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virginia > Title 24.2 Elections > Candidates For Office

§ 24.2-545 Presidential primary

Overview of Statute

The duly constituted authorities of the state political party shall have the right to determine the method by which the state party will select its delegates to the national convention to choose the party’s nominees for President and Vice President including a presidential primary or another method. Any person seeking the nomination may file with the State Board petitions signed by at least 5,000 qualified voters who attest that they intend to participate in the primary of the same political party as the candidate. The binding of votes of delegates to a party’s national convention for the nomination of that party’s candidate for President and Vice President through the presidential primary process shall be considered equivalent to a primary for the nomination of a party’s candidate. Further details provided in this section.

Statute

A. The duly constituted authorities of the state political party shall have the right to determine the method by which the state party will select its delegates to the national convention to choose the party’s nominees for President and Vice President of the United States including a presidential primary or another method determined by the party. The state chairman shall notify the State Board of the party’s determination at least 90 days before the primary date. If the party has determined that it will hold a presidential primary, each registered voter of the Commonwealth shall be given an opportunity to participate in the presidential primary of the political party, as defined in § 24.2-101, subject to requirements determined by the political party for participation in its presidential primary. The requirements may include, but shall not be limited to, the signing of a pledge by the voter of his intention to support the party’s candidate when offering to vote in the primary. The requirements applicable to a party’s primary shall be determined at least 90 days prior to the primary date and certified to, and approved by, the State Board.

B. Any person seeking the nomination of the national political party for the office of President of the United States, or any group organized in the Commonwealth on behalf of, and with the consent of such person, may file with the State Board petitions signed by at least 5,000 qualified voters, including at least 200 qualified voters from each congressional district in the Commonwealth, who attest that they intend to participate in the primary of the same political party as the candidate for whom the petitions are filed. Such petitions shall be filed with the State Board by the primary filing deadline. The petitions shall be on a form prescribed by the State Board and shall be sealed in one or more containers to which is attached a written statement giving the name of the presidential candidate and the number of signatures on the petitions contained in the containers. Such person or group shall also attach a list of the names of persons who would be elected delegates and alternate delegates to the political party’s national convention if the person wins the primary and the party has determined that its delegates will be selected pursuant to the primary. The slate of delegates and alternates shall comply with the rules of the national and state party.

The State Board shall transmit the material so filed to the state chairman of the party of the candidate immediately after the primary filing deadline. The sealed containers containing the petitions for a candidate may be opened only by the state chairman of the party of the candidate. The state chairman of the party shall, by the deadline set by the State Board, furnish to the State Board the names of all candidates who have satisfied the requirements of this section. In furnishing the name of each such candidate, the state chairman shall certify that a review of the filed candidate petitions found the required minimum number of signatures of qualified voters for that office to have been met. Whenever only one candidate for a party’s nomination for President of the United States has met the requirements to have his name on the ballot, he will be declared the winner and no presidential primary for that party will be held.

C. The names of all candidates in the presidential primary of each political party shall appear on the ballot in an order determined by lot by the State Board.

D. The State Board shall certify the results of the presidential primary to the state chairman. If the party has determined that its delegates and alternates will be selected pursuant to the primary, the slate of delegates and alternates of the candidate receiving the most votes in the primary shall be deemed elected by the state party unless the party has determined another method for allocation of delegates and alternates. If the party has determined to use another method for selecting delegates and alternates, those delegates and alternates shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the primary unless that candidate releases those delegates and alternates from such vote.

E. The election, or binding of votes, of delegates to a political party’s national convention for the nomination of that party’s candidates for President and Vice President of the United States through the presidential primary process shall be considered to be equivalent to a primary for the nomination of a party’s candidate.

F. The cost of the presidential primary shall be paid by the Commonwealth pursuant to the provisions of the appropriation act.

1999, c. 972; 2000, c. 379; 2003, c. 1015; 2011, cc. 570, 584; 2013, cc. 443, 521, 550.

Annotation: 06/27/2016 4:33 pm

In Correll v. Herring, the plaintiff, a delegate to the Republican National Convention, brought an action to obtain emergency injunctive relief on behalf of himself and other delegates in order to allow all Virginia delegates to vote their conscience at their parties’ national conventions. The plaintiff contends that the criminal penalties imposed by the Virginia Code for violations of Section 545(D) are in contravention of the First Amendment, which guarantees that delegates to the party conventions have the right to vote their conscience “free from government compulsion.”

Annotation: 4:34 pm

Violations of 545(D) are class 1 misdemeanors subject to criminal punishment. Va. Code § 24.2-1017; Va. Code § 24.2-1001. Under Virginia law, a Class 1 misdemeanor is subject to “confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.” Va. Code § 18.2-11(a).

Annotation: 07/12/2016 2:48 pm

On Monday, July 11, 2016, a federal judge for the Eastern District of Virginia issued a permanent injunction prohibiting Virginia from enforcing the statute requiring all state delegates to the Republican National Convention to vote for the winner of the state’s primary on the first vote of the convention. Judge Robert Payne, who authored the opinion, agreed with the plaintiff that the state law binding delegates to vote for the state’s presidential primary winner, Donald Trump, or face the prospect of criminal prosecution, violated the constitutional rights of freedom on speech and association. The court stopped short of holding that all delegates are free to vote for whomever they please at the convention irrespective of party rules, however. In accordance with GOP rules, Virginia’s delegates are allocated in proportion to the state’s primary results, meaning Trump is entitled to the votes of 17 of Virginia’s 49 convention delegates.
For more, see http://www.richmond.com/news/virginia/article_d98ac087-7c75-5d60-9eb0-3b2b17dcbc16.html.

