Could a technicality boot McAuliffe from the Virginia ballot?

(AP Photo/Steve Helber, File)

The job’s not over until the paperwork is completed, says the Virginia GOP. And maybe — maybe — they’re right. Former governor Terry McAuliffe forgot to sign his name to his declaration of candidacy, an error just publicized in a lawsuit from the Republican Party of Virginia. That makes his candidacy invalid — at least technically.

But will a judge remove a Democratic nominee from a gubernatorial race? Don’t count on it:

McAuliffe won a June primary election for the Democratic nomination. But the lawsuit argues that McAuliffe should be disqualified from running in the November general election because of the omission of his signature — a move election experts say is unlikely.

“The declaration must be declared legally insufficient, and McAuliffe must be disqualified from appearing on any general election ballot,” Republicans wrote in a complaint filed in Richmond Circuit Court.

It’s not just that the declaration lacks a valid signature from the candidate. The lawsuit also notes that it bears signatures from two people who claim to have witnessed McAuliffe signing the document he never signed. The VAGOP want to argue that this demonstrates some level of an intent to defraud, or at least a malicious intent to mislead:

The formal “declaration of candidacy” McAuliffe submitted to the state’s board of elections to enter the Democratic primary in March is indeed missing his signature — the box he was supposed to sign was left blank, along with lines asking for his phone numbers —- though two witnesses’ signatures were included on the form. The suit also argues the witnesses — including Olivari — violated state law because they could not have witnessed a signing that didn’t happen.

Yeah … how exactly does that work? One assumes that these attestations are provided under some form of penalty for perjury. Even if the declaration and candidacy aren’t declared invalid under the technicality of the missing signature, the two witnesses still lied about being present for McAuliffe’s signature. Surely there has to be some penalty for lying about witnessing a signature that never took place, no?

The Associated Press consulted with their usual elections-law experts, who poo-poohed the lawsuit’s prospects. Michael Gilbert of the University of Virginia School of Law allowed that some candidates have been removed from ballots over “sloppy paperwork,” but claimed that “the violation is harmless, and the remedy sought — removing McAuliffe from the general election ballot in November — is extreme.” Well, maybe, but Virginia state law requires the signature for a reason. And furthermore, the reason is important enough to require the signature to be witnessed by two people. Are there examples in Virginia state law where official forms missing signatures in similar circumstances are upheld as valid?

Rich Hasen gets a little closer to the real reason for skepticism, which has nothing to do with the law:

Rick Hasen, an election law expert who teaches at the University of California, Irvine, said that states have varying standards when it comes to enforcing election rules, with some states much more forgiving of “technical difficulties” than others.

But “as a general matter, it would be surprising to see a court knock a major candidate for office off the ballot for a technicality,” he said.

This is what’s known as the Torricelli Principle, which is no principle at all. Robert Torricelli bailed out of his 2002 Senate re-election campaign in New Jersey six weeks before the general election due to scandal and his standing in the polls, which suggested that Republicans might capture the seat. The deadline had long passed for replacing Torricelli on the ballot, but a court allowed Democrats to replace Torricelli with Frank Lautenberg, arguing that the law was clear but the outcome was unfair to the voters. Lautenberg ended up winning the seat.

This is what happens when courts become outcome-based rather than statute-based. I’m not saying that Hasen’s wrong — he’s probably correct. But that would be an outcome-based decision, not a statute-based decision.

Or perhaps a previous precedent might prove Hasen wrong. Two years ago, Republican Nick Freitas had to conduct a write-in campaign for his state legislative seat, thanks to two missing forms that should have been filed by a deadline:

Del. Nicholas J. Freitas (R-Culpeper) might have to run for reelection as a write-in candidate because of delays in filing paperwork, a situation that would present a serious setback for Republicans fighting to defend a razor-thin majority in November.

Freitas, who narrowly lost his party’s U.S. Senate nomination last year to Corey Stewart, did not face a Republican primary challenge this year.

But state election officials said his local Republican legislative committee never submitted a required form indicating Freitas was the party’s nominee. The state said another form, which Freitas personally should have filed, was also missing.

Freitas ended up winning 58% of the vote with a write-in campaign. McAuliffe would have that option as well if he loses this lawsuit. One has to wonder why Freitas would have been forced into a write-in option while McAuliffe might get a pass, especially since the lack of a signature essentially means the same thing in a legal sense — the proper paperwork never got filed.

The best bet is still Hasen’s and reliance on the Torricelli Principle. But any such ruling should explain in detail why signatures on official forms by applicants and witnesses don’t matter, and how that benefits all citizens in the Commonwealth, not just members of the Democratic Party establishment.

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