in the united states court of appeals for the …...marc erik elias bruce v. spiva brian simmonds...

No. 18-

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

KENNETH J. LECKY; DOLORES LECKY; PHILLIP RIDDERHOF; and AMY RIDDERHOF,

Plaintiffs-Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his official capacity as Chairman of the Virginia State Board of Elections; CLARA BELLE WHEELER, in her official capacity as Vice-Chair of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her official capacity of Secretary of the Virginia State Board of Elections; VIRGINIA DEPARTMENT OF ELECTIONS; EDGARDO CORTÉS, in his official capacity as Commissioner of the Virginia Department of Elections; G. PAUL NARDO, in his official capacity as Clerk of the Virginia House of Delegates; ROBERT M. THOMAS, JR.; STAFFORD COUNTY ELECTORAL BOARD; DOUG FILLER, in his official capacity as Chairman of the Stafford County Electoral Board; MARIE GOZZI, in her official capacity as Vice Chairman of the Stafford County Electoral Board; GLORIA CHITTUM, in her official capacity as the Secretary of the Stafford County Electoral Board; GREG RIDDLEMOSER, in his official capacity as General Registrar of Stafford County; CITY OF FREDERICKSBURG ELECTORAL BOARD; RENE RODRIGUEZ, in his official capacity as Chairman of the City of Fredericksburg Electoral Board; AARON MARKEL, in his official capacity as Vice Chairman of the City of Fredericksburg Electoral Board; CATHIE FISHER BRAMAN, in her official capacity as Secretary of the City of Fredericksburg Electoral Board; MARC C. HOFFMAN, in

Appeal: 18-1020 Doc: 3-1 Filed: 01/08/2018 Pg: 1 of 38 Total Pages:(1 of 299)

his official capacity as Director of Elections and General Registrar of the City of Fredericksburg,

Defendants-Appellees,

REPUBLICAN PARTY OF VIRGINIA; DANIELLE J. DAVIS; AND MARK L. COLE,

Intervenor-Appellees.

On Appeal from the United States District Court for the Eastern District of Virginia Alexandria Division, Case No.

1:17-cv-01336 (T.S. Ellis, III, District Judge)

PLAINTIFFS-APPELLANTS’ EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

Marc Erik Elias Bruce V. Spiva

Brian Simmonds Marshall Aria C. Branch

PERKINS COIE, LLP 700 13th St. N.W., Suite 600

Washington, D.C. 20005-3960 Phone: (202) 434-1627

Attorneys for Plaintiffs-Appellants


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INTRODUCTION

In the certified results of Virginia’s 28th House of Delegates District,

Robert Thomas, Jr., maintains a 73-vote lead over Joshua Cole. But this

certified margin is indelibly tainted by the disenfranchisement of 86 vot-

ers (including the Lecky plaintiffs) who were denied their constitutional

right to cast a ballot in the House District 28 election and the dilutive

effect of 61 votes cast by non-residents of the district.

There is no dispute that election officials in the City of Fredericks-

burg and Stafford County misassigned these 147 voters to the wrong

House of Delegates district in the database used on election day, thereby

causing the disenfranchisement and dilution. There is no dispute that

election officials were made aware in 2015 and 2016 that voters had been

misassigned between House Districts 28 and 88. There is no dispute that

election officials failed to correct the assignments in advance of the No-

vember 2017 election. And there is no dispute that, after once again being

alerted to the problem on election day, the Fredericksburg Electoral

Board took no remedial action, adopted a policy to deny provisional bal-

lots to affected voters in violation of state law, and made it more difficult

for affected voters to discover the problem by removing a district map

from an affected polling location.


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These are decidedly not “garden-variety” errors (a term that Web-

ster defines as “ordinary, commonplace”1), as the district court wrongly

concluded. Instead, these severe problems—which may have tipped the

election—reflect a ‘“patent and fundamental unfairness”’ with the elec-

toral process that warrants federal court intervention. See Hutchinson v.

Miller, 797 F.2d 1279, 1287 (4th Cir. 1986) (citations omitted).

Absent an order of this Court, Mr. Thomas will be sworn in as a

member of the House of Delegates on January 10, 2018. If Mr. Thomas is

seated, he will participate in critical votes that will set the course of a

closely divided Virginia House of Delegates for the next two years. Such

a result would effectively disenfranchise Appellants and other Virginians

who were unconstitutionally denied their right to vote in the House Dis-

trict 28 election. Accordingly, Appellants ask this Court for an order en-

joining Appellees from seating Mr. Thomas in the Virginia House of Del-

egates until this Court decides the merits of the appeal of the district

court’s denial of the motion for a preliminary injunction.2

1 “Garden-variety” in Merriam-Webster Online Dictionary (2018), https://www.merriam-webster.com/dictionary/garden-variety (last ac-cessed Jan. 7, 2018). 2 Specifically, Plaintiffs-Appellants move for “an order . . . granting an injunction while an appeal is pending,” Fed. R. App. P. 8, that requires (i) Defendants-Appellees State Board of Elections and its members to vacate the certification of the results of House District 28 for the 2017 general election; (ii) Defendant-Appellee G. Paul Nardo not to administer the oath or affirmation for the office of Delegate to Defendant Robert Thomas,


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FACTUAL BACKGROUND

Division of Responsibilities Between State and Local Officials

State and local entities share responsibility for conducting elections

in Virginia. At the state level, the three-member State Board of Elections

is responsible for “supervis[ing] and coordinat[ing] the work of the county

and city electoral boards and of the registrars.” Va. Code §§ 24.2-103(A),

106.01(A). The State Board acts through the Department of Elections,

see id. § 24.2-103(A), which is headed by the Commissioner of Elections,

see id. § 24.2-102.

At the local level, the governing bodies of Virginia’s cities and coun-

ties establish voting precincts, each of which has a single polling place.

See id. § 24.2-307. Each city and county also has a three-member electoral

board that “administer[s] elections.” Id. §§ 24.2-101, 24.2-106(A). These

electoral boards appoint a general registrar and officers of election. See

id. §§ 24.2-109(A), 24.2-110, 24.2-115. The general registrar is responsi-

ble for registering voters, including updating registration records

Jr., pursuant to Virginia Code § 49-3, or otherwise seat Thomas in the House of Delegates or permit Thomas to exercise any authority of a mem-ber of the House of Delegates; and (iii) Defendant-Appellee Robert Thomas, Jr., not to swear an oath or affirmation for the office of Delegate pursuant to Virginia Code § 49-3 or otherwise be seated in the House of Delegates or exercise any authority of a member of the House of Dele-gates. This injunction would remain in place until the merits of the ap-peal could be heard on an expedited basis. Local Rule 8. On the merits of the appeal, the Plaintiffs-Appellants will seek the same relief they sought in the district court, including an order requiring a new election.


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“[w]henever election districts, precincts, or polling places are altered.” Id.

§ 24.2-114(13).

According to the Department of Elections, local officials are respon-

sible for assigning voters to the current precincts and districts in accord-

ance with the boundaries established by law. “Although the Department

has no statutory role in this process, and no resources to devote to this

task, the Department provides as much assistance as possible, upon re-

quest, to the local general registrars and elected officials.” State Board of

Elections Agenda (Nov. 27, 2017), https://www.elections.virginia.gov/

Files/Media/Agendas/2017/20171127BWP.pdf.

Election Day, November 2017

The Fredericksburg and Stafford Registrars misassigned at least

384 voters for the 2017 General Election: they assigned 260 District 28

residents to a different district (86 of whom voted) they assigned 124 reg-

istered voters to House District 28 who do not reside in the district (61 of

whom voted). Exhibit 7 ¶¶ 4, 10 & Attach. at 2.3

The Fredericksburg Electoral Board received at least three com-

plaints on election day from voters who had received a ballot listing the

incorrect House of Delegates race. Exhibit 9, Attach. G at 1. One of those

voters was Plaintiff-Appellant Delores “D.D.” Lecky. Id. Shortly after 9

a.m., Ms. Lecky checked-in to vote. Exhibit 8, Attach. H at 151. After

3 Each Exhibit is attached to the Declaration of Brian Simmonds Mar-shall attached to this Motion.


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receiving her ballot, she told a poll worker that she had been given a bal-

lot for House District 88 despite being registered at her home address,

which was in District 28. The poll worker confirmed that Ms. Lecky was

listed in the electronic poll book as a House District 88 voter. Exhibit 9

¶¶ 5, 13-15. After voting the ballot, she informed two of the three members

of the Fredericksburg Board, Mr. Rodriquez and Mr. Markel, that she was

a House District 28 voter who had incorrectly received a House District

88 ballot. Exhibit 9 ¶¶ 5, 13-15.

Ms. Lecky and the Board members then examined a district map at

the polling location to determine whether Ms. Lecky was correct. The

map showed that Ms. Lecky was correct: her address was well within the

House District 28 boundary (as the State Department of Elections report

later confirmed). Exhibit 7 ¶¶ 4, 10 & Attach. at 2. But instead of working

expeditiously to correct the problem, the electoral board members instead

“concluded that the map must have been wrong and removed the map

from the polling place,” following a conversation with the Department of

Elections. Exhibit 9 ¶¶ 13-15.4 Mr. Lecky was wrongly forced to cast a

4 The first time Mr. Lecky and Ms. Lecky voted in Fredericksburg in a House of Delegates election was November 2017, when they attempted to cast their ballots for Joshua Cole. See Exhibit 9 ¶¶ 4, 9, 12. In June 2017, neither Joshua Cole nor House District 88 nominee Steve Aycock faced a primary opponent; therefore, the House of Delegates office was not on the Democratic primary ballot when the Leckys cast their votes in the Democratic Primary. Exhibit 8, Attach. M (House of Delegates results


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House District 88 ballot more than five hours later. See Exhibit 9 ¶¶ 13,

20; Exhibit 3 ¶¶ 4, 5, 8; Exhibit 8, Attach. H at 151 (showing Kenneth

Lecky checked-in to vote in precinct 402 at 4:08 p.m.).

During that interval, the Board adopted a policy to refuse provi-

sional ballots to voters who complained of being misassigned. Incredibly,

the Board adopted its attorney’s recommendation to provide no remedy

at all. Exhibit 8, Attach. I.5 The Board based this decision on two errone-

ous premises: first, that that the “State Board of Elections database is

entitled a presumption of validity”—notwithstanding the fact that the

map had plainly contradicted the database and that, in 2015, the City

had supplemented the VERIS database with a street listing report to

guard against error—and second, that “[i]f in fact the database is incor-

rect, then the appropriate means for challenging it is through the formal

contest procedure,” even though State law only permits a losing candi-

date, not voter, to seek a contest in the Virginia House of Delegates, Va.

Code Ann. § 24.2-803. Id.

for June 2017 Democratic Primary) & Attach. N (Fredericksburg City re-sults for June 2017 Democratic Primary); Exhibit 9 ¶ 4; Va. Code Ann. § 24.2-526. 5 This is document was released by two of the three members of the Fred-ericksburg Electoral Board in response to a Virginia Freedom of Infor-mation Act requests.


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State Department of Elections Report

When the bipartisan Virginia State Board of Elections certified the

vote totals for House District 28, it voted unanimously to append a de-

tailed report of the Virginia Department of Elections (the “Department”)

concluding:

384 registered voters were erroneously assigned or not assigned to

vote in the House District 28 election.

Of these voters, 147 voted in the General Election.

Eighty-six (86) of these 147 voters were residents of House District

28, but were misassigned to House Districts 2 or 88.

The other 61 of these 147 voters were residents of House District 88

but were misassigned to House District 28.

Exhibit 7 ¶¶ 9-11 & Attach. at 2. The facts recited in the report also show

that despite more than 87 percent of the votes in House District 28 being

cast in Stafford County, a majority of the misassigned voters resided in

Fredericksburg, a jurisdiction where Mr. Cole won more than 70 percent

of the votes cast.

After a recount, the election was certified on December 21, 2018,

with the margin between the two candidates of 73 votes: 11,849 for

Thomas and 11,776 for Cole. Mr. Cole did not request a contest be heard

in the House of Delegates within the three days allowed by Virginia law.

Va. Code Ann. § 24.2-803(B).


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Defendants’ Knowledge of Misassignments Before This Election

The registration records’ incorrect listing of voters residing in

House District 28 was considered by state and local election administra-

tors in 2015, 2016, and early 2017.

2015

By March 2015, the Fredericksburg Registrar’s Office had “received

a telephone call . . . about the possibility of voters being given incorrect

ballots for the two Districts: 28 and 88.” See Exhibit 8, Attach. A (March

10, 2015 Electoral Board minutes. The then-Registrar acknowledged to

the Electoral Board that “[i]n looking at the maps of the Precincts . . . it

seems some of the voters are listed in the wrong district” and stated that

“[t]his must be cleared up before the June Primary in District 28 only,”

id., where then-Speaker Bill Howell was facing a Republican primary

challenge.

The next month, Speaker Howell’s staff complained to the State De-

partment of Elections that the Registrar had failed to correct the problem

and voters remained misassigned between the two districts. Exhibit 11,

Attach. O at 6–7. Given the potential embarrassment associated with

having election administration errors taint the results of a primary elec-

tion featuring the Republican Speaker, the Department of Elections

noted the “urgency of the matter” and efforts were made to promptly cor-

rect the misassignments despite absentee balloting having already com-

menced. Id. at 1–2; see also Va. Code Ann. § 24.2-612. For example, the


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husband of the Board’s Secretary was swiftly reassigned from one House

District to the other and back again, despite no change in his address.

Exhibit 8, Attach. D. In stark contrast to Election Day 2017, when it re-

lied exclusively on the Virginia Election & Registration Information Sys-

tem (“VERIS”) to distribute ballots, the Department of Elections and City

of Fredericksburg Registrar supplemented VERIS with “street listing Re-

port to confirm [the] proper House District” when assigning absentee bal-

lots. Exhibit 13, Attach. O.

2016

The Electoral Board’s focus on the misassignments between House

District 28 and House District 88 continued into 2016. At the April 22,

2016 meeting of the Fredericksburg Board, the Chairman acknowledged

that the assignment problem remained and insisted that it be resolved

promptly: Chairman Rodriguez asked about the status of the 4 individ-uals whom had been erroneously put in Precinct 401 but should have been in 201. Director Pitchford said that she thought that was part of the 28th/88th issue. . . . Chairman Rodriguez asked what would be a good follow-up to have this accomplished and Director Pitchford stated that she would have it fixed by Monday, April 25, 2016.

Exhibit 8, Attach. C; see also id., Attach. B. At the same time, the then-

registrar sought guidance from the Virginia Department of Elections. Id.,

Attach. E (Letter from Juanita Pitchford, Fredericksburg City General

Registrar, to Martha B. Brissette, Virginia Department of Elections,

March 18, 2016). The Department ultimately assured her “everything is


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A-OK!” Id., Attach. F (E-mail from Braun Brooks, Virginia Department

of Elections, to Pitchford, May 10, 2016).6

The Stafford County General Registrar was also asked for infor-

mation in 2016 to confirm the assignments for House District 28 were

correct, which he declined to provide. Exhibit 11, Attach. P.

2017

Shortly after becoming the General Registrar and Director of Elec-

tions of the City of Fredericksburg in the first quarter of 2017, Defendant

Marc Hoffman sent emails to the State Department of Elections noting

that “there are two, possibly three split precincts in Fredericks-

burg. . . . They involve the 28th and 88th House Districts. . . . What is my

process to get the correct ballots for such a precinct?” Exhibit 11, Attach.

Q at 2. Specifically, Mr. Hoffman requested the State Department of Elec-

tions assist him “to find the information needed regarding split precincs

[sic]. My familiarity with these [sic] process is superficial at best.” Id. at

1.

6 At oral argument in the district court, opposing counsel argued that dif-ferent voters were affected in 2015 and 2016 than the voters disenfran-chised in 2017. Exhibit 14 at 29–31. Even if Defendants succeed in estab-lishing those facts, the episodes in 2015 and 2016 put state and local elec-tion officials on notice that voters were being misassigned between House of Delegate Districts 28 and 88.


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PROCEDURAL BACKGROUND

On November 21, 2017, Appellants filed a complaint alleging that

their rights under the First and Fourteenth Amendments were violated

when election officials denied them the right to vote in the general elec-

tion for House District 28. ECF No. 1. At the same time, plaintiffs moved

for a temporary restraining order and preliminary injunction to enjoin

the Virginia Board of Elections from certifying the results of the election.

ECF No. 2. The next day, the district court denied the motion for a tem-

porary restraining order after a telephonic hearing. ECF No. 26.

Plaintiffs filed an Amended Complaint, alleging additional facts,

naming additional defendants, and seeking new relief. ECF Nos. 35, 42-

1. Plaintiffs also sought a preliminary injunction prohibiting Mr. Thomas

from being seated in the House of Delegates and requiring a new election

for District 28 of the House of Delegates. Exhibit 1.

Five responses to that motion were filed by Defendants and Inter-

venors. The State Defendants filed a brief “readily acknowledg[ing]”

these errors and their effect on the District 28 election. ECF No. 69, at 6;

see also Exhibit 7 at ¶ 12. The State Defendants lamented that “the State

Board and Department have no mechanism, under Virginia law, to ad-

dress” these errors (ECF No. 69, at 5; see also Exhibit 7, at ¶ 12), or cor-

rect the vote totals because the incorrectly assigned voters cast “uniden-

tifiable ballots [that] were comingled with properly cast ballots.” ECF No.

69, at 6. As a result, the State Defendants “are supportive of . . . litigation


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to vindicate fully and appropriately recognize the affected voters’ funda-

mental right to vote and have that vote counted.” Id. at 7; see Exhibit 7

at ¶ 12. A fourth brief filed by certain local defendants also expressed

support for a court remedy. See ECF No. 97, at 7.7

Two briefs opposed the motion in its entirety: one filed by the Re-

publican candidate Robert Thomas, Jr., and Republican Intervenors

(ECF No. 73), and another filed by the two local Registrars and three

local Board members (ECF No. 89). The only evidence attached to either

brief was printouts of two Plaintiffs’ registration and voting records. ECF

No. 89-1.8 The fifth brief, filed by clerk of the House of Delegates G. Paul

7 Two members of local Boards, Doug Filler and Aaron Markel, signed the brief, and a third member of a local Board, Fredericksburg Secretary Cathie Fisher Braman, adopted their brief at the hearing. 8 The central facts in this case are not in dispute and the parties recognize that preliminary relief is “‘customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.’” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725 (4th Cir.), vacated and remanded on other grounds, 137 S. Ct. 1239 (2017). This includes permitting hearsay contained in declarations and evidentiary documents. See id. at 725-26. Nevertheless, unsupported fac-tual assertions made in opposing briefs should not be credited. “Unsworn statements by counsel simply will not do.” Markowitz Jewelry Co. v. Chapal/Zenray, Inc., 988 F. Supp. 404, 407 (S.D.N.Y. 1997) (ruling on preliminary injunction); see also Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (“An attorney’s unsworn statements in a brief are not evi-dence.”).


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Nardo, argued that ordering injunctive relief against him was unneces-

sary to remedy the Plaintiffs’ alleged injuries, but took no position on

whether the relief sought against other Defendants should be granted.

ECF No. 72. Appellants replied,9 and later sought leave to file three ad-

ditional documents the day after Defendants produced them.10

On Friday, January 5, at the conclusion of a hearing that ended at

7:49 p.m.,11 the district court denied Appellants’ Motion for a Preliminary

Injunction from the bench. Yesterday, January 7, Plaintiffs noticed their

appeal of that order in the district court.

On January 7, Plaintiffs-Appellants notified counsel for each De-

fendant-Appellee that this motion would be filed and requested their po-

sitions on the motion. See Local Rules 8(a)(2)(C) and 27(a). Parties who

9 The reply attached eleven documents produced by Defendants after the preliminary injunction was filed, Exhibit 11 ¶ 6), and three other docu-ments rebutting claims made in Defendants’ responses to the prelimi-nary injunction. 10 Attachments O-Q to Exhibit 11 were produced to Plaintiffs on Wednes-day, January 3. Exhibit 11 ¶ 5. Plaintiffs’ motion filed the next day is pending before the district court. ECF No. 104. 11 Plaintiffs requested a December 22 hearing, and the docket initially set a hearing for that date. ECF No. 38 (Dec. 6, 2017); Minute Order (Dec. 7, 2017). But the Court rescheduled the hearing for January 5 at 4:30 p.m. ECF No. 63 (Dec. 8, 2017); Minute Order (Dec. 27, 2017).


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opposed the preliminary injunction have indicated they would oppose

this motion in full or in part.12

Given that Plaintiffs seek relief before noon on Wednesday, Janu-

ary 10, Plaintiffs submit “that moving first in the district court would be

impracticable,” Fed. R. App. P. 8(a)(2)(A)(i). Even a prompt denial of the

motion by the district court would further compress the time available

for this Court to rule on this motion before Wednesday, and, in light of

the district court’s decision on the preliminary injunction, such a motion

would have been futile.

ARGUMENT

In considering whether to grant an injunction pending appeal pur-

suant to Federal Rule of Appellate Procedure 8(a)(2), a Court of Appeals

applies the standards for preliminary injunctive relief. See Eternal Word

Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs.,

756 F.3d 1339, 1344 (11th Cir. 2014) (Pryor, J., specially concurring);

Southeast Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472

F.3d 1097, 1100 (9th Cir. 2006). “To win . . . a preliminary injunction,

Plaintiffs must demonstrate that (1) they are likely to succeed on the

12 Specifically, Thomas and Intervenors oppose the motion in its entirety. Riddlemoser, Hoffman, Gozzi, Chittum, and Rodriguez oppose vacating certification of the election, but take no position on whether Thomas should be seated during the pendency of the appeal. Nardo opposes the motion insofar as it seeks an injunction against him, but takes no position with respect to injunctions against other defendants. The remaining par-ties have not communicated a position on the motion to Plaintiffs’ counsel.


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merits; (2) they will likely suffer irreparable harm absent an injunction;

(3) the balance of hardships weighs in their favor; and (4) the injunction

is in the public interest.” League of Women Voters of N.C. v. North Caro-

lina (“LOWV”), 769 F.3d 224, 236 (4th Cir. 2014). In this case, Appellants

satisfy each of the four requirements.

I. APPELLANTS ARE LIKELY TO SUCCEED ON THE MERITS. “Undeniably the Constitution of the United States protects the

right of all qualified citizens to vote in state as well as in federal elections.”

Reynolds v. Sims, 377 U.S. 533, 554 (1964). “Because of the importance

of this right, ‘any alleged infringement must be carefully and meticu-

lously scrutinized.’” Hendon v. N.C. State Bd. of Elections, 710 F.2d 177,

180 (4th Cir. 1983) (quoting Reynolds, 377 U.S. at 562). “It is settled that

if the election process reaches the point of ‘patent and fundamental un-

fairness,’ the due process clause may be violated.” Id. Likewise, the Equal

Protection Clause bars “arbitrary and disparate treatment” that “value[s]

one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05

(2000). Under both Clauses, “[t]he right to vote can neither be denied

outright” nor “dilute[ed],” Reynolds, 377 U.S. at 555, as they were in this

election.

