When a Virginia electoral board seat opens up mid-term, does the recommendation go to the political party of the new Governor or the prior Governor?

Plain-English summary

Don Palmer, then Secretary of the State Board of Elections, asked which political party gets the recommendation when a local electoral board vacancy comes up between gubernatorial elections, in the situation where the departing member had been appointed when the prior Governor (of a different party) was in office. This was a practical question that came up frequently after gubernatorial transitions: Bob McDonnell (R) had been Governor, then Terry McAuliffe (D) won in 2013, and now a Republican-appointed local electoral board member dies or resigns. Does the Republican recommend the replacement, or does the Democrat?

AG Herring sided with the new Governor's party.

The constitutional rule. Article II, § 8 of the Virginia Constitution requires each local electoral board to have three members, with representation "as far as practicable" given to the two political parties that cast the highest and next-highest number of votes "at the general election next preceding their appointment." Existing members serve out their terms. Successors are appointed for three years. Vacancies are filled by the same authority for the unexpired term.

The statutory implementation. Section 24.2-106 says two of the three members must be of the party that cast the highest number of votes for Governor at the most recent gubernatorial election. The party entitled to the appointment recommends the appointee within 30 days of the vacancy (or by January 15 for a regularly scheduled full-term appointment). The circuit court judges then make the appointment.

Why this means the new Governor's party. The statute uses the "most recent gubernatorial election" benchmark uniformly. It does not have one rule for full-term appointments and a different rule for vacancies. So when a vacancy opens up after a party-switching gubernatorial election, the seat being filled (regardless of which party held it before) goes to the new Governor's party, because that party is now the majority party as measured by the last preceding gubernatorial vote. The statute also says no three-year term is shortened to comply with party representation, which protects incumbents but does not preserve a departing member's party affiliation for the replacement.

Agency deference reinforced the reading. The State Board of Elections' General Registrar and Electoral Board Handbook had said since 2004 that the first appointment (however occurring) for a seat previously held by a member representing the prior Governor's party "must be given to the new Governor's party." The General Assembly had amended § 24.2-106 several times after 2004 without disturbing this language. Under Commonwealth v. Appalachian Electric Power Co. (1951), long-continued practical agency construction of a statute, in the absence of legislative dissent, is "regarded as decisive."

Currency note

This opinion was issued in 2014. 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.

Title 24.2 has been amended multiple times since 2014. Election administration in Virginia migrated from the State Board of Elections to a renamed Department of Elections that same year, and the GREB Handbook has gone through multiple revisions. Anyone administering an electoral board vacancy today should check the current text of § 24.2-106, current Department of Elections guidance, and any later AG opinions interpreting the framework.

Common questions

How does a Virginia local electoral board get its three members?
Each board has three members appointed by the chief judge of the circuit court for each city or county. Two members must be of the party that won the most recent gubernatorial race; the third is of the party that came in second. Terms are three years and staggered, so one seat turns over each year. The political party with the right to recommend the appointee files the recommendation with the circuit court judges, and the judges make the formal appointment.

What happens if the political party does not recommend anyone within 30 days?
Section 24.2-106 lets the judges go ahead and appoint after the 30-day period (or after January 15 for a full-term appointment) expires, even without a party recommendation. The constitutional and statutory party-balance requirement still applies to the judges' selection.

Are incumbents removed when the Governor's party changes?
No. The statute is explicit: "No three-year term shall be shortened to comply with the political party representation requirements of this section." The shift happens organically as terms expire and as vacancies occur. A locality might temporarily have a board that is two-Republican and one-Democrat for a year or two after a Democratic gubernatorial win, until the next regular appointment cycle.

Does this rule apply to interim appointments differently than full-term appointments?
No. The statute treats them the same way for party-balance purposes. The only difference is the timing window: a regular full-term appointment must be recommended by January 15, while a vacancy appointment must be recommended within 30 days of the death or notice of resignation.

What if the prior Governor's party member resigns the day before the new Governor takes office?
The statute keys the rule to the most recent gubernatorial election, not the inauguration date. If the resignation notice is received before the new Governor's election (so that "the most recent gubernatorial election" still favors the prior party), the prior party recommends. If after, the new party does. The 30-day clock starts when the resignation notice is received.

