The Governor has the power to delay some elections in Virginia for up to 14 days in an emergency. This must be done after a state of emergency is officially declared by the Governor, by a governor of another state “pursuant to law and confirmed by the Governor [of Virginia] in an executive order….” or by the President of the United States. Va. Code Ann. § 24.2-603.1. The new election date chosen must be compliant with other restrictions pertaining to special elections (e.g., every special election must be on a Tuesday). See Va. Code Ann. § 24.2-682.
The Governor has power to implement this delay in the case of a local or state referendum; any primary, special, or general election for local or state office; any primary for federal office, including a presidential primary; and any federal special election to fill a vacancy in the United States Senate or the United States House of Representatives. Under Virginia statute, he cannot, however, delay a general election for Governor, Lieutenant Governor, Attorney General, and the General Assembly. There is also no provision for him to delay a general election for President of the United States. Va. Code Ann. § 24.2-603.1.
Delays beyond 14 days, but not more than 30, are possible at the discretion of local officials and the Virginia Supreme Court. The Board of Supervisors, or Council of the city or town(s) affected by the emergency declaration can petition the Virginia Supreme Court for such an extension. The petition is heard by a three-judge panel with the Chief Justice presiding and the Court can postpone the election as it deems appropriate. Va. Code Ann. §§ 24.2-603.1, 15.2-102.
None of these delays change the registration deadline for voters—they still have to have been registered to vote as of the original date of the election in order to vote in the rescheduled election. Va. Code Ann. § 24.2-603.1. Presumably, this means that same day registration would not be an option for Virginians voting for the first time on the day of the rescheduled election.
If ballots have already been cast before an election is rescheduled due to an emergency and some of these ballots were damaged or destroyed as a “direct result of the emergency,” then Virginia law provides for those ballots to be recast. In this situation, the Governor must issue an executive order instructing “appropriate election officials” that all ballots that have been previously cast must be recast on or before the rescheduled election date. Va. Code Ann. § 24.2-603.1. Furthermore, the Governor must instruct these officials to immediately send replacement absentee ballots to all absentee voters whose voted ballots are known to have been destroyed or damaged. Va. Code Ann. § 24.2-603.1.
If more than one absentee ballot is received from a voter, only the first absentee ballot that was received and able to be counted will be counted. Va. Code Ann. § 24.2-603.1. Regardless of whether an individual cast a ballot for the originally scheduled election if they were properly registered at the time of the original election, they are allowed to cast a ballot in the rescheduled election. Va. Code Ann. § 24.2-603.1.
If the election is postponed after polls open on Election Day, voters will generally only be able to vote on the new (rescheduled) Election Day if they did not already vote on the original day. Va. Code Ann. § 24.2-603.1. However, a different procedure is followed if there is damage to the ballots or records as a result of the given emergency. If that damage makes it impossible to count some, or all of the votes, or to know who voted in that precinct, then no votes from that precinct from the original Election Day will be counted. Instead, all voters registered in that precinct will be permitted to vote on the rescheduled Election Day. Va. Code Ann. § 24.2-603.1. All votes cast on the original and postponed election dates will then be counted at the close of the polls on the rescheduled election day. Va. Code Ann. § 24.2-603.1.