Deliberate state action (assigning voters to districts) that deprives

individuals of a liberty interest (the right to vote) violates the Fourteenth

Amendment regardless of whether the action was intended to favor one


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candidate or the other. Here, the election administrators were deliber-

ately indifferent to Plaintiffs’ right to vote and failed to take proper re-

medial actions before or on election day. These errors in the conduct of

the House District 28 Election violated Appellants’ rights under both the

Due Process and Equal Protection Clauses of the U.S. Constitution. See

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 66-69 (1978) (a state

cannot arbitrarily deny the franchise to citizens “physically resident

within the geographic boundaries” of an electoral district) (collecting

cases). The district court erred in its determination that Plaintiffs were

likely to be unable to establish such a violation.

A. Appellees Violated Appellants’ Due Process Rights.

“Due process is implicated where the entire election pro-

cess . . . fails on its face to afford fundamental fairness.” Griffin v. Burns,

570 F.2d 1065, 1078 (1st Cir. 1978). Voters’ rights to substantive due pro-

cess are violated, and federal court intervention is appropriate, “in in-

stances of ‘patent and fundamental unfairness’ that ‘erode[] the demo-

cratic process.” Hutchinson, 797 F.2d at 1287 (quoting Hendon, 710 F.2d

177 at 182); see also Griffin, 570 F.2d at 1078 (“If the election process

itself reaches the point of patent and fundamental unfairness, a violation

of the due process clause may be indicated and relief under § 1983 there-

fore in order.”).

In this case, federal intervention is required because “broad-gauged

unfairness permeate[d]” the House District 28 Election, Griffin, 570 F.2d


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at 1078, which “erode[d] the democratic process.” Hendon, 710 F.2d at

182. Appellees committed “severe” errors in the conduct of the House Dis-

trict 28 Election, both in the initial misassignment of voters as well as in

the deliberate and persistent failure to fix the incorrect assignment of

voters. Hendon, 710 F.2d at 182.

Indeed, for more than two years preceding the 2017 election, the

State Department of Elections and City of Fredericksburg Electoral

Board and General Registrar were aware that voters had been misas-

signed among House of Delegates districts. See pp. 8–11, supra. Yet the

City failed to correct the errors in advance of the 2017 election. As a re-

sult, enough voters to provide the margin of victory were incorrectly pre-

vented from voting in (and, in 61 more instances, incorrectly permitted

to vote in13) a narrowly decided election. The errors represent a system-

atic failure of the principal election officials charged with the oversight

of this election to afford legal voters the right to vote and not to permit

illegal votes to dilute their votes. They seriously undermined the integ-

rity of the House District 28 election and warrant federal intervention.

Defendants opposing relief argued below that so long as these fail-

ures were not specifically intended to deprive a voter of the ballot, they

13 These illegal votes “effectively ‘stuff the ballot box,’ implicating funda-mental fairness issues.” See Roe v. Alabama, 43 F.3d 574, 58 (1995) (ci-tations omitted) (barring inclusion of votes that were illegal under state law as violation of substantive due process).


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were not actionable, citing Daniels v. Williams, 474 U.S. 327 (1986). 14 In

Daniels, the Supreme Court held in a prisoner neglect case that the gov-

ernment’s negligence is not sufficient to establish a violation of a plain-

tiff’s substantive due process right. Id. at 342-43. But that holding is lim-

ited to personal injury cases. See Waybright v. Frederick Cty., Md., 528

F.3d 199, 205 (4th Cir. 2008) (describing “this body of law” as applying

“where a claim sounds both in state tort law and substantive due pro-

cess”). Where important due process protections for the right to vote are

concerned, on the other hand, there is no such intent requirement. See

Hunter v. Hamilton Cty. Bd. Of Elections, 635 F.3d 219, 243 (6th Cir.

2011) (suggesting without deciding “[t]o disenfranchise citizens whose

only error was relying on poll-worker [innocently incorrect] instructions

appears to us to be fundamentally unfair” in violation of the Due Process

Clause); cf. Strickler v. Greene, 527 U.S. 263, 288 (1999) (“under Brady

14 The Second Circuit’s requirement of “intentional action on the part of government officials” in substantive due process voting rights cases set forth in Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005), is not sup-ported by Fourth Circuit law. Whether an election irregularity is “inten-tional” may be one factor in determining an election’s fundamental un-fairness, but it is not a required showing in the Fourth Circuit. See Hen-don, 710 F.2d at 182. See also Griffin, 570 F.2d at 1077 (relief is available even when the deprivation is “derived from apparently neutral action”).


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an inadvertent nondisclosure has the same impact on the fairness of the

proceedings as deliberate concealment.”).15

Moreover, the official conduct underlying the voter misassignment

in this case entailed some deliberateness. The general registrars had a

statutory duty to assign voters to the correct districts, thereby determin-

ing the districts in which the voters would be allowed to cast ballots. See

Va. Code § 24.2-114. They fulfilled this duty by making assignments

within the statewide voting database (VERIS). Exhibit 7 ¶ 4. These de-

liberate acts caused the disenfranchisement of at least 86 voters and al-

lowed at least 61 non-residents to dilute the votes of eligible voters.

Appellants were also harmed by “the official action taken by De-

fendants to remedy those errors, actions that, although clearly under-

taken in good faith, produced fundamental unfairness.” Krieger v. City of

Peoria, No. CV-14-01762-PHX-DGC, 2014 WL 4187500, at *5 (D. Ariz.

Aug. 22, 2014). On the morning of election day, Ms. Lecky immediately

15 Even in the personal injury context, the Supreme Court has expressly reserved the question of “whether something less than intentional con-duct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause,” Daniels, 474 U.S. at 335-36 n.3, and this Court recognizes such gross negligence claims. See Justice v. Dennis, 793 F.2d 573, 378-79 (4th Cir. 1986). “Gross negligence is ‘a de-gree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.’” Elliott v. Carter, 791 SE 2d 730, 732 (Va. 2016) (internal cita-tions omitted). That standard is met here, where the danger of an erro-neous deprivation of Plaintiffs right to vote in HD-28 was known to elec-tion administrators for more than two years.


-20-

informed two of the three City of Fredericksburg Election Board members

that the electronic pollbook had incorrectly assigned her to House Dis-

trict 88. When a voter claims that the electronic pollbook is incorrect,

election officials must use other resources to determine a voter’s status.

General Registrar and Electoral Board (GREB) Handbook, Ch. 17.4.1 at

438, available at http://www.elections.virginia.gov/GREBHandbook/. In

split precincts, such as Precinct 402 where the Leckys voted, election of-

ficials are specifically instructed to use maps to ensure that voters receive

the correct ballots. Id. at 8.8 at 296-97 (“Visual cues are helpful and

should be used whenever possible . . . It is helpful to post alpha signs for

‘West-1’ and ‘West-2,’ a large map showing the areas covered by each seg-

ment and a sign saying something like ‘If you live [here], vote here.’”).

After receiving Ms. Lecky’s complaint, the Board members “pointed

[Lecky] to a map hanging in the polling place which showed that [her]

address was well within the House District 28 boundaries.” Exhibit 9 ¶

13. But instead of taking immediate steps to investigate and correct the

pollbook errors, the two Board members “concluded that the map must

have been wrong and removed the map from the polling place,” id. ¶¶ 14-

15, thereby denying all subsequent voters in the precinct the opportunity

to determine where they should vote.

The Board then adopted a blanket policy to refuse provisional bal-

lots to voters who were assigned to the wrong House of Delegates district,

reasoning that “[i]f in fact the database is incorrect, then the appropriate


-21-

means for challenging it is through the formal contest procedure”—not

the voting of a provisional ballot. Exhibit 8, Attach. I. The Board’s policy

denying provisional ballots to these misassigned voters violated state law.

Virginia law offers voters a fail-safe guarantee against pre-election ad-

ministrative errors: a statutory right to cast a provisional ballot in the

precinct where the voter swears she resides and is registered. See Va.

Code Ann. § 24.2-643(A) (“[E]ach qualified voter at a precinct shall be

permitted to vote.”); id. § 24.2-653(A) (“When a person offers to

vote . . . and the general registrar is not available or cannot state that the

person is registered to vote, then such person shall be allowed to vote by

[provisional] ballot.”). “As a Virginia Voter, you have the following rights:

To vote a Provisional Ballot if your status as a qualified voter is in ques-

tion . . . .” See Virginia Dep’t of Elections, Voter Rights & Responsibilities,

available at https://www.elections.virginia.gov/registration/voter-rights-

responsibilities/index.html.

The district court based its decision, in part, on an incorrect under-

standing of the fail-safe option that Virginia law guarantees to voters

whose status is threatened by an administrative error. According to the

district court, a voter who is listed as registered in the wrong location

does not enjoy a statutory right to a provisional ballot; only voters who

do not appear in the pollbooks at all may avail themselves of that statu-

tory right. Tr. of Jan. 5, 2018 hearing at 64:17-65:4.


-22-

But Virginia law does not merely guarantee the provisional ballot

to voters who “don’t appear to be registered,” Id. 64:19-20; it guarantees

the provisional ballot to voters who are not registered at the correct loca-

tion. This distinction is critical. Under Virginia law, “[t]he officer of elec-

tion must inform the individual of his or her right to cast a provisional

ballot if the individual believes he or she should be legally registered to

vote in the precinct, and the individual signs the Provisional Ballot Enve-

lope under felony penalty for making false statements that he or she is a

registered voter of the precinct.” GREB Handbook, Virginia Department

of Elections at 17.4.1.1 (June 2016) (emphasis added). Virginia’s provi-

sional ballot guarantee mirrors the federal guarantee under the Help

America Vote Act (“HAVA”). “Under HAVA, the only permissible require-

ment that may be imposed upon a would-be voter before permitting that

voter to cast a provisional ballot is the affirmation . . . that the voter is a

registered voter in the jurisdiction in which he or she desires to vote, and

that the voter is eligible to vote in an election for federal office.” Sandusky

Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (em-

phasis added). See also Fla. Democratic Party v. Hood, 342 F.Supp.2d

1073, 1081 (N.D. Fla. 2004) (requiring election officials to permit voter to

cast provisional ballot if voter completes required affirmation). Denying

a provisional ballot to a voter willing to affirm that she is a registered


-23-

voter in the jurisdiction in which she desires to vote violates state law.16

It thereby deprived Plaintiffs of any remedy on election day.

Of course, “not every election irregularity gives rise to a constitu-

tional claim,” Hendon, 710 F.2d at 182, nor does every violation of state

law. Without a doubt, “garden variety election irregularities” generally

do not merit federal court intervention. Hutchinson, 797 F.2d at 1283.

But, this is not “the ordinary dispute over the counting and marking of

ballots . . . .” Griffin, 570 F.2d at 1078; see also, e.g., Hendon, 710 F.2d at

182 (rejecting due process challenge to detailed complaints about failure

of ballots to technically apply with statutory requirements, including

font). Instead, Appellees’ conduct in this Election was an “instance[] of

‘patent and fundamental unfairness’ that ‘erode[d] the democratic pro-

cess.” Hutchinson, 797 F.2d at 1287.

16 Here, the relevant “jurisdiction” in which the Leckys sought to vote was a segment of Split Precinct 402—specifically, the segment of Split Pre-cinct 402 associated with District 28. There is no factual dispute that the pollbook did not list the Leckys as registered voters in that precinct seg-ment. The mere fact that the Leckys sought to vote in a different precinct segment than the one in which they were listed, rather than a different precinct altogether, does not invalidate their right to cast a provisional ballot. While “[p]recincts are usually the smallest unit of organization for an election district”—and thus are the unit that state law often refers to when discussing voting procedures—state regulations recognize that “[t]he split precinct is the exception to this rule.” GREB Handbook, 8.1 at 290. See also Sandusky Cty., 387 F.3d at 575 (concluding “that jurisdic-tion means the particular state subdivision within which a particular State's laws require votes to be cast.”).


-24-

In general, a “court will strike down an election on substantive due

process grounds if two elements are present: (1) likely reliance by voters

on an established election procedure and/or official pronouncements

about what the procedure will be in the coming election; and (2) signifi-

cant disenfranchisement that results from a change in the election pro-

cedures.” Bennett v. Yoshina, 140 F. 3d 1218, 1227-28 (9th Cir. 1998).

Here, both factors are present. Voters reasonably expected election offi-

cials to assign them to the correct House of Delegates district and, failing

that, relied on the legal guarantee that they would be offered provisional

ballots in the event of an administrative error. Sandusky County Demo-

cratic Party, 387 F.3d at 574 (recognizing the provisional ballot guaran-

tee as a “federal civil right” to ensure that administrative errors do not

disenfranchise voters). Election officials fundamentally changed these

procedures by failing to correct the miassignments prior to the election

and denying provisional ballots to affected voters on election day. And

these changes resulted in significant disenfranchisement, with the num-

ber of disenfranchised and out-of-district votes doubling the margin be-

tween the two candidates.17 See Griffin, 570 F.2d at 1067-68 (declining to

17 The district court relied on Harris County Department of Education v. Harris County, Tex., No. 4:12-cv-02190, 2012 WL 3886427 (S.D. Tex. Sept. 6, 2012) for the proposition that elections conducted under the wrong dis-trict boundaries do not violate the due process clause. But in Harris County, the challenge came after a subsequent runoff election that was conducted under the correct boundaries. In other words, the remedy that


-25-

require “mathematical certainty” that the result would have been differ-

ent but-for the voting right violations). Accordingly, Appellants were de-

nied their substantive due process rights and the district court erred in

declining to issue a preliminary injunction to remedy that deprivation.

See Hunter, 635 F.3d at 232 (“That federal courts are constrained in an

area does not mean that they must stand mute in the face of allegations

of a non-frivolous impairment of federal rights.”).

B. Appellees’ Conduct During the Election Violated Equal Protection Guarantees.

Virginia’s failure to provide correct ballots (including provisional

ballots) arbitrarily imposed disparate treatment on similarly situated

voters in violation of the Equal Protection Clause. The Equal Protection

Clause imposes an “obligation on [a State] to avoid arbitrary and dispar-

ate treatment of the members of its electorate.” Bush, 531 U.S. at 105. In

particular, the Equal Protection Clause forbids the States from “valu[ing]

one person’s vote over that of another” through “arbitrary and disparate

treatment.” Id. at 104-05. The right to vote is protected both in “the initial

allocation of the franchise” as well as “the manner of its exercise.” Id. at

Plaintiffs seek here had already been effectuated by the time of the chal-lenge in Harris County. Likewise, in Hutchinson—on which Defendants relied extensively—the Fourth Circuit refused only to afford monetary relief years after the election. 797 F.2d at 1280, 1286. There, unlike here, the evidence of irregularity was “purely speculative,” state remedial pro-cedures were available (but not timely utilized), and candidates were “de-feated by wide margins” Id. at 1280, 1282, 1284.


-26-

104. “Having once granted the right to vote on equal terms, the State may

not, by later arbitrary and disparate treatment, value one person’s vote

over that of another.” Id. at 104-05.; see also Harper v. Va. State Bd. of

Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to

the electorate, lines may not be drawn which are inconsistent with the

Equal Protection Clause of the Fourteenth Amendment.”). ; League of

Women Voters of Ohio v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (hold-

ing that in the context of voting equal protection requires “‘nonarbitrary

treatment of voters’” (quoting Bush, 531 U.S. at 105)).

In fact, federal courts have expressed particular concerns about

equal protection violations in circumstances like these: where similarly

situated voters go to the same polling place but have their ballots counted

differently. See Northeast Ohio Coal. for Homeless v. Husted, 696 F.3d

580 (6th Cir. 2012). In Husted, a federal appeals court affirmed a lower

court decision requiring Ohio’ s Secretary of State to modify a rule bar-

ring election officials from counting provisional ballots cast by voters who

went to the right polling place but voted in the wrong precinct.18 Even

though “wrong-precinct ballots made up 0.248% of the ballots cast in the

18 Ohio law permitted multiple precincts to vote in a single polling place; Virginia law prohibits it. Va. Code Ann. § 24.2-307 (“The governing body shall establish by ordinance one polling place for each precinct.”). But the split-precinct in Virginia functions identically to the types of polling places at issue in Husted: voters arrive at a polling place, but must then be sorted based on the ballot that they should receive.


-27-

2008 election, with right-place/wrong-precinct ballots comprising an even

smaller share,” the court still found that the plaintiffs had shown a like-

lihood of success on the equal protection claim. Id., 696 F.3d at 593.

In this case, Virginia violated equal protection by arbitrarily deny-

ing Plaintiffs the right to vote or arbitrarily diluting their vote. There is

no dispute that all citizens in House District 28 are similarly situated

with respect to their eligibility to vote in the November 2017 general elec-

tion. And, yet, some of these voters were permitted to cast ballots in

House District 28 and others were not. This “disparate” treatment of Vir-

ginia voters was plainly “arbitrary.” Hunter, 635 F.3d at 234 (quoting

Bush, 531 U.S. at 104). And there is no rational justification for such a

differentiation. Accordingly, Defendants’ arbitrary failure to provide cor-

rect ballots was in violation of the Equal Protection Clause. See Hunter,

635 F.3d at 234 Bush, 531 U.S. at 104.

II. APPELLANTS WILL SUFFER IRREPARABLE HARM AB-SENT AN INJUNCTION. Absent an immediate injunction from this Court, Appellants will

continue to be denied the right to vote. This is the essence of irreparable

harm. LOWV, 769 F.3d at 247 (“Courts routinely deem restrictions on

fundamental voting rights irreparable injury.”); see also Melendres v. Ar-

paio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[T]he deprivation of constitu-

tional rights ‘unquestionably constitutes irreparable injury.’” (quoting

Elrod v. Burns, 427 U.S. 347, 373 (1976))).


-28-

Further, absent this Court issuing an injunction pending an expe-

dited appeal, Appellants will be represented by someone they were not

allowed to vote against during a critical legislative period. As the district

court acknowledged, if Robert Thomas, Jr. is sworn in on the first day of

the legislative session on January 10, 2018 he will participate in key

votes to organize the House of Delegates for the next two years. Virginia

Constitution art. IV, sec. 6; Exhibit 10 at ¶ 4. The Speaker will be chosen

and the composition of committees will be determined. Id. at ¶ 3. The

Republican House leader has publicly announced “that the House will

hold th[e] vote [for Speaker], assign committees and move forward with

business on Jan. 10,” regardless of whether there are pending legal dis-

putes.19 If this Court does not act, the House of Delegates will be orga-

nized with the participation of Mr. Thomas, even if he is later unseated.

These votes will have an effect on which bills are subsequently considered

and voted on by the full House of Delegates.

Courts have recognized that federal court intervention is appropri-

ate where delay would prejudice the plaintiffs. See Roe, 43 F.3d at 582.

(“The unnecessary delay that would result were we to leave the plaintiffs

19 Jordan Pascale, “Winner of tied 94th District Race will be determined by drawing next week, barring court ruling,” The Virginian-Pilot (Dec. 29, 2017 and updated Jan. 4, 2018), https://pilotonline.com/news/govern-ment/politics/virginia/article_2a85c1d0-6814-50be-b010-39d20574480b.html.


-29-

to their state court remedy would be particularly insidious: it would ex-

tend the time that the two offices at issue remain in limbo, hindering

those offices in the handling of state affairs. Time is, therefore, of the

essence.”). Accordingly, this Court could issue no subsequent adequate

compensatory or other corrective relief to undo the widespread effects of

Mr. Thomas’s participation in the House of Delegates, even if his election

were subsequently determined to be constitutionally infirm. Di Biase v.

SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017).

III. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST TIP IN APPELLANTS’ FAVOR.

Both the public interest and the balance of equities favor this Court

enjoining Mr. Thomas from being seated prior to hearing the merits of

this appeal. Plaintiffs have no adequate post-deprivation process availa-

ble to them other than resort to the federal courts. The only process avail-

able to remedy Plaintiffs’ deprivation under Virginia law was a contest

procedure, which is available only to candidates—not voters—and was

not pursued by Mr. Cole. See Va. Code Ann. § 24.2-803(B). Moreover, fed-

eral courts have recognized that a partisan contest procedure before a

legislature is “not an adequate or proper forum for the resolution of the

federal constitutional issues presented.” Roe, 43 F.3d at 582.

Absent immediate relief from this Court, a number of Virginians

will continue to have been deprived due process and equal protection

guarantees through the conduct of this election. And “[t]he public interest


-30-

and the balance of the equities favor “‘prevent[ing] the violation of a

party’s constitutional rights.’” Ariz. Dream Act Coal. v. Brewer, 818 F.3d

901, 920 (9th Cir. 2016) (alteration in original) (citation omitted); see also

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)

(“[U]pholding constitutional rights surely serves the public interest.”).

This is even more so when, as here, voting rights are at issue because

“[t]he public has a ‘strong interest in exercising the fundamental political

right to vote,’” and in “‘permitting as many qualified voters to vote as

possible.’” LOWV, 769 F.3d at 247-48 (citations omitted). Further, issuing

the injunction before January 10 would prevent Appellants from being

denied their right to vote for their representation during a critical legis-

lative period.

These injuries are not outweighed by any burden on Appellees, who

have no legitimate interest in upholding and implementing the results of

an unconstitutional election. Cf. Bennett, 934 F. Supp. 2d at 1216-17

(“Defendants would suffer no harm in being enjoined from enforcing un-

constitutional . . . laws, so the balance of hardships tips in favor of the

Plaintiffs.”). Instead, “[t]he injury suffered by [Appellants] and other cit-

izens similarly situated in permitting persons not validly elected to as-


-31-

sume control of the government . . . would far outweigh the cost of con-

ducting a fair, proper and valid election.” Ury v. Santee, 303 F. Supp. 119,

127 (N.D. Ill. 1969).20

CONCLUSION

For the reasons set forth above, Appellants respectfully request this

Court enjoin the seating of Robert Thomas Jr. in the Virginia House of

Delegates as the delegate for House District 28 during the pendency of

this appeal.

20 Under Virginia law, a contest may only be filed by a losing candidate, which would then be decided by the House of Delegates. Va. Code Ann. § 24.2-803. No contest has been filed. See p. 7, supra. In any case, “[t]he legislature . . . is not an adequate or proper forum for the resolution of the federal constitutional issues presented.” Roe, 43 F.3d at 583.


- 2-

DATED: January 8, 2018 PERKINS COIE LLP

By: /s/ Bruce V. Spiva Marc Erik Elias [email protected] Bruce V. Spiva [email protected] Brian Simmonds Marshall [email protected] Aria C. Branch [email protected] Perkins Coie, LLP 700 13th St. N.W., Suite 600 Washington, D.C. 20005-3960 Phone: (202) 434-1627 Fax: (202) 654-9106



- -

CERTIFICATE OF COMPLIANCE

I certify that pursuant to Fed. R. App. P. 27(d)(2)(A) and 32(g)(1),

the attached Motion for an Injunction Pending Appeal contains 7,633

words and is prepared in a format, type face, and typestyle that complies

with Fed. R. App. P. 32(a)(4)-(6).


By: /s/ Bruce V. Spiva Marc Erik Elias Bruce V. Spiva Brian Simmonds Marshall Aria C. Branch



CORPORATE DISCLOSURE STATEMENT

Appellants Kenneth J. Lecky, Dolores Lecky, Phillip Ridderhof, and

Amy Ridderhof are individuals. Appellants are not publicly held corpora-

tions, they do not have any parent corporations, nor does any publicly

traded corporation own any of their shares.


