Can Virginia's State Board of Elections define by regulation what 'valid' photo ID means under the voter ID statute?

Plain-English summary

Senator Obenshain asked whether the Virginia State Board of Elections had the authority to define "valid" as used in the 2013 photo ID law. The law required voters at polling places to present a valid Virginia driver's license, valid U.S. passport, valid student photo ID, valid employee photo ID, or other valid government-issued photo ID. But the statute did not say what "valid" meant. Did "valid" mean "unexpired"? Did "valid" cover an expired ID that was still genuine and otherwise authentic? The SBE had adopted a regulation in 2014 trying to define the term, and Senator Obenshain wanted a legal opinion on whether SBE had the power to do that.

AG Herring said SBE did. (He also noted that a sub-question about whether the specific June 2014 SBE definition was lawful was moot because SBE had already amended that definition in August 2014.)

SBE has broad regulatory authority over elections. Section 24.2-103 makes SBE the state agency charged with supervising and coordinating local electoral boards and registrars to obtain uniformity in election practices and the legality and purity of elections. The statute expressly gives SBE the power to "make rules and regulations and issue instructions and provide information consistent with the election laws to the electoral boards and registrars to promote the proper administration of election laws." Under Virginia administrative-law cases like Volkswagen of America v. Smit and Judicial Inquiry & Review Commission v. Elliot, this kind of legislative delegation gives an agency broad discretion to use rulemaking to implement its mandate, as long as the rules are consistent with the underlying statute.

The term "valid" in § 24.2-643(B) is ambiguous. A term is ambiguous if it lacks "clearness and definiteness" or may be understood in more than one way. "Valid" appears throughout the Code but is defined only for limited statutory contexts (e.g., for power of attorney in § 64.2-1604). In the photo ID context, "valid" could mean any one of several things: unexpired and currently authentic; merely genuine and not forged regardless of expiration date; or something in between (like unexpired or expired within a short grace period). The fact that SBE previously had to issue interpretive guidance under the earlier version of the statute (defining "valid" as "unexpired or expired within 30 days prior to the election") confirms the ambiguity.

SBE can resolve ambiguous statutory terms through regulation, as long as it does not contradict plain meaning. The Virginia rule (going back to Commonwealth v. Greyhound Lines and 1974-75 Op. Va. Att'y Gen. 237) is that an agency charged with administering an ambiguous statute may interpret the statute by regulation, subject to the limit that the interpretation cannot violate plain meaning (Superior Steel Corp. v. Commonwealth).

Legislative acquiescence reinforces SBE's authority. SBE had defined "valid" under the prior version of § 24.2-643. When the General Assembly amended the statute in 2013 (and again in subsequent sessions), it neither defined "valid" itself nor prohibited SBE from continuing to do so. Under Peyton v. Williams and Gomes v. City of Richmond, the legislature is presumed to know of the agency's interpretive practice, and its silence is acquiescence. SBE's continued authority to define the term is consistent with that acquiescence.

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.

Virginia's voter identification framework has been amended substantially since 2014. In 2020 the General Assembly significantly relaxed photo-ID requirements at the polls and broadened the list of acceptable identifications, and Title 24.2 has been recodified and restructured in places. Anyone applying current voter-ID law should look at the present § 24.2-643 text, current Department of Elections regulations, and any later AG opinions in this area.

Common questions

What did the 2013 photo ID law require?
A voter at a polling place had to present an acceptable photo ID to cast a non-provisional ballot. The acceptable forms included a valid Virginia driver's license, a valid U.S. passport, other valid photo ID issued by a Virginia or U.S. political subdivision, a valid student photo ID from a Virginia higher-ed institution, or a valid employee photo ID issued by the voter's employer in the ordinary course of business.

What was the SBE's regulatory definition of "valid"?
The 2014 SBE adopted a regulation defining "valid" for purposes of the voter-ID statute. The specific definition was amended in August 2014, so the version in effect at the time of this opinion was the August 2014 version. The 2013 prior-statute version had defined "valid" as "unexpired or expired within 30 days prior to the election."

Why does the General Assembly leave terms like "valid" undefined?
Several possible reasons: legislative compromise during drafting, deference to the implementing agency's expertise, or simple oversight. When a term is left undefined, the agency typically interprets it by regulation, and the courts test that interpretation for reasonableness and consistency with the statute.

What is "legislative acquiescence"?
A doctrine that the legislature, by not amending a statute to overrule a longstanding agency interpretation, is presumed to accept that interpretation. It is not absolute, but it is one factor in evaluating the legitimacy of an agency reading.

