Does Virginia or federal law require an officer of election to be stationed outside every Virginia polling place for the full day so curbside voting is available on demand?

Plain-English summary

Curbside voting is Virginia's procedure for voters age 65 or older or with a physical disability to vote outside the polling place. Under Va. Code § 24.2-649(A), an election officer brings the voter a paper ballot, mark-sense ballot, or (in some localities) an electronic voting device, and the voter marks the ballot at the curb.

The Richmond electoral board secretary asked whether an officer of election had to be stationed outside the polls all day in case someone showed up wanting curbside voting, and whether the legal requirement was met if the voter (or a friend) had to come inside, or call ahead, to trigger it.

The AG read the statute closely. Section 24.2-649(A) says any voter age 65 or older or physically disabled "may request and then shall be handed a paper ballot . . . by an officer of election outside the polling place." That structure makes the request the trigger. Nothing in the statute requires an officer to wait outside in advance.

The AG also looked at federal law: the Voting Accessibility for the Elderly and Handicapped Act (VAEH) and the ADA. VAEH, like the Virginia statute, requires alternative ways to vote when a polling place is inaccessible "upon advance request of such voter." It assumes the voter initiates the request.

So the answer was: no, an officer doesn't have to stand outside all day. Yes, the legal duty is satisfied as long as election workers respond to a request, and the voter can trigger it by entering the polling place themselves, sending another person in, or calling ahead.

Currency note

This opinion was issued in 2010. 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.

Virginia's election code has been amended substantially since 2010, including changes affecting curbside voting eligibility, no-excuse early voting, and accessibility protocols. The federal VAEH and ADA framework is more stable, but ADA enforcement guidance is updated periodically. A current voter or election official should consult the Department of Elections' polling place handbook and the current text of § 24.2-649.

Common questions

Who is eligible for curbside voting in Virginia?
At the time of this opinion, the statute extended curbside voting to "[a]ny voter age 65 or older or physically disabled." Other categories have been added over time. Check current law.

How does the voter request curbside voting?
The AG said the statute is satisfied if the voter (i) enters the polling place themselves to ask, (ii) sends another person in to alert the officers, or (iii) communicates with election officials in advance of arriving. Any of those triggers the obligation to bring a ballot outside.

What does the officer have to do once a request is made?
Hand the voter a paper ballot or mark-sense ballot at the curb (within 150 feet of the entrance). The voter marks it secretly in the officer's presence and returns it. The officer immediately returns to the polling place and deposits the ballot. The statute also allows certain easily portable electronic voting devices, with extra security requirements about how many officers must accompany the machine and how its movements are documented.

What does federal law require?
VAEH (42 U.S.C. §§ 1973ee et seq.) requires accessible polling places for federal elections, with an exception for areas where no polling place is fully accessible if the state assigns affected voters to accessible places or provides an alternative on request. The ADA and Section 504 of the Rehabilitation Act also apply to elections generally. The AG read VAEH, like Virginia's § 24.2-649, as assuming the voter makes the request first.

What if the voter physically can't get out of the car and can't send a friend?
The opinion focused on whether someone had to be posted outside, not on edge cases. As a practical matter the voter would call ahead (option iii). The opinion does not address what happens if all three options fail; that question is governed by ADA program-access principles.

Background and statutory framework

Virginia administers elections principally under state law, but Congress has overlaid several federal statutes. VAEH (42 U.S.C. § 1973ee-1) requires each political subdivision conducting federal elections to ensure polling places are accessible to elderly and handicapped voters, with an exception where, on advance request, voters can be reassigned to accessible places or given alternative voting means.

The ADA and Section 504 of the Rehabilitation Act of 1973 have both been invoked in election cases. Taylor v. Onorato, 428 F. Supp. 2d 384 (W.D. Pa. 2006), explained that those laws "mandate only that disabled persons are given the opportunity to vote."

The AG also applied a straightforward interpretive rule: when statutory language is "clear and unambiguous, rules of statutory construction are not required." Ambrogi v. Koontz, 224 Va. 381 (1982). Section 24.2-649(A) is clear that the request comes first and the officer's duty follows.

Citations

• Va. Code Ann. § 24.2-649(A) (Supp. 2010)
• 42 U.S.C. §§ 1973ee et seq.
• 42 U.S.C. § 1973ee-1(b)(2)(B)
• 42 U.S.C. §§ 12101 et seq.
• 29 U.S.C. § 794
• Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982)
• Taylor v. Onorato, 428 F. Supp. 2d 384, 388 (W.D. Pa. 2006)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-046-Thomas.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 28, 2010

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Mr. G. William Thomas
Secretary, Electoral Board
City of Richmond
P.O. Box 61037
Richmond, Virginia 23261-1037

Dear Mr. Thomas:

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 whether federal or state law requires that an officer of election be posted outside the polling place at all times that the polls are open in order to implement curbside voting. You also ask whether the legal requirements of curbside voting are satisfied if the voter who wishes to vote curbside is required either to i) go inside the polling place themselves to alert the officers of election that he wishes to vote curbside; ii) send another party inside the polling place to alert the officers of election that the voter wishes to vote curbside; or iii) call ahead to inform election officials of his preference. Finally, in the event that the answer to both your first and second questions is no, you ask whether there are other actions required by law to be taken regarding notice to officers of election that an individual wishes to vote curbside, and who must take such actions.