By: /s/ Bruce V. Spiva Marc Erik Elias Bruce V. Spiva Brian Simmonds Marshall Aria C. Branch



CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the attached document with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system on January 8, 2018. I certify that I caused to be served each party’s counsel in the dis-trict court by email and UPS next-day delivery:

Mark Herring Cynthia E. Hudson John W. Daniel II Heather Hays Lockerman Anna T. Birkenheier OFFICE OF THE ATTORNEY GENERAL 202 North 9th Street Richmond, Virginia 23219 [email protected] [email protected]

Attorneys for the Honorable Terence McAuliffe, the Virginia State Board of Elections, James B. Alcorn, Clara Belle Wheeler,Singleton B. McAllister, theVirginia Department ofElections, and Edgardo Cortés

E. Mark BradenPatrick T. LewisKatherine L. McKnightTrevor M. StanleyRichard B. RaileBAKER & HOSTETLER LLP1050 Connecticut Ave., NW,Suite 1100Washington, D.C. [email protected]@[email protected]@[email protected]

Attorneys for Robert Thomas, Jr., and Intervenors

Michael G. Matheson Billy Tunner THOMPSON MCMULLAN, P.C. 100 Shockoe Slip, 3rd Floor Richmond, Virginia 23219 [email protected] [email protected]

Attorneys for Marc C. Hoffman, Rene Rodriguez, Marie Gozzi, Gloria Chittum, and Greg Riddlemoser


Michael R. Ward McCandlish Holton P.O. Box 796 Richmond, VA 23218-0796 (804) 775-3100 Telephone(804) 775-3800 [email protected]

Attorney for Aaron Markel, Doug Filler, and Cathie Fisher Braman

Emmet T. Flood Joshua D. Tully WILLIAMS & CONNOLLY LLP 725 12th Street, N.W. Washington, D.C. 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 [email protected] [email protected]

Attorneys for G. Paul Nardo


By: Bruce V. Spiva Marc Erik Elias Bruce V. Spiva Brian Simmonds Marshall Aria C. Branch



No. 18-

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

KENNETH J. LECKY, et al.,

Plaintiffs-Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS, et al.

Defendants-Appellees,

REPUBLICAN PARTY OF VIRGINIA; DANIELLE J. DAVIS; AND MARK L. COLE,

Intervenor-Appellees.

DECLARATION OF BRIAN SIMMONDS MARSHALL

I, BRIAN SIMMONDS MARSHALL, swear under penalty of

perjury that the following is true and correct.

1. I am an attorney with the law firm of Perkins Coie LLP, and am

counsel for Plaintiffs-Appellants in this litigation. I have

personal knowledge of the matters set forth below and am

competent to testify.


- 2 -

2. Attached as Exhibit 1 is a true and correct copy of the Motion for

Preliminary Injunction filed in Lecky, et al. v. Virginia State

Board of Elections, et al. (ECF No. 36).

3. Attached as Exhibit 2 is a true and correct copy of the Declaration

of Amy Ridderhof in Support of Plaintiffs’ Motion for a

Preliminary Injunction, filed in Lecky, et al. v. Virginia State

Board of Elections, et al. (ECF No. 37-2).


of Kenneth Lecky in Support of Plaintiffs’ Motion for a


Board of Elections, et al. (ECF Nos. 37-3, 37-4).


of Dolores (“D.D.”) Lecky in Support of Plaintiffs’ Motion for a




of Phillip Ridderhof in Support of Plaintiffs’ Motion for a



7. Attached as Exhibit 6 is a true and correct copy of the Amended

Complaint filed in Lecky, et al. v. Virginia State Board of

Elections, et al. (ECF No. 42-1).


- 3 -


of Edgardo Cortés filed in Lecky, et al. v. Virginia State Board of

Elections, et al. (ECF No. 62-1).


of Brian Simmonds Marshall in Support of Plaintiffs’ Reply in

Support of Their Motion for a Preliminary Injunction, filed in

Lecky, et al. v. Virginia State Board of Elections, et al. (ECF No.

98-1).


of Dolores (“D.D.”) Lecky in Support of Plaintiffs’ Reply in



98-2).

11. Attached as Exhibit 10 is a true and correct copy of the

Declaration of David Toscano in Support of Plaintiffs’ Reply in



98-3).

12. Attached as Exhibit 11 is a true and correct copy of the

Supplemental Declaration of Brian Simmonds Marshall filed in


104-3).


- 4 -

13. Attached as Exhibit 12 is a true and correct copy of the Minute

Entry Denying Plaintiffs’ Motion for Preliminary Injunction filed

in Lecky, et al. v. Virginia State Board of Elections, et al. (ECF

No. 107).

14. Attached as Exhibit 13 is a true and correct copy of the Notice of

Appeal filed in Lecky, et al. v. Virginia State Board of Elections, et

al. (ECF No. 108).

15. Attached as Exhibit 14 is a true and correct copy of the Transcript

of January 5, 2018 hearing in Lecky, et al. v. Virginia State Board

of Elections, et al.

I declare under penalty of perjury that the foregoing is true and

accurate to the best of my knowledge and belief and that this

declaration was executed on the 8th day of January, 2018, in

Washington, D.C.

DATED: January 8, 2018 /s/ Brian Simmonds Marshall Brian Simonds Marshall


Exhibit 1


IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

KENNETH J. LECKY, et al.,

Plaintiffs,v.

Civil Action No. 1:17-cv-01336

Judge T.S. Ellis, III

VIRGINIA STATE BOARD OF ELECTIONS,et al.,

Defendants.

MOTION FOR PRELIMINARY INJUNCTION

NOW COME Plaintiffs Kenneth J. Lecky, Dolores (“D.D.”) Lecky, Phillip (“Phil”)

Ridderhof, and Amy Ridderhof, by and through undersigned counsel, who move this Court to

issue a preliminary injunction (a) to order the Board of Elections to withdraw its certification of

the results of the 2017 General Election for House of Delegates District 28; (b) to enjoin Robert

M. “Bob” Thomas, Jr., from becoming a member of the House of Delegates on the basis of the

results of the 2017 General Election; and (c) to order a writ of election to be issued to hold a

special election for District 28 of the House of Delegates and that election be held. As set forth

in the accompanying memorandum of points and authorities in support and supporting exhibits,

the United States Constitution’s protection of the fundamental right to vote mandates that

lawfully-registered voters in House District 28 are afforded their right to cast a lawful ballot.

Accordingly, for the reasons set forth above and in the accompanying memorandum and

exhibits, Plaintiffs respectfully request that the Court grant Plaintiffs’ motion for a preliminary

injunction.

Case 1:17-cv-01336-TSE-IDD Document 36 Filed 12/06/17 Page 1 of 2 PageID# 181Appeal: 18-1020 Doc: 3-3 Filed: 01/08/2018 Pg: 2 of 257 Total Pages:(44 of 299)

Dated: December 6, 2017Respectfully submitted,

By Aria C. BranchMarc Erik Elias (pro hac vice)Bruce V. Spiva (pro hac vice)Brian Simmonds Marshall (pro hac vice pending)Aria C. Branch (VSB No. 83682)Perkins Coie, LLP700 13th St. N.W., Suite 600Washington, D.C. 20005-3960Phone: (202) 434-1627Fax: (202) 654-9106Email: [email protected]: [email protected]: [email protected]: [email protected]

Attorneys for Plaintiffs


Exhibit 2


Case 1:17-cv-01336-TSE-IDD Document 37-2 Filed 12/06/17 Page 1 of 2 PageID# 206Appeal: 18-1020 Doc: 3-3 Filed: 01/08/2018 Pg: 5 of 257 Total Pages:(47 of 299)

Exhibit 3


IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Plaintiffs,

v.

Civil Action No.

Defendants.

DECLARATION OF KENNETH LECKY IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND

PRELIMINARY INJUNCTION ENJOINING CERTIFICATION OF ELECTION RESULTS

I, Kenneth Lecky, swear under penalty of perjury that the following is true and correct.

1. I reside at 1205 Charles Street, Fredericksburg, Virginia 22401. I am registered to vote atthis address.

2. I am a U.S. citizen.

3. To the best of my knowledge, 1205 Charles Street, Fredericksburg, Virginia 22401 islocated in House District 28.

4. On the morning of November 7, 2017, my wife went to our polling place at the VFW,located at 2701 Princess Anne Street, Fredericksburg Virginia 22401 to cast her ballot.She informed me that when she went to vote, she was given a ballot for House District88.

5. She informed Aaron Markel and Rene Rodriguez, members of the City of FredericksburgElectoral Board who were present at the polling place, that she had received the incorrectballot.

6. Before arriving at the polling place, I checked my House of Delegate’s District on thelegislature’s website to confirm that I lived in House District 28. The legislature’swebsite confirmed House District 28 was my correct District. Attached as Exhibit A is atrue and correct copy of the page on the legislature’s website that I used to confirm myHouse of Delegates District.

Case 1:17-cv-01336-TSE-IDD Document 37-3 Filed 12/06/17 Page 1 of 2 PageID# 208

1:17cv1336 (TSE/IDD)


- 2 -

7. I also checked my registration using the Virginia State Board of Election’s website,which listed me as registered in House District 88. Attached as Exhibit B is a true andcorrect copy of the pages on the State Board of Election’s website that I used to confirmmy registration.

8. On November 7, 2017, I voted at the VFW, located at 2701 Princess Anne Street,Fredericksburg Virginia 22401, which is the polling place for my precinct 402. Iattempted to vote at approximately 3:00pm EST.

9. I gave the poll worker my name and photo identification. The poll worker then handedme a ballot.

10. I knew did not receive a ballot for House District 28 because I had researched thecandidates in my District, House District 28, and those candidates were not listed on theballot I received from the poll worker. Had I received a ballot that included the HouseDistrict 28 race, I would have voted for Joshua Cole.

11. Using the ballot I received, I voted for the Democratic candidates listed on the ballot.

12. On November 12, 2017 I contacted Aaron Markel, the Vice Chairman of the City ofFredericksburg Electoral Board, via e-mail, to notify him of the issues above. Attachedas Exhibit C is a true and correct copy of the e-mail to Aaron Markel, dated November12, 2017.

I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief and that this declaration was executed on the 21st day of November, 2017, in Virginia.

DATED: November 21, 2017 ______________Kenneth Lecky


Exhibit A


Exhibit B


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KENNETH JAMES LECKY

918876893

Active

12/12/2005

1205 Charles St

Fredericksburg, VA 224013705

FREDERICKSBURG CITY

402 - PRECINCT 2 - DISTRICT FOUR

0402

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VFW POST 3103

2701 PRINCESS ANNE STREET

FREDERICKSBURG VA, 22401

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11/7/2006 - NOVEMBER 7, 2006 GENERAL ELECTION Full Ballot SPOTSYLVANIA COUNTY

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Exhibit C


1

---------- Forwarded message ---------- From: Kenneth Lecky <[email protected]>Date: Sun, Nov 12, 2017 at 5:28 PMSubject: HD28 Boundaries To: [email protected], "D. D. Lecky" <[email protected]>

Hi Aaron -

We tracked down DD’s voter registration and it shows the 88th. So from what I can tell, everything at the Department of Elections agrees that we’re in the 88th (poll books, registration card, and website), but everything else I’ve found shows us in the 28th. It looks like the House of Delegates districts haven’t changed since the 2010 redistricting, which shows the same map that I’ve seen everywhere: http://redistricting.dls.virginia.gov/2010/Data%5C2011HouseMaps%5CHB5005%20-%20House%2028.pdf.I’ve also attached the narrative description of the district from http://redistricting.dls.virginia.gov/2010/BoundaryDescriptions.aspx. I haven’t been able to find anything that supersedes that.

Long story short, I’m not convinced that the Department of Elections has the right information. I’ve got some thoughts on how we could investigate further, but I’m hoping you can get in touch with some folks at the state level who should have a better idea what’s going on. Let us know if we can do anything to help.

Thanks,

Kenneth


Exhibit 4



ALEXANDRIA DIVISION

Plaintiffs,

v.

Civil Action No.

Defendants.

DECLARATION OF DOLORES (“D.D.”) LECKY IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND

PRELIMINARY INJUNCTION ENJOINING CERTIFICATION OF ELECTION RESULTS

I, Dolores Lecky, swear under penalty of perjury that the following is true and correct.

1. I reside at 1205 Charles Street, Fredericksburg, Virginia 22401. I am registered to vote atthis address.


3. To the best of my knowledge, my address, 1205 Charles Street, Fredericksburg, Virginia22401 is located in Virginia House of Delegates District 28.

4. On November 7, 2017, I arrived at my polling place to cast my ballot for the 2017general election.

5. My polling place is located at the VFW at 2701 Princess Anne Street, FredericksburgVirginia 22401.

6. After showing the poll worker my photo identification, the poll worker handed me aballot for House District 88.

7. I knew that the ballot I was given by the poll worker was for House District 88 because itlisted candidates Steve Aycock and Mark Cole, both of whom I knew were running in the88th District.

Case 1:17-cv-01336-TSE-IDD Document 37-5 Filed 12/06/17 Page 1 of 2 PageID# 218

1:17cv1336 (TSE/IDD)


- 2 -

8. I previously volunteered for Joshua Cole’s campaign, so I also expected to see Joshua Cole’s name listed on my ballot.

9. Upon realizing I had received a ballot for House District 88, I notified the poll worker that I should have received a ballot for House District 28, as that was my correct District.

10. The poll worker proceeded to explain that the poll book listed me as registered in House District 88.

11. Despite receiving a ballot for House District 88, I still cast my ballot, voting for all of the Democratic candidates on the ticket.

12. Next, I informed Aaron Markel and Rene Rodriguez, members of the Fredericksburg City Electoral Board who were present at my polling place, that I had received the incorrect ballot. They pointed me to a map hanging in the polling place which showed that I should have received a ballot in House District 28.

13. Markel and Rodriguez also called the Virginia State Board of Elections, who stated that I was required to vote in House District 88 pursuant to the information in the poll book.

14. Markel and Rodriguez concluded that the map must have been wrong and removed the map from the polling place.

15. During this time, I also notified Jason Graham, Chairman of the Fredericksburg Democrats, of my issues at the polling place through Facebook Messenger. I wanted to notify him of what could potentially be a major issue.

16. Upon further research when I got home, I confirmed that I should have received a ballot for House District 28.

17. I knew that I should have received a ballot for House District 28 because the legislature’s website confirmed that I was registered to vote in House District 28.

18. There was also a gentleman who resides in the 1100 block of Charles Street with identical voting issues at my polling place. He thought he should have received a ballot for House District 28 but instead had received a ballot for House District 88. AaronMarkel wrote down his name and address.

I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief and that this declaration was executed on the 21st day of November, 2017, in Virginia.

DATED: November 21, 2017 ___________ __ Dolores Lecky


Exhibit 5


Exhibit 6


AMENDED COMPLAINT - 1 Perkins Coie LLP700 Thirteenth St. NW, Suite 600

Washington, DC 20005-3960ERRATA Phone: 202.654-6200

Fax: 202-654-6211


ALEXANDRIA DIVISION

KENNETH J. LECKY;

DOLORES LECKY;

PHILLIP RIDDERHOF; and

AMY RIDDERHOF,

Plaintiffs,v.

Civil Action No. 1:17-cv-01336-TSE-IDD

Judge T.S. Ellis, III

VIRGINIA STATE BOARD OF ELECTIONS;

JAMES B. ALCORN, in his official capacity as Chairman of the Virginia State Board of Elections;

CLARA BELLE WHEELER, in her official capacity as Vice-Chair of the Virginia State Board of Elections;

SINGLETON B. MCALLISTER, in his official capacity of Secretary of the Virginia State Board of Elections;

VIRGINIA DEPARTMENT OF ELECTIONS;

EDGARDO CORTÉS, in his official capacity as Commissioner of the Virginia Department of Elections;

G. PAUL NARDO, in his official capacity as Clerk of the Virginia House of Delegates;

ROBERT M. THOMAS, JR.;

STAFFORD COUNTY ELECTORAL BOARD;

DOUG MILLER, in his official capacity as Chairman of the Stafford County Electoral Board;




Fax: 202-654-6211

MARIE GOZZI, in her capacity as Vice Chairman of the Stafford County Electoral Board;

GLORIA CHITTUM, in her official capacity as the Secretary of the Stafford County Electoral Board;

GREG RIDDLEMOSER, in his official capacity as General Registrar of Stafford County;

CITY OF FREDERICKSBURG ELECTORAL BOARD;

RENE RODRIGUEZ, in her official capacity as Chairman of the City of Fredericksburg Electoral Board;

AARON MARKEL, in his official capacity as Vice Chairman of the City of Fredericksburg Electoral Board;

CATHIE FISHER BRAMAN, in her official capacity as Secretary of the City of Fredericksburg Electoral Board;

MARC C. HOFFMAN, in his official capacity as Director of Elections and General Registrar of the City of Fredericksburg; and

TERRY MCAULIFFE, in his official capacity as Governor of Virginia,

Defendants,

and

REPUBLICAN PARTY OF VIRGINIA;

DANIELLE J. DAVIS; and

MARK L. COLE,

Intervenor-Defendants.




Fax: 202-654-6211

AMENDED COMPLAINT

1. Plaintiffs are registered voters in Virginia and residents of Virginia House of

Delegates District 28. Each voted in the Tuesday, November 7, 2017 General Election in

Virginia.

2. In that General Election, 260 registered voters who reside in House District 28

were listed in the records of their registrars of voters as residents of another house district.

Eighty-six (86) of those voters voted in the General Election, including plaintiffs Kenneth J.

Lecky and Delores (“D.D.”) Lecky. Because they were listed in the registrar’s records as voters

of another district, those 86 voters, including Kenneth Lecky and D.D. Lecky, were given and

voted ballots that did not list the HD-28 race.

3. Plaintiff Phillip (“Phil”) Ridderhof, and an unknown number of other voters, also

received ballots for the incorrect House District, despite being correctly listed in the records of

their registrars of voters as HD-28 voters, due to apparent poll worker error in a precinct with

voters in more than one House District (known as a “split precinct”).

4. In addition, 124 Virginia voters who were not residents of HD-28 were

incorrectly listed in the records of their registrars of voters as HD-28 voters. Sixty-one (61) of

those voters voted. Because they were listed in the registrar’s records as voters of HD-28 (despite

not residing in HD-28), those 61 voters were given and voted ballots for HD-28.

5. Despite acknowledging that at least 86 voters were deprived of the right to vote

and 61 illegal votes were received and counted in the vote totals, the Virginia Board of Elections

certified Defendant Robert (“Bob”) M. Thomas, Jr., as the winner of the HD-28 election by 82




Fax: 202-654-6211

votes, the margin between the 11,842 votes recorded for him and the 11,760 votes recorded for

his opponent, Joshua Cole.

6. Failure to allow the voters who received the wrong ballot to have their votes

counted in the proper House District, and counting votes cast by voters who do not reside in

House District 28, would violate Plaintiffs’ First and Fourteenth Amendment rights to vote in

House District 28 and would result in an outcome that does not reliably reflect the will of the

legal voters who sought to cast votes in the General Election.

7. Plaintiffs have filed this action to seek an order requiring decertification of the

election, enjoining Defendant Thomas from being seated in the House of Delegates, and

providing for a new election to determine the representative of District 28 in the House of

Delegates.

JURISDICTION AND VENUE

8. This Court has jurisdiction to hear Plaintiff’s claims pursuant to 28 U.S.C. §§

1331, 1343(a)(3), and 1357, and 42 U.S.C. §§ 1983 and 1988. This Court has jurisdiction to

grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.

9. Venue in this district is proper under 28 U.S.C. § 1391(b) because a substantial

part of the events or omissions giving rise to the claim occurred in this judicial district and in this

division.

PARTIES

10. Plaintiff Kenneth J. Lecky is a United States citizen registered to vote in the

Commonwealth of Virginia. Mr. Lecky voted in the General Election held on November 7, 2017.

Mr. Lecky resides at his home at 1205 Charles St., Fredericksburg, VA 22401, the address listed

on his voter registration. 1205 Charles St., Fredericksburg, VA 22401 is in House of Delegates




Fax: 202-654-6211

District 28. Due to an election official’s error, Mr. Lecky was listed in the poll book as a District

88 voter and, as a result, was given a ballot that did not include the candidates running for the

House of Delegates in House District 28. Mr. Lecky intended to vote for Joshua Cole to

represent District 28 in the Virginia House of Delegates, and had he been properly given a ballot

to vote for the House of Delegates District 28, Mr. Lecky would have voted for Joshua Cole.

11. Plaintiff Dolores (“D.D.”) Lecky is a United States citizen registered to vote in

the Commonwealth of Virginia. Ms. Lecky voted in the General Election held on November 7,

2017. Ms. Lecky resides at her home at 1205 Charles St., Fredericksburg, VA 22401, the address

listed on her voter registration. 1205 Charles St., Fredericksburg, VA 22401 is in House of

Delegates District 28. Due to an election official’s error, Ms. Lecky was listed in the poll book as

a District 88 voter and, as a result, was given a ballot that did not include the candidates running

for the House of Delegates in House District 28. Ms. Lecky intended to vote for Joshua Cole to

represent District 28 in the Virginia House of Delegates, and had she been properly given a

ballot to vote for the House of Delegates District 28, Ms. Lecky would have voted for Joshua

Cole.

12. Plaintiff Phillip (“Phil”) Ridderhof is a United States citizen registered to vote in

the Commonwealth of Virginia. Mr. Ridderhof voted in the General Election held on November

7, 2017. Mr. Ridderhof resides at his home at 226 Princess Anne St., Fredericksburg, VA 22401,

the address listed on his voter registration. 226 Princess Anne St., Fredericksburg, VA 22401 is

in House of Delegates District 28. Despite being listed in the poll book as a District 28 voter, an

election official provided Plaintiff with a ballot that did not include the candidates running for

the House of Delegates in House District 28. Mr. Ridderhof intended to vote for Joshua Cole to




Fax: 202-654-6211

represent District 28 in the Virginia House of Delegates, and had he been properly given a ballot

to vote for the House of Delegates District 28, Mr. Ridderhof would have voted for Joshua Cole.

13. Plaintiff Amy Ridderhof is a United States citizen registered to vote in the

Commonwealth of Virginia. Ms. Ridderhof voted in the General Election held on November 7,

2017. Ms. Ridderhof resides at her home at 226 Princess Anne St, Fredericksburg, VA 22401,

the address listed on her voter registration. 226 Princess Anne St, Fredericksburg, VA 22401 is

in House of Delegates District 28. Ms. Ridderhof was listed in the poll book as a District 28

voter, and an election official provided Plaintiff with a ballot that included the candidates

running for the House of Delegates in House District 28. With that ballot, Ms. Ridderhof voted

for Joshua Cole to represent District 28 in the Virginia House of Delegates.

14. Defendant Virginia State Board of Elections (the “SBE”) is responsible for the

regulation of Virginia elections. The SBE’s duties include certifying the results of the election

for District 28’s seat in the House of Delegates, among other elections.

15. Defendants James B. Alcorn, Dr. Clara Belle Wheeler, and Singleton B.

McAllister are sued in their respective official capacities as Chairman, Vice-Chair, and Secretary

of the SBE.

16. Defendant Virginia Department of Elections is the agency responsible for

promoting and supporting accurate, fair, open, and secure elections for the citizens of the

Commonwealth. It is charged with implementing election laws and regulations for all elections

in the Commonwealth.

