Are Virginia campaign finance regulations exempt from the normal Administrative Process Act notice-and-comment process as part of 'the conduct of elections'?

Plain-English summary

The Commissioner of Elections (the question was originally submitted by Don Palmer as Secretary of the State Board of Elections in 2014 before the July 1, 2014 reorganization into the Department of Elections) wanted to know whether the agency's regulations on campaign finance, fundraising during legislative session, and political campaign advertisements were exempt from the Virginia Administrative Process Act. The APA at § 2.2-4002(B)(8) exempts agency action relating to "[t]he conduct of elections or eligibility to vote." If campaign finance regulations counted as "conduct of elections," the agency could skip the full APA process (notice, hearing, comment, AG and Governor review, legislative review) and adopt rules more quickly.

AG Herring said no. Three threads of analysis pushed the same way.

Structural reading of Title 24.2. The Code itself has a separately codified Article 4 of Chapter 6 of Title 24.2 entitled "Conduct of Election; Election Results." That article contains the statutes governing what happens at polling places on election day: voter procedures, ballot handling, voting equipment, vote counting. The Campaign Finance Disclosure Act (Ch. 9.3), the legislative-session fundraising restrictions (Ch. 9.4), and the political-advertisements chapter (Ch. 9.5) are in a completely different part of Title 24.2. The General Assembly's organizational choice signals what it understood "conduct of elections" to mean.

Other uses of "conduct of elections" reinforce the day-of-election reading. Section 24.2-114(5) refers to "pollbooks used for the conduct of elections," § 24.2-309 deals with conducting elections in precincts where voters have different ballot choices, and § 24.2-310(B) requires localities to provide "adequate facilities at each polling place for the conduct of elections." All polling place, election day stuff. The General Assembly assigned "conduct of elections" oversight to local electoral boards (§ 24.2-109(B)), which manage officers of election, the people who run the polling places on election day (§§ 24.2-115, 24.2-116). Campaign finance laws, by contrast, are administered centrally by the State Board, with local electoral boards involved only in candidate-disclosure work for local-office candidates (§ 24.2-948.1). The role split itself shows campaign finance is not "conduct of elections."

Case law on the constitutional analog points the same direction. Article IV, § 14(11) of the Virginia Constitution prohibits the General Assembly from enacting local or special laws "[f]or registering voters, conducting elections, or designating the place of voting." The Virginia Supreme Court in Porter v. Joy (1949) and Davis v. Dusch (1964) read "conducting elections" in that constitutional clause to refer to "the manner in which an election is conducted," meaning the mechanics of election-day administration, not the substantive question of what offices get elected or how candidates are nominated. Prior AG opinions interpreting the same clause came out the same way. Reading the APA exemption to sweep in all election-adjacent regulation would also render the separate "eligibility to vote" prong of § 2.2-4002(B)(8) superfluous, which is a disfavored reading under Jones v. Conwell.

Bottom line. Campaign finance regulations have to go through the full APA process: notice, public comment, possible hearing, AG and Governor review, legislative review. Faster processes are not available.

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.

The APA (Title 2.2 Ch. 40) and Title 24.2 have both been amended numerous times since 2014. The Department of Elections has gone through additional restructuring. Anyone working with current campaign finance rulemaking should consult the present statutory text and any later AG opinions on the scope of the "conduct of elections" exemption.

Common questions

What does the APA notice-and-comment process require?
At a high level: the agency publishes a notice of intended regulatory action (NOIRA), then a proposed regulation, then takes public comment, optionally holds a public hearing, gets review from the Office of the Attorney General and the Governor's Office, and submits the regulation to legislative review. The process typically takes a year or more end-to-end and is the default for any agency regulation.

What exemptions does the APA have for election agencies?
The APA does not give the Department of Elections (or the predecessor State Board) a blanket exemption. Section 2.2-4002(B)(8) carves out "[t]he conduct of elections or eligibility to vote" by subject matter. There are other subject-matter exemptions in § 2.2-4002(B) for other agencies, but they are narrow. This opinion confirms that the election-specific exemption is narrow too.

What does count as "the conduct of elections"?
Per this opinion, things like polling place procedures, ballot handling, voting equipment use, voter sign-in, the counting of ballots, and other on-the-day-of-election operations. Voter qualification and registration rules are arguably also outside, since they fall under the separate "eligibility to vote" prong (which is in turn separately exempt).

Why does the General Assembly want full APA process for campaign finance regulations?
Campaign finance rules affect political committees, candidates, donors, and disclosure obligations. They are substantive policy choices with meaningful First Amendment and competitive implications. The legislature treats them as requiring more public input and review than the procedural minutiae of polling-place operations.

Does this opinion apply to the related rules under Chapters 9.4 and 9.5?
Yes. The opinion covers Ch. 9.3 (Campaign Finance Disclosure Act), Ch. 9.4 (legislative-session fundraising restrictions), and Ch. 9.5 (Political Campaign Advertisements). All three are outside the APA exemption.

