Code of Virginia

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Code of Virginia
Title 24.2. Elections
Chapter 2. Federal, Commonwealth, and Local Officers
12/3/2021

Article 6. Vacancies in Elected Constitutional and Local Offices.

§ 24.2-225. Applicability.

This article applies to vacancies in any elected constitutional or local office if there is no other statutory or charter provision for filling a vacancy in the office. Further provisions within this article which specifically override other statutory or charter provisions shall prevail.

Code 1950, § 24-145; 1958, c. 621; 1970, c. 462, § 24.1-76; 1975, c. 515; 1976, c. 616; 1977, c. 490; 1984, c. 480; 1993, c. 641.

§ 24.2-226. Election to fill vacancy.

A. A vacancy in any elected local office, whether occurring when for any reason an officer-elect does not take office or occurring after an officer begins his term, shall be filled as provided by § 24.2-228 or for constitutional officers as provided in § 24.2-228.1, or unless provided otherwise by statute or charter requiring special elections within the time limits provided in this title. The governing body or, in the case of an elected school board, the school board of the county, city, or town in which the vacancy occurs shall, within 15 days of the occurrence of the vacancy, petition the circuit court to issue a writ of election to fill the vacancy as set forth in Article 5 (§ 24.2-681 et seq.) of Chapter 6. Either upon receipt of the petition or on its own motion, the court shall issue the writ ordering the election promptly and shall order the special election to be held on the date of the next general election in November or in May if the vacant office is regularly scheduled by law to be filled in May. However, if the governing body or the school board requests in its petition a different date for the election, the court shall order the special election be held on that date, so long as the date requested precedes the date of such next general election and complies with the provisions of § 24.2-682. If the vacancy occurs within 90 days of the next such general election and the governing body or the school board has not requested in its petition a different date for the election, the special election shall be held on the date of the second such general election. Upon receipt of written notification by an officer or officer-elect of his resignation as of a stated date, the governing body or school board, as the case may be, may immediately petition the circuit court to issue a writ of election, and the court may immediately issue the writ to call the election. The officer's or officer-elect's resignation shall not be revocable after the date stated by him for his resignation or after the forty-fifth day before the date set for the special election. The person so elected shall hold the office for the remaining portion of the regular term of the office for which the vacancy is being filled.

B. Notwithstanding any provision of law or charter to the contrary, no election to fill a vacancy shall be ordered or held if the general election at which it is to be called is scheduled within 60 days of the end of the term of the office to be filled.

C. Notwithstanding any provision of law or charter to the contrary, when an interim appointment to a vacancy in any governing body or elected school board has been made by the remaining members thereof, no election to fill the vacancy shall be ordered or held if the general election at which it is to be called is scheduled in the year in which the term expires.

Code 1950, §§ 24-145, 24-147.1; 1958, c. 621; 1970, c. 462, §§ 24.1-76, 24.1-79; 1975, c. 515; 1976, c. 616; 1977, c. 490; 1984, c. 480; 1993, c. 641; 1996, c. 873; 2000, cc. 787, 1045, 1070; 2003, c. 1015; 2010, cc. 431, 449, 645; 2011, c. 206; 2014, c. 476.

§ 24.2-227. Interim appointment by court until vacancy filled by election for certain offices.

When a vacancy occurs in any local elected office other than a constitutional office, local governing body, or an elected school board, a majority of the judges of the judicial circuit for the county or city in which it occurs shall make an interim appointment to the office until the vacancy can be filled by special election. The senior judge shall make the appointment if a majority of the judges cannot agree. The chief or senior deputy, if there is one in the office, shall perform all the duties of the office until the person appointed to fill the vacancy has qualified. The person so appointed shall hold office until the qualified voters fill the vacancy by election and the person so elected has qualified.

Code 1950, § 24-145; 1958, c. 621; 1970, c. 462, § 24.1-76; 1975, c. 515; 1976, c. 616; 1977, c. 490; 1984, c. 480; 1993, c. 641; 1996, c. 873; 2000, cc. 787, 1070.

§ 24.2-228. Interim appointment to local governing body or elected school board; elected mayor.

A. When a vacancy occurs in a local governing body or an elected school board, the remaining members of the body or board, respectively, within 45 days of the office becoming vacant, may appoint a qualified voter of the election district in which the vacancy occurred to fill the vacancy. If a majority of the remaining members of the body or board cannot agree, or do not act, the judges of the circuit court of the county or city may make the appointment. Notwithstanding any charter provisions to the contrary, the person so appointed shall hold office only until the qualified voters fill the vacancy by special election pursuant to § 24.2-682 and the person so elected has qualified. Any person so appointed shall hold office the same as an elected person and shall exercise all powers of the elected office.

If a majority of the seats on any governing body or elected school board are vacant, the remaining members shall not make interim appointments and the vacancies shall be filled as provided in § 24.2-227.

B. When a vacancy occurs in the office of a mayor who is elected by the voters, the council shall make an interim appointment to fill the vacancy as provided in subsection A.