17. Defendant Edgardo Cortés is sued in his official capacity as Commissioner of the

Virginia Department of Elections.




Fax: 202-654-6211

18. Defendant G. Paul Nardo is sued in his official capacity as Clerk of the Virginia

House of Delegates.

19. Defendant Robert (“Bob”) Thomas, Jr. was the Republican candidate for House

of Delegates for House District 28, and was certified as the winner of the election by the SBE.

20. Defendant Stafford County Electoral Board is responsible for, among other things,

“the preparation of ballots, the administration of absentee ballot provisions, the conduct of the

election, and the ascertaining of the results of the election.” Virginia Code § 24.2-109(B).

21. Defendants Doug Filler, Marie Gozzi, and Gloria Chittum are sued in their

respective official capacities as Chairman, Vice Chairman, and Secretary of the Stafford County

Electoral Board.

22. Defendant Greg Riddlemoser is sued in his official capacity as General Registrar

of Stafford County.

23. Defendant City of Fredericksburg Electoral Board is responsible for, among other

things, “the preparation of ballots, the administration of absentee ballot provisions, the conduct

of the election, and the ascertaining of the results of the election.” Virginia Code § 24.2-109(B).

24. Defendants Rene Rodriguez, Aaron Markel, and Cathie Fisher Braman are sued in

their respective official capacities as Chairman, Vice Chairman, and Secretary, respectively, of

the City of Fredericksburg Electoral Board.

25. Defendant Marc C. Hoffman is sued in his official capacity as Director of

Elections and General Registrar of the City of Fredericksburg.

26. Defendant Terry McAuliffe is sued in his official capacity as Governor of

Virginia.




Fax: 202-654-6211

FACTUAL ALLEGATIONS

27. The 2017 general election for the Commonwealth of Virginia was held on

Tuesday, November 7, 2017 (“Election Day”). That election included races for all 100 seats in

the Virginia House of Delegates.

28. House District 28 is located in Stafford County and the City of Fredericksburg. In

the November 2017 election, the candidates who ran to represent District 28 are Joshua Cole, a

Democrat, and Robert (“Bob”) Thomas, Jr., a Republican.

29. In the November 2017 election, the candidates who ran to represent House

District 2 are Jennifer D. Carroll Foy, a Democrat, and Mike D. Makee, a Republican.

30. In the November 2017 election, the candidates who ran to represent House

District 88 are Steve Aycock, a Democrat, and Mark L. Cole, a Republican, Gerald L. Anderson,

Green Party, and Amanda M. Blalock, an independent.

31. In 2011, the General Assembly established the boundaries for all 100 districts for

the Virginia House of Delegates.

32. On Election Day in November 2017, polling locations in the City of

Fredericksburg and Stafford County were provided with Virginia Election & Registration

Information System (“VERIS”) voter lists from the Virginia State Board of Elections that

incorrectly listed voters in the incorrect districts. As a result of these errors, at least 260 voters

(86 of whom voted) were incorrectly listed as residing in House District 2 or House District 88

rather than House District 28. Prior to Election Day, the City of Fredericksburg and Stafford

County relied on these VERIS voter lists to provide absentee ballots to registered voters who

submitted timely and satisfactory requests for absentee ballots.




Fax: 202-654-6211

33. These misassignments resulted from Defendants employing inadequate

safeguards, including allocating insufficient resources, against erroneous depravations of the

right to vote. On information and belief, one or more administrators of this election knew, or in

the alternative had reason to know, months or years before the 2017 election, that significant

numbers of registered voters were incorrectly assigned to house districts.

34. No later than 11 a.m. on November 7, 2017, election administrators from the City

of Fredericksburg, including a member of its Electoral Board, and the Virginia Department of

Elections knew of at least one voter who complained he was not able to cast a ballot for House

District 28 because he was incorrectly given a House District 88 ballot. The City of

Fredericksburg’s registration records reflected the complaining voter was misassigned to House

District 88. Election administrators in the City of Fredericksburg nevertheless made no changes

to its administration of the election, and provided no remedy to the voter who complained, to any

Plaintiff in this case, or to any other voter.

35. The Fredericksburg Electoral Board issued a statement on November 15, 2017,

“acknowledging that the board and registrar received complaints ‘regarding House Districts 28

and 88.’”

36. On Monday, November 20, 2017, the Virginia Board of Elections unanimously

certified the results of 98 of 100 elections to the House of Delegates. The Board of Elections did

not certify the results of House District 28 or House District 88, because it discovered and

acknowledged the irregularities in the elections described in this complaint and the

Commissioner acknowledged that he had insufficient time to confirm whether other similar

irregularities existed. The Board of Elections adjourned to permit additional investigation of

these irregularities.




Fax: 202-654-6211

37. On Monday, November 27, 2017, the Virginia Board of Elections unanimously

approved a motion (a) to certify the results of House District 28 as Bob Thomas, Jr., receiving

11,842 votes, Joshua G. Cole receiving 11,760 votes, and 45 write-in votes, and (b) to append to

the certification the report of Defendant Edgardo Cortés to the members of the Virginia Board of

Elections dated November 27, 2017, regarding incorrectly assigned voters. The report

determined that 384 voters were either (a) residents of House District 28 but were incorrectly

assigned to vote in another House district or (b) not residents of House District 28 but incorrectly

assigned to vote in House District 28. Of those 384 incorrectly assigned voters, 147 voted in the

November 2017 election. Eighty-six (86) voters who should have voted in House District 28

incorrectly voted ballots in other House of Delegates districts. Sixty-one (61) voters who should

have voted in House District 88 incorrectly voted ballots in House District 28.

38. Pursuant to Virginia Code § 24.2-801, Joshua Cole filed a petition for a recount of

the November 7, 2017 election in House District 28 on Friday, December 1, 2017. Given that the

apparent margin between Joshua Cole and Bob Thomas was only 82 votes, or less than one-half

of one percent, the cities and counties that comprise House District 28, not the candidates, shall

bear the costs of the recount under Virginia Code § 24.2-802(E). As of the date of the filing of

this Amended Complaint, the date of the recount in House District 28 has not yet been set, but

media reports suggest the recount is likely to commence December 21.

39. Nevertheless, because Plaintiffs Kenneth Lecky, D.D. Lecky, and Phil Ridderhof

never received a ballot for House District 28, the recount of ballots cast on or before November 7

will not address the deprivation of their rights to cast a ballot in that election. In addition,

because votes of non-residents of House District 28 have been comingled with the votes of

House District 28 residents, the recount will not remedy the vote dilution suffered by the House




Fax: 202-654-6211

District 28 residents who voted, including Plaintiff Amy Ridderhof, because of the acceptance

and certification of the illegal votes.

40. Plaintiffs have no state law remedy. Under Virginia law, only candidates, not

voters, may contest an election. Virginia Code § 24.2-803. And such a contest would be heard by

the House of Delegates, not a court. Id.

CAUSES OF ACTION

COUNT I

(Denial of the Right to Vote In Violation of the Fourteenth Amendment & 42 U.S.C. § 1983 -

Substantive Due Process)

41. Plaintiffs reallege and incorporate by reference all prior and following paragraphs

of this Complaint and the paragraphs in the counts below as though fully set forth herein.

42. The Due Process Clause of the Fourteenth Amendment is violated if an election is

“fundamentally unfair.” League of Women Voters of Ohio v. Brunner, 548 F. 3d 463, 478 (6th

Cir. 2008); Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).

43. At least 87 voters, including Plaintiffs Kenneth J. Lecky, D.D. Lecky, and Phil

Ridderhof, sought to vote in the general election and were not provided a ballot for House

District 28 in violation of Virginia law and proper election administration procedures. They were

thereby denied the right to vote.

44. At least 61 illegal votes were cast and counted in the election for House District

28, thereby diluting the votes of lawful voters.

45. The widespread deprivation of the proper ballots to lawful voters and acceptance

of illegal votes undermined the fundamental fairness of the general election for House of

Delegates District 28.




Fax: 202-654-6211

46. Plaintiffs have no adequate remedy under state law.

47. Based on the foregoing, Defendants, acting under color of state law, have

deprived and will continue to deprive Plaintiffs of due process secured to them by the Fourteenth

Amendment to the U.S. Constitution.

COUNT II

(Denial of the Right to Vote In Violation of the Fourteenth Amendment & 42 U.S.C. § 1983 -

Procedural Due Process)


of this Complaint and the paragraphs in the counts below as though fully set forth herein.

49. The Due Process Clause of the Fourteenth Amendment is violated if election

procedures do “not satisfy the minimum requirement for nonarbitrary treatment of voters

necessary to secure the fundamental right.” Bush v. Gore, 531 U.S. 98, 105 (2000).

50. At least 87 voters, including Plaintiffs Kenneth J. Lecky, D.D. Lecky, and Phil

Ridderhof sought to vote in the general election, and were not provided a ballot for House

District 28 in violation of Virginia law and proper election administration procedures. They were

thereby denied the right to vote.

51. At least 61 illegal votes were cast and counted in the election for House District

28, thereby diluting the votes of lawful voters.

52. The determination to assign or reassign Plaintiffs Kenneth J. Lecky, D.D. Lecky,

and 358 other voters to a house district other than House District 28, where they reside, was

implemented by election administrators without sufficient guarantees of reliability and without

notice to plaintiffs or the other impacted voters.




Fax: 202-654-6211

53. The determination to assign or reassign 124 voters who do not reside in House

District 28 to vote for the delegate for House District 28 was implemented by election

administrators without sufficient guarantees of reliability and without notice.

54. Plaintiffs Kenneth J. Lecky, D.D. Lecky, and Phil Ridderhof were unable to vote

for their representative in House District 28 as a consequence of their reliance on the instructions

of election officials, including election registrars and poll workers.

55. Plaintiffs have had no opportunity to vote in the House District 28 election and

have no adequate remedy under state law.


deprived and will continue to deprive Plaintiffs of due process secured to them by the Fourteenth

Amendment to the U.S. Constitution.

COUNT III

(Undue Burden on the Right to Vote in Violation of the First Amendment and Equal Protection Clause of the Fourteenth Amendment & 42 U.S.C. § 1983 - Anderson-Burdick)


of this Complaint as though fully set forth herein.

58. “It has been repeatedly recognized that all qualified voters have a constitutionally

protected right to vote and to have their votes counted.” Reynolds v. Sims, 377 U.S. 533, 554

(1964) (internal citation omitted).

59. Under the First Amendment and the Equal Protection Clause of the Fourteenth

Amendment, a court considering a challenge to an official act relating to voting must carefully

balance the character and magnitude of the injury to First and Fourteenth Amendment rights that

the plaintiff seeks to vindicate against the justifications put forward by the State for the burdens




Fax: 202-654-6211

imposed by the rule. Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460

U.S. 780, 789 (1983). “It then must identify and evaluate the precise interests put forward by the

State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789. The court

“must not only determine the legitimacy and strength of each of those interests; it also must

consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id.

60. “However slight th[e] burden may appear . . . it must be justified by relevant and

legitimate state interests sufficiently weighty to justify the limitation.” Crawford v. Marion Cty.

Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling opinion) (internal quotation

marks omitted).

61. The failure of Virginia to employ a system that provides voters lawfully registered

in House District 28 with the correct ballot, and provides no opportunity for redress of that error,

imposes a severe burden on the voters who cast those ballots: disenfranchisement. These voters

were wrongfully denied the right to vote for their representative in the Virginia House of

Delegates.

62. There is no colorable justification for Virginia’s failure to provide a ballot to

voters lawfully registered in House District 28.

63. Instead, providing a correct ballot to every lawfully registered voter who appears

at the polls imposes only a minimal administrative burden on Virginia. Further, because these

voters are required to receive the correct ballots under current law, requiring Defendants to

provide every lawfully registered voter with the correct ballot will not require Defendants change

their ballot-counting procedures in the future or otherwise affect Virginia law relating to the

counting of ballots.




Fax: 202-654-6211

64. The burden that not permitting voters in House District 28 to cast lawful votes

would impose on First and Fourteenth Amendment interests thus far exceeds Defendants’

interests, or any other state interest, in not providing a ballot listing the House District 28 race.

65. Plaintiffs have no adequate remedy under state law.


deprived and will continue to deprive Plaintiffs of equal protection under the law secured to them

by the First and Fourteenth Amendment to the U.S. Constitution.

COUNT IV

(Violation of the Equal Protection Clause of the Fourteenth Amendment& 42 U.S.C. § 1983 - Disparate Treatment of Voters)



68. All state action that distinguishes between groups must, at a minimum, be

rationally related to a legitimate state interest to survive scrutiny under the Equal Protection

Clause. See Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). “[W]here fundamental rights and

liberties are asserted under the Equal Protection Clause, classifications which might invade or

restrain them must be closely scrutinized and carefully confined.” Harper v. Va. State Bd. of

Elections, 383 U.S. 663, 670 (1966)

69. All voters that reside in House District 28 are similarly situated.

70. All persons who reside outside of House District 28 are similarly situated.

71. Yet, as described above, Virginia properly classified some House District 28

residents as House District 28 voters, but classified other House District 28 residents as voters

for other House Districts, resulting in some residents of House District 28 receiving a ballot for




Fax: 202-654-6211

House District 28 and others being denied a ballot for House District 28. The failure of Virginia

to provide voters lawfully registered who reside in House District 28 with a ballot for that

election imposes a severe burden on the voters who cast those ballots.

72. In addition, Virginia improperly classified some, but not all, non-residents of

House District 28 as House District 28 voters, resulting in some but not all non-residents of

House District 28 receiving a ballot for House District 28. Virginia counting ballots for the

House District 28 election cast by persons who do not reside in House District 28, thereby

diluting the votes of lawful voters, imposing a burden on the effective exercise of the franchise

on the voters who cast lawful ballots.

73. There is no rational basis, let alone compelling interest, for treating some

residents of House District 28 differently than other residents.



by the Fourteenth Amendment to the U.S. Constitution.

COUNT V

(Denial of Equal Protection Under the Fourteenth Amendment & 42 U.S.C. § 1983 -Disparate Treatment)



76. The Equal Protection Clause of the Fourteenth Amendment of the U.S.

Constitution guarantees qualified voters a substantive right to participate equally with other

qualified voters in the electoral process. Further, the equal “right to vote is protected in more

than the initial allocation of the franchise.” See Hunter v. Hamilton Cty. Bd. of Elections, 635




Fax: 202-654-6211

F.3d 219, 234 (6th Cir. 2011) (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). “Equal

protection applies as well to the manner of its exercise.” Id. A state may not arbitrarily impose

disparate treatment on similarly situated voters.

77. As a result of providing insufficient standards to guarantee that registered voters

residing in House District 28 received the correct ballots, Defendants treated some voters in

House District 28 different than other voters. This disparate treatment of Virginia voters based

solely on where they live in House District 28 is arbitrary and there is no rational justification for

such a differentiation.



by the Fourteenth Amendment to the U.S. Constitution.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that this Court:

A. Declare that, under the First and Fourteenth Amendments to the United States

Constitution, Defendant Robert M. Thomas, Jr. is not a duly elected delegate for Virginia House

District 28 and cannot be seated in the Virginia House of Delegates on the basis of the 2017

general election;

B. Issue a preliminary injunction ordering:

1. Defendants James B. Alcorn, Dr. Clara Belle Wheeler, Singleton B.

McAllister, and the Virginia State Board of Elections to vacate their

certification of the results of House District 28 for the 2017 general

election;




Fax: 202-654-6211

2. Defendant G. Paul Nardo not to administer the oath of office to Defendant

Robert Thomas, Jr., pursuant to Virginia Code § 49-3 or otherwise seat

Thomas in the House of Delegates or permit Thomas to exercise any

authority of a member of the House of Delegates;

3. Defendant Robert Thomas, Jr., not to swear an oath or affirmation for the

office of Delegate pursuant to Virginia Code § 49-3 or otherwise be seated

in the House of Delegates or exercise any authority of a member of the

House of Delegates;

4. Defendant Terry McAuliffe to issue a writ of election for House of

Delegates District 28 pursuant to Virginia Code § 24.2-216 and Article IV,

§ 7 of the Virginia Constitution; and

5. Defendants Stafford County Electoral Board, Doug Filler, Marie Gozzi,

Gloria Chittum, Greg Riddlemoser, City of Fredericksburg Electoral

Board, Rene Rodriguez, Aaron Markel, Cathie Fisher Braman, and Marc

C. Hoffman to administer such an election.

C. Issue an injunction ordering:

1. Defendants James B. Alcorn, Dr. Clara Belle Wheeler, Singleton B.

McAllister, and the Virginia State Board of Elections to vacate their

certification of the results of House District 28 for the 2017 general

election;

2. Defendant G. Paul Nardo not to administer the oath of office to Defendant

Robert Thomas, Jr., pursuant to Virginia Code § 49-3 or otherwise seat




Fax: 202-654-6211

Thomas in the House of Delegates or permit Thomas to exercise any

authority of a member of the House of Delegates;

3. Defendant Robert Thomas, Jr., not to swear an oath or affirmation for the

office of Delegate pursuant to Virginia Code § 49-3 or otherwise be seated

in the House of Delegates or exercise any authority of a member of the

House of Delegates;

4. Defendant Terry McAuliffe to issue a writ of election for House of

Delegates District 28 pursuant to Virginia Code § 24.2-216 and Article IV,

§ 7 of the Virginia Constitution; and

5. Defendants Stafford County Electoral Board, Doug Filler, Marie Gozzi,

Gloria Chittum, Greg Riddlemoser, City of Fredericksburg Electoral

Board, Rene Rodriguez, Aaron Markel, Cathie Fisher Braman, and Marc

C. Hoffman to administer such an election.

D. Grant such other or further relief the Court deems to be appropriate, including but

not limited to an award of Plaintiffs’ attorneys’ fees and reasonable costs.




Fax: 202-654-6211

Dated: December 6, 2017ERRATA: December 7, 2017 Respectfully submitted,

By Aria C. BranchMarc Erik Elias (pro hac vice)Bruce V. Spiva (pro hac vice)Brian Simmonds Marshall (pro hac vice pending)Aria C. Branch (VSB No. 83682)Perkins Coie, LLP700 13th St. N.W., Suite 600Washington, D.C. 20005-3960Phone: (202) 434-1627Fax: (202) 654-9106Email: [email protected]: [email protected]: [email protected]: [email protected]




I certify that on December 7, 2017, I filed the foregoing with the Clerk of the Court using

the ECF System which will send notification of such filing to the registered participants as

identified on the Notice of Electronic Filing.

Date: December 7, 2017

Aria C. BranchAria C. Branch (VSB No. 83682)Perkins Coie, LLP700 13th St. N.W., Suite 600Washington, D.C. 20005-3960


Exhibit 7


- 1 -

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Kenneth J. Lecky, et al.

Plaintiffs,

v.

Virginia State Board of Elections, et al.

Civil Action No. 1:17-cv-01336

Defendants.

DECLARATION OF EDGARDO CORTÉS

I, Edgardo Cortés, swear under penalty of perjury that the following is true and correct.

1. Since 2014, I have served as the Virginia Commissioner of Elections, the agency head of the Virginia Department of Elections and the Chief State Election Official.

2. I have worked in elections for more than a decade, with experience in all facets of the electoral process including campaigns, non-partisan voter registration, federal and state election policy, and local and state election administration. I hold a Bachelor’s degree from Cornell University and a Master’s degree in political management from the George Washington University.

3. The Department of Elections is authorized to establish and maintain a statewide voter registration system to include procedures for ascertaining current addresses of registrants; to require cancellation of records for registrants no longer qualified; to provide electronic application for voter registration and absentee ballots; and to provide electronic delivery of absentee ballots to eligible military and overseas voters.

4. In Virginia, the general registrar of elections in each city or county is responsible for assigning voters to House of Delegates districts in the Virginia Election & Registration Information System (VERIS) within the general registrar’s jurisdiction. VERIS is the statewide voter registration and election management system for Virginia as required by the Help America Vote Act of 2002 (52 U.S.C. §§ 20901-21145). General registrars are able to assign (and reassign) a voter’s association in the system to particular election districts, including House of Delegates districts. These district assignments are utilized by city and county officials in mailing absentee ballots and providing poll books for poll workers to determine what ballot to provide to each voter.

Case 1:17-cv-01336-TSE-IDD Document 37-1 Filed 12/06/17 Page 1 of 3 PageID# 203Case 1:17-cv-01336-TSE-IDD Document 62-1 Filed 12/11/17 Page 1 of 48 PageID# 319Appeal: 18-1020 Doc: 3-3 Filed: 01/08/2018 Pg: 47 of 257 Total Pages:(89 of 299)

- 2 -

5. The Department of Elections plays no formal role in this process but may, from time to time, be requested to provide technical assistance to the general registrar in implementing these assignments.

6. On Election Day, November 7, 2017, at approximately 11:00am, the Department of Elections received a call from a member of the City of Fredericksburg Electoral Board. The Fredericksburg Board conveyed that it received a complaint from a voter that he received and voted a ballot for House District 88, but the voter believed he should have received a ballot for House District 28. The City of Fredericksburg Electoral Board’s records showed that the voter should have received a ballot for House District 88. On the advice of its local counsel, the City of Fredericksburg Electoral Board made no changes to its procedures or district assignments on Election Day.

7. After the election, the Department of Elections received additional reports of misassigned voters in House District 28 and House District 88. The Department reviewed the matter by utilizing the address information contained in VERIS and submitting it through the address validation tools used by the Department to obtain information necessary to determine address points from the Virginia Geographic Information Network (VGIN). Department staff utilized those address points and legislative district maps obtained from the Division of Legislative Services (DLS) to identify voters that appeared to be incorrectly assigned to House of Delegates districts where they do not reside.

8. After identifying the universe of potentially impacted voters, the Department utilized information about persons voting in the election submitted by localities to determine how many of the affected voters cast a ballot in the November 7, 2017 General Election.

9. The attached is a true and accurate copy of my report to the members of the Virginia Board of Elections dated November 27, 2017, regarding incorrectly assigned voters. The Virginia Commissioner of Elections is the state official tasked with implementing Virginia’s election laws. In this capacity, I understand my duty to include reporting to the Board of Elections or other appropriate entity on irregularities in the election. Pursuant to the Board’s request, the report was prepared by the professional staff of the Virginia Department of Elections. The contents of the report are true and correct to the best of my knowledge.

10. The report found that 384 voters were incorrectly assigned or incorrectly not assigned to House District 28. Of those 384 incorrectly assigned voters, 147 voted in the November 7, 2017. Eighty-six (86) voters who should have voted in House District 28 incorrectly voted ballots in other House of Delegates districts. Sixty-one (61) voters who should have voted in House District 88 incorrectly voted ballots in House District 28.

11. At its public meeting November 27, 2017, the Virginia Board of Elections certified that Robert M. “Bob” Thomas, Jr., received 11,842 votes, Joshua G. Cole received 11,760 votes, and there were 45 write-in votes, but appended Exhibit A to the certification. These actions were approved by a unanimous 3-0 vote of the Board.