Can SBE adopt any definition of "valid" it wants?
No. SBE's definition cannot contradict the plain meaning of "valid" and cannot exceed SBE's statutory mandate. Courts can review a regulation for arbitrariness, unreasonableness, or inconsistency with statute. The opinion confirms SBE's authority to define the term, not that any particular definition is automatically valid.

Does this opinion apply to other statutes besides § 24.2-643?
The reasoning (agency rulemaking authority to define ambiguous statutory terms it is charged with administering) is broadly applicable to Virginia administrative law. The specific holding about SBE and "valid" is limited to the voter-ID context, but the framework applies wherever an agency interprets an ambiguous statute it administers.

What happens to voters who present a photo ID that the SBE definition treats as not "valid"?
Under the 2013-2014 framework, a voter without a valid photo ID could cast a provisional ballot. Subsequent changes have altered the consequences. Always check current law for the actual rules.

Background and statutory framework

• Va. Code § 24.2-103: Department of Elections (assisted by SBE) supervises and coordinates local electoral boards and registrars; broad rulemaking authority.
• Va. Code § 24.2-643(B): Voter identification requirements at polling place; lists "valid" photo IDs.
• Va. Code § 24.2-109: General powers and duties of local electoral boards.
• Va. Code § 24.2-114: General powers and duties of local registrars.
• Va. Code §§ 2.2-4001, 2.2-4008: Definitions and operative provisions of the APA, supporting rulemaking authority.

The interpretive moves:

• SBE has broad rulemaking authority under § 24.2-103.
• The term "valid" in § 24.2-643(B) is ambiguous (no statutory definition; multiple possible readings).
• Agencies may define ambiguous statutory terms within their administrative reach.
• SBE's earlier practice of defining "valid" without legislative interference shows acquiescence.
• The post-2013 amendments did not disturb SBE's defining authority.

Citations

• Va. Code §§ 2.2-4001, 2.2-4008
• Va. Code §§ 24.2-103, 24.2-103(A), 24.2-109, 24.2-114
• Va. Code § 24.2-643
• Va. Code §§ 2.2-3301, 8.01-328.1, 22.1-298.1, 40.1-31, 55-122, 64.2-1604
• 2012 Va. Acts chs. 838 & 839
• 2013 Va. Acts ch. 725
• Hurt v. Caldwell, 222 Va. 91, 279 S.E.2d 138 (1981)
• Segaloff v. City of Newport News, 209 Va. 259, 163 S.E.2d 135 (1968)
• Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 689 S.E.2d 679 (2010)
• Judicial Inquiry & Review Comm'n v. Elliot, 272 Va. 97, 630 S.E.2d 485 (2006)
• Jackson v. W., 14 Va. App. 391, 419 S.E.2d 385 (1992)
• Commonwealth v. Greyhound Lines, Inc., 206 Va. 550, 145 S.E.2d 206 (1965)
• Superior Steel Corp. v. Commonwealth, 147 Va. 202, 136 S.E. 666 (1927)
• Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 2 S.E.2d 303 (1939)
• Lincoln National Life Ins. Co. v. Commonwealth Corrugated Container Corp., 229 Va. 132, 327 S.E.2d 98 (1985)
• Peyton v. Williams, 206 Va. 595, 145 S.E.2d 147 (1965)
• Gomes v. City of Richmond, 220 Va. 449, 258 S.E.2d 582 (1979)
• Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 279 S.E.2d 400 (1981)
• Dep't of Taxation v. Progressive Cmty. Club, 215 Va. 732, 213 S.E.2d 759 (1975)
• Elizabeth River Crossings v. Meeks, 286 Va. 286, 749 S.E.2d 176 (2013)
• 2014 Op. Va. Att'y Gen. No. 13-111
• 2011 Op. Va. Att'y Gen. 143
• 2009 Op. Va. Att'y Gen. 94
• 2005 Op. Va. Att'y Gen. 84
• 1974-75 Op. Va. Att'y Gen. 237

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-056_Obenshain.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

December 18, 2014

The Honorable Mark D. Obenshain
Member, Senate of Virginia
Post Office Box 555
Harrisonburg, Virginia 22803

Dear Senator Obenshain:

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 whether the State Board of Elections ("SBE") possesses the regulatory authority to define the term "valid" as used in § 24.2-643(B) of the Code of Virginia.[1]

Response

It is my opinion that SBE possesses regulatory authority to define the term "valid" as used in § 24.2-643(B).