C. For the purposes of this article and subsection D of § 22.1-57.3, local school boards comprised of elected and appointed members shall be deemed elected school boards.

D. The failure of a member of a local governing body or elected school board or mayor to take the oath of office required by § 49-1 before attending the first meeting of the governing body or school board held after his election shall not be deemed to create a vacancy in his office provided that he takes the oath within 30 days after that first meeting.

1975, c. 515, § 24.1-76.1; 1993, c. 641; 1996, c. 873; 1999, c. 128; 2010, cc. 431, 624; 2011, c. 78.

§ 24.2-228.1. Election to fill vacancy in constitutional office.

A. Notwithstanding any provision of a charter to the contrary, a vacancy in any elected constitutional office, whether occurring when for any reason an officer-elect does not take office or occurring after an officer begins his term, shall be filled by special election, except as provided in subsection B. Within 15 days of the occurrence of the vacancy, the governing body of the county or city in which the vacancy occurs shall petition the circuit court to issue a writ of election to fill the vacancy as set forth in Article 5 (§ 24.2-681 et seq.) of Chapter 6. Either upon receipt of the petition or on its own motion, the court shall promptly issue the writ ordering the election for a date determined pursuant to § 24.2-682. However, the governing body may request in its petition that the special election be held on the date of the next general election in November, and the court may order the special election to be held on that date.

B. If a vacancy in any elected constitutional office occurs within the 12 months immediately preceding the end of the term of that office, the governing body may petition the circuit court to request that no special election be ordered. Upon receipt of such petition, the court shall grant such request. The highest ranking deputy officer, or in the case of the office of attorney for the Commonwealth, the highest ranking full-time assistant attorney for the Commonwealth, who is qualified to vote for and hold that office, shall be vested with the powers and shall perform all of the duties of the office, and shall be entitled to all the privileges and protections afforded by law to elected or appointed constitutional officers, for the remainder of the unexpired term.

C. Upon receipt of written notification by an officer or officer-elect of his resignation as of a stated date, the governing body may immediately petition the circuit court to issue a writ of election, and the court may immediately issue the writ to call the election. The officer's or officer-elect's resignation shall not be revocable after the date stated by him for his resignation or after the thirtieth day before the date set for the special election.

D. Notwithstanding the provisions of subsection A, a vacancy in any elected constitutional office in any county or city with a population of 15,000 or less, or shared by two or more units of government with a combined population of 15,000 or less, shall be filled by a special election ordered by the court to be held at the next ensuing general election to be held in November. If the vacancy occurs within 90 days prior to that election, however, the writ shall order the election to be held at the second ensuing such general election.

E. Notwithstanding any provision of law to the contrary, no election to fill a vacancy shall be ordered or held if the general election at which it is to be called is scheduled within 60 days of the end of the term of the office to be filled.

F. Notwithstanding any provision of a charter to the contrary, the highest ranking deputy officer, or in the case of the office of attorney for the Commonwealth, the highest ranking full-time assistant attorney for the Commonwealth, if there is such a deputy or assistant in the office, who is qualified to vote for and hold that office, shall be vested with the powers and shall perform all of the duties of the office, and shall be entitled to all the privileges and protections afforded by law to elected or appointed constitutional officers, until the qualified voters fill the vacancy by election and the person so elected has qualified and taken the oath of office. In the event that (i) there is no deputy officer or full-time assistant attorney for the Commonwealth in the office or (ii) the highest-ranking deputy officer or assistant attorney for the Commonwealth declines to serve, the court shall make an interim appointment to fill the vacancy pursuant to § 24.2-227 until the qualified voters fill the vacancy by election and the person so elected has qualified and taken the oath of office.

G. The absence from the county or city of a constitutional officer by reason of his service in the Armed Forces of the United States shall not be deemed to create a vacancy in the office without a written notification by the officer of his resignation from the office. Notwithstanding any other provision of law, including § 19.2-156, the power to relieve a constitutional officer of the duties or powers of his office or position during the period of such absence shall remain the sole prerogative of the constitutional officer unless expressly waived by him in writing.

2000, cc. 787, 1070; 2003, c. 1015; 2006, cc. 120, 253; 2009, c. 157; 2011, c. 599; 2015, c. 648; 2016, cc. 453, 511.

§ 24.2-229. Appointees to qualify and give bond in thirty days.

All officers appointed to fill vacancies shall qualify and give bond, if bond is required, within thirty days after their appointment in like manner as provided in §§ 15.2-1522 and 15.2-1523 for the qualification of such officers when elected by the people.

Code 1950, § 24-146; 1970, c. 462, § 24.1-77; 1975, c. 515; 1993, c. 641.

§ 24.2-229.1. Legitimacy of votes by appointees.

All votes cast prior to July 1, 2010, by persons duly appointed to fill a vacancy pursuant to this article, including votes appropriating money in excess of $500, imposing taxes, or authorizing the borrowing of moneys, are hereby validated and confirmed as the lawful vote of an elected member of the governing body.

2010, c. 624.