What about a local electoral board's role in campaign finance?
Local electoral boards are charged with implementing Chapter 9.3 only as it applies to candidates seeking local office (§ 24.2-948.1). They have no role under Chapters 9.4 and 9.5. The State Board handles most administration centrally.

Does this opinion still apply if the General Assembly grants the Department of Elections a broader APA exemption?
No, a later statutory change would supersede the opinion. The opinion is an interpretation of the law as it stood in 2014. The General Assembly could rewrite § 2.2-4002 at any time.

Background and statutory framework

• Va. Code § 2.2-4002(B)(8): APA exemption for agency action relating to "[t]he conduct of elections or eligibility to vote."
• Va. Code §§ 24.2-643 through 24.2-680: Article 4 of Chapter 6 of Title 24.2, "Conduct of Election; Election Results."
• Va. Code §§ 24.2-945 through 24.2-953.5: Campaign Finance Disclosure Act of 2006 (Ch. 9.3).
• Va. Code § 24.2-954: Campaign fundraising during legislative sessions (Ch. 9.4).
• Va. Code §§ 24.2-955 through 24.2-959.1: Political Campaign Advertisements (Ch. 9.5).
• Va. Code § 24.2-103(A): Department of Elections charged with administering election laws.
• Va. Code § 24.2-109(B): Local electoral boards' duties, including "conduct of the election."
• Va. Code § 24.2-948.1: Local electoral boards' limited role in Chapter 9.3 for local-office candidates.
• Va. Const. art. IV, § 14(11): Prohibition on local or special laws for conducting elections.

The interpretive moves:

• The Code's organizational structure puts "conduct of elections" in a separate article from campaign finance.
• Other uses of the phrase elsewhere in the Code consistently refer to election-day operations.
• Reading the exemption broadly would render the separate "eligibility to vote" prong superfluous.
• Porter, Davis, and earlier AG opinions interpreting the parallel constitutional language consistently limited "conducting elections" to election-day mechanics.

Citations

• Va. Code §§ 2.2-4000 through 2.2-4031 (APA)
• Va. Code §§ 24.2-945 through 24.2-959.1 (campaign finance, fundraising, advertisements)
• Va. Const. art. II, § 1
• Va. Const. art. IV, § 14(11)
• Jones v. Conwell, 227 Va. 176, 314 S.E.2d 61 (1984)
• Moore v. Pullem, 150 Va. 174, 142 S.E. 415 (1928)
• King v. Commonwealth, 2 Va. App. 708, 347 S.E.2d 530 (1986)
• Porter v. Joy, 188 Va. 801, 51 S.E.2d 156 (1949)
• Davis v. Dusch, 205 Va. 676, 139 S.E.2d 25 (1964)
• 1990 Op. Va. Att'y Gen. 126
• 1969-70 Op. Va. Att'y Gen. 114
• 2011 Op. Va. Att'y Gen. 132
• 2003 Op. Va. Att'y Gen. 108

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-038_Cortes.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
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

October 1, 2014

The Honorable Edgardo Cortés
Commissioner of Elections
Department of Elections
1100 Bank Street, First Floor
Richmond, Virginia 23219

Dear Mr. Cortés:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia. This request originally was submitted by Donald Palmer in his capacity as Secretary of the State Board of Elections prior to the establishment of the Department of Elections on July 1, 2014.

Issue Presented

You ask whether regulations administering Chapters 9.3, 9.4, and 9.5 of Title 24.2 of the Code of Virginia, which concern campaign finance laws, relate to "the conduct of elections or eligibility to vote," thereby qualifying for an exemption from the Virginia Administrative Process Act ("APA") regulatory process.

Response

It is my opinion that regulations implementing Chapters 9.3, 9.4, and 9.5 of Title 24.2 of the Code of Virginia do not relate to "the conduct of elections and eligibility to vote," and therefore do not qualify for an exemption from the regulatory process established by the APA.

Applicable Law and Discussion

The Virginia Administrative Process Act governs the adoption of regulations by agencies of the Commonwealth. Pursuant to the APA, prior to becoming effective, agency regulations are subject to various requirements:

public notice and, potentially, public hearings;
public comment and, potentially, the taking of evidence;
review by both the Attorney General and the Governor; and
legislative review.

Nevertheless, the APA contains several exemptions from its applicability, including blanket exemptions for certain agencies and exemptions based on the subject matter of the agency action. Although the APA does not contain a blanket exemption for the Department of Elections, it does exempt agency action that relates to "[t]he conduct of elections or eligibility to vote."

The Chapters about which you inquire contain the Campaign Finance Disclosure Act of 2006, restrictions on fundraising by and for statewide officials while the General Assembly is in session, and disclosure requirements for campaign advertisements. These provisions regulate certain financial aspects of candidates' campaigns for elected office. Because regulations implementing such provisions would not affect voter eligibility issues, your request requires only an analysis of whether regulations addressing campaign finance laws relate to "the conduct of elections."

