Virginia Law

Article 2. Contested Elections.

A. This section applies to any general or special election of members to the General Assembly.

B. A contest of the election of any member to the General Assembly may be initiated by an unsuccessful candidate in the election, referred to hereafter as the contestant.

To initiate a contest, the contestant shall give written notice, in the manner provided in subsection D, of his intent to contest the election to the person or persons apparently elected, referred to hereafter as the contestee, and to the Clerk of the House of Delegates if he is contesting a House election or of the Senate if he is contesting a Senate election, no later than thirty days following the date of the election or three days after the conclusion of a recount, whichever is later.

The notice shall state the grounds on which the contestant intends to contest the election. The grounds shall include (i) objections to the eligibility of the contestee based on specific allegations, (ii) objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election, or (iii) both.

The notice shall state that an answer by the contestee must be filed with the clerk of the appropriate house within ten days following service of the notice. The contestant shall sign and verify the notice by his oath or affirmation.

At the time of filing the notice, the contestant shall post a bond with surety with the Clerk of the House of Delegates or Senate, as appropriate, in the amount of $100 per precinct contained in whole or in part in the district being contested. If the contestant wins the contest, the bond shall not be forfeited. If the contestant loses the contest, the bond shall be forfeited to the extent of the contestee's actual and documented costs of defending against the contest, including, but not limited to, reasonable attorneys' fees, expert witnesses' fees, and such costs as would be taxable in an action at law. If the assessed costs exceed the bond, the contestant shall be liable for such excess only pursuant to subsection H.

C. Within ten days after service of the contestant's notice on the contestee, the contestee shall file with the clerk of the appropriate house a written answer. His answer shall admit or deny the allegations on which the contestant relies, or state that he has no knowledge or information concerning an allegation which shall be deemed denial, and state any other defenses, in law or fact, on which he relies. The contestee shall sign and verify his answer by his oath or affirmation.

D. The notice of intent to contest shall be filed by the contestant with the clerk of the appropriate house and copies thereof served by the contestant as provided under § 8.01-296 on each contestee. The answer, petition, and any reply and copies thereof shall be filed with the appropriate clerk, and copies shall be served on the opposing party or his counsel, if any, in the manner prescribed by Rule 1:12 of the Rules of the Supreme Court of Virginia.

After service of the notice of intent, any party, after reasonable notice to the other party or parties, shall be authorized to take depositions to sustain or invalidate the election. The contestant shall complete the taking of depositions to submit with his petition at any time within twenty days following the date of the notice of intent to contest the election, and the contestee shall complete the taking of his depositions within thirty days following the date of the notice of intent to contest the election. By written stipulation of the parties, the testimony of any witness may be filed in the form of an affidavit by the witness within the same time limitations prescribed for the taking of depositions.

Subpoenas for witnesses shall be issued by the clerk of the circuit court of the county or city in which the contestee resides on the application of either party. Witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses summoned to attend the courts.

Every deposition shall be taken before a person authorized by law to administer oaths, who shall certify and seal the deposition in the same manner as in judicial civil proceedings, and file the same with the clerk of the appropriate house.

E. A written petition shall be filed by the contestant with the clerk of the appropriate house (i) within ten days following the filing of the notice of intent to contest the election if the contested election was held at a November general election and (ii) within ten days following the date of the filing of the notice of intent to contest the election or within two days following the commencement of the next session of the General Assembly, whichever is later, if the election was held on a different date. The contestee may file a written reply to the petition within five days following its service on him.

No affidavit may be made a part of, or filed in support of, a petition or reply thereto unless the affidavit has previously been filed with the clerk of the appropriate house, pursuant to the written stipulation of the parties or their counsel, on or before the date established by subsection D for the completion of the taking of depositions by the proponent of the affidavit.

F. If the election was held during a regular session of the General Assembly, the times for filing the notice of intent to contest, the answer, petition, and reply and for taking depositions and affidavits shall be set by the Committee on Privileges and Elections of the appropriate house. The Committee may consider the contestant's and contestee's recommendations for the procedural schedule.

G. The clerk shall refer the notice, answer, petition, reply, depositions, and affidavits to the Committee on Privileges and Elections, which documents shall constitute the record in the contest. A failure to comply in timely manner with the filing requirements of subsection B, C, D, or E shall be dispositive of the contest and have the effect of a finding for the opponent of the party failing to meet such requirements.

Unless another committee has been designated by the rules of the house to hear contest matters, the Committee on Privileges and Elections shall hear the contest and conduct such investigation as has been directed by resolution of its house. It shall report its findings and recommendations to the house for its action. The committee hearing the contest shall take up the contest no later than its first regularly scheduled meeting occurring after the filing of the record in the contest.