What does "as far as practicable" mean in Article II, § 8?
It is a safety valve. If the second-largest party fails to nominate someone or no qualified person of that party is available, the board may still be filled. But the default expectation is that the partisan balance described in the statute will hold.

Who counts as the right party?
The party of the candidate who received the highest number of votes for Governor in the most recent gubernatorial election. Section 24.2-106 keys to that number, not to party registration in the locality or to which party is in the majority statewide on any other metric.

Background and statutory framework

• Va. Const. art. II, § 8: Three-member local electoral boards, party representation tied to the general election next preceding appointment.
• Va. Code § 24.2-103: General authority and duties of the State Board of Elections.
• Va. Code § 24.2-106: Implements the constitutional requirement; two of three members must be of the gubernatorial-winner's party; three-year terms not shortened; 30-day window for vacancy recommendations.
• State Board of Elections General Registrar and Electoral Board Handbook § 2.1.1: SBE's published interpretation since 2004 that vacancies for the previous Governor's party seats go to the new Governor's party.

The interpretive moves:

• The statute treats vacancies and full-term appointments the same way for party-balance purposes.
• Existing terms are not shortened, but new appointments bring the board into compliance.
• The SBE's long-standing published interpretation gets Appalachian Electric Power deference.
• The General Assembly's failure to amend the relevant language despite multiple amendments to other parts of § 24.2-106 indicates acquiescence.

Citations

• Va. Const. art. II, § 8
• Va. Code § 24.2-103
• Va. Code § 24.2-106
• Commonwealth v. Appalachian Electric Power Co., 193 Va. 37, 68 S.E.2d 122 (1951)
• State Board of Elections, General Registrar and Electoral Board Handbook § 2.1.1 (rev. July 2013)
• 2005 Op. Va. Att'y Gen. 97
• 2001 Op. Va. Att'y Gen. 125
• 1996 Op. Va. Att'y Gen. 124
• 2002 Op. Va. Att'y Gen. 186
• 1999 Op. Va. Att'y Gen. 3
• 2005 Va. Acts ch. 380
• 2011 Va. Acts ch. 764
• 2013 Va. Acts ch. 409

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-032_Palmer.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

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

June 26, 2014

Mr. Donald L. Palmer
Secretary, State Board of Elections
1100 Bank Street, First Floor
Richmond, Virginia 23219

Dear Mr. Palmer:

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 which political party is entitled to an electoral board appointment to fill a midterm vacancy, when the original appointee for that term represented the political party of the prior Governor, who was of a different political party than the current Governor.

Response

It is my opinion that an appointment to fill the vacancy of an unexpired electoral board term must reflect political party representation based on the votes for the office of Governor at the last preceding election at the time the appointment for the vacancy is made. Accordingly, the party of the candidate who prevailed in the most recent gubernatorial election is entitled to recommend the electoral board appointment to fill the vacancy.

Applicable Law and Discussion

Local electoral boards are constitutionally created bodies.[1] Article II, § 8 of the Constitution of Virginia specifically provides that

There shall be in each county and city an electoral board composed of three members, selected as provided by law. In the appointment of the electoral boards, representation, as far as practicable, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and the next highest number of votes. The present members of such boards shall continue in office until the expiration of their respective terms; thereafter their successors shall be appointed for the term of three years. Any vacancy occurring in any board shall be filled by the same authority for the unexpired term.

Section 24.2-106 of the Code of Virginia implements this constitutional provision and provides specific procedures by which the constitutional requirement of partisan balance on local electoral boards is to be achieved. In relevant part, it provides that

Two electoral board members shall be of the political party that cast the highest number of votes for Governor at [the most recent gubernatorial] election. . . . The political party entitled to the appointment shall make and file recommendations with the judges for the appointment not later than January 15 of the year of an appointment to a full term or, in the case of an appointment to fill a vacancy, within 30 days of the date of death or notice of resignation of the member being replaced. . . . The judges shall promptly make such appointment (i) after receipt of the political party's recommendation or (ii) after January 15 for a full term or after the 30-day period expires for a vacancy appointment, whichever of the events described in clause (i) or (ii) first occurs.