1

Memorandum

To: Chairman Alcorn, Vice Chair Wheeler, and Secretary McAllister

From: Edgardo Cortes, Commissioner

Date: November 27, 2017

Re: Incorrectly assigned voters (revised)

Background:

The State Board of Elections (SBE) has requested assistance from the Department of Elections (ELECT or Department) in its efforts to understand the full scope of improperly assigned voters in the 28th and 88th House of Delegates districts and the potential impact on the conduct of the November 7, 2017 General Election. At the request of SBE, ELECT conducted an analysis of voters assigned to the 28th and 88th House of Delegates districts in an attempt to identify how many voters may be incorrectly assigned to districts by local general registrars.

As a reminder, the Department has no formal role or responsibility in the redistricting process or assignment of voters to districts. In addition to lacking statutory authority, ELECT has inadequate resources to ensure the accuracy of this process, including exceptionally limited GIS capabilities that were not obtained until 2016. Although the Department has no statutory role in this process, and no resources to devote to this task, the Department provides as much assistance as possible, upon request, to the local general registrars and elected officials. In general, this assistance is provided to general registrars in the form of technical assistance with VERIS.

The statewide voter registration list has not been geocoded to facilitate the use of GIS resources to accomplish the tasks requested. In order to conduct its review and provide analysis to SBE, Department staff utilized the address information contained in VERIS and submitted it through the address validation tools used by ELECT to obtain information necessary to determine address points from the Virginia Geographic Information Network (VGIN). ELECT staff utilized those address points and legislative district maps obtained from the Division of Legislative Services (DLS) to identify voters that appear to be incorrectly assigned to House of Delegates districts where they do not reside. After identifying the universe of potentially impacted voters, the Department utilized information about persons voting in the election submitted by localities to determine how many of the affected voters cast a ballot in the November 7, 2017 General Election.

Based upon the analysis conducted by ELECT staff in this limited time frame, the Department believes that at least 384 voters are improperly assigned and at least 147 voters voted in the incorrect House of Delegates election in the 2017 General Election. A summary is provided below and district-specific analyses have been provided as attachments.

Board Packet (revised) Page 2


2

SUMMARY OF ESTIMATED IMPACT OF INCORRECT DISTRICT ASSIGNMENTS

Overall Impact:

Registered voters incorrectly voting in the 2nd House of Delegates district: 25 Registered voters incorrectly voting in the 28th House of Delegates district: 61 Registered voters incorrectly voting in the 88th House of Delegates district: 61 Total number of incorrectly assigned registered voters: 384

Details:

Voters associated to the 2nd that should be in the 28th (Refer to 2nd HOD Analysis) Total number of street segments affected – 3 Total number of voters affected – 67 Total voter credit associated to an affected voter – 25

Voters associated to the 28th that should be in the 88th (Refer to 28th HOD Analysis)Total number of street segments affected – 6 Total number of voters affected – 124 Total voter credit associated to an affected voter – 61

Voters associated to the 88th that should be in the 28th (Refer to 88th HOD Analysis) Total number of street segments affected – 3 Total number of voters affected – 193 Total voter credit associated to an affected voter – 61



1 2nd HOD

2nd House of Delegates District Analysis

This documentation provides additional detail for the outlying addresses for the 2nd House district.

Address points provided by VGIN and district/locality boundaries provided by the Division of Legislative Services (DLS)



2 2nd HOD

STAFFORD COUNTY OUTLYING ADDRESSES



3 2nd HOD

Stafford County Street Segment - 0 - 110 Bellingham DR

Stafford, VA 22556

Affected voters - 13

Voter Credit for November 2017 General– 4

Street segment in VERIS

Street Segment Details



4 2nd HOD

MAPPING INFORMATION

MAPPING INFORMATION (Zoomed)



5 2nd HOD

CHANGE HISTORY 0 - 110 Bellingham DR

Action PrecinctName Town Cong Sen Hse ChangeDate isNewADD 203 - RUBY NULL 01 028 002 06-29-2012 0ADD 203 - RUBY NULL 01 028 002 06-29-2012 1

Stafford County Street Segment - 3 - 26 OCALA WAY STAFFORD, VA 22556


Voter Credit for November 2017 General – 8

Street Segment in VERIS

Street Segment Detail in VERIS



6 2nd HOD

MAPPING INFORMATION




7 2nd HOD

CHANGE HISTORY 3 - 26 OCALA WAY

Action PrecinctName Town Cong Sen Hse ChangeDate isNew

UPDATE402 - PRECINCT 2 - DISTRICT FOUR NULL 01 017 088 04-29-2016 0






UPDATE201 - PRECINCT 1 - DISTRICT TWO NULL 01 017 028 04-28-2016 0
















8 2nd HOD



















REDISTRICTING401 - PRECINCT 1 - DISTRICT FOUR NULL 01 017 088 02-01-2012 0


BLOCK UPDATE

401 - PRECINCT 1 - DISTRICT FOUR NULL 01 017 028 08-29-2011 0

BLOCK UPDATE

401 - PRECINCT 1 - DISTRICT FOUR NULL 01 017 088 08-29-2011 1



9 2nd HOD



Stafford County Street Segment - 10-47 Rapidan DR STAFFORD, VA 22556


Voter Credit for November 2017 General–13

Street Segment in VERIS

Street Segment Details in VERIS



10 2nd HOD

MAPPING INFORMATION

MAPPING INFORMATION(Zoomed)



11 2nd HOD

MAPPING INFORMATION (Zoomed Continued)

CHANGE HISTORY

Action PrecinctName Town Cong Sen Hse ChangeDate isNewADD 302 - WIDEWATER NULL 01 036 002 07-18-2013 0ADD 302 - WIDEWATER NULL 01 036 002 07-18-2013 1



12 2nd HOD

Conclusion

Total number of street segments affected – 3

Total Number of Voters affected – 67

Total Voter Credit associated to an affected voter – 25



1 28th HOD

28th House of Delegates District Analysis

This documentation provides additional detail for the outlying addresses for the 28th House district.




2 28th HOD

FREDERICKSBURG CITY OUTLYING ADDRESSES



3 28th HOD

Fredericksburg City Street Segment - 5321 - 5517 RIVER RD


Affected voters - 7





4 28th HOD

MAPPING INFORMATION

White box indicates 3 address points all on the street segment River RD 5300- 6220. The affected street segment in VERIS is provided on page 1. The next page shows where the VDOT street range came from.

The 28th HD district polygon is overlaid in the ORANGE color over the County Administration boundaries.



5 28th HOD

MAPPING INFORMATION (Continued)

Street segment information displayed is from the highlighted red street segment



6 28th HOD

CHAGNE HISTORY

Street Segment - 5321 - 5517 RIVER RD Fredericksburg, VA 22401


UPDATE402 PRECINCT 2 DISTRICTFOUR NULL 01 017 028 08 10 2012 0












7 28th HOD

Fredericksburg City Street Segment - 800 - 908 CHARLOTTE ST


Street Segment - 501 - 709 CHARLOTTE ST Fredericksburg, VA 22401

Affected voters – 48Both segments are a total of 54





8 28th HOD


Affected Voters- 6 out of the 23 voters on this segment

Voter Credit for the November 2017 General – 2


MAPPING INFORMATION



9 28th HOD


The image is a zoomed in view of the impacted street. The effected ranges on the GIS map are: CHARLOTTE ST 700 – 798 EVEN CHARLOTTE ST 800 - 899 BOTH CHARLOTTE ST 900 – 999 BOTH

Corresponding Affected Street Segments in VERIS CHARLOTTE ST 500 – 708 EVEN CHARLOTTE ST 800 – 908 BOTH

CHANGE HISTORY Street Segment - 800 - 908 CHARLOTTE ST



UPDATE201 PRECINCT 1DISTRICT TWO NULL 01 017 028 08 10 2012 0






UPDATE401 PRECINCT 1DISTRICT FOUR NULL 01 017 088 08 10 2012 0

UPDATE401 PRECINCT 1DISTRICT FOUR NULL 01 017 088 08 10 2012 1



10 28th HOD

Fredericksburg City Street Segment - 900 - 921 SUNKEN RD FREDERICKSBURG, VA 22401 Affected voters - 3 out of a total of 4 voters on the segment


Street segment Details

MAPPING INFORMATION

Note Stafford County border in top right for additional perspective. ORANGE is again is the 28th HD overlay



11 28th HOD


CHANGE HISTORY Street Segment - 900 - 921 SUNKEN RD FREDERICKSBURG, VA 22401


ADD201 PRECINCT 1DISTRICT TWO NULL 01 017 028 04 28 2015 0

ADD201 PRECINCT 1DISTRICT TWO NULL 01 017 028 04 28 2015 1



12 28th HOD

STAFFORD COUNTY OUTLYING ADDRESS



13 28th HOD

Stafford County Street Segment - 1 - 93 Key WAY Fredericksburg, VA 22406



Street Overview

Street Details



14 28th HOD

MAPPING INFORMATION




15 28th HOD

CHANGE HISTORY Street Segment - 1 - 93 Key WAY Fredericksburg, VA 22406

Action PrecinctName Town Cong Sen Hse ChangeDate isNewUPDATE 103 SIMPSON NULL 01 028 028 06 07 2011 0UPDATE 103 SIMPSON NULL 01 028 028 06 07 2011 1UPDATE 103 SIMPSON NULL 01 028 088 06 07 2011 0UPDATE 103 SIMPSON NULL 01 028 028 06 07 2011 1UPDATE 104 RAMOTH NULL 01 028 028 05 25 2011 0UPDATE 103 SIMPSON NULL 01 028 088 05 25 2011 1REDISTRICTING 104 RAMOTH NULL 01 028 028 05 18 2011 0REDISTRICTING 104 RAMOTH NULL 01 028 028 05 18 2011 1UPDATE 104 RAMOTH NULL 01 028 028 04 25 2011 0UPDATE 104 RAMOTH NULL 01 028 028 04 25 2011 1UPDATE 104 RAMOTH NULL 01 028 028 10 01 2008 0UPDATE 104 RAMOTH NULL 01 028 028 10 01 2008 1

Stafford County

Street Segment - 1 - 37 RUNYON DR STAFFORD, VA 22554



Street Overview



16 28th HOD

Street Details

MAPPING HISTORY



17 28th HOD

MAPPING HISTORY (Zoomed)

CHANGE HISTORY Street Segment - 1 - 37 RUNYON DR

STAFFORD, VA 22554

Action PrecinctName Town Cong Sen Hse ChangeDate isNewADD 402 COURTHOUSE NULL 01 028 028 08 07 2012 0ADD 402 COURTHOUSE NULL 01 028 028 08 07 2012 1



18 28th HOD

Conclusion






1 88th HOD

88th House of Delegates District Analysis

This documentation provides additional detail for the outlying addresses for the 88th House district.




2 88th HOD

FREDERICKSBURG CITY OUTLYING ADDRESSES



3 88th HOD

Fredericksburg City Street Segment - 1001 - 1715 Charles St




Street Segment Overview




4 88th HOD

MAPPING INFORMATION

CHANGE HISTORY 1001 - 1715 Charles St

PrecinctName Town Cong Sen Hse ChangeDate isNew









5 88th HOD

























6 88th HOD













BLOCK UPDATE401 - PRECINCT 1 - DISTRICT FOUR NULL 01 017 028 08-29-2011 0

BLOCK UPDATE401 - PRECINCT 1 - DISTRICT FOUR NULL 01 017 088 08-29-2011 1





7 88th HOD

STAFFORD COUNTY OUTLYING ADDRESSES



8 88th HOD

Stafford County Street Segment - 100 - 810 Stafford Glen Ct

Stafford, VA 22554







9 88th HOD

MAPPING INFORMATION




10 88th HOD

Street segment by VGIN data: 200-899 Stafford Glen CT

CHANGE HISTORY


BLOCK UPDATE703HAMPTON NULL 01 028 088 07 12 2011 0

BLOCK UPDATE703HAMPTON NULL 01 028 088 07 12 2011 1

REDISTRICTING703HAMPTON NULL 01 028 088 05 18 2011 0

REDISTRICTING703HAMPTON NULL 01 028 088 05 18 2011 1

UPDATE703HAMPTON NULL 01 028 088 04 29 2011 0

UPDATE703HAMPTON NULL 01 028 088 04 29 2011 1

Stafford County Street Segment - 153 - 539 Garrisonville Rd

Stafford, VA 22554

Affected voters - 3





11 88th HOD


MAPPING INFORMATION



12 88th HOD


CHANGE HISTORY Action PrecinctName Town Cong Sen Hse ChangeDate isNew

UPDATE702 - WHITSON NULL 01 028 088 03-22-2016 0




REDISTRICTING702 - WHITSON NULL 01 028 088 05-18-2011 0

REDISTRICTING702 - WHITSON NULL 01 028 088 05-18-2011 1



13 88th HOD

Conclusion






Exhibit 8


Exhibit 1



ALEXANDRIA DIVISION


Plaintiffs,

v.



Defendants.

DECLARATION OF BRIAN SIMMONDS MARSHALL IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION

I, BRIAN SIMMONDS MARSHALL, swear under penalty of perjury that the following

is true and correct.

1. I am an attorney with the law firm of Perkins Coie LLP, and am counsel for Plaintiffs in

this litigation. I have personal knowledge of the matters set forth below and am


2. Attached as Attachment A is a true and correct copy of the Minutes of the March 10,

2015 Meeting of the City of Fredericksburg Electoral Board.

3. Attached as Attachment B is a true and correct copy of the Minutes of the March 22,

2016 Meeting of the City of Fredericksburg Electoral Board.

4. Attached as Attachment C is a true and correct copy of the Minutes of the April 22, 2016

Meeting of the City of Fredericksburg Electoral Board.

5. Attached as Attachment D is a true and correct copy of the Commonwealth of Virginia

Voter Cards issued to Walter Royce Braman, dated May 1, 2015, April 16, 2015 and

October 17, 2003.


- 2 -

6. Attached as Attachment E is a true and correct copy of a letter from J. Pitchford, City of

Fredericksburg, to M. Brissette, Virginia State Board of Elections, dated March 18, 2016.

7. Attached as Attachment F is a true and correct copy of an email from B. Braun to J.

Pitchford, re: 28th & 88th Districts, dated May 10, 2016.

8. Attached as Attachment G is a true and correct copy of the Elections Issue Log for

November 2017, undated.

9. Attached as Attachment H is a true and correct copy of an excerpt of the “Voters

Checked In By House District” Report for the November 2017 General Election (Election

Date November 7, 2017), dated November 15, 2017, at pages 1, 151 & 211.

10. Attached as Attachment I is a true and correct copy of an email string among R.

Rodriguez, M. Hoffman, A. Markel, C. Braman and K. Dooley, re: Precinct 402, dated

November 7, 2017.

11. Attached as Attachment J is a true and correct copy of an email from M. Davis to M.

Hoffman, re: Requested Data, dated November 7, 2017.

12. Attached as Attachment K is a true and correct copy of an email from M. Davis to M.

Hoffman, re: Street File Listing Report for 402, dated November 7, 2017.

13. Attached as Attachment L is a true and correct copy of an email from M. Davis to M.

Hoffman, re: Elect #, dated November 7, 2017.

14. Attached as Attachment M is a true and correct copy of the Virginia Department of

Elections 2017 June Democratic Primary Official Results, House of Delegates, last

modified Jun. 15, 2017, available at

http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primar

y/Site/GeneralAssembly.html (last visited Dec. 28, 2017).


- 3 -

15. Attached as Attachment N is a true and correct copy of the Virginia Department of

Elections 2017 June Democratic Primary Official Results, Fredericksburg City, last

modified Jun. 13, 2017, available at

http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primar

y/Site/Locality/FREDERICKSBURG%20CITY/Index.html (last visited Dec. 28, 2017).

I declare under penalty of perjury that the foregoing is true and accurate to the best of my

knowledge and belief and that this declaration was executed on the 29th day of December, 2017,

in Washington, D.C.

DATED: December 29, 2017Brian Simonds Marshall


Attachment A


Attachment B


Attachment C


Attachment D


Attachment E


Attachment F


Attachment G


Attachment H


House District 028

Name ID Cng-Sen-Hse Check In Date Time

ABDULKADER, AMIR MOHAMED 039479314 01-017-028 11/7/2017 9:38:43 AM

ABOLD-LABRECHE, BENJAMIN JOSEPH 189661602 01-017-028 11/7/2017 11:35:07 AM

ABRAHAMSON, JENNIFER CLAIRE 157359227 01-017-028 11/7/2017 11:17:24 AM

ACHE, DANIEL JEFFERSON 660380321 01-017-028 11/7/2017 9:27:35 AM

ADAMS, ELIZABETH 920326414 01-017-028 11/7/2017 1:27:35 PM

ADAMS, IESHA LATRICE 359612403 01-017-028 11/7/2017 2:30:24 PM

ADAYE, EMNET TAREKEGN 197274231 01-017-028 11/7/2017 6:36:20 PM

AGNELLO, PAUL THOMAS 920086756 01-017-028 11/7/2017 8:23:04 AM

AGUILAR, RIGOBERTO C 070063418 01-017-028 11/7/2017 4:11:50 PM

AGUIRRE, KELSEY MARIE 005619714 01-017-028 11/7/2017 12:16:15 PM

AHEARN, ANN LOUISE 701022225 01-017-028 11/7/2017 7:57:50 AM

AHEARN, DENNIS EUGENE 702022225 01-017-028 11/7/2017 9:14:41 AM

AIDS, WILEY LOVEJOY 807019907 01-017-028 11/7/2017 10:50:34 AM

AIKEN, MICHAEL ANTHONY 918025538 01-017-028 11/7/2017 7:48:24 AM

AKKERMAN-CRAWFORD, BONNIE LEE 604009058 01-017-028 11/7/2017 12:24:55 PM

ALGERT, DAVID CHRISTIAN 918688162 01-017-028 11/7/2017 6:20:09 AM

ALGERT, MARY BETH 917443565 01-017-028 11/7/2017 10:02:33 AM

ALLEN, EDWARD LEFEBVRE 122004154 01-017-028 11/7/2017 6:58:57 AM

ALLEN, HENRY 802019908 01-017-028 11/7/2017 10:03:22 AM

ALLEN, LENA WASHINGTON 803019908 01-017-028 11/7/2017 10:03:42 AM

ALLEN, NOURA COLEMAN 780868480 01-017-028 11/7/2017 10:51:01 AM

ALLEN, YOLANDA FAYE 917021429 01-017-028 11/7/2017 3:14:26 PM

ALLISON, ALLISON SKEER 341512557 01-017-028 11/7/2017 4:00:44 PM

ALTHOUSE, JEDIDIAH SHANE 592225824 01-017-028 11/7/2017 8:53:02 AM

ALTMAN, DEBORAH BRYANT 803019389 01-017-028 11/7/2017 12:06:19 PM

ALTMAN, RANDOLPH MARSHALL 804019389 01-017-028 11/7/2017 12:07:04 PM

AMES, PAMELA JANE 108019822 01-017-028 11/7/2017 8:55:23 AM

AMURRIO, CHRIS JULIAN 571181328 01-017-028 11/7/2017 1:06:33 PM

ANCARROW, JOSHUA KEITH 430404646 01-017-028 11/7/2017 11:20:35 AM

ANDERSON, ANSLEY NICOLE 008409087 01-017-028 11/7/2017 7:49:01 AM

ANDERSON, BARBRA LYNNE 917184381 01-017-028 11/7/2017 5:37:56 PM

ANDERSON, BRYCE JAY 679871907 01-017-028 11/7/2017 4:20:03 PM

Page 1

Voters Checked In By House District Report Date

11/15/2017 11:26:24 AM

Election Date : 11/7/2017Election 2017 November General


House District 088


LAROCHELLE, RICHARD EUGENE 805018375 01-017-088 11/7/2017 9:54:25 AM

LAROSE, MARGARET ELLIS 606011701 01-017-088 11/7/2017 7:42:59 AM

LARSEN-CABRERA, AMY FRANCES 553915888 01-017-088 11/7/2017 7:57:59 AM

LARUE, WENDY JO 714001935 01-017-088 11/7/2017 8:30:20 AM

LASEUR, KATELIN JOANNE 387395283 01-017-088 11/7/2017 11:57:27 AM

LASH, PATRICK FRANCIS 811020023 01-017-088 11/7/2017 9:24:17 AM

LASSINGER, ROBERT THOMAS 612012898 01-017-088 11/7/2017 12:30:49 PM

LATURNO, THOMAS WARREN 919581656 01-017-088 11/7/2017 7:35:54 AM

LAURORE, MICKELINA LAFLEUR 776803480 01-017-088 11/7/2017 5:35:04 PM

LAVINUS, ANDREW DAVID 920051981 01-017-088 11/7/2017 3:29:52 PM

LAW, CARL CALDWELL 808020023 01-017-088 11/7/2017 1:32:31 PM

LAW, CAROLYN GREENLEE 809020023 01-017-088 11/7/2017 1:35:26 PM

LAWRENCE, LEAH KELLEY 918544054 01-017-088 11/7/2017 2:50:24 PM

LAWRENCE, MARCUS ANDREW 917473255 01-017-088 11/7/2017 11:45:07 AM

LAWSON, JO-ANN OCKSRIDER 808019764 01-017-088 11/7/2017 11:18:28 AM

LAWSON, JONATHAN EDWARD 676892057 01-017-088 11/7/2017 4:47:14 PM

LAWSON, ROGER CARLTON 809019764 01-017-088 11/7/2017 6:30:34 AM

LAWSON, STEPHANIE MARIE 719183808 01-017-088 11/7/2017 4:58:42 PM

LAY, JAMES LAWRENCE 337264866 01-017-088 11/7/2017 5:12:07 PM

LAYTON, BERTIE VIRGINIA 811019295 01-017-088 11/7/2017 11:02:34 AM

LAYTON, BRIAN FORREST 708029284 01-017-088 11/7/2017 7:33:29 AM

LAYTON, NORMA GOSPER 710000777 01-017-088 11/7/2017 12:11:41 PM

LAYTON, SHANNON LYNN 918485346 01-017-088 11/7/2017 5:00:57 PM

LAZAR, SHARON L 212011297 01-017-088 11/7/2017 11:28:43 AM

LEAGUE, KATHIE STEIN 920249164 01-017-088 11/7/2017 7:00:48 AM

LEAGUE, WILLIAM LUDWIG 920246354 01-017-088 11/7/2017 7:01:09 AM

LEAS, DAVID CHRISTOPHER 919396423 01-017-088 11/7/2017 5:16:39 PM

LEASE, LISA PORTZ 919693676 01-017-088 11/7/2017 2:29:24 PM

LEATHERLAND, ROBERT WADE 918752885 01-017-088 11/7/2017 11:17:22 AM

LECKY, DOLORES DANIELLE 918229846 01-017-088 11/7/2017 9:05:59 AM

LECKY, KENNETH JAMES 918876893 01-017-088 11/7/2017 4:08:17 PM

LEDBETTER, CAROLYN JOHNSON 009445964 01-017-088 11/7/2017 2:12:49 PM

Page 151


11/15/2017 11:26:24 AM



House District 088


YOUNG, MARGUERITE BAILEY 805019905 01-017-088 11/7/2017 8:12:44 AM

YOUNG, MARK ALEXANDER 917443469 01-017-088 11/7/2017 6:21:14 AM

YOUNG, ZACHARY CLINTON 026693044 01-017-088 11/7/2017 12:10:34 PM

ZACCAGNI, PATRICIA LEE 917145628 01-017-088 11/7/2017 2:06:14 PM

ZAMAN, WAHEED-UZ 698128226 01-017-088 11/7/2017 3:35:20 PM

ZARIN, BABAK AKBARI 047258584 01-017-088 11/7/2017 7:07:47 AM

ZAYLOR, EMILY ANNE 389071727 01-017-088 11/7/2017 6:15:41 PM

ZBRZEZNJ, DEBRA JEAN 920234154 01-017-088 11/7/2017 7:03:14 AM

ZEIGLER, EDWARD C 919281751 01-017-088 11/7/2017 7:00:39 PM

ZEIGLER, JAMNIAN YUENYAO 281416184 01-017-088 11/7/2017 6:40:55 PM

ZELLI, MARY DIANE 810019625 01-017-088 11/7/2017 9:47:04 AM

ZIES, DEBORAH LEE 920349582 01-017-088 11/7/2017 2:24:48 PM

ZIMMERMAN, ADAM EUGENE 920283445 01-017-088 11/7/2017 5:39:11 PM

ZINS, CONNOR PAUL 841941648 01-017-088 11/7/2017 3:59:20 PM

ZIRKLE, CARL STEVEN 802020123 01-017-088 11/7/2017 9:01:47 AM

ZOROYA, NOAH LOUIS 451032848 01-017-088 11/7/2017 11:10:30 AM

ZUBICK, MELISSA OLIN 710001785 01-017-088 11/7/2017 9:22:17 AM

ZUBICK, MICHAEL ANDREW 711001785 01-017-088 11/7/2017 9:25:02 AM

ZUCCARO, DANIELLE ANNE 378396083 01-017-088 11/7/2017 7:37:09 AM

ZUKOR, TEVYA M 917218319 01-017-088 11/7/2017 7:53:51 AM

ZUZA, LAUREN ASHLEY 088195715 01-017-088 11/7/2017 6:10:17 PM

Total Checked In for House District 088 3989

Total Checked In 6711

Page 211


11/15/2017 11:26:24 AM



Attachment I


Attachment J


Attachment K


Attachment L


Attachment M


12/28/2017 2017 June Democratic Primary

http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primary/Site/GeneralAssembly.html 1/4