H. The house, in its judgment, may find for the contestant and declare him elected, find for the contestee and confirm his election, or declare the election void and order a writ of election as in other cases of vacancy. If the house finds a tie vote has occurred, it shall direct a determination by lot in accordance with § 24.2-674, but no right to a recount shall be permitted. If the house finds, by a two-thirds vote of the house that the contestant has prosecuted the election contest in bad faith, the house may order the contestant to pay to the contestee a sum, in addition to the amount of the bond posted pursuant to subsection B, that is not more than the contestee's additional actual costs of defending against the contest, including, but not limited to, reasonable attorneys' fees, expert witnesses' fees, and such costs as would be taxable in an action at law. A determination to assess costs against a contestant in excess of the amount of the bond posted pursuant to subsection B shall be made only upon the recommendation of the Committee on Privileges and Elections, or other committee designated in the rules of the house to hear the contest, adopted by the committee by a two-thirds or greater vote of the committee.

1981, c. 570, § 24.1-236.1; 1993, c. 641; 1998, c. 866; 2000, c. 1057; 2006, c. 292.

In any election for Governor, Lieutenant Governor, or Attorney General, notice of the intent to contest the election shall be filed with the Clerk of the House of Delegates as prescribed in § 24.2-803. The provisions of § 24.2-803 shall govern standing, notice of intent to contest, answers, service of process, evidence, the petition, procedures, relief, and assessed costs except (i) that in a contest of an election held at the November general election the petition shall be filed within two days following the commencement of a special session of the General Assembly called for the purpose of hearing the contest or of the next regular session of the General Assembly, whichever first occurs, and (ii) that the final determination shall be made by the General Assembly, both houses sitting in joint session in the hall of the House of Delegates, with the Speaker of the House of Delegates presiding.

At the time of filing the notice, the contestant shall post a bond with surety with the Clerk of the House of Delegates in the amount of $10 per precinct in the Commonwealth. If the contestant wins the contest, the bond shall not be forfeited. If the contestant loses the contest, the bond shall be forfeited and costs assessed as provided in subsections B and H of § 24.2-803.

Code 1950, §§ 24-427 through 24-429; 1970, c. 462, § 24.1-237; 1981, c. 570; 1993, c. 641; 2006, c. 292.

In an election of electors for the President and Vice President of the United States, or a primary for the United States Senate or any statewide office, the proceeding to contest shall be in the Circuit Court of the City of Richmond before a special court composed of the chief judge of such circuit court and two circuit court judges of circuits not contiguous to the City of Richmond appointed by the Chief Justice of the Supreme Court of Virginia, or, in the event of his inability to act, then by the next senior justice, who shall at the time of appointment set the date for trial.

If the chief judge of the Circuit Court of the City of Richmond is absent, unable to sit in the proceeding, or recuses himself, the clerk of the court shall at once certify that fact to the Chief Justice. Then the Chief Justice or the associate justice acting in his stead shall appoint a third judge, who shall be, if possible, a judge of the Circuit Court of the City of Richmond or an adjoining circuit.

Notwithstanding any provision of this chapter to the contrary: (i) notice of the intent to contest an election of electors for the President and Vice President of the United States shall be filed no later than 5:00 p.m. on the second calendar day after the day the State Board certifies the result of the election under § 24.2-679, but not thereafter; (ii) a copy of the complaint shall be served by the contestant as provided under § 8.01-296 on each contestee and within five calendar days after the Board has certified the results of such election, otherwise the complaint shall not be valid; (iii) the contestee's answer shall be filed within five calendar days after the complaint is served on him; (iv) the contest shall not wait upon the results of any recount; and (v) the proceedings shall be held promptly and completed, in accordance with the provisions of 3 U.S.C. § 5, at least six days before the time fixed for the meeting of the electors.

Code 1950, § 24-393; 1952, c. 489; 1970, c. 462, § 24.1-238; 1981, c. 570; 1993, c. 641; 2003, c. 268.

In a primary for the United States House of Representatives, the Virginia Senate, the House of Delegates, or any county, city, town, or district office, or an election to any county, city, town, or district office, the proceeding to contest shall be in the circuit court of the county or city that the challenged candidate listed as his residency on his certificate of candidate qualification. The proceeding shall be before a special court composed of the chief judge of such circuit court and two circuit court judges of circuits remote from the county or city that such candidate listed as his residency on his certificate of candidate qualification, appointed by the Chief Justice of the Supreme Court of Virginia, or, in the event of his inability to act, then by the next senior justice, who shall at the time of appointment set the date for trial.

If the chief judge of the circuit court of the city or county that the candidate listed as his residency on his certificate of candidate qualification is absent, unable to sit in the proceeding, or recuses himself, the clerk of the court shall at once certify that fact to the Chief Justice. Then the Chief Justice or the associate justice acting in his stead shall appoint a third judge, who shall be, if possible, a judge of the same or an adjoining circuit.

Code 1950, § 24-394; 1952, c. 489; 1970, c. 462, § 24.1-239; 1981, c. 570; 1987, c. 341; 1993, c. 641; 2019, c. 691.