Background

Section 24.2-643 sets forth procedures and requirements with respect to voter identification at polling places within the Commonwealth. Since 2012, the statute has provided that a voter must present acceptable identification in order to be eligible to cast a nonprovisional ballot.[2] In 2013, the General Assembly amended the statute to provide that only certain photo identification is acceptable to satisfy the voter identification requirement: inter alia, a valid Virginia driver's license, a valid United States passport, a valid student photo identification, or a valid employee photo identification.[3] The amendment, however, does not define the term "valid." Prior to implementing the photo identification requirement, which became effective July 1, 2014, the SBE promulgated a regulation defining the term "valid." You inquire whether the SBE possesses the authority to define the term via regulation.

Applicable Law and Discussion

The SBE is an administrative agency of the Commonwealth that is authorized to operate in accord with its enabling legislation.[4] Its general responsibilities and regulatory authority are set forth in § 24.2-103, which provides, in relevant part, that it

shall supervise and coordinate the work of the county and city electoral boards and of the registrars to obtain uniformity in their practices and proceedings and legality and purity in all elections. It shall make rules and regulations and issue instructions and provide information consistent with the election laws to the electoral boards and registrars to promote the proper administration of election laws.

As the language of the section indicates, the SBE is not directly responsible for the implementation of election laws; instead, those laws are implemented at the local level by electoral boards and general registrars in each of Virginia's 133 localities.[5] Pursuant to its supervisory authority, the SBE is charged with promulgating regulations and issuing guidance on the appropriate methods by which local authorities are to implement the Commonwealth's election laws. One of the primary goals of this directive is to ensure uniformity among the localities in their implementation of these laws.

To fulfill its responsibilities, the SBE is vested with broad authority to adopt reasonable regulations not inconsistent with general law.[6] The SBE also possesses the specific authority to issue interpretive guidance clarifying the meaning of statutes it is charged with administering.[7] Considered together, these powers demonstrate that the SBE may clarify the meaning of statutes through regulation in order to further its mission of ensuring uniform election procedures. In particular, the SBE may issue regulations resolving the meaning of ambiguous terms in statutes it is charged with administering.[8]

The meaning of the term "valid" within the specific context of § 24.2-643 is ambiguous.[9] A statutory term is ambiguous if it lacks "clearness and definiteness"[10] or may be understood in more than one way.[11] While the term "valid" is used throughout the Code of Virginia and in some instances defined for the limited purposes of specific statutes, the Code of Virginia provides no general definition.[12] Although the term was included in prior versions of § 24.2-643, no definition of "valid" is incorporated into this section. Under the previous version of § 24.2-643,[13] which also contained the term "valid," the SBE issued guidance interpreting the term.[14] This supports the conclusion that the term may be understood in more than one manner, and that administrative guidance is necessary to ensure a uniform application of § 24.2-643.

Because the term "valid," as used in the context of § 24.2-643, is susceptible to more than one interpretation, binding administrative guidance ensures uniformity in local election practice. In clarifying the meaning of the term, the SBE provides uniform guidance to local election officials across the Commonwealth who review the documents presented by voters as proof of identity. In so doing, the SBE acts in accord with its statutory mandate and not in opposition to other law.[15] It is therefore my opinion that, in the absence of a statutory definition, the SBE has the authority to issue a regulation defining the term "valid" as used in § 24.2-643(B).[16]

This conclusion is further supported by the SBE's prior practice of providing an interpretation of the term "valid" under the previous version of § 24.2-643.[17] The legislature is presumed to be cognizant of the agency's practice of interpreting statutes it is tasked with administering and enforcing.[18] Because the legislature amended § 24.2-643 without either providing a definition for the term "valid," or prohibiting the SBE from further defining this term, which SBE previously had defined, it is my opinion that the SBE has not been deprived of its authority to continue its established practice of defining the term.[19]

Conclusion

Accordingly, for the reasons expressed above, it is my opinion that SBE possesses regulatory authority to define the term "valid" as used in § 24.2-643(B).

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Your request also asks whether the definition of "valid" adopted by the Board in June 2014 is consistent with state law and a proper exercise of its regulatory authority. Because the particular definition referenced in your request was amended by SBE in August 2014 and is no longer in effect, that inquiry is now moot, and it will not be addressed in this opinion. See 2005 Op. Va. Att'y Gen. 84, 85 (declining to opine about a possible conflict of interest arising from certain payments from a locality to a public defender's office because such payments are not legally authorized, thus making the question moot). See also Elizabeth River Crossings v. Meeks, 286 Va. 286, 749 S.E.2d 176 (2013) (Court declining to rule on an issue because it had been rendered moot by the Court's decision).

[2] See 2012 Va. Acts chs. 838 & 839.

