the State Board." The AG read that as requiring approval before implementation. A local electoral board that moved a polling place without State Board approval and then sought ratification afterward would not satisfy the statute, and the resulting election could be subject to challenge.

What if the State Board denies approval?

The opinion does not address that scenario directly. The implication is that without State Board approval, the polling place change cannot proceed under § 24.2-310(D), and the electoral board would have to find another way to handle the situation (perhaps emergency voting protocols at the original location, redirecting voters at the door, etc.). A denial would also signal that the State Board did not view the situation as genuinely emergent.

Does this opinion address federal Voting Rights Act preclearance?

No. The opinion's footnote 1 specifically declines to address federal requirements, noting that Virginia was subject to the Voting Rights Act of 1965 (which required preclearance review by DOJ). That federal layer existed independently. After Shelby County v. Holder (2013), the federal preclearance regime no longer applies to Virginia changes, but state-law procedures under § 24.2-310(D) continue.

Citations

• Va. Code Ann. § 24.2-101 (defining "State Board")
• Va. Code Ann. § 24.2-306(A) (60-day blackout on precinct and polling place changes)
• Va. Code Ann. § 24.2-307 (local governing body establishes precincts and polling places by ordinance)
• Va. Code Ann. § 24.2-310(D) (emergency relocation of polling place)
• McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970) (undefined terms take ordinary meaning)
• South Hill v. Allen, 177 Va. 154, 12 S.E.2d 770 (1941) (plain unambiguous statutory language controls)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957) (in pari materia construction)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-081-Nutter.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

October 16, 2009

The Honorable David A. Nutter
Member, House of Delegates
P.O. Box 1344
Christiansburg, Virginia 24068

Dear Delegate Nutter:

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, under Virginia law, what process is required to move a polling place based on an emergency.[1]

Response

It is my opinion that the Virginia law governing the process required to move a polling place based on an emergency is found in § 24.2-310(D). The General Assembly requires that: (i) there be an emergency that makes a polling place unusable or inaccessible; (ii) the local electoral board select an alternative polling place; (iii) the local electoral board obtain the approval of the State Board of Elections for both the declaration of emergency and the alternative polling place; and (iv) if the State Board of Election approves the emergency and the alternative polling place, the local electoral board must give notice to the voters of the change in polling place that is appropriate to the circumstances of the emergency.

Applicable Law and Discussion

Generally, a local governing board is statutorily authorized to alter the boundaries of voting precincts or polling places at any time other than within sixty days before any general election.[2] However, in § 24.2-310(D), the General Assembly provides an exception to the sixty-day prohibition[3] against changes in local polling places before a general election:

If an emergency makes a polling place unusable or inaccessible, the electoral board shall provide an alternative polling place and give notice of the change in polling place, subject to the prior approval of the State Board. The electoral board shall provide notice to the voters appropriate to the circumstances of the emergency.

The General Assembly does not define the terms "emergency," "unusable," and "inaccessible" as used in § 24.2-310(D) or in Title 24.2. When a term is not defined by the General Assembly, it must be given its ordinary meaning.[4] The term emergency means "an unforeseen combination of circumstances or the resulting state that calls for immediate action."[5] The term unusable means "not serviceable: USELESS,"[6] and the term inaccessible means "not accessible ... not capable of being reached."[7]

When a statute is expressed in plain and unambiguous terms, whether general or limited, it is assumed that the General Assembly means what it plainly has expressed, and no room is left for construction.[8] Consequently, when an unforeseen combination of circumstances makes a polling place useless or not accessible, the General Assembly requires the local electoral board to provide an alternative polling place "subject to the prior approval of the State Board."[9]

Should the State Board approve of both the emergency declared by and the alternative polling place selected by the local electoral board, the General Assembly requires that the local board "give notice of the change in polling place," which must be "appropriate to the circumstances of the emergency."[10]

It is well-established that statutes are not to be read in isolation.[11] Furthermore, statutes relating to the same subject should be considered in pari materia.[12] Moreover, statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent.[13] The use of an alternative polling place arises from an emergency declared by the local electoral board that is approved by the State Board.[14] Therefore, such polling place would be used only for the duration of time that the original polling place is unusable or inaccessible. The local electoral board is the entity that selects the alternative polling place and gives notice to the voters[15] rather than the board of supervisors or city council, which are otherwise required by the General Assembly to establish by ordinance all voting precincts that are required within the county or city.[16] While Attorneys General consistently have declined to render official opinions on specific factual matters,[17] the statutory language regarding "emergency" for purposes of § 24.2-310(D) implies that an event would be rare and unforeseen.[18]

Conclusion

Accordingly, it is my opinion that the Virginia law governing the process required to move a polling place based on an emergency is found in § 24.2-310(D). The General Assembly requires that: (i) there be an emergency that makes a polling place unusable or inaccessible; (ii) the local electoral board select an alternative polling place; (iii) the local electoral board obtain the approval of the State Board of Elections for both the declaration of emergency and the alternative polling place; and (iv) if the State Board of Election approves the emergency and the alternative polling place, the local electoral board must give notice to the voters of the change in polling place that is appropriate to the circumstances of the emergency.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. I have not addressed any federal requirements that may be related to changes of polling places. Virginia is subject to the federal Voting Rights Act of 1965, which requires changes in practice or procedure related to elections to be submitted to the Department of Justice for review and evaluation. See generally 2005 Op. Va. Att'y Gen. 97.
2. See 2006 Op. Va. Att'y Gen. 119 (interpreting §§ 24.2-305(A), 24.2-306(A), and 24.2-307 related to voting precincts). I note that § 24.2-306(A) also applies to changes in polling places. It is my opinion that the analysis applicable to changes in voting precincts equally applies to changes in polling places.
3. See VA. CODE ANN. § 24.2-306(A) (2006) (prohibiting changes in local voting precincts "within 60 days next preceding any general election").
4. See McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970).
5. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 741 (1993).
6. Id. at 2514.
7. Id. at 1139.
8. South Hill v. Allen, 177 Va. 154, 165, 12 S.E.2d 770, 774 (1941).
9. Section 24.2-310(D) (Supp. 2009). For purposes of Title 24.2, "State Board" means the State Board of Elections. See § 24.2-101 (Supp. 2009).
10. Section 24.2-310(D).
11. 2B NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51:2 (West 7th ed. 2008); Op. Va. Att'y Gen.: 1999 at 22, 22; 1998 at 123, 124; id. at 19, 21; 1996 at 197, 198; 1995 at 146, 147; 1993 at 160, 162; id. at 135, 137; 1992 at 108, 112.
12. See Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957); 1996 Op. Va. Att'y Gen. 134, 135. "In pari materia" is the Latin phrase meaning "[o]n the same subject; relating to the same matter." BLACK'S LAW DICTIONARY 862 (9th ed. 2009).
13. See 2A SINGER & SINGER, supra note 11, at § 46:5 (West 7th ed. 2007); 2000 Op. Va. Att'y Gen. 182, 185.
14. See § 24.2-310(D).
15. Id.
16. See § 24.2-307 (2006).
17. See, e.g., 2002 Op. Va. Att'y Gen. 321, 325 and opinions cited therein.
18. See supra notes 5-7 and accompanying text. You describe a situation where the potential problem with the original polling place was identified as early as November 2008. The fact that a local electoral board has waited until the present time to address the issue with such polling place is troubling because it has the effect of avoiding the application of § 24.2-306(A), which prohibits the enactment of a change in a local polling place "within 60 days next preceding any general election."