The provisions of this section and §§ 24.2-808 through 24.2-813 govern contests conducted pursuant to §§ 24.2-805 and 24.2-806. The contest shall be initiated only by a written complaint of one or more of the unsuccessful candidates. The complaint shall contain (i) objections to the eligibility of the contestee based on specific allegations, (ii) objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election, or (iii) both.

In an election of electors for the President and Vice President of the United States, the presidential candidate shall represent the vice presidential candidate and slate of electors and be the party to the contest for purposes of this article.

Code 1950, §§ 24-430, 24-432; 1970, c. 462, § 24.1-240; 1973, c. 30; 1981, c. 570; 1993, c. 641.

The contestant shall file his complaint in the clerk's office of the circuit court within 30 days following the date of the election in the case of a general election, and within 10 days following the date of the election in case of a primary election or special election held on a date other than that of a general election. A copy of the complaint shall be served by the contestant as provided under § 8.01-296 on each contestee; otherwise the complaint shall not be valid. For a contest conducted pursuant to § 24.2-806, the copy of the complaint shall be served by the contestant on each contestee within 30 days following the date of the election in the case of a general election and within 10 days following the date of the election in the case of a primary or special election held on a date other than that of a general election.

No enlargement or amendment of the complaint, except as to form, shall be permitted save by leave of court as provided in Rule 1:8 of the Rules of Supreme Court of Virginia.

Code 1950, § 24-434; 1952, c. 489; 1970, c. 462, § 24.1-241; 1981, c. 570; 1993, c. 641; 2016, cc. 14, 490.

The contestee shall, within ten days after the complaint is served on him, file in the clerk's office an answer, in which he shall admit or deny the allegations on which the contestant relies, or state that he has no knowledge or information concerning an allegation which shall be deemed denial, and state any other defenses, in law or fact, on which he relies. If no answer is filed within the time prescribed, the contestee shall not be heard to assert any claim or objection which is required by this section to be stated in the answer.

No enlargement or amendment of the answer, except as to form, shall be permitted save by leave of court as provided in Rule 1:8 of the Rules of the Supreme Court of Virginia.

Code 1950, § 24-435; 1952, c. 489; 1970, c. 462, § 24.1-242; 1981, c. 570; 1993, c. 641.

After service of a copy of the complaint and after reasonable notice to the other party or parties, any party shall be authorized to take depositions to sustain or invalidate the election. The proceedings shall take precedence over all other business of the court or of any of the judges and shall be heard and determined as soon as possible. The contest shall be heard and determined without a jury, on the testimony thus taken and on any other legal testimony that may be adduced by any party. In judging the contest, the court shall proceed on the merits thereof and decide the same according to the Constitution and statutes of the Commonwealth.

Code 1950, § 24-436; 1952, c. 489; 1970, c. 462, § 24.1-243; 1981, c. 570; 1993, c. 641.

When the contest is decided, costs shall be taxed against the candidate filing the complaint if he is unsuccessful, or, if he is successful, against the counties and cities included in the area in which the election was held. A certificate of election shall be granted to the successful party, unless he has already received one.

Code 1950, §§ 24-395.3, 24-437; 1952, c. 489; 1970, c. 462, § 24.1-244; 1993, c. 641.

If the court decides that there has been no valid election of any person, it shall declare the election void and the vacancy shall be filled in conformity with §§ 24.2-226 and 24.2-227.

Code 1950, § 24-438; 1970, c. 462, § 24.1-245; 1993, c. 641.

In deciding any contest of a primary election, if the court can determine the candidate who has received a plurality of valid votes in the primary, it shall certify the name of that candidate to the State Board and the proper electoral board or boards. The candidate so certified shall be the party nominee and his name shall be printed on the official ballot for the election for which the primary was held. The name of no other person who was a candidate for the contested office in the primary shall be printed on the official ballots as a candidate for that office.

If the court is unable to determine which primary candidate received a plurality of valid votes or if the court decides that there has been no valid election, the party nominee shall be determined in accordance with the provisions of § 24.2-539.

Code 1950, § 24-395.1; 1952, c. 489; 1970, c. 462, § 24.1-246; 1993, c. 641.

A candidate in a primary or an election to office, who was originally declared a winner and subsequently loses as the result of a recount, may file either (i) notice of his intent to contest the result in accordance with § 24.2-803 or 24.2-804 or (ii) a written complaint pursuant to § 24.2-805 or 24.2-806. Such notice or complaint shall be filed within 10 days following the date of the entry of the order of the recount court pursuant to subsection F of § 24.2-802.2.

In the case of a contest pursuant to § 24.2-803 or 24.2-804, the times for filing the answer, petition, and reply and for taking depositions and affidavits shall be set by the Committee on Privileges and Elections of the appropriate house. The Committee may consider the contestant's and contestee's recommendations for the procedural schedule.

This section shall not be applicable to a contest of an election for the President and Vice President of the United States.

1988, c. 714, § 24.1-241.1; 1993, c. 641; 2001, cc. 639, 641; 2003, c. 268; 2020, c. 886.