Virginia Department of Elections > Election Results > 2017 June Democratic Primary

Washington Building First Floor

1100 Bank Street,

Richmond, VA 23219

Phone (804) 864-8901

Toll Free (800) 552-9745

Fax (804) 371-0194

Email: [email protected]

2017 June Democratic Primary

Official Results

Member House of Delegates (002)

Candidate Votes Percent

Jennifer D. Carroll Foy Democratic

2,182 50.14%

Joshua L. King Democratic

2,170 49.86%

Last Modified on 06/16/2017 03:56 PM



Steve G. McBride Democratic

2,591 63.90%

Bryan A. Keele Democratic

1,464 36.10%

Last Modified on 06/19/2017 11:58 AM



Mansimran Singh Kahlon Democratic

821 18.92%

Danica A. Roem Democratic

1,863 42.94%

Steven A. Jansen Democratic

1,365 31.46%

Andrew A. Adams Democratic

290 6.68%




Tom R. Brock Democratic

1,459 31.00%

Kelly K. Convirs-Fowler Democratic

3,248 69.00%






CCandidate Votes Percent

Elizabeth R. Guzman Democratic

3,062 52.15%

Sara E. Townsend Democratic

2,809 47.85%




Tia L. Walbridge Democratic

2,697 52.30%

Mavis B. Taintor Democratic

2,460 47.70%




Kathy K. L. Tran Democratic

3,977 53.64%

N. Tilly Blanding Democratic

3,437 46.36%




Kenny Allen Boddye Democratic

1,876 33.67%

Hala S. Ayala Democratic

3,695 66.33%




Lizzie M. Drucker-Basch Democratic

2,481 48.75%

Melissa M. Dart Democratic

2,608 51.25%




David J. Toscano Democratic

8,665 66.81%

Ross A. Mittiga III Democratic

4,304 33.19%







Lashrecse D. Aird Democratic

5,062 72.11%

Gerry J. Rawlinson Democratic

1,958 27.89%




John J. Wandling Democratic

1,660 32.98%

Jerry Alexander Cantrell Democratic

1,437 28.55%

Rebecca S. Colaw Democratic

1,937 38.48%




Karrie K. Delaney Democratic

3,887 65.35%

John W. Carey Democratic

706 11.87%

Hannah K. Risheq Democratic

1,355 22.78%




Dawn M. Adams Democratic

4,556 47.30%

Mary Jo Sheeley Democratic

3,487 36.20%

Ben J. Pearson-Nelson Democratic

1,590 16.51%




Alexander W. Mejias Democratic

1,719 19.53%

Delores L. McQuinn Democratic

7,082 80.47%







Kimberly Anne Tucker Democratic

2,309 68.54%

Nancy M. Carothers Democratic

1,060 31.46%




David E. Rose-Carmack Democratic

2,970 70.87%

M. Justin Morgan Democratic

1,221 29.13%




Jerrauld C. "Jay" Jones Democratic

5,242 66.19%

Joe W. Dillard Democratic

2,678 33.81%




Jeion A. Ward Democratic

7,030 87.98%

Michael A. "Mic" Harris Democratic

960 12.02%




Vivian L. "Viv" Messner Democratic

1,551 45.98%

Francis Nicholas Edwards Democratic

1,822 54.02%


Page generated on 07/28/2017 11:44 AM

Legend

Showing a summary of results.

Showing partial race results. Click for full race results.

This office has multiple contested seats.


Attachment N



http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primary/Site/Locality/FREDERICKSBURG%20CITY/Index.html 1/1

Virginia Department of Elections > Election Results > 2017 June Democratic Primary > FREDERICKSBURG CITY

Washington Building First Floor

1100 Bank Street,

Richmond, VA 23219

Phone (804) 864-8901

Toll Free (800) 552-9745

Fax (804) 371-0194

Email: [email protected]

2017 June Democratic Primary

Official Results

Governor


Ralph S. Northam Democratic

926 51.19%

Tom S. Perriello Democratic

883 48.81%


Lieutenant Governor


Justin E. Fairfax Democratic

732 42.73%

Gene J. Rossi Democratic

172 10.04%

Susan S. Platt Democratic

809 47.23%


Page generated on 07/28/2017 11:44 AM

Legend

Showing a summary of results.

Showing partial race results. Click for full race results.

This office has multiple contested seats.

This locality has a local contest.

This locality does not have a local contest.


Exhibit 9


Exhibit 2



ALEXANDRIA DIVISION


Plaintiffs,

v.



Defendants.

DECLARATION OF DOLORES (“D.D.”) LECKY

I, Dolores (“D.D.”) Lecky, swear under penalty of perjury that the following is true and correct.

1. I reside at 1205 Charles Street, Fredericksburg, Virginia 22401. Since October 2016, Ihave been registered to vote at this address.


3. To the best of my knowledge, my address, 1205 Charles Street, Fredericksburg, Virginia 22401 is located in Virginia House of Delegates District 28.

4. On June 13, 2017, I voted in the Democratic primary election, including for the office of Governor. No House of Delegates election was listed on my primary ballot. I understand that no Democratic primary election was held in 2017 for either House district in Fredericksburg, House District 28 or House District 88.

5. On November 7, 2017, I arrived at my polling place at 9 a.m. or shortly thereafter to cast my ballot for the 2017 general election.

6. My polling place is located at the VFW at 2701 Princess Anne Street, Fredericksburg Virginia 22401.

7. After showing the poll worker my photo identification, the poll worker handed me a ballot for House District 88.

8. I knew that the ballot I was given by the poll worker was for House District 88 because it listed candidates Steve Aycock and Mark Cole, both of whom I knew were running to represent House District 88.

9. I previously volunteered for Joshua Cole’s campaign, so I knew he was running to represent House District 28 and expected to see Joshua Cole’s name listed on my ballot.


- 2 -

10. Upon realizing I had received a ballot for House District 88, I notified the poll worker that I should have received a ballot for House District 28, as that was my correct district.

11. The poll worker proceeded to explain that the poll book listed me as registered in House District 88.

12. Despite receiving a ballot for House District 88, I still cast my ballot to ensure that I could vote for statewide offices, voting for all of the Democratic candidates on the ticket.

13. Next, before leaving my polling place, I informed Aaron Markel and Rene Rodriguez, members of the Fredericksburg City Electoral Board who were present, that I had received the incorrect ballot. They pointed me to a map hanging in the polling place which showed that my address was well within the House District 28 boundaries and that I should have received a ballot in House District 28. In that conversation, I was asked what House District my primary ballot listed earlier in 2017, despite there not havingbeen a 2017 Democratic primary for the House of Delegates election in Fredericksburg.

14. Markel and Rodriguez also called the Virginia State Board of Elections, who stated that I was required to vote in House District 88 pursuant to the information in the poll book.

15. Markel and Rodriguez concluded that the map must have been wrong and removed the map from the polling place.

16. During this time, I also notified Jason Graham, Chairman of the Fredericksburg Democrats, of my issues at the polling place through Facebook Messenger. I wanted to notify him of what could potentially be a major issue.

17. Upon further research when I got home, I confirmed that I should have received a ballot for House District 28.

18. I knew that I should have received a ballot for House District 28 because the legislature’s website confirmed that I was registered to vote in House District 28.

19. There was also a gentleman who resides in the 1100 block of Charles Street with identical voting issues at my polling place. He thought he should have received a ballot for House District 28 but instead had received a ballot for House District 88. Aaron Markel wrote down his name and address.

20. I informed my husband, Kenneth Lecky, who resides and is registered at the same address, that I received a House District 88 ballot before he voted at the same polling place in the afternoon.

I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief and that this declaration was executed on the 28th day of December, 2017,in Virginia.

DATED: December 28, 2017 _________________________Dolores Lecky


Exhibit 10


Exhibit 3


Exhibit 11


Exhibit 3



ALEXANDRIA DIVISION


Plaintiffs,

v.



Defendants.

DECLARATION OF BRIAN SIMMONDS MARSHALL IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF THEIR EMERGENCY MOTION

I, BRIAN SIMMONDS MARSHALL, swear under penalty of perjury that the following

is true and correct.

1. I am an attorney with the law firm of Perkins Coie LLP, and am counsel for Plaintiffs in

this litigation. I have personal knowledge of the matters set forth below and am


2. Attached as Attachment O is a true and correct copy of an email string among Elizabeth

Howard, Matthew Moran, Thomas Midanek, and Bill Howell regarding “HD28 Issues”

dated from April 27, 2015 to April 30, 2015.

3. Attached as Attachment P is a true and correct copy of an email string among Greg S.

Riddlemoser, Susan Stimpson, Charles L. Shumate, Matthew Davis, Vanessa Archie, and

Dave N. Capaz regarding “FOIA Request” dated March 24, 2016.

4. Attached as Attachment Q is a true and correct copy of an email string among Brooks

Braun, Arielle Schneider, Marc C. Hoffman, Terry Wagoner, and Andrea Gaines

regarding “Split precincts …” dated from March 15, 2017 to March 16, 2017.


- 2 -

5. Attachment O, Attachment P, and Attachment Q, were produced by the State Defendants

pursuant to Rule 34 beginning at 2:48 p.m. on January 3, 2018.

6. Attachments A through G and Attachments I through L to Exhibit 1 to the Reply Brief

(ECF No. 98-1) were produced by certain Defendants pursuant to Rule 34 or the Virginia

Freedom of Information Act on or after December 20, 2017.

I declare under penalty of perjury that the foregoing is true and accurate to the best of my

knowledge and belief and that this declaration was executed on the 4th day of January, 2017, in

Washington, D.C.

DATED: January 4, 2018Brian Simonds Marshall


- 3 -


I certify that on January 4, 2018, I filed the foregoing with the Clerk of the Court using

the ECF System which will send notification of such filing to the registered participants as

identified on the Notice of Electronic Filing.

Date: January 4, 2018 /s/ Aria C. BranchAria C. Branch (VSB No. 83682)


Attachment O


SBE000844


SBE000845


SBE000846


SBE000847


SBE000848


SBE000849


SBE000850


SBE000851


Attachment P


SBE000805


SBE000806


Attachment Q


SBE000755


SBE000756


SBE000757


Exhibit 12


** CIVIL MOTION MINUTES **

Date: 1/05/2018 Judge: Ellis Reporter: T. Harris

Time: 5:09 – 7:47

Civil Action Number: 1:17-CV-1336

KENNETH J. LECKY, et al

vs.

VIRGINIA STATE BOARD OF ELECTIONS, et al

Appearances of Counsel for [X] Plaintiff [X] Defendant

Motion to/for: Motion for Preliminary Injunction [36] by Dolores Lecky, Kenneth J. Lecky, Phillip Ridderhof argued and DENIED.

Order to Follow

Pltf.: Daniel Yonan Deft.: Michael Matheson Monica Talley Trevor Stanley Bruce Spiva Patrick Lewis Ana Birkenheier Michael Ward Emmet Flood Joshua Tully John Daniel


Exhibit 13


1

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

KENNETH J. LECKY, et. al.,

Plaintiffs,

v.Civ. Action No. 1:17-cv-01336-TSE-IDD

VIRGINIA STATE BOARD OF ELECTIONS, et. al.,

Defendants.

Notice of Appeal

NOTICE OF APPEAL

Notice is hereby given that Plaintiffs Kenneth J. Lecky, Dolores (“D.D.”) Lecky, Phillip

(“Phil”) Ridderhof, and Amy Ridderhof, in the above-named case, hereby appeal to the United

States Court of Appeals for the Fourth Circuit from the Order (ECF No. 107) Denying Plaintiffs’

Motion for a Preliminary Injunction (ECF No. 36), entered in this action on the 5th day of January,

2018.


2

Dated: January 7, 2018

Respectfully submitted,

By: Aria C. BranchMarc Erik Elias Bruce V. Spiva Brian Simmonds MarshallAria C. Branch (VSB No. 83682)Perkins Coie LLP700 13th St. N.W., Suite 600Washington, D.C. 20005-3960Phone: (202) 434-1627Fax: (202) 654-9106Email: [email protected]: [email protected]: [email protected]: [email protected]




I certify that on January 7, 2018, I filed the foregoing with the Clerk of the Court using

the ECF System which will send notification of such filing to the registered participants as iden-

tified on the Notice of Electronic Filing.

Date: January 7, 2018 Aria C. Branch Aria C. Branch (VSB No. 83682)


Exhibit 14


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EASTERN DISTRICT OF VIRGINIA

Tonia M. Harris OCR-USDC/EDVA 703-646-1438

1

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

------------------------------x :KENNETH J. LECKY, et al :

: Plaintiffs :

: versus : Civil Action Number :

VIRGINIA STATE BOARD : 1:17-CV-1336 of ELECTIONS, et al : :

Defendants.: ------------------------------x

January 5, 2018

The above-entitled Motion for Preliminary Injunction was continued before the Honorable T.S. Ellis, III, United States District Judge.

THIS TRANSCRIPT REPRESENTS THE PRODUCTOF AN OFFICIAL REPORTER, ENGAGED BY THECOURT, WHO HAS PERSONALLY CERTIFIED THATIT REPRESENTS TESTIMONY AND PROCEEDINGS OFTHE CASE AS RECORDED.


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A P P E A R A N C E S

FOR THE PLAINTIFFS:

Bruce SpivaBrian Marshall Aria Christine Branch Perkins Coie LLP (DC) 700 13th St NW Suite 600 Washington, DC 20005-3690

FOR THE DEFENDANT: (G. Paul Nardo)

Joshua David Tully Emmet Flood Williams & Connolly LLP (DC) 725 12th St NW Washington, DC 20005

FOR THE DEFENDANTS: (Doug Filler, Cathie Braman, Aaron Markel)

Michael Robert Ward McCandlish Holton Morris PC 1111 E Main St PO Box 796 Suite 2100 Richmond, VA 23218-0796

FOR THE DEFENDANTS: (Gregory Riddlemoser, Marc Hoffmann, Marie Gozzi)

Michael Gordon Matheson Thompson McMullan PC 100 Shockoe Slip 3rd Fl Richmond, VA 23219-4140

FOR THE DEFENDANT: (Virginia State Board of Elections)

Anna Tillie Birkenheier Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219


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APPEARANCES CONTINUED:

FOR THE DEFENDANT: (Robert M. Thomas, Jr.)

Trevor Marshall Stanley Patrick LewisBaker & Hostetler LLP (DC) 1050 Connecticut Ave NW Suite 1100 Washington, DC 20036

OFFICIAL UNITED STATES COURT REPORTER:

MS. TONIA M. HARRIS, RPRUnited States District CourtEastern District of Virginia401 Courthouse SquareNinth FloorAlexandria, VA 22314703-646-1438


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4

P R O C E E D I N G S

THE DEPUTY CLERK: Kenneth J. Lecky, et al. v.

Virginia State Board of Elections, et al. Civil Case Number

17-CV-1336.

Counsel, please come forward and identify yourself

for the record.

THE COURT: All right. Who's here for the

plaintiffs? Who is here on behalf of the plaintiffs, please.

MR. SPIVA: Your Honor, this is Bruce Spiva from

Perkins Coie and with me is my colleagues, Aria Branch and

Brian Marshall.

THE COURT: Who will argue today?

MR. SPIVA: I will, Your Honor.

THE COURT: All right, sir, would you spell your

last name for the court reporter.

MR. SPIVA: Yes, Your Honor. It's Spiva, S, as in

Sam; P, as in Paul; I; V, as in Victor; A.

THE COURT: All right. Mr. Spiva, good afternoon to

you.

MR. SPIVA: Good afternoon, Your Honor.

THE COURT: Now there are a plethora of defendants.

I didn't even count them all, but who is here today who

expects to be heard?

MR. MATHESON: Good afternoon, Your Honor. My name


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5

is Mike Matheson. I'm with the law firm Thompson McMullan. I

represent Registrar Gregory Riddlemoser, Registrar, Marc

Hoffmann.

THE COURT: All right. You've submitted a number of

pleadings in this matter, briefs.

MR. MATHESON: Yes, Your Honor.

THE COURT: All right, so. Your last name, sir?

MR. MATHESON: Matheson.

THE COURT: Matheson. All right. You will speak.

Who else wishes to be heard.

MR. STANLEY: Your Honor, my name is Trevor Stanley.

I'm here on behalf of defendant Robert N. Thomas, Jr., an

intervenor with the Republican Party of Virginia, Danielle J.

Davis and Mark Cole.

Patrick Lewis, my colleague, will be speaking on

behalf of the parties. His admission for pro hac vice is

still pending before the Court.

THE COURT: I'm sure I've entered it by now. Did

you pay the fee?

MR. STANLEY: Yes, Your Honor.

THE COURT: That's what matters.

What is your last name, again, Lewis?

MR. LEWIS: Yes, Your Honor, Lewis, L-E-W-I-S.

THE COURT: All right. Anyone else expects to be

heard this afternoon on this motion for a preliminary


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injunction?

MS. BIRKENHEIER: Your Honor, I am Anna Birkenheier

and I'm here today on behalf of the governor of Virginia, the

Virginia State Board of Elections and the individual members,

the Department of Elections and the Commissioner of Elections,

Edgardo Cortes.

THE COURT: So you have a lot of clients?

MS. BIRKENHEIER: Yes, Your Honor.

THE COURT: And you also hope to be heard today.

MS. BIRKENHEIER: Briefly, Your Honor.

THE COURT: You may be seated for a moment.

MR. TULLY: Your Honor.

THE COURT: Oh, someone else.

MR. TULLY: I just wanted to introduce myself.

Joshua Tully from Williams and Connolly on behalf of G. Paul

Nardo, the Clerk of the Virginia House of Delegates. I would

like to introduce my colleague, Emmet Flood, who is admitted

pro hac vice. We don't expect to be heard unless the Court

needs to hear from us.

THE COURT: And whom do you represent?

MR. TULLY: The clerk of the Virginia House of

Delegates.

THE COURT: All right. And you haven't filed

anything, have you?

MR. TULLY: We have.


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THE COURT: You have.

There's been so much paper I would expect to see a

map of the western United States that shows that it's been

blighted by this case. Anyway you may be seated for a moment.

You'll forget -- I apologize for the delay. And I know there

are a lot of people here who came earlier, but there were

other things I had to do. I apologize to all of you for the

delay. Let me tell you what I intend to do.

MR. WARD: Your Honor, there's also myself, Michael

Ward, counsel for Doug Filler, Cathie and Aaron Markel.

THE COURT: Counsel for whom?

MR. WARD: Doug Filler, Cathie, and Aaron Markel,

they are electoral board members.

THE COURT: All right. Do you wish to be heard

today?

MR. WARD: Your Honor, to the extent that something

arises I may be needed to be heard. I'm not expecting to.

THE COURT: What I intend to do is take a brief,

brief recess. Five minutes. No more. Mostly to replenish my

water. And then I will hear from the plaintiffs on their

motion for a preliminary injunction. And then I will hear

from those defendants who wish to be heard.

I'm going to do it this way. I am, not

surprisingly, not unfamiliar with this case, not unfamiliar

with the facts and I'm not unfamiliar with the large number of


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pleadings that have been filed. And I know there are lots of

people interested in it. But there are lots of people

interested in many cases. And even if there are only a few

people interested, it certainly is important to the people,

the few who are. Witness the last litigant. So I have paid

careful attention to your submissions, including one

yesterday, if not last night. I can't remember which, but

there's a very, very recent filing that I'm familiar with. So

what I intend to do is to give the plaintiffs an unfettered

opportunity. I know the facts, I know the contentions. I

would be very surprised if you say anything striking or new,

but I'm going to give you the opportunity to say anything

striking or new. The only difference being that it's only

going to be 15 or 20 minutes. If you can't do it in 15 or 20

minutes, and in the -- the 100-some pages that I've already

seen, then it can't be done.

And then, I'll give you each a somewhat briefer

opportunity to be heard on matters. But as I said, I am

familiar with the facts and the parties' contentions in this

case. And that's how I intend to proceed.

I'll take another very brief recess and then we'll

proceed in this case. Court stands in recess.

(Recess.)

THE COURT: All right. Who will be heard from the

plaintiffs?


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MR. SPIVA: I will, Your Honor. Bruce Spiva.

THE COURT: All right, Mr. Spiva. You may proceed.

MR. SPIVA: Thank you, Your Honor. Before I start,

would it be possible for me to reserve like five minutes for a

rebuttal?

THE COURT: You don't have to do it that formally,

but I'll give you an opportunity to respond briefly.

MR. SPIVA: Okay. Thank you, Your Honor. And Your

Honor, the historic 2017 Virginia House of Delegates election

hopefully --

THE COURT: All elections are historic.

MR. SPIVA: Yes, well, this one may be more

historic, Your Honor, than others that hopefully will forever

put to rest the old saying that "every vote counts."

In this race, for HD-28, which is obviously the

subject of this lawsuit, as Your Honor knows, the certified

election results show a difference between the Republican

candidate, Robert Thomas, and the Democratic candidate, Joshua

Cole of 73 votes. And what we now know, Your Honor, which I

don't believe was at least fully in the record at the time of

the TRO proceeding from the report of the Department of

Elections, which is attached to the declaration of Edgardo

Cortes, is that on election day a total of at least 147

people, over twice the difference, were either denied their

right to vote in HD-28 or were permitted to vote in HD-28 even


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though they had no such right. And that's why we're here,

Your Honor. 86 voters were not, who live in HD-28. And

there's no dispute that they have a constitutional right to

vote -- right to vote, for their House of Delegates

representatives, were not allowed to vote. And in addition,

61 voters who live outside the district were permitted to vote

in HD-28, thereby diluting the votes of the rest of the HD-28

voters.

