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.