Annotation: 03/24/2016 9:33 pm

Citing a four month delay, the court in Perry v. Judd, 840 F. Supp. 2d (E.D. Va. 2012), aff’d 471 F. App’x 219 (4th Cir. ), held that laches barred a challenge to Virginia’s petition requirements.

Annotation: 03/22/2016 9:11 pm

Parson v. Alcorn, 3:16cv13 (E.D. Va. 1/15/2016), denied a preliminary injunction to prevent enforcement of a statement of party affiliation requirement that was later withdrawn. The Republican Party of Virginia also withdrew a pledge requirement after securing State Board of Elections approval in 2012.

Definition [State Board]

The State Board of Elections.

Definition [United States]

Used in the territorial sense, means the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.

Definition [Political party]

An organization of citizens of the Commonwealth which, at either of the two preceding statewide general elections, received at least 10 percent of the total vote cast for any statewide office filled in that election. The organization shall have a state central committee and an office of elected state chairman which have been continually in existence for the six months preceding the filing of a nominee for any office.

Definition [Qualified voter]

A person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election or qualified pursuant to § 24.2-403 or subsection D of § 24.2-544, (ii) a resident of the Commonwealth and of the precinct in which he offers to vote, and (iii) a registered voter. No person who has been convicted of a felony shall be a qualified voter unless his civil rights have been restored by the Governor or other appropriate authority. No person adjudicated incapacitated shall be a qualified voter unless his capacity has been reestablished as provided by law. Whether a signature should be counted towards satisfying the signature requirement of any petition shall be determined based on the signer of the petition’s qualification to vote. For purposes of determining if a signature on a petition shall be included in the count toward meeting the signature requirements of any petition, “qualified voter” shall include only persons maintained on the Virginia voter registration system (a) with active status and (b) with inactive status who are qualified to vote for the office for which the petition was circulated.

Definition [Registered voter]

Any person who is maintained on the Virginia voter registration system. All registered voters shall be maintained on the Virginia voter registration system with active status unless assigned to inactive status by a general registrar in accordance with Chapter 4 (§ 24.2-400 et seq.). For purposes of applying the precinct size requirements of § 24.2-307, calculating election machine requirements pursuant to Article 3 (§ 24.2-625 et seq.) of Chapter 6, mailing notices of local election district, precinct or polling place changes as required by subdivision 13 of § 24.2-114 and § 24.2-306, and determining the number of signatures required for candidate and voter petitions, “registered voter” shall include only persons maintained on the Virginia voter registration system with active status. For purposes of determining if a signature on a petition shall be included in the count toward meeting the signature requirements of any petition, “registered voter” shall include only persons maintained on the Virginia voter registration system (i) with active status and (ii) on inactive status who are qualified to vote for the office for which the petition was circulated.

Definition [Party]

An organization of citizens of the Commonwealth which, at either of the two preceding statewide general elections, received at least 10 percent of the total vote cast for any statewide office filled in that election. The organization shall have a state central committee and an office of elected state chairman which have been continually in existence for the six months preceding the filing of a nominee for any office.

Definition [Board]

The State Board of Elections.

Definition [State]

A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

Definition [Person]

Any individual or corporation, partnership, business, labor organization, membership organization, association, cooperative, or other like entity.

For the purpose of applying the filing and reporting requirements of this chapter, the term “person” shall not include an organization holding tax-exempt status under § 501(c) (3), 501(c) (4), or 501(c) (6) of the United States Internal Revenue Code which, in providing information to voters, does not advocate or endorse the election or defeat of a particular candidate, group of candidates, or the candidates of a particular political party.

Definition [Primary]

An election held for the purpose of selecting a candidate to be the nominee of a political party for election to office.

Definition [Election]

A general, primary, or special election.

Definition [Candidate]

A person who seeks or campaigns for an office of the Commonwealth or one of its governmental units in a general, primary, or special election and who is qualified to have his name placed on the ballot for the office. “Candidate” shall include a person who seeks the nomination of a political party or who, by reason of receiving the nomination of a political party for election to an office, is referred to as its nominee. For the purposes of Chapters 8 (§ 24.2-800 et seq.), 9.3 (§ 24.2-945 et seq.), and 9.5 (§ 24.2-955 et seq.), “candidate” shall include any write-in candidate. However, no write-in candidate who has received less than 15 percent of the votes cast for the office shall be eligible to initiate an election contest pursuant to Article 2 (§ 24.2-803 et seq.) of Chapter 8. For the purposes of Chapters 9.3 (§ 24.2-945 et seq.) and 9.5 (§ 24.2-955 et seq.), “candidate” shall include any person who raises or spends funds in order to seek or campaign for an office of the Commonwealth, excluding federal offices, or one of its governmental units in a party nomination process or general, primary, or special election; and such person shall be considered a candidate until a final report is filed pursuant to Article 3 (§ 24.2-947 et seq.) of Chapter 9.3.

Cases

virginia Cases

Out-of-State Cases

Federal Cases

Case Name: Miller v. Brown

Citation: 503 F.3d 360

Federal Circuit Court: 4th Circuit Court

Year: 2007

Case URL: https://www.ravellaw.com/opinions/b655da2195531de395edfa7325d1b84e

Case Summary: Holding that when an incumbent state senator designated a primary as the method of nomination and the senator’s political committee chose to exclude primary voters who previously participated in the nomination process of other political parties, Virginia’s open primary law was unconstitutional as applied to the political committee and its chairman because it severely burdened the associational rights of the committee and its chairman. Virginia did not have a compelling state interest in preserving open primaries, because (1) the state already allowed closed presidential primaries; (2) there was no indication that the restrictions proposed by the committee would have violated federal law; (3) preserving an individual’s privacy regarding political preferences was not a compelling state interest; and (4) encouraging voter participation did not justify the burden that the open primary law placed on the right of association.

Additional Resources

Useful Links

Correll v. Herring: Filings