Can someone convicted of perjury hold elected office in Virginia after the governor restores their political rights?

Plain-English summary

A Commonwealth's Attorney asked whether a person convicted of perjury could seek elected office after the Governor restored their political rights. Section 18.2-434 of the Virginia Code says that, on conviction for perjury, the person "shall be adjudged forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia, or of serving as a juror." The question was what "forever" meant in light of the Governor's restoration of rights.

The AG concluded that restoration of the right to vote removes the office-holding disability under § 18.2-434. The person is eligible to hold elective office.

The reasoning rested on Virginia constitutional structure. Article II, § 5 sets the qualifications for holding elective office: "the only qualification to hold any office of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office, except as otherwise provided in this Constitution." That language is exclusive. The Supreme Court of Virginia has stated the rule: when the Constitution defines qualifications for office, the specification is an implied prohibition against legislative interference to change or add qualifications.

Article II, § 1 of the Constitution says that no person convicted of a felony is qualified to vote unless their civil rights have been restored. Article V, § 12 gives the Governor authority "to remove political disabilities," which includes restoring a felon's right to vote.

Tying these together: voting eligibility is the sole constitutional qualification for office. The Governor can restore the right to vote. When the Governor does so, the convicted person becomes qualified to vote. Once qualified to vote, the person is constitutionally eligible to hold office. The General Assembly cannot impose a permanent office-holding disability that the Constitution doesn't allow. So § 18.2-434's "forever" must be read consistent with constitutional limits, meaning the disability ends when the Governor restores the right to vote.

The AG also confirmed that the Governor's authority "to remove political disabilities consequent upon conviction for offenses" under Article V, § 12 is broad enough to include disabilities imposed by § 18.2-434.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, executive action expanding or contracting the scope of automatic restoration of rights, 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.

Common questions

Does this apply only to perjury, or to all felonies?
The opinion was about perjury specifically because that's what § 18.2-434 covers. But the underlying logic, that the Governor's restoration of voting rights satisfies the sole constitutional qualification for office, applies more broadly. The AG noted that the Governor's authority to remove political disabilities is broad enough to cover § 18.2-434 disabilities.

Does this mean a perjury convict can serve on a jury too?
The opinion didn't address jury service explicitly. The statute imposes both disabilities (office and jury). The constitutional analysis for the office-holding disability doesn't automatically transfer to jury service because Virginia's Constitution sets the qualifications for elective office but not for jury service in the same way.

What if someone is convicted of perjury after being elected?
The opinion addressed pre-election scenarios where rights had been restored. A conviction during office is a different question, governed by separate removal-from-office statutes.

Can the General Assembly add more qualifications for elective office?
No, except as the Constitution itself permits. Article II, § 5 lets the General Assembly impose stricter geographical residence requirements and provide for prohibition of certain conflicts of interest, dual office holding, or other incompatible activities. Beyond those carve-outs, the qualifications are constitutionally fixed.

Is restoration of rights automatic or discretionary?
The Governor's restoration authority under Article V, § 12 is generally discretionary. The opinion was about what happens after restoration, not about how restoration is obtained.

Background and statutory framework

The Constitution of Virginia, art. II, § 5, sets qualifications for elective office: residency for one year preceding the election and voter eligibility for the office. The section allows the General Assembly to impose stricter residence requirements for its own members or by other governing bodies, and to prohibit conflicts of interest or dual office holding, but doesn't otherwise allow added qualifications.

Article II, § 1 conditions voting eligibility for felons on restoration of civil rights. Article V, § 12 authorizes the Governor to remove political disabilities consequent upon conviction.

Section 18.2-434 of the Code attempts a perpetual office-holding disability for perjury convicts. Read against the constitutional structure, that statutory "forever" can only mean "until civil rights are restored."

The Supreme Court of Virginia has stated the rule of constitutional supremacy: legislative attempts to add qualifications beyond those the Constitution sets are an implied prohibition. The AG noted that prior opinions of the Attorney General had reached the same conclusion.

The general construction rule the AG applied is that Acts of the General Assembly are to be harmonized with the Constitution of Virginia.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 18.2-434 (perjury conviction disabilities)
• Va. Const. art. II, § 1 (felon voting disqualification and restoration)
• Va. Const. art. II, § 5 (qualifications for elective office)
• Va. Const. art. V, § 12 (Governor's restoration of political disabilities)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-080_Elkins.pdf

Original opinion text

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

November 16, 2012

The Honorable Ronald K. Elkins
Commonwealth's Attorney, Wise County & City of Norton
206 East Main Street, Suite 123
Wise, Virginia 22911

Dear Mr. Elkins:
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, in light of the language of § 18.2-434, a person convicted of perjury may seek election to public office after his political rights have been restored by the governor.

Response
It is my opinion that such a person is eligible to hold elective office.

Applicable Law and Discussion
Section 18.2-434 provides, in relevant part, that "[u]pon the conviction of any person for perjury, such person thereby shall be adjudged forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia, or of serving as a juror." You ask whether "forever" encompasses any time after any such person has his political rights restored by the governor.

Acts of the General Assembly are to be harmonized with the Constitution of Virginia. Article II, § 5 of the Constitution of Virginia, which governs qualifications to hold elective office, provides that

the only qualification to hold any office of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office, except as otherwise provided in this Constitution.

Section 5 authorizes the General Assembly to impose stricter residence requirements and further limitations based on conflicts of interests. In applying these provisions, the Supreme Court of Virginia has stated, "it is a well established rule of construction ... that when the constitution defines the qualifications for office, the specification is an implied prohibition against legislative interference to change or add to the qualifications so defined." Prior opinions of the Attorney General also have concluded that the General Assembly may not impose requirements on candidates for election to a governing body beyond those specified in the Virginia Constitution.

Article II, § 1 provides that "[n]o person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority." Article V, § 12 in turn grants the Governor the authority "to remove political disabilities," which includes the ability to restore a felon's right to vote. Because the right to vote is the sole qualification for a Virginia resident to hold office, the restoration of that right to a person convicted of a felony, including perjury, renders that person constitutionally eligible to hold office. Moreover, the authority conferred on the Governor by Article V, § 12 "to remove political disabilities consequent upon conviction for offenses" is broad enough to include those imposed by § 18.2-434.

I therefore conclude that the word "forever," as used in § 18.2-434, is to be construed in conformity with the aforementioned authorities, so that it is limited to the time before a person convicted of perjury has his political rights restored by the governor.

Conclusion
Accordingly, it is my opinion that the restoration of the right to vote removes the disability to hold office imposed by § 18.2-434.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General