New opinion from Attorney General Herring says firearms prohibited at early voting locations

RICHMOND (September 1, 2021) – Attorney General Herring has issued an official opinion concluding that early voting locations are considered “polling places”, which means firearms are prohibited at these locations under Virginia Code § 24.2-604(A)(iv) while they are being used as polling places, however, those prohibitions do not apply to the whole building where the polling place is, but only to the 40-foot boundary around the part of the building that houses the polling place.

“No Virginian should ever feel unsafe when they are voting, whether they are voting in person on Election Day or whether they are voting in-person early,” said Attorney General Herring. “Last year, I made it a top priority to ensure safe, secure voting across the Commonwealth, and I intend to do the same during this year’s election cycle.”

As Attorney General Herring explains in his opinion, “[i]f the central absentee voter precincts, voter satellite offices, and offices of general registrars are designated locations for early voting in the locality, they are ‘polling places’ as defined in § 24.2-101…[I]t is my opinion that firearms are prohibited at central absentee voter precincts, voter satellite offices, and offices of general registrars where they are the designated locations for early voting in the locality, in the same way, that firearms are prohibited at polling places when the polls are open on Election Day.”

Attorney General Herring adds that Virginia Code “§ 24.2-604(A)(iv) prohibits the knowing possession of a firearm ‘within 40 feet of any building, or part thereof, used as a polling place.’ For those polling places that are not located in school buildings where the possession of a firearm is already prohibited by § 18.2 308.1(B), it is my opinion that the firearm prohibition in § 24.2-604(A)(iv) applies to the 40-foot boundary around the portion of the building being used as a polling place, including any entrances and exits, and not the entire building.”

Attorney General Herring concludes the opinion by saying, “It is my opinion that locations such as central absentee voter precincts, voter satellite offices, and offices of general registrars that are used as the designated location for early voting are considered ‘polling places’ such that the prohibitions of § 24.2-604(A)(iv) apply. Further, it is my opinion that the prohibitions of § 24.2-604(A)(iv) do not apply to the entire building that houses a polling place, but rather to the 40-foot boundary around the discrete portion of that building that is used as the polling place.”

Attorney General Herring’s Work Protecting Voters

Protecting Virginians’ voting rights has been a top priority for Attorney General Herring during his time in office. During the COVID pandemic, Attorney General Herring has worked hard to ensure that all Virginians could vote safely and easily, regardless of how they chose to vote, and protect voters from illegal harassment or intimidation at the polls.

Because of all the work that Attorney General Herring and his team did in preparation for Election Day 2020, including making it clear that absolutely no voter intimidation would be tolerated in Virginia and preparing and planning for any and all outcomes or potential legal challenges, the Commonwealth saw a remarkably smooth and uneventful Election day. In addition to the OAG attorneys who normally represent the Board of Elections and the Department of Elections, Attorney General Herring assembled a multidisciplinary team of attorneys from his Civil Litigation and Public Safety Divisions, Solicitor General’s Office, and other divisions across the OAG, who were on standby, ready to jump into action at a moment’s notice should the need have arisen. The OAG also had lawyers in every corner of the Commonwealth who were prepared to go into court to handle any potential legal challenges.

Virginia also saw historic turnout during last year’s election, especially in early and absentee voting. This increase in voter participation was really possible in part because of Attorney General Herring’s work to make voting as easy and safe as possible during this unprecedented election cycle by crafting agreements to waive the witness signature on absentee ballots, making it easier for disabled Virginians to vote safely at home, extending the voter registration deadline, and blocking the drastic operational changes at the USPS.

Last year’s election cycle brought numerous challenges that prompted Attorney General Herring and his team to develop solutions and put out guidance to make sure every Virginian had a safe, comfortable, easy voting experience, whether they chose to vote early absentee, early in person, or on Election Day.

Attorney General Herring and his team negotiated options to promote safe, secure voting for Virginians who could not or did not want to risk their health to vote in person, including:

• An agreement that waived the witness requirement for absentee ballots for Virginians who feared for their safety voting in person

• An agreement that made it easier for Virginians with disabilities to participate in the election safely at home

Attorney General Herring also successfully blocked the Trump Administration’s drastic operational changes to the U.S. Postal Service, when a federal judge granted his motion for a preliminary injunction, explicitly saying in his order that, “at the heart of DeJoy’s and the Postal Service’s actions is voter disenfranchisement.”

Additionally, Attorney General Herring put a lot of emphasis on ensuring that Virginians felt comfortable and protected at polling places across the Commonwealth by:

• Issuing an advisory opinion outlining the protections in both state and federal law against voter intimidation and harassment in response to some reports of potential voter intimidation at a polling place in Fairfax, the day after early voting began in Virginia

• Reiterating the voter intimidation protections and outlining the actual duties of poll watchers in Virginia, following President Trump’s alarming rhetoric at the first presidential debate where he urged his supports to “go into the polls and watch very carefully”

• Writing to key law enforcement and elections stakeholder organizations asking for their commitment to ensuring a safe, fair, free, and accurate election, and outlining protections in both state and federal law to prevent voter intimidation and harassment

• Producing a short training video that walks law enforcement and elections officials through his voter intimidation opinion and the various tools that they can use to address potentially unlawful conduct