The statute thus requires that, of a three-member local electoral board, two members shall be of the political party that cast the highest number of votes for Governor in the last preceding gubernatorial election. This requirement of majority representation based on the most recent gubernatorial election does not differentiate between full-term appointments and interim appointments to fill unexpired terms of vacancies. Indeed, § 24.2-106 specifically addresses interim appointments to fill vacancies by specifying a different time schedule for filling them. The statute simply requires that two members be of the party of the prevailing gubernatorial candidate at the time of appointment, regardless of whether the appointments are for full terms or to fill vacancies. It does not require early termination of any board member in order to achieve the proper partisan balance. To the contrary, it states that "[n]o three-year term shall be shortened to comply with the political party representation requirements of this section."[2] But it does require that new appointments, whether for full terms or to fill vacancies, bring the board into the proper partisan balance, based on the most recent gubernatorial election.

This interpretation is supported by guidance issued by the State Board of Elections ("SBE"), the state agency tasked with administering the election laws of the Commonwealth.[3] In its General Registrar and Electoral Board Handbook ("GREB Book"), the SBE explains as follows:

By statute, the terms of incumbent members are not interrupted to meet [the political party representation] requirement when the newly elected Governor is of a different party than the previous Governor. Rather, the representation on the electoral board changes as the terms of incumbent members expire and new appointments are made when regularly scheduled, or when it is necessary to make an interim appointment for an unexpired term due to the death or resignation of a member. The first appointment (however occurring) for a seat previously held by a member representing the previous Governor's party must be given to the new Governor's party.[4]

This interpretation of § 24.2-106 has appeared in the GREB Book since the 2004 version of the handbook was adopted by the SBE. The Supreme Court of Virginia has a longstanding practice of according great weight to agency interpretation of a statute under these circumstances:

We have frequently said that the practical construction given to a statute by public officials charged with its enforcement is entitled to great weight by the courts and in doubtful cases will be regarded as decisive. The Legislature is presumed to be cognizant of such construction and when long continued, in the absence of legislation evincing a dissent, the courts will adopt that interpretation.[5]

Although the General Assembly has amended § 24.2-106 since 2004,[6] the amendments have not affected the language upon which the SBE's interpretation is based. Accordingly, I conclude that the General Assembly has acquiesced in that interpretation, an interpretation that, as discussed above, reflects the language used in the statute.

Conclusion

Accordingly, it is my opinion that an appointment to fill the vacancy of an unexpired electoral board term must reflect political party representation based on the votes for the office of Governor at the last preceding election at the time the appointment for the vacancy is made. Consequently, the party of the candidate who prevailed in the most recent gubernatorial election is entitled to recommend the electoral board appointment to fill the vacancy.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CONST. art. II, § 8.

[2] VA. CODE ANN. § 24.2-106 (Supp. 2013).

[3] See § 24.2-103 (Supp. 2013). "The fundamental objective of the State Board of Elections is to provide overall supervision and coordination of election activities throughout the Commonwealth, and to obtain uniformity in local election practices and proceedings and legality and purity in all elections." 2005 Op. Va. Att'y Gen. 97, 101-02.

[4] STATE BOARD OF ELECTIONS, GENERAL REGISTRAR AND ELECTORAL BOARD HANDBOOK § 2.1.1, "Terms of Office" at 4 (rev. July 2013) (emphasis added), available at http://townhall.virginia.gov/L/GetFile.cfm. Previous Opinions of this Office defer to an agency's interpretations of the laws it is charged with administrating, including the SBE. See, e.g., 2001 Op. Va. Att'y Gen. 125; 1996 Op. Va. Att'y Gen. 124. See also 2002 Op. Va. Att'y Gen. 186; 1999 Op. Va. Att'y Gen. 3; and opinions cited in each.

[5] Commonwealth v. Appalachian Electric Power Co., 193 Va. 37, 45-46, 68 S.E.2d 122, 127 (1951).

[6] See 2005 Va. Acts ch. 380 (adding requirement that at least one board member attend annual SBE training); 2011 Va. Acts 764 (adding restrictions on who may serve on electoral board based on certain relationships to elected officials); 2013 Va. Acts ch. 409 (adding provision permitting temporary appointments, on a meeting-to-meeting basis, in cases of temporary absence or disability resulting in loss of quorum).