None of these undisputed differences, Your Honor,

were due to poll worker error. The current margin, as I

mentioned, is less than half of the number of the affected

voters. And so what this means is that we cannot reliably

know whether the registered voters of HD-28, who exercised

their constitutional right to vote in the November election,

preferred Robert Thomas or Joshua Cole. And because of secret

balloting there's no way for us to know that.

The City of Fredricksburg knew about the problems of

voters being misassigned between HD-28 and HD-88 for more than

two years and yet the problem was not fixed. When the most

powerful person in the Virginia legislature, at the time

Speaker Howell raised the concern for officials in the -- in

2015, efforts were made to solve the problem right away. Even

though absentee balloting for his primary election had already

begun. When plaintiff here, Ms. D.D. Lecky, and other voters

raised the concern on election day in 2017, City officials


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responded by removing the map from the polling place that

would have allowed other voters to discover the error.

Following -- Your Honor, there was a possible remedy

at hand when they learned about this on election day and that

would have been to follow the Virginia code and provide voters

who believed that they in fact knew, according to the map that

was on the wall in the precinct, that they were in HD-28 to

vote a provisional ballot until it could be straightened out.

After the election, if it turned out they, in fact, weren't

residents of HD-28, the vote could have not been counted and

if, as was the case with the 87 voters, they actually proved

to be residents, it could be counted.

But instead of using this statutorily prescribed

remedy to ensure that preelection administrative errors did

not result in disenfranchisement, the electoral board decided

the postelection remedy, which was -- wasn't and isn't

available to these voters, would be sufficient for any voter

affected by these errors.

So that's why we are here now. The pre-election

acts of officials disenfranchised these voters and diluted the

votes of the other HD-28 residents. And in Fredericksburg, at

least, the board denied these voters a remedy on election day.

Now the only remedy left to cure the constitutional

harm is a new election. And the only body with the authority

to order that new election, the only institution, Your Honor,


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is this court.

THE COURT: That didn't have to be true.

MR. SPIVA: Well, for these voters --

THE COURT: The answer is, it didn't have to be that

way. It could have been remedied by the General Assembly.

MR. SPIVA: The candidate --

THE COURT: Is the answer to that yes or no?

MR. SPIVA: Theoretically, Your Honor, yes.

THE COURT: What do you mean "theoretically"?

This losing candidate could have instituted

proceedings to have the General Assembly address this issue.

MR. SPIVA: The losing candidate.

THE COURT: Yes or no.

MR. SPIVA: Yes, the losing candidate, who is not

before the Court, could have brought a contest, Your Honor.

THE COURT: All right. In fact, what happened here

is that this losing candidate after a recount decided not to.

MR. SPIVA: That is -- that's accurate, Your Honor.

THE COURT: The reason for that may be that it

either didn't expect any remedy from the General Assembly and

it also knew that if proceeded in that way, that it might

disincline the Court to issue a remedy in view of the state.

That's why you did it that way.

MR. SPIVA: It wasn't me, Your Honor. The candidate

decided not to pursue a contest.


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THE COURT: So you all weren't in touch with the

candidate at all?

MR. SPIVA: I'm sorry, Your Honor.

THE COURT: You all weren't in touch with the

candidate at all?

MR. SPIVA: When you say "you all" you mean my law

firm, Your Honor?

THE COURT: Your parties and your law firm.

MR. SPIVA: Well, the parties here today are three

voters --

THE COURT: Just give me an answer, please. It's

late. Were you all in touch with this losing candidate?

MR. SPIVA: The parties here were not, Your Honor.

The -- the, the -- I mean my law firm represented the

candidate in the --

THE COURT: Never mind. It's not material to my

decision tonight, but remember in the future if I ask a

question, answer it directly. We don't have time to play

lawyers' games. Proceed.

MR. SPIVA: Okay, Your Honor.

Here the problem is so severe that the Government

officials that have institutional interest in resisting

federal court intervention, the state defendants, including

the bipartisan State Board of Elections and even some local

electoral board members believe that it is warranted in these


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extreme circumstances.

Your Honor, there's a high likelihood of success on

the merits in this case. And I won't repeat what's in the

briefs. I think I just want to emphasize our substantive due

process claim and highlight the cases. I know Your Honor is

familiar with them and dealt with some of these in your TRO

ruling, but I would like to take an opportunity to try to

convince you to see the cases the way that we view them.

Starting with Griffin v. Burns, the First Circuit case, there

the Court announced the standard that broad gauged in

unfairness that permeates an election, even if derived from

apparently neutral action, can make out a due process, a

substantive due process claim. And that standard, Your Honor,

has been adopted by the Fourth Circuit. Quoted with approval

by the Fourth Circuit in Hutchinson and in Hendon. In that

case, Your Honor, the election officials believed that they

were doing the correct thing, the legal thing, the right

thing. They gave out, as Your Honor knows, absentee ballots

to people in a primary race.

Later the Supreme Court of that state determined,

with some dissents, I might note, that under state law that

wasn't permissible in a primary. And so the Court, the

federal court, stepped in and said there's no question that

the election officials that gave out these ballots weren't

trying to deprive anybody of their right to vote, but that


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this would work a fundamental unfairness to then strike all of

these people's absentee ballots. And I would submit, Your

Honor, that that's very akin to what happened here. I mean we

have said in our briefs and I alluded to this in my opening

with the facts, there certainly was every reason why the --

this should have been discovered before election day. There

were warning signs that were given to the Fredericksburg

Electoral Board that they all also shared with the State Board

of Elections and the Department of Elections. And there was

never any kind of procedure to really check to see, despite

the fact that they knew that there had been misassignments.

So I think, even if there were a requirement of

showing intent, that can be met here, but the point I want to

make is, is that Griffin is a case that basic -- that has been

adopted by the circuit that basically says the type of intent

that is required is not, you know, an intent to deprive people

of the right to vote. It's just this broad-gauged unfairness

that permeates an election.

Similarly Ury v. Santee, which I know Your Honor is

also familiar with, is a long lines case, where the electoral

board in that case took an action or the council, the city

council, to reduce the number of precincts available. And

that resulted in untenable lines on election day. That

resulted in many people not being able to exercise their right

to vote. But the Court made an explicit finding, Your Honor,


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in that case that the Board did not intend to deprive anyone

the right to vote. They reduced the number of precincts to

save money. It was reckless because there were -- there were

warning signs that they -- that the number of precincts they

were going to use was going to be insufficient. They weren't

careful enough. Again, very analogous, I think, to what

happened here. Warning signs ignored. And then inadequate

attempts to remedy the problem on the day of the election.

The -- you know here Ms. Lecky, you know, alerted,

came in and voted at nine a.m. in her precinct, and alerted

election officials right away that she -- before she voted she

alerted them that she thought she had the wrong ballot. After

she voted, she went and she talked to two members of the

electoral board and alerted them and actually took them to a

map -- and this is all in the record, in the declarations,

Your Honor -- and showed them that her street was well within

the district. They consulted with the State Board.

Ultimately the election officials and Fredericksburg's

decision was to not provide her with a provisional ballot and

instead of taking the map as a sign that maybe we should

investigate further here and maybe take further action, they

took the map down. The map was right. And the information in

the state system that created this broad-gauged unfairness,

Your Honor, that was incorrect. And a little bit more

investigation would have found that out. Very similar to what


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happened in Ury.

And finally, Your Honor I would just like to

highlight Krieger v. City of Peoria, which is not Peoria,

Illinois, but I take it Peoria, Arizona, a 2014 case, where --

which we also cite in our briefs. But there it was not only

purely a mistake that created the type of broad-gauged

unfairness that resulted in a new election being called, but

the mistake, according to the findings of the Court there,

wasn't even the mistake of the election officials, it was of a

printing company that they had engaged. And twice they sent

out absentee ballots with the wrong -- without one of the

candidate's names on it. And basically they said there's no

way we can cure this at this point, now that so many ballots

have gone out and so much time has passed.

The only way to allow the voters to exercise their

right to choose this particular candidate, whose name was left

off, is to have a new election. Again, no finding of intent.

In fact, quite the opposite. The election official was found

to not to be at fault at all, but it was so fundamentally

unfair that the Court said that the voters had to have another

shot at it.

Your Honor, we, I think, explain our other legal

theories in our briefs. I won't go over that now. I think I

do want to take just a moment to address a couple of the

cases, not all, but a couple of the cases that the defendants


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-- not the defendants, but intervenors cite in their brief.

Hutchinson v. Miller, the Fourth Circuit case, again

it's a case that acknowledges that federal courts adjudicate

and have a role in adjudicating constitutional claims that

involve broad-gauged unfairness and basically cites to the

test that I mentioned a minute ago in Griffin.

Really Hutchinson v. Miller is really about whether

damages are available in a jury trial for alleged election

irregularities. And ones that were brought long after the

election in question. Really has, I think, other than the

fact that it adopts Griffin or cites Hendon that -- adopting

Griffin, really has little relevance beyond that, I think, to

this case.

Hendon v. North Carolina State Board of Elections

also adopts the Griffin language. There the issue of intent

that was -- that came up there involved very particular

failures to print ballots properly. The font on the ballot

and alleged failures and whether the size of the type was

right. And essentially there the Court said, you know, those

are not the types of minute election administration issues

that we, as a federal court, properly will get into.

And what's more is that it did not lay down, Your

Honor, I would argue, a bright line rule that intent is

required to make out a due process claim. It basically listed

that as one of the factors to consider. The severity of the


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deprivation, whether the deprivation was intentional or more

of a negligent failure to carry out state procedures and

whether it erodes the democratic process.

Your Honor, I think I will reserve the rest of -- of

my time for rebuttal unless Your Honor has further questions

for me.

THE COURT: That's fine. Your rebuttal is still

going to be about five minutes.

MR. SPIVA: That's okay, Your Honor. Thank you.

THE COURT: All right. Tell me again who you are

and who your client is as each of you who want to speak, you

may do so.

MR. LEWIS: Your Honor, thank you very much. My

name is Patrick Lewis. I'm here on behalf of Intervenor, Bob

Thomas, as well as the affiliated intervenors.

THE COURT: Who are all they?

MR. LEWIS: The Republican Party of Virginia,

Danielle J. Davis and Mark L. Cole.

THE COURT: That's enough.

MR. LEWIS: Thank you, Your Honor.

THE COURT: When you gave me a name, I had no idea

-- I don't remember all the names. There must be 30 names.

Go on.

MR. LEWIS: Your Honor, I do have a cheat sheet.

It's --


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THE COURT: You do have a what?

MR. LEWIS: A cheat sheet, Your Honor.

THE COURT: Oh, cheat sheet.

MR. LEWIS: There are a lot of names. You're

correct.

Your Honor, this case is fundamentally no different

today than it was on November 22nd when this Court held its

TRO hearing. At that point the allegation was that --

THE COURT: Well, the numbers have been refined.

MR. LEWIS: Your Honor, yes, they absolutely have.

The allegation was somewhere between 80 and 668 voters as of

November 22nd. The number appears now to be 147.

In terms of an order of magnitude, it really is --

is not materially different. My understanding is that between

Stafford County and the City of Fredericksburg, there are

108,000 registered voters. Of that 108,000 registered voters,

give or take, we're talking about 147 voters who it is alleged

received an incorrect ballot. Either it received a ballot for

House District 28 and it should have received a ballot for a

different House District or received that -- or were not given

a ballot for House District 28 and should have been. It is

unclear to me, as I stand here today, what that final number

is. I'm aware that the Virginia Election Board has performed

an analysis. There's a copy of that in the record. You know

that remains to be seen. We may never know the answer. The


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other candidate in the race, Mr. Cole, declined to commence a

contest, as was his right, under the Virginia state law. And

that was a significant remedy that he should have pursued and

didn't.

Today, as of November 22nd, we are still talking a

garden-variety election concern or election irregularity, to

use the language in the case law. There is no, under Griffin,

we're looking for to invalidate an election, we're looking for

broad-gauged unfairness, we're looking for a policy, we're

looking for a procedure, we're looking for a systemic error, a

systemic problem. That problem is not present in this case.

The procedure in question is the -- is the voter presents

himself or herself to the polling place. And is -- their name

is checked on the books and they're handed a ballot. That's

the procedure. There's nothing wrong with that procedure.

What we're talking about and my colleague, Mr.

Matheson, and his clients put the -- have spoken to this in

their brief, as the subject matter experts on the

administration of this election. What we're fundamentally

talking about here are random chance errors. We're talking

about one off, essentially coding errors, where specific

voters, maybe they should have been assigned in one district

and for, you know, or due to an error by essentially clerical

error were placed in a different district.

Again, we don't know the extent of the issues as we


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stand here today, but every single number that we've been

given is on a tiny scale compared to the number of registered

voters in the relevant voting jurisdictions. 147 out of over

100,000 voters, you know, we're dealing with a tiny fraction

of a percent.

This is not analogous, in any respect, to some of

the cases that plaintiffs cite in their brief. You know, they

cite Griffin where you have the state Supreme Court

retroactively invalidating 10 percent of the ballots that were

cast, based on a decision, a policy, of the Rhode Island

Secretary of State, to permit the use of these absentee and

shut-in ballots in a primary election.

Plaintiffs' counsel spoke about the Krieger case in

the district of Arizona in 2014. Another great example. In

that case, the problem was that the primary -- the absentee

ballot, 87 percent of the ballots in this particular election

for city council in Arizona were cast absentee. The ballots

were printed with only two out of three of the names of the

qualified candidates for the Office of City Council.

Upon discovering the error, a second round of

ballots were printed. Those ballots too, inexplicably,

omitted the name of the third candidate, leading to yet a

third set of ballots being printed and delivered. Here the

broad-gauged unfairness was the remedy that the electoral

board in that case had prescribed, which was if the original


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ballots, that first and second round ballot, was returned, it

would be counted. And in fact those ballots were flying in as

the third round of ballots were going out. And so the result

is that many, many, many ballots were being cast perhaps by

voters who had no idea that the third candidate was on the

ballot.

Here again, you have a single point source of a

problem. You have a -- that permeates the election and calls

the fundamental unfairness of the election into account. Not

the case in this matter.

When you look at Bennett, another case in the Ninth

Circuit, cited by plaintiffs, that case actually speaks very

eloquently to one of plaintiffs other arguments, which is this

concept that the number of potentially affected votes exceeds

the margin of victory for Delegate Elect Thomas and as a

result, you know, the ballots should be thrown out.

And here the key lesson from this case, at least to

my mind, is a -- the federal fundamental right to vote is not

implicated by these garden-variety election errors. And

Bennett even talks about how a garden-variety election

irregularity generally does not violate the due process

clause, even if it affects the outcome.

In our papers, Your Honor, we cite to Gamza, to

Powell, to Harris County, all of which also stands for that

proposition. And this makes a lot of sense. The right to


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vote is a personal right. It's a fundamental right, but it's

also a personal right. A lot of reasons that people vote.

And whether or not a ballot is counted correctly or if there's

some clerical error that results in somebody getting a ballot

in HD-88 when they should have had it in HD-28, the proper

analysis is directed at the -- the source of the problem and

the scope of the problem. It's not looking at 100 ballots

were potentially affected in a race that was decided by 75

votes versus 150 votes. The proper analysis, again, is the

scope of the problem and here the scope of problem is tiny.

Others I know on our side can speak to some of the

facts, but I've reviewed the e-mail traffic that was attached

to plaintiffs various pleadings, all I saw were specific

questions about specific voters and an electoral board that

made prompt efforts to remediate any problems that arose. But

no sign along the way of a systemic problem.

Speaking to another one of plaintiffs' cases, Your

Honor, the Ury case, we would really note that case is very --

is distinguishable from our case as well. In that instance,

you add an election, Your Honor, where you had 32 precincts,

voting precincts, that were shrunk to six. Inadequate voting

machines, unequal counts of voters and were the result that

hundreds, I believe it was 397 voters, signed affidavits

stating that the lines were so long that they were turned

away. Significant lines, significant problems, traffic


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backups. All sorts of chaos on election day in that matter.

None of which has been alleged here, let alone proven.

The last point that we would like to raise for

certainly on Mr. Thomas's behalf is whatever the ultimate

outcome of this litigation is, and we believe that a cause of

action has not been even viably stated. I know our motion to

dismiss has already been filed in this case, but certainly the

voters of the 28th House District are entitled to have their

duly elected representative be seated next week. You know,

even if there's a -- a special election that down the road

needs to be called by one -- whether through this court or

through some other proceeding, it would seem a very

significant intrusion certainly for the voters and for the --

and for the Virginia legislature to say that a duly-elected

representative cannot be seated. You know, at least pending

the outcome of any proceedings. So on that particular point,

we would especially urge the Court to not grant the

preliminary injunction and to allow Mr. Thomas to be seated

next week.

THE COURT: Who's next?

MR. MATHESON: May it please the Court. My name is

Mike Matheson. I represent five of the Local Election

Officials in this case. Both registrars, Mr. Riddlemoser and

Mr. Hoffman. Rene Rodriguez, who's the chairman of the

Fredericksburg City Electoral Board, as well as Marie Gozzi,


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who is the vice chair of the Stafford County Electoral Board,

and Gloria Chittum, who's the secretary of the Stafford Board.

THE COURT: You do need a cheat sheet.

MR. MATHESON: Well, Your Honor, this is the third

lawsuit that relates to the same election that I've

represented some or all of these folks in, so I'm getting

quite familiar with these names after --

THE COURT: This same election?

MR. MATHESON: Yes, Your Honor. Yes, Your Honor.

THE COURT: This same dispute?

MR. MATHESON: Well, not related to the provisional

ballots, but we've been in front of Judge Hilton related to

provisional ballots, or excuse me, absentee ballots, and we

had another lawsuit related to provisional ballots. And so

it's -- it's been --

THE COURT: But not lawsuits relating to this

election between HD-28 and 88?


THE COURT: They are related to it?

MR. MATHESON: Well, yeah, none of them are pending,

but, yes. So, Your Honor, here's my --

THE COURT: I'm sorry. I missed that. You say

there are no pending lawsuits --

MR. MATHESON: Not pending.

THE COURT: -- related to this dispute?


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MR. MATHESON: They've all been dismissed, but not

pending.

THE COURT: All right. Thank you.

MR. MATHESON: So Your Honor, here is my chief

concern. I know that the Court has a lot of people who want

to be heard from today and I want to make the most studious

use of my time and the Court's time. And my biggest concern,

my agenda up here right now is that from the amended complaint

to the motion for a preliminary injunction that gets filed in

this case, there is a factual narrative that essentially

starts on election day in 2017 and ends with the Cortes report

that identifies all of these voters that should have cast

votes in different races.

The reply brief in this case from the plaintiffs is

filed on December 29th, and the Court in -- and that is

essentially a do-over brief. The Court is presented with a

brand new factual narrative and there are allegations related

to things in 2015 that are made in those briefs that -- where

they're trying to show that this is some kind of a

long-standing problem that has existed. Not only were there

almost 80 pages of documents filed with that reply brief, but

then last night, after regular business hours, we have a whole

nother batch of documents related to all of this stuff in 2015

that were filed.

THE COURT: Let me say something about that.


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THE COURT: I don't sanction. Well, let me use a

different word. I don't invite or approve of last minute

filings. This case is a little unusual because there wasn't a

schedule. But lawyers have the notion -- some lawyers who

practice, what I call BFA law, brute, force, and awkwardness.

They file stuff whenever they want to and whenever they think

it might help their cause. It doesn't help me. It irritates

me. And it's unfair to the other side. But I understand how

important people feel this is and why they do what they do.

But they also need to understand that that isn't the way you

do things.

MR. MATHESON: And I appreciate that. And Your

Honor, I don't mean for this to sound like an ad hominem

attack on my opponents, because I do understand they're trying

to advocate for their position and there's been a lot of

documents that have been coming in --

THE COURT: I don't allow people to keep filing

stuff.

MR. MATHESON: I understand. But this is my

concern. My concern is A, that all this 2015 stuff that's

been injected into the record that we really haven't had a

fair opportunity to respond to is somehow either going to

color this Court's analysis in a way that is unwarranted or in

the event that this matter gets appealed, that there's going


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to be a factual record in this case that may look unfavorable

to my clients.

So what I would like to do right now and I know the

Court is going to have very limited patience, there's a couple

of documents that I want to hand up. And I want to talk

about --

THE COURT: So you want to do it too?

MR. MATHESON: I do, Your Honor and I --

THE COURT: That's fair play.

MR. MATHESON: I brought a couple of witnesses today

and I know that Your Honor doesn't want to hear from

witnesses, but I would like to proffer a couple of things and

here is where I'm going with all of this.

THE COURT: Do so, but do it quickly, please.

MR. MATHESON: This 2015 stuff has nothing to do

with the issue in this case. It demonstrably has nothing to

do with the issues in this case. And so in order to do that,

I need to do two things: Number one, I want to show the Court

there are street files in VERIS. And I talked about this in

my brief. And the Cortes report identifies specific address

locations that were affected by this. There are street files

in VERIS. And I'm going to hand the Court an exhibit that

Registrar Riddlemoser put together for me that gives you a

summary of what those street files are. And then I want to

talk about Speaker Howell in 2015. Because I have a copy of


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Speaker Howell's complaint. And I can show you that Speaker

Howell's complaint had absolutely nothing to do with the

voters who were impacted by what happened here.

So if I may, Your Honor, I want to hand an exhibit

and I have copies -- I have eight copies which I think will

give every camp their own copy of the document. If I can hand

this to Your Honor. And I'm also going to pass up the

communication from Speaker Howell from 2015.

THE COURT: All right. Go on.

MR. MATHESON: And let me tell you what we're

looking at. So this report -- this table right here has got

the street and address range numbers that the Cortes report

identifies as having been misassigned during the 2017 election

cycle. And Mr. Riddlemoser, to his credit, has done a bunch

of work here. He actually went and tried to figure how many

voters were affected versus how many actually voted. His

number, as it turns out, is even bigger than Mr. Cortes'. He

found that there are 150 voters who were affected rather than

147. So there's a margin of error with this process too.

That's a digression.

Here is the important part. So we have this e-mail

chain from Speaker Howell and Speaker Howell's contention is

that 201 is listed in the Code of Virginia as being in House

District 28, but Fredericksburg city is treating it as a split

precinct. So he has an attachment to this that starts on


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State Board of Elections page 1004. And I literally got this

two days ago. He has an attachment to this, and the

attachment includes a list of every voter that he claims has

been affected by a misassignment to a district in House

District 201. And I'll let the plaintiffs fact check me on

that. And I'll cut to the chase and tell you what you're

going to find. If you go through this and you look at every

single one of these addresses in this packet, there is not one

address that was identified by Commissioner Cortes in his

report.

So this -- what has been represented is that -- and

the plaintiffs -- I'm not saying there's any nefarious

misrepresentation here -- I just don't think that they

understand. When Howell was complaining back in 2015, he was

talking about something that's completely different than the

issues that affected voters in this election.