Response

It is my opinion that neither Virginia nor federal law requires an officer of election to be posted outside a polling place at all times the polls are open on election day in order to assist elderly and disabled voters who prefer to vote outside the polling place pursuant to § 24.2-649, a procedure commonly known as "curbside voting." It further is my opinion that the legal requirement for officers of election to assist such voters with curbside voting is triggered upon the voter making a request for such service, either by (i) entering the polling place to alert the officers of election, (ii) sending another person inside the polling place to alert the officers of election, or (iii) communicating with election officials in advance of coming to the polling place.

Applicable Law and Discussion

Section 24.2-649 of the Virginia Code sets forth the circumstances in which assistance may be provided to certain voters in the election process. Section 24.2-649(A), which governs curbside voting procedures, provides:

Any voter age 65 or older or physically disabled may request and then shall be handed a paper ballot or a mark sense ballot by an officer of election outside the polling place but within 150 feet of the entrance to the polling place. The voter shall mark the paper ballot in the officer's presence but in a secret manner and fold and return the ballot to the officer. The officer shall immediately return to the polling place and deposit the ballot in the ballot container in accordance with § 24.2-646. The voter shall mark the mark sense ballot in the officer's presence but in a secret manner and cover and return the ballot to the officer who shall immediately return to the polling place and deposit the ballot in the ballot counter in accordance with the instructions of the State Board.

Any county or city that has acquired an electronic voting device that is so constructed as to be easily portable may use the voting device in lieu of a paper or mark sense ballot for the voter requiring assistance pursuant to this subsection. However, the electronic voting device may be used in lieu of a paper ballot only so long as: (i) the voting device remains in the plain view of two officers of election representing two political parties or, in a primary election, two officers of election representing the party conducting the primary, provided that if the use of two officers for this purpose would result in too few officers remaining in the polling place to meet legal requirements, the equipment shall remain in plain view of one officer who shall be either the chief officer or the assistant chief officer; and (ii) the voter casts his ballot in a secret manner unless the voter requests assistance pursuant to this section. After the voter has completed voting his ballot, the officer or officers shall immediately return the voting device to its assigned location inside the polling place. The machine number, the time that the machine was removed and the time that it was returned, the number on the machine's public counter before the machine was removed and the number on the same counter when it was returned, and the name or names of the officer or officers who accompanied the machine shall be recorded on the statement of results.

Nowhere in this subsection has the General Assembly imposed a duty on an officer of election to remain outside the polling place to effectuate curbside voting. Generally, "[w]here the language of a statute is clear and unambiguous[,] rules of statutory construction are not required." Here, the plain language of the statute places the responsibility on the voter to request curbside voting if he or she wishes to use that form of assistance. Under the section, the requirement of the election officer to provide a ballot outside of the polling place arises only after such a request is made.

Although election procedures are regulated principally by state law, Congress has enacted several laws imposing requirements on the conduct of federal elections. The Voting Accessibility for the Elderly and Handicapped Act (VAEH), for instance, requires each political subdivision overseeing federal elections to assure that all polling places for those elections are accessible to handicapped and elderly voters. For areas in which no polling place offers adequate accessibility, VAEH provides an exception, so long as the state's chief election officer

(B) assures that any handicapped or elderly voter assigned to an inaccessible polling place, upon advance request of such voter (pursuant to procedures established by the chief election officer of the State)(i) will be assigned to an accessible polling place, or (ii) will be provided with an alternative means for casting a ballot on the day of the election.

VAEH expressly provides that a voter must first make a request before election officials have an obligation in federal elections either to assign the voter to an accessible polling place or to provide him an alternative means to cast a ballot on election day. Curbside voting is one such alternative. The language of this statute, like that of Virginia's § 24.2-649, indicates that the voter first is to make request, and leaves no room for an interpretation that an officer of election must be stationed and remain outside the polling place in order to implement the curbside voting alternative. This interpretation also comports with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973, federal anti-discrimination statutes that have been invoked in election contexts.

Virginia offers curbside voting to any qualified voter who is age 65 or older or physically disabled to provide that voter with a less burdensome alternative to casting his or her vote than what the voter might experience going into the polling place and waiting in line to vote. Virginia's requirement that the voter must take the initiative to request curbside voting furthers Virginia's important interest in ensuring a smooth, efficient election process. Election officers must fulfill many responsibilities over the course of a long election day. Given that oftentimes there are only a limited number of officers of election at any particular polling place, it may be infeasible to station an officer outside for the duration of the day without adversely impacting the election functions the remaining officers must perform.

Conclusion

Accordingly, it is my opinion that neither Virginia nor federal law requires that an officer of election be posted outside a polling place at all times that the polls are open on election day in order to assist elderly and disabled voters who prefer to vote by "curbside voting." It is further my opinion that the legal requirement for officers of election to assist such voters is triggered upon the voter making a request for such service, either by (i) entering the polling place to alert the officers of election, (ii) sending another person inside the polling place to alert the officers of election, or (iii) communicating with election officials in advance of coming to the polling place.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General