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Virginia GOP tries legal tactic to force Democrat McAuliffe off the ballot for governor

RICHMOND — The Republican Party of Virginia filed a lawsuit Thursday seeking to remove Democrat Terry McAuliffe from the ballot for governor because his signature is missing from a candidate form he submitted to the state in March.

Republicans touted the lawsuit on social media, but a similar suit against McAuliffe argued last week by a pair of Virginia voters failed to persuade a Richmond judge to halt the printing of ballots for the November election.

The state GOP filed its suit in Richmond Circuit Court against the state Department of Elections, the Board of Elections and several elections officials, citing McAuliffe’s “Declaration of Candidacy” form, on which the space for McAuliffe’s signature is blank.

Elsewhere on the form, two Democratic operatives signed as witnesses, which the GOP says is a violation because of the missing McAuliffe signature. The form was submitted on March 8 as McAuliffe entered the Democratic primary, which he won three months later.

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In a 20-page brief that alleges violations of the constitutional rights to vote and freedom of speech and association, a lawyer for the state GOP urges the court to find that the flaws “fatally infect [McAuliffe’s] Declaration with illegality and therefore make it invalid.”

It then asserts that McAuliffe’s victory in the June 8 primary should be invalid and that his name should not appear on any ballot for the Nov. 2 general election.

“No amount of political favors and back-slapping can refute the fact that McAuliffe is a fraudulent candidate and cannot be Virginia’s next governor,” RPV Chairman Rich Anderson said in a news release announcing the suit.

The Department of Elections declined to comment on the matter. But a McAuliffe spokeswoman brushed off the claims.

“Our campaign submitted the required paperwork,” spokeswoman Christina Freundlich said. “This is nothing more than a desperate Trumpian move by the Virginia GOP to deprive voters of a choice in this election because Terry is consistently leading in the polls.”

A spokesman for Republican nominee Glenn Youngkin declined to comment on the suit, but the campaign highlighted it on social media shortly before the GOP news release came out. “Buckle up ... major news about to hit the #VAGOV race,” Youngkin spokesman Matt Wolking tweeted Thursday afternoon.

Wason Center poll shows McAuliffe with solid lead over Youngkin

Richmond Circuit Court Judge Bradley B. Cavedo rebuffed a similar argument made in a separate case Friday, rejecting a request for a temporary injunction to stop elections officials from printing ballots with McAuliffe’s name on them.

Two Virginia voters, Roy L. Perry-Bey and Carlos A. Howard, argue in that suit that McAuliffe should not legally appear on the ballot, in part because he did not sign the candidate form. They also argue that the state constitution does not allow for governors to serve more than one term. McAuliffe was governor from 2014 to 2018.

Virginia’s constitution prohibits governors from serving back-to-back terms but is widely interpreted as putting no limits on the number of nonconsecutive terms a person may serve. Perry-Bey and Howard contend that the General Assembly in 1851 limited governors to a single term when it removed language from the constitution that explicitly addressed nonconsecutive terms.

The state constitution has been rewritten at least three times since then, however, and at least one Virginia governor — Democrat-turned-Republican Mills Godwin — has served two nonconsecutive terms.

Cavedo has not ruled on or even heard the case as a whole, but on Friday, he rejected the plaintiffs’ motion for a temporary injunction, according to their attorney, Amina Matheny-Willard, and the office of Attorney General Mark R. Herring (D), which represented elections officials.

Cavedo’s ruling has not yet been put into writing.

Matheny-Willard has filed an appeal to the Virginia Supreme Court, court records show.

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A number of candidates — Republican and Democrat — have gotten in hot water in the past few years in Virginia for missing deadlines or submitting incomplete election forms.

Michael Gilbert, vice dean of the University of Virginia School of Law and a specialist in election law, questioned the legal basis for the state GOP’s lawsuit.

The missing signature “appears to be a clerical error,” he said. “My guess would be this lawsuit doesn’t go anywhere.”

Gilbert said he was surprised that a political veteran such as McAuliffe would neglect to sign the form. But he added that a close reading of both relevant state law and the candidate form itself suggests that the absence of the signature might not actually be a violation.

The section of Virginia law cited by the GOP doesn’t specifically mention a signature. It states that a candidate’s “declaration shall be acknowledged before some officer who has the authority to take acknowledgments to deeds, or attested by two witnesses who are qualified voters of the election district.”

Similarly, the candidate form itself requires that the declaration either be “acknowledged before a notary” or “witnessed before two persons” who are registered and qualified to vote. It does not state a requirement that the candidate physically sign the form.

“So maybe it isn’t even a technical violation,” Gilbert said. Either way, he added, “it’s hard to imagine a court saying yes, we’re going to unwind the last six months of campaigning in the commonwealth over such a small issue.”

Longtime Virginia political analyst Robert Holsworth said that legalities aside, he was surprised that the Republicans would attempt such a tactic.

“It’s not a good look when you have a set of polls that say you’re behind and now you say [McAuliffe] didn’t file the paperwork properly for the Democratic primary so disqualify him,” Holsworth said.

Several recent polls have shown McAuliffe with a narrow lead, and one out Thursday morning from Christopher Newport University found him up by nine points.

“I don’t see how it benefits Republicans politically to do that,” Holsworth said. “You should win the election fair and square with the electorate.”

Alice Crites contributed to this report.