Congressional candidate removed from ballot in case that exposes gaps in state oversight
Independent congressional candidate Shaun Brown appears outside the John Marshall Courthouse in Richmond on Sept. 5, 2018. (Ned Oliver/Virginia Mercury)
Shaun Brown, an independent running to represent the 2nd Congressional District in the eastern part of the state, will be removed from the ballot, a judge in Richmond Circuit Court ruled Wednesday.
Lawyers for the Virginia Democratic Party asked the court to take remove her because the petitions she submitted to run as an independent included scores of forged signatures and other mistakes, like Brown listing a place that doesn’t exist as her address.
The case highlighted the limitations of the Department of Elections in guarding against fraud on the petitions candidates file to get on the ballot.
State staff did what they could, said lawyer Jeffrey Breit, who argued the case for the Democratic Party. But if fake signatures hadn’t been revealed by voters, it’s likely the state wouldn’t have caught it.
“Do we need some fix of the Virginia election laws that would allow them to investigate once they think a fraud has happened? Possibly, but that’s for the legislature to decide,” he said.
Hundreds of the forged signatures were submitted by five current and former staffers or volunteers for Brown’s Republican opponent, U.S. Rep. Scott Taylor, in an effort to siphon votes from Elaine Luria, the Democratic nominee.
Brown challenged Taylor in 2016 as a Democrat and lost.
Taylor was subpoenaed, but didn’t appear in court. Richmond Circuit Court Judge Gregory Rupe allowed the order to be quashed because Congress is in session.
Taylor’s staffers all submitted affidavits instead of testifying on Wednesday, invoking their Fifth Amendment right to avoid answering questions about whether they knew the signatures were forged and if Taylor directed them to do it.
A separate criminal investigation into the petitions is also under way.
Rupe issued an order after a four-hour hearing to take Brown off the ballot. Voters would still have the option of writing her in as a candidate and Brown said she plans to appeal the decision to the Virginia Supreme Court.
Rupe didn’t say how many signatures he thought were fraudulent.
“There’s no doubt in my mind that there are instances of forgery, perjury and out-and-out fraud,” he said. He also called Brown’s untraceable addresses “sophomoric mistakes.”
Days later, the wife of one of the men who supposedly signed the petition said her husband died before the petition was circulated. State Del. Glenn Davis, R-Virginia Beach, appeared twice on the petitions — once with an incorrect address.
In the weeks since then, dozens of other signatures were revealed as invalid, belonging to dead people or people who moved out of the state years ago.
In total, lawyers for the state Democratic Party estimated 493 signatures shouldn’t be counted for Brown’s inclusion on the ballot, according to a Sept. 3 court filing.
“This case involves one of the most brazen and far-reaching efforts to manipulate an election by fraud in the commonwealth’s history,” lawyers wrote in a Sept. 3 court filing.
In an affidavit filed before Wednesday’s hearing, Department of Elections Director David Nichols said the state stopped confirming signatures once they counted 1,030 that appeared acceptable. Brown needed to get 1,000 signatures to be on the ballot.
Later, Nichols examined 255 more signatures that seemed to pass muster, bringing Brown’s total to 1,193.
But Nichols and his department don’t have the means to check for fraud or fix it, lawyers pointed out.
If the department noticed something that looked like fraud, it would be referred to a local commonwealth’s attorney, said Chris Piper, commissioner of the Department of Elections.
In Virginia’s administrative code, there is no explicit mention of fraud when it comes to qualifying candidates — and that’s the problem Breit said.
“There’s nothing in our code, so we had to go to court,” he said. “They wanted the court to say fraud had been committed so they could correct it. They didn’t feel like under the laws they could correct it themselves.
“The law is pretty clear. There can be no investigation from the Department of Elections once they certify it. They don’t have the staff, they don’t have the means and they don’t have the budget to go out and check signatures.”
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