[3] See 2013 Va. Acts ch. 725. In its amended form, § 24.2-643(B) provides specifically that

The [election] officer shall ask the voter to present any one of the following forms of identification: his valid Virginia driver's license, his valid United States passport, or any other photo identification issued by the Commonwealth, one of its political subdivisions, or the United States; any valid student identification card containing a photograph of the voter and issued by any institution of higher education located in the Commonwealth; or any valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer's business.

[4] See Hurt v. Caldwell, 222 Va. 91, 97, 279 S.E.2d 138, 142 (1981); Segaloff v. City of Newport News, 209 Va. 259, 261, 163 S.E.2d 135, 137 (1968). The SBE is assisted in its operations by the Department of Elections. See Va. Code Ann. § 24.2-103(A) (Supp. 2014).

[5] See §§ 24.2-109 (2011) (setting forth the general powers and duties of local electoral boards); 24.2-114 (Supp. 2014) (setting forth the general powers and duties of local registrars).

[6] See Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 340-341, 689 S.E.2d 679, 687 (2010); Judicial Inquiry & Review Comm'n v. Elliot, 272 Va. 97, 115, 630 S.E.2d 485, 494 (2006) ("When an administrative body is delegated rulemaking authority by the General Assembly, it is given broad discretion to determine the procedures it will employ in carrying out its legislative mandate, so long as the rules it adopts are not inconsistent with the authority of the statutes that govern it or with principles of due process."); see also § 24.2-103(A) (providing that regulations issued by the SBE shall not conflict with general law).

[7] See Va. Code Ann. §§ 2.2-4001 (2014); 2.2-4008 (2014); 24.2-103(A); Jackson v. W., 14 Va. App. 391, 399-400, 419 S.E.2d 385, 390 (1992); 2009 Op. Va. Att'y Gen. 94, 99.

[8] Cf. 1974-75 Op. Va. Att'y Gen. 237, 238 (citing Commonwealth v. Greyhound Lines, Inc., 206 Va. 550, 145 S.E.2d 206 (1965)) ("If a statute is ambiguous and construction is necessary an agency charged with its administration may interpret the statute."). I note, however, that an agency may not interpret a statutory term in a manner inconsistent with its plain meaning. See Superior Steel Corp. v. Commonwealth, 147 Va. 202, 206, 136 S.E. 666, 667 (1927).

[9] In determining whether the meaning of an undefined term within a statute is plain, courts look to the context in which the term appears. See Protestant Episcopal Church v. Truro Church, 280 Va. 6, 21, 694 S.E.2d 555, 563 (2010).

[10] Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 393, 2 S.E.2d 303, 307 (1939).

[11] Lincoln National Life Ins. Co. v. Commonwealth Corrugated Container Corp., 229 Va. 132, 136-37, 327 S.E.2d 98, 101 (1985).

[12] For examples of this type of limited definition, see, e.g., Va. Code Ann. § 2.2-3301 (2011) (acts, business transactions, legal proceedings, etc. on holidays valid); Va. Code Ann. § 8.01-328.1 (Supp. 2014); Va. Code Ann. § 22.1-298.1 (Supp. 2014) (regulations governing licensure); Va. Code Ann. § 40.1-31 (2013) (assignment of wages and salaries; requirements); Va. Code Ann. § 55-122 (2012) (acts of notaries public, etc., who have held certain other offices); Va. Code Ann. § 64.2-1604 (2012) (validity of power of attorney).

[13] See 2012 Va. Acts chs. 838 & 839.

[14] See Va. Dep't of Elections, Voter Identification Chart (former agency guidance, rev. 9/12) (available upon request of the agency) (defining "valid" as "unexpired or expired with 30 days prior to the election").

[15] See 2014 Op. Va. Att'y Gen. No. 13-111, available at http://www.oag.state.va.us/index.php/citizen-resources/opinions?id=61#september (stating that the SBE has discretion to act in the absence of a statutory mandate or prohibition providing otherwise).

[16] I note that "Virginia courts ... afford great weight to the interpretation of a statute by the state agency charged with its enforcement." 2011 Op. Va. Att'y Gen. 143, 145 (citing Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 276, 279 S.E.2d 400, 403 (1981); Dep't of Taxation v. Progressive Cmty. Club, 215 Va. 732, 739, 213 S.E.2d 759, 763 (1975)).

[17] See supra note 14.

[18] See Peyton v. Williams, 206 Va. 595, 600, 145 S.E.2d 147, 151 (1965).

[19] Cf. Gomes v. City of Richmond, 220 Va. 449, 258 S.E.2d 582 (1979) (noting that "legislative acquiescence in administrative practices may be considered as evidence of legislative intent").