That matters related to "the conduct of elections" do not encompass all regulations implementing the election laws is evident from the General Assembly's decision not to provide a blanket APA exemption to the Department of Elections, the state agency charged with the administration of the election laws. Moreover, such a broad interpretation would render the specific exemption of agency action related to the eligibility to vote superfluous. Thus, action related to "the conduct of elections" does not include all regulations that may implicate an activity associated with the election process. Rather, based on the General Assembly's general treatment of election-related activities and organization of the statutory provisions governing them, as well as related case law, I conclude that the phrase is limited to activities occurring on, or in preparation for, election day, so that regulations addressing campaign finance laws do not relate to "the conduct of elections."

The Code of Virginia constitutes a single body of law, and it is well established that other portions of it provide interpretative guidance. Although not dispositive, it is notable that the portion of Title 24.2 entitled "Conduct of Election; Election Results" is codified separately as Article 4 of Chapter 6. Chapters 9.3, 9.4, and 9.5 are not included there, nor does Article 4 of Chapter 6 contain provisions relating to financial matters. Rather, the statutes included in Article 4 govern activities that occur on the day of an election. For example, certain sections provide the procedures by which qualified voters are to vote at a polling place, while other sections address the appropriate use and handling of ballots and voting equipment on the day of an election, as well as the counting of ballots at the close of the election day. The context of other parts of the Code where "conduct of election" is used also suggests that the term is limited to election-day operations.

In addition, the legislature has vested oversight of the "conduct of elections" in local electoral boards. As part of this duty, electoral boards are responsible for the appointment and training of officers of election, who are assigned to precincts on election day to manage polling place operations and to maintain order. These activities are limited, by their essence, to events occurring on election day. In contrast, further evincing that issues related to campaign finance regulation are distinct from the conduct of elections, the role of local electoral boards in administering the provisions about which you inquire is very limited: they are charged with implementing the provisions of Chapter 9.3 only as they apply to candidates seeking local office, and they possess no authority with respect to Chapters 9.4 and 9.5. The General Assembly otherwise has vested the State Board of Elections with the administration of campaign finance laws.

Furthermore, although the phrase "the conduct of elections" has not been defined for purposes of the exemption under the APA, similar language has been held to be limited to the management of events occurring on election day. In construing the constitutional prohibition against enacting local or special laws "[f]or registering voters, conducting elections, or designating the place of voting[,]" the Supreme Court of Virginia has considered the extent to which this language applies to overall operations of electoral boards. In two cases, the Court distinguished between activity tied to the management of an election on election day, and other electoral board functions.

In Porter v. Joy, plaintiffs challenged legislation that permitted the election, rather than appointment, of school board members. In upholding the enactment, the Court acknowledged that a local law authorizing a county "to set up its own regulations with respect to the time of opening and closing the polls, the selection of the judges of election, and the many other matters related to the conduct of elections, would be obviously undesirable[,]" but concluded that the constitutional prohibition "clearly was not intended as a restriction upon the General Assembly to provide what offices in a county should be filled by election." The Court reached a similar conclusion in Davis v. Dusch, which addressed an amendment to a city charter that ordered redistricting based on consolidation of the city and a county. In finding no constitutional violation in amending the charter, the Court stated that the constitutional provision

"refers to the manner in which an election is conducted." We are not concerned in this case with the manner of conducting an election. Our concern is whether the city council has the power to reapportion itself and has the authority to order the election of a new council, an entirely different matter from that envisioned by [the restriction on enacting local or special law related to conducting elections].

This Office, in applying the constitutional prohibition, also has interpreted the term "the conduct of elections" as a reference to overseeing and managing elections on an election day. In a previous Opinion, the Attorney General considered whether proposed legislation to establish guidelines for the nomination of candidates for certain positions constituted an unconstitutional special law. The Attorney General concluded that the prohibition "refers purely to the manner in which elections are conducted, whereas Senate Bill No. 70 refers only to the method of nominating candidates for office." Later opinions also have limited contextually the application of the phrase "the conduct of elections" to those events which take place on, or are taken to directly prepare for, an election day.

As a result, the case law and prior opinions of this Office addressing the phrase "the conduct of elections" are consistent with the statutory analysis of the Code detailed above. As "the conduct of elections" routinely has been determined to include only those activities that occur on, or in preparation for, election days, campaign finance laws do not fall within the scope of this phrase. Consequently, regulations adopted for the administration of the provisions of the Campaign Finance Disclosure Act are not exempt from the APA regulatory process.

Conclusion

Accordingly, it is my opinion that regulations adopted by the SBE for the purpose of administering Chapters 9.3, 9.4, and 9.5 of Title 24.2 of the Code of Virginia concerning campaign finance laws do not relate to "the conduct of elections or eligibility to vote," and therefore do not qualify for an exemption from the APA regulatory process under § 2.2-4002(B)(8).

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General