Now here is what he was talking about. He was

talking about a discrepancy between the Code of Virginia which

defines the precincts in Fredericksburg city versus the

precincts as they exist in Fredericksburg city. So recall in

my brief I said that there is redistricting -- following

redistricting, that the localities sometimes need to adjust

their precinct boundaries so that their local elections

conform to constitutional and state requirements.

Fredericksburg did that in November of 2011. When


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Fredericksburg did that, they had historically had one split

precinct. Well, as a result of the 2011 ordinance, they had

three split precincts. This has been a source of

consternation in Fredericksburg city for years and years and

years. And Howell was confused about this in 2015. He

thought that 201 should not have been split and it turns out

that he was looking at the wrong source of law.

And in 2016 this issue came up again. And so

there's an e-mail that has been submitted by the plaintiffs

from Brooks Braun in which Mr. Braun says sorry this took so

long but you will be relieved to hear that everything is a-ok.

And this has been represented as a statement that somehow

misassignments or incorrect street files for voters as between

28 and 88 had been corrected, but demonstrably that's not what

this document says. What Mr. Braun is saying is, this

explains the difference between the code language and the

current maps. It also explains why you would have three

splits in elections since 2011 and why that is perfectly fine.

He's not talking about street files being incorrect. Mr.

Braun is talking about the confusion in the complaints that

they're receiving due to discrepancies existing between the

code as it was passed in March of 2011 and the ordinance that

adjusted those precinct boundaries in November of 2011.

The upshot of all of this, Your Honor, is that

this argument that this is some kind of a known problem that


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goes back two years is simply not correct. It's not correct.

There's a second argument that's raised in the

reply brief and that is a new suggestion that somehow the

election officials in Fredericksburg city should have handed

out provisional ballots to all the voters at the VFW in

precinct 402 on election day.

Well, Your Honor, and there is -- and there's an

e-mail from Kathleen Dooley, who is the city attorney. I'm

not sure how the plaintiffs got ahold of it. It seems like

it's privileged to me, but it's been disseminated by third

parties. And I don't have any control over that. But this

e-mail is really interesting because what it demonstrates is,

A, that precinct 402 is the only thing that is on

Fredericksburg city's radar as a result of D.D. Lecky's

complaint at the polling location.

If you go to the Riddlemoser report and you look

at these street files, the misassignments not only happen in

402, but they also happen in 201 which nobody was thinking

about that on election day. And then above that you have

Stafford County 302, Stafford County 203, Stafford County 402,

Stafford County 103, 702, 703. The vast majority of these

votes. Even if the Court were prepared to find that something

more should have been done with respect to the VFW,

approximately two-thirds of the votes that are even at issue

in this case, was something that nobody had any idea existed


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until two weeks after the election when Mr. Cortes issued the

Cortes report.

And so what is the remedy there? They're saying

hand out provisional ballots. Well, number one, we had no way

of pinpointing every single voter that was affected by this,

identifying that person when they walked in to hand them a

provisional ballot. That's one problem.

So the only thing that we could have done

provisionally would have been to hand out a provisional ballot

to all 1,954 voters who walked through the door, which is a

nightmare. There were 36 provisional ballots in

Fredericksburg city. They would have had to canvass all 2,000

of those within seven days after the election.

But the bigger problem is -- and this is exactly

what the Dooley e-mail says, "There is no authority in the

Code of Virginia for casting a provisional ballot based on an

error in the street file or a -- an erroneous House District

designation in VERIS." And if the plaintiffs disagree with

me, I challenge them to tell me where in the Code of Virginia

it says that you can cast a provisional ballot under that

circumstance. So had we provisionally balloted all 1,954 of

those people, we probably would have a bigger problem on our

hand than we did -- than we do right now. We would have a

1,954 voter problem on our hand instead of a 150 voter

problem.


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So both of those arguments are brand new as of

December 29th. And I've done quite a bit of investigation on

that and I just don't think that there's any merit to them.

So here is what we're looking at: The plaintiffs

have asked Court to order a special election. If that occurs,

then there's going to be within five weeks under the code a

special election would have to be convened. Mr. Riddlemoser,

who only has Stafford, which is just a fraction of House

District 28. It's a large fraction but it's a fraction of

House District 28. He informs me today that between military

and other absentee balloters, just in Stafford County, he had

1100 people. Well, he needs 45 days just to give them notice

of absentee balloting under Virginia law and under the federal

statute, which is called UOCAVA. He's required to do that.

If he doesn't do it, then those absentee ballots get counted

whenever they come in. Two weeks, three weeks, two months,

three months, four months after the special election happens.

So if we have that special election, how many of those voters

are going to be disenfranchised?

THE COURT: Well, I appreciate your bringing to my

attention the practical problems that may arise if I order a

special election, but that isn't quite the issue today.

MR. MATHESON: Well, no, Your Honor only insofar as

it affects the balance of the public interest in holding a

special election. And I'll stop my analysis.


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But this is my point: I mean the election has got

to have a beginning and an end. And the record that the

plaintiffs have shown at best shows that there were

independent clerical errors that were made and clerical

errors, which I do not think are unique to this jurisdiction,

and we've seen no evidence to the contrary, that are unique to

these two particular jurisdictions.

There were inadvertent clerical errors that were

made, they were unknown on the day of the election. Now we

know about them. Prospectively, do we need to go and fix

those? Yes, we do. Does that warrant federal intervention in

this local election? I believe under the authorities that

have been briefed -- and I know I'm running out of time so I'm

not going to delve into the case law, Your Honor --

THE COURT: You are, because I'm running out of

time.

MR. MATHESON: That relief is unwarranted. So I

appreciate your patience. Thank you, Your Honor. I yield the

floor.

THE COURT: All right. I'm going to mark these two

documents as Exhibits 1 and 2. But it will be for which

party?

MR. MATHESON: For the registrars.

THE COURT: Registrar, et al parties.

All right. Who's next? Nobody else needs to be


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heard?

MS. BIRKENHEIER: No, Your Honor.

MR. FLOOD: Your Honor, if I may be heard briefly.

THE COURT: Yes, you may.

MR. FLOOD: Emmett Flood for G. Paul Nardo, who is

the clerk of House of Delegates.

THE COURT: All right.

MR. FLOOD: Mr. Nardo is -- has been made a

defendant in the case and among the forms of relief sought by

the plaintiffs. One, Your Honor is federal judicial

intervention to stop Mr. Nardo from recognizing Mr. Thomas,

the presumptive winner of District 28, and seating him in the

House of Delegates come noon next week on the opening day of

the session, January the 10th.

Of course plaintiffs have also sought relief in the

form of an injunction to in effect nullify the election and

have Your Honor order a new one.

Mr. Nardo is not a political actor here. He is an

employee of the House of Delegates. He does not serve in that

roll as a partisan Republican or Democrat. He is at pains, I

think, to underscore for the Court that he takes no position

on the due process or other questions presented by the

plaintiffs as to whether a new election is called for. But

precisely because he is an employee of the House of Delegates,

he has in this case the interest that the House of Delegates,


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which is part of the legislative branch in the Commonwealth

has, when it comes to the question of whether a federal court

should do something.

And the position we've taken in the brief is a

simple one, and Mr. Nardo's view of that is, that if the Court

finds that a remedy is needed here, it ought to suffice Mr.

Nardo suggests, that the Court issue that remedy against the

various election boards and not pursue anything against him in

his official capacity as the clerk.

If Your Honor were to nullify the election or order

a new one Mr. Nardo, who will sit in the chair, the Speaker's

chair at the very beginning of the proceedings next week at

noon -- if Your Honor nullifies the election, he will not

recognize Mr. Thomas or anyone else because it is the historic

practice, one that he intends to continue to represent on

opening day, only that person who presents the appropriate

credentials, which in this case is a certification that he is

the victor in that race.

So if something happens, if Your Honor decides to do

something about the election, he submits there's no need to do

anything with him because he will not recognize anyone who

does not have a certificate of election.

If Your Honor does not take action against -- to do,

undo the election or order a new election, then it is his

present expectation, consistent with historic practice, to


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recognize Mr. Thomas today pending our finding something in

the state precedence, in the legislative precedence that might

change that. Otherwise that's his position and he asked that

I communicate it to Your Honor.

THE COURT: Anyone else want to be heard?

MR. FLOOD: Thank you, Your Honor.

MS. BIRKENHEIER: Your Honor, we'd ask if we could

be heard. But given the process you've outlined and the

Court's familiarity with the pleadings, we don't feel that's

necessary.

THE COURT: I'm sorry. I'm unable to hear you.

Come to the podium, if you would, please.

Give us your name and the party you represent and

tell me whatever you need to tell me.

MS. BIRKENHEIER: Certainly. My apologies, Your

Honor. I am Anna Birkenheier on behalf of the Governor, the

State Board of Elections and its members, the Department of

Elections and Commissioner Edgardo Cortes.

I just wanted to indicate that while we had

initially represented we would like to make argument, given

the process that the Court has outlined and the Court's

familiarity with the pleading, we are happy to rely on our

filings unless there are any specific questions the Court may

have for us.

THE COURT: Thank you. Anyone else?


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MR. WARD: Good afternoon, Your Honor. Michael Ward

for Doug Filler, Cathie Braman, and Aaron Markel. They're

individual members of the electoral boards. They were sued in

their official capacities. Your Honor, the only point that I

would make is that I have just recently been retained to

represent Ms. Cathie Braman. She signs onto the brief that I

filed on behalf of Mr. Filler and Mr. Markel. And that's

already in the file. She simply signs onto it. We took no

position other than pointing out that in their official

capacity there's no allegations that these three individuals

did anything wrong themselves. But otherwise, as the state

did, take no position on the motion sought.

THE COURT: Anyone else? All right. You have five

minutes or less.

MR. SPIVA: Your Honor, I think it would be less.

I wanted to first just address the procedural issue,

Your Honor. The documents that we filed with our reply brief,

we didn't have any of those documents at the time we filed our

initial brief. We got those mainly through FOIA requests

after the time that we filed our brief. As Your Honor is

aware --

THE COURT: You don't want me to ask you when did

you get them.

MR. SPIVA: You know, I actually --

THE COURT: Why did you wait until last night.


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Never mind, it happened. Don't do it in the future.

MR. SPIVA: Your Honor those documents we just got

yesterday or maybe they were Wednesday.

MR. MARSHALL: Wednesday. Wednesday, filed on

Thursday.

MR. SPIVA: Wednesday, filed on Thursday, Your

Honor. I'm talking about the documents that we filed with the

reply brief on the 29th, which is I think was causing the

consternation and those documents we had gotten within a very

short period of time before we filed that and it was certainly

after we filed our initial --

THE COURT: Let me tell you this and we're not going

to spend anymore time on it. In this court, if there's a

briefing schedule, you must adhere to it or seek leave to

deviate from it. In this instance, there was no firm briefing

schedule, but there was a local rule. The local rule says you

file, somebody gets 11 days to respond. What you should have

done is said, Look, can I have leave to give you all of this

stuff? And so do that in the future.

What else do you have?

MR. SPIVA: Yes, Your Honor. I do want to point out

we did file a motion for leave and we had requested

everybody's position.

THE COURT: Last night?

MR. SPIVA: No, Your Honor -- yesterday for the --


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for the documents that we filed yesterday.

THE COURT: Yes.

MR. SPIVA: We asked for leave.

THE COURT: As a famous cartoon character says "too

late."

MR. SPIVA: Understood, Your Honor.

THE COURT: Remember, I have to read all of this

stuff and think about it.

MR. SPIVA: If we had them earlier --

THE COURT: Never mind. Just go on to whatever you

want to say on the merits and let's be done with it.

MR. SPIVA: I think that I can be brief, Your Honor,

that I think the major contention, I think, about the factual

scenario here misunderstands the point that was made by the

2015 and 2016 alerts, if you will, that some voters were

misassigned. It wasn't to contend, because certainly we

didn't have the discovery to know this as a fact that it was

the same voters, but as the documents reflect, there were some

voters, the minutes of their board meetings reflect this.

There were some voters who were misassigned at the time and

that had to be corrected.

That should have set off some type of alarm bell.

It happened twice, at least twice. To do some further

looking. Maybe perhaps of the nature of the looking that

happened after this election. That only took a couple of days


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to discover that 347 people had been misassigned. There

weren't adequate procedures certainly at the local level and

that's where, you know according to the Cortes declaration,

that's where the information comes from to begin with, the

assignments.

They go -- they then get put into the state system

and there wasn't really much procedure to speak of at the

state level either, Your Honor, because essentially the

Department of Elections only provided assistance when

requested by the localities. And that, of course, resulted in

the number of people here that were disenfranchised.

The only other thing I will say, Your Honor, we

heard a lot, I think, from the gentlemen who spoke earlier.

And I need -- I have a cheat sheet, but I don't have an

attorney cheat sheet, so one of my distinguished colleagues on

the other side, talked about the fact that this was a small

number or small percentage when you compare it to everybody on

the voter rolls. Of course here, where you have first of all,

about 11,000-some voters for each candidate, this is actually

a quite substantial number and of course when you compare it

to the margin, it could have made all the difference. So it's

quite -- it's quite significant, Your Honor.

I don't really have much quarrel with my

distinguished colleague's description of the cases that I

cited. I think though that they confirmed that in each of


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those cases, Griffin and Ury and Kaiser [sic] that these were

inadvertent errors that resulted -- Krieger -- pardon me, Your

Honor, these were inadvertent errors that resulted in a

fundamental unfairness that the Court then decided that it had

to step in and correct with the new election.

I'll close with this, Your Honor. You know, earlier

this week, a different client of mine in a different district.

I'm sorry, Your Honor, I should address one more thing,

because my distinguished colleague mentioned another case --

that case did not involve the issues in this case. They

involved absentee ballots that were stuck at the post office.

And so I didn't want Your Honor left with the impression that

we had filed two cases in front of two different judges or

something like that involving the same issues. That's not the

case.

Going back to my closing point, Your Honor. You

know in another district that ultimately was decided with a

drawing -- I'm sure Your Honor has read about it -- although

the Court in that case ruled against our client, you know, I

was -- I found it quite moving that the Court noted that, you

know, one vote, that there's been a heavy price paid for the

right to vote. And that the Court would do everything it

could to make sure that the will of the voters was heard. And

here, too, Your Honor, you have in front of you 87 people who

have been denied their right to participate in the election,


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45

in the Wesberry v. Sanders words of the representatives who

make the laws under which they must live. And so, Your Honor,

should not seat someone who is not clear as the choice of the

voters.

Your Honor, we would respectfully request that you

require/order a new election.

THE COURT: All right. I'm going to recess briefly,

consider the matter, and I'll let you have a decision shortly.

(Recess.)

THE COURT: All right. The matter is before the

Court on a motion for a preliminary injunction. And let me

say as a preface that I appreciate all of the arguments and

the briefs. I have some -- I get a little bit irritated when

things come in at the last minute, but you can understand

that. On the other hand, I am fully aware of how important

people think this is. All the litigants that appear before me

think their case is very important. Whether it's an

individual litigant in some civil case or a defendant. The

case right before this was a young man looking at 32 years. I

don't have any doubt that he thought that was pretty

important. But, of course, I know that this is very important

to the people in these districts in Fredericksburg. I'm quite

aware of that. I simply say that every case that I hear is

important to the litigants involved.

I understand that. That doesn't diminish in any way


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how important I think it is to you all. But by the same token

the fact that there are 50 people here doesn't move me. I

know it's important.

Now the matter is before the Court on this motion

for a preliminary injunction and the plaintiffs are four

residents of Virginia House District 28 and they brought this

suit claiming that their First and Fourteenth Amendment rights

were infringed when poll workers mistakenly gave ballots for

HD-88 to residents of HD-28 at the General Election in

Virginia on November the 7th of this year -- of last year.

Time flies. And it flies a lot more quickly at my age. I

don't look back or forward anymore. I only reminisce.

Plaintiffs now seek a preliminary injunction

ordering the officers of the Virginia State Board of Elections

to vacate certification results for HD-28 barring the clerk of

the House of Delegates from seating the winner, the certified

winner of HD-28 and ordering a new election for HD-28.

All of the plaintiffs are -- well plaintiffs are all

registered voters and residents of HD-28 in Virginia. Each of

the plaintiffs voted in the November 7th General Election on

election day. Three of the plaintiffs, Kenneth Lecky, Delores

Lecky, and Phillip Ridderhof were given ballots for HD-88

despite being residents of HD-28. Amy Ridderhof successfully

voted in HD-28.

Defendants include a plethora of organizations and


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individuals, but they include the Virginia State Board of

Elections, which regulates Virginia elections and certifies

the results of those elections. The Virginia Department of

Elections, which implements election laws and regulations to

support accurate, fair, and open secure elections. Stafford

County Electoral Board which prepares ballot, administers

absentee voting, conducts elections, ascertains results of

elections in Stafford County, the City of Fredericksburg

Electoral Board, which prepares ballots, administers absentee

voting, conducts elections, ascertains results of elections in

the City of Fredericksburg.

Now the individual defendants are sued in their

official capacities and they include the members of the State

Board. Messrs. Alcorn, McAllister, and Ms. Wheeler. Edgardo

Cortes, Commissioner of the Department of the Virginia

Department of Elections, and there's a list of others.

Completed with Mr. Nardo, clerk of the House of Delegates. I

heard from his representative today. And the form -- well, it

is still the governor of Virginia, Governor McAuliffe is also

named.

Now a brief summary of the voting procedures adds

necessary context to the Court's analysis and ruling. Voting

assignments in Virginia track the U.S. Census. Following

publication of a census a general assembly redraws districts

and assigns localities to each district based on federal and


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constitutional restrictions.

Precincts may be wholly within a particular district

or split to include voters -- to include voters from multiple

districts. Precincts, of course, are entities established by

localities. After new districts are finalized, 133 general

registrars across Virginia manually assign addresses to

districts in the Virginia Election and Registration

Information System. It's called VERIS, a statewide database

which contains voting data. And because road addresses do not

follow locality and precinct boundaries used in the census,

this process of assigning addresses to particular districts is

not without significant complexity. Post office

accommodations, homeowner petitions, and changes to street

names further or can further complicate the process. People

can ask: I don't like my number. Can I change my number?

Can I put my post office box on the other side of the road?

All of those things may operate to complicate things.

When an election occurs, the State Board provides

VERIS data to polling locations so that poll workers can

distribute the correct ballots to individual voters.

Now on April 11th -- I'm sorry, April 2011,

following the 2010 Census, the General Assembly completed

redistricting of all 100 House of Delegates seats. The

resulting district map split Stafford County in the City of

Fredericksburg between HD-28 and HD-88. Stafford County also


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contained precincts within HD-2.

Specifically using the precincts in existence, as of

April 1, 2011, the General Assembly assigned 12 full precincts

and part of another precinct in Stafford County and two full

precincts and a part of another precinct in the City of

Fredericksburg. That's part of the Virginia code. And

general registrars statewide then updated the addresses

assigned to each district in VERIS accounting for changes to

the boundaries.

Several months after 2011 redistricting, the City of

Fredericksburg redrew its precinct lines and as a result

several precincts not formally split between HD-28 and HD-88

became split between the Districts, meaning the voters in the

same precinct were located in different House Districts.

Different voters of the voting place would have different

ballots from voters voting in the polling booths next to them

depending on -- depending not on current precinct lines, but

on what the precinct lines were previously in the 2010 Census

report.

Now the General Election for the House of Delegates

occurred, as I said, on November 7, and on that day the

plaintiffs went to their respective polling locations to

attempt to vote in the HD-28 race between Cole and Thomas.

And as I said, Amy Ridderhof successfully voted in HD-28.

Phillip Ridderhof, despite being correctly assigned in the


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VERIS database as the voter in HD-28, received a ballot for

HD-88 due to a poll worker's error. Kenneth Lecky and D.D.

Lecky were given ballots for HD-88 because the VERIS database

incorrectly reflected their addresses as falling within HD-88

and not HD-28.

When poll workers gave Lecky a ballot for HD-88, she

told the poll workers she believed she should have been

assigned or she should have been registered to vote in HD-28.

And after she voted, Lecky raised her concern again to two

board members, Rodriguez and Markel, who directed her to the

map of the House District. When the map suggested that she

had been assigned to the wrong district, the board members

determined that the map was incorrect and removed it from the

polling place. In other words, they elected to rely on the

VERIS data. The election official also denied provisional

ballots to the affected voters on the day of the election

based on their determination that the VERIS database was

entitled to a presumption of validity. And if the database

were incorrect, the voters could pursue state mechanisms to

challenge it.

I'll have something more to say about provisional

ballots in a moment.

So, the complaints prompted the Department to

investigate the reasons for and the extent of the

irregularities and on November 27th, the Department issued a


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summary of the findings of the investigation. And these

findings included that 260 voters were incorrectly listed in

the VERIS database as residing in HD-2 or HD-88 rather than

HD-28. But only 86 of the 260 voted in the November 7

election. 124 voters who were not residents of HD-28 were

incorrectly listed as residents of HD-28. And 61 of these 124

voted in the November 7 election. Of course, we don't know

how they voted.

So in total, a number 300 were -- and some, were

incorrectly listed in the VERIS database. 147 of those of

whom voted. The State Board certified the results of the

election in HD-28 with Thomas receiving 11,842 votes and Cole

receiving 11,760, a margin of victory of 82 votes.

A later recount requested by the losing candidate

Cole confirmed that Thomas was the winner of the election but

by reduced margin of victory of 73 votes. Then plaintiff

brought this suit, pursuant to Section 1983 alleging

violations of their First and Fourteenth Amendment rights and

seeking a temporary restraining order to enjoin the Department

from certifying the results of the HD-28 election.

And I held a hearing on December 6, 2017, after a

hearing the request for a TRO was denied for the reasons I

stated then and there's an order as well. And I also noted

thereafter, I issued an order to show cause why the complaint

should not be dismissed as being moot because the only -- the


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only remedy sought was related to the -- what was in the TRO.

But, of course, I gave the plaintiffs leave to file an amended

complaint, which they did. And filing today or -- the motion

for a preliminary injunction, which I am reviewing today and

ruling on today.

And the amended complaint alleges that the errors in

House District assignments were the result of "defendants

employing inadequate safeguards, including allocating

insufficient resources against erroneous deprivations of the

right to vote."

The amended complaint further alleges that the --

that administrators of this election knew or had reason to

know that significant numbers of registered voters were

incorrectly assigned to House Districts well before the 2017

election. There's some detail there that I don't think I need

to go into, but. And the allegation is that other election

officials in Fredericksburg and the Department knew about the

incorrect assignments no later than 11 a.m. on election day.

So the amended complaint says there's a denial of the right to

vote in violation of substantive due process, a denial of the

right to vote in violation of procedural due process, undue

burden on the right to vote in violation of the First

Amendment and the equal protection clause of the Fourteenth

Amendment and disparate treatment of voters in violation of

the equal protection clause and simply disparate treatment.


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Well, the standard for issuance of preliminary

injunction is too well settled to require extended discussion.

A party seeking a preliminary injunction must demonstrate that

that party is likely to succeed on the merits, that that party

is likely to suffer irreparable harm in the absence of

preliminary relief, and that the balance of equities tips in

that party's favor, and that an injunction is in the public

interest.

Now the Winter case in the Supreme Court is the best

authority for that. And if you're as old as I am you know

that Winter altered long-standing Virginia law that went back

to, at least the '60s. Making the standard a little more

rigorous. No sliding scales or anything of that sort.

So the Fourth Circuit has, in applