The Richmond Times-Dispatch ran a story today under the headline “Technicality imperils prosecutor’s re-election bid.” According to the story: Richmond County Commonwealth’s Attorney Wayne L. Emery will not appear on the ballot for the election because his petitions to qualify as a candidate have been disqualified for failure to conform to State Board of Elections regulations. According to the Board, the petitions are invalid because each petition filed by Emery consisted of two pages stapled together rather than double-sided, two-page, back-and-front petitions.
There are more important details to the story, which you can read by clicking through the link above. But I’ve given you the gist of it. [IMPORTANT UPDATE: To understand the issues, it is essential to read the additional facts set forth in the comment by Andrew McRoberts below. Those additional facts change both the complexion of the story and the legal analysis.]
According to Andrew McRoberts, the attorney who represented the Richmond County registrar and the Board in legal proceedings related to Emery’s petition, “[t]he electoral board is certainly disappointed that this has happened. Obviously, Richmond County does not want to be a test case for anyone’s regulation.”
Mr. McRoberts certainly knows much more about election law and local government law than I do. But I do know how to read statutes and regulations, so I thought I would take a look at the relevant legal materials to see if the Board truly was required to act in a way that led it to be “disappointed” with the ultimate result.
There is enough in there to lead me to question the Board’s interpretation. To be clear, I do not suggest that I have the right answer or that the Board necessarily reached the wrong answer. But it appears there is enough to raise a question.
Did the Board’s new double-sided-petition regulation require invalidation of Emery’s petitions?
The regulation at issue states first that “a petition page should not be rendered invalid if it contains an error or omission not material to its proper processing.” 1 VAC 20-50-20(A). The regulation next provides that an omission is “always material” if “[t]he petition submitted is not the double-side, two-page document, or a copy thereof, provided by the State Board of Elections.” 1 VAC 20-50-20(B)(1).
Here are the facts reported by the Times-Dispatch: Emery’s campaign manager printed out the petition forms from the Board’s website. The printed copies were single-sided, two-page copies of the Board’s electronic petition form. Emery’s campaign collected signatures on these single-sided, two-page copies of the Board’s petition form, stapled the two pages of each petition together, and submitted them to the County’s registrar in May. The registrar, Charlotte M. Pierson, accepted the petitions. Emery’s campaign checked in with the registrar three times to make sure they were okay, and was assured that the petitions were okay.
Where was the violation? I don’t see it.
The regulation explicitly says that the petitions can be submitted either on “the double-side, two-page document, or a copy thereof, provided by the State Board of Elections.” According to the facts related in the story, the petitions submitted were each a “copy” of “the double-side, two-page document” that was “provided by the State Board of Elections.” They were printed copies, from the Board’s website. Apparently, the Board has interpreted the regulation’s language to require either [a] the “double-side, two-page document” provided by the Board, or [b] a “double-sided copy thereof.” Yet the regulation’s language does not require a double-sided copy.
The Board presumably interpreted its regulation to require a double-sided copy when the regulation does not require it in order to conform with Virginia Code § 24.2-506. That provision reads, in relevant part, as follows:
The name of any candidate for any office, other than a party nominee, shall not be printed upon any official ballots provided for the election unless he shall file along with his declaration of candidacy a petition therefor, on a form prescribed by the State Board, signed by the number of qualified voters specified below after January 1 of the year in which the election is held and listing the residence address of each such voter. Each signature on the petition shall have been witnessed by a person who is himself a qualified voter, or qualified to register to vote, for the office for which he is circulating the petition and whose affidavit to that effect appears on each page of the petition.
Emery’s petitions comply with the first sentence. They were “on a form prescribed by the State Board, signed by the number of qualified voters . . . .” Compliance with the second sentence is trickier. The affidavit appears only on the second page of each petition. But that is true not only of the single-sided, two-page petitions submitted by Emery, but also of the double-sided, two-page petition required by the Board (which the Board itself describes as a “two page document”). Once stapled together, the two-page petitions were single document, just as the double-sided two-page petitions were a single document. If the latter meet the statutory test, then so should the former.
I don’t know enough about the procedural posture of whatever litigation may have followed the Board’s apparently erroneous invalidation of Mr. Emery’s petitions. But if there is a remaining way to get review of that invalidation, perhaps it would be worth advancing an interpretation of the regulation and statute along the lines set forth above. As I have said already, this is not an area in which I have expertise. My interest arises out of curiosity about the things that people do, sometimes against their expressed wishes, in the name of the law. Whenever such a thing is done, as was done by the Board here, it is worth another look at the law supplying the authority that purportedly required the Board to act as it did.
Thanks for your interest in this case.
However, contrary to your understanding, there were very few of the petitions that met the description in your blog post. You said that “Emery’s campaign collected signatures on these single-sided, two-page copies of the Board’s petition form, stapled the two pages of each petition together, and submitted them to the County’s registrar in May.” Only a very few of the petitions were submitted with a page one and page two stapled together. Most were page twos standing alone, and some of these did not even have the candidates’ name and office sought on them. None of them conformed to the instructions of the State Board of Elections: http://www.sbe.virginia.gov/cms/documents/PetitionForm.pdf The State Board of Elections advised the Electoral Board and the Registrar that the petitions were invalid.
There was litigation, albeit brief. There were two hearings a week apart. In the first hearing, while agreeing with the Electoral Board on many points, Richmond Circuit Court Judge Taliaferro issued a temporary preliminary injunction to preserve the status quo. To be fair, the Judge had just been presented with the matter (the first hearing was held later in the day after the Electoral Board’s decision), and he said wanted to not harm Mr. Emery while taking time to “absorb” the record. In the second hearing, Judge Taliaferro held that the petitions in question violated 1 VAC 20-50-20(B)(1) and (B)(2), and upheld the decision of the Electoral Board to find the petitions invalid and Mr. Emery ineligible for the ballot.
I can assure you and the readers of your blog that the Electoral Board and the Registrar were disappointed that this happened, but felt compelled by the law and the facts, and at all times consulted and followed the advice of the State Board of Elections in this matter. As stated above, the Richmond County Circuit Court upheld its decision.
I would be glad to answer any of your questions about the case or to send you a copy of the final order.
Thank you for this additional context. I’ve updated the post to point readers to your comment. Your knowledge of the law and command of the facts certainly do help in understanding that there is more to the story than framed by the Richmond Times-Dispatch story. The reporter hinted at some of these complications tby including your comment that there were other problems, but then minimized them with the statement that “Piper, with the State Board of Elections, acknowledges that before this year’s regulation, Emery’s paperwork would have been acceptable.”
The additional facts change the complexion of the story and change my assessment of at least some of the petitions’ validity. As I understand the scheme, the failure to conform to SBOE instructions does not render a petition page invalid. Rather, a petition page remains valid, even if it does not conform to SBOE instructions, as long as the errors or omissions are not “material” to that page’s “proper processing.” 1 VAC 20-50-20(A).
There are three categories of petitions that call for examination:
(1) Petitions with only a page 2. I agree that these violate (B)(1). A copy of only one page of a two-page document is not “a copy thereof.”
(2) Petitions with no candidate name and address at all. I agree that these violate (B)(2). However, if pages 1 and 2 are stapled together, and the candidate name and address is on page 1, then I would not conclude there is a (B)(2) violation.
(3) Petitions that have page 1 and 2 stapled together, but otherwise satisfy the regulation. I disagree that these violate (B)(1), for the reasons stated in the post.
Thanks, again, for sharing your knowledge. It seems like the litigation is over, and Mr. Emery received some positive press to power his write-in campaign. The interpretive question about the conformity of the Board’s double-sided copy requirement with (B)(1) still seems unsettled, at best, to me. I suppose it is in everyone’s interest if there never becomes a need to know the answer because everyone plays it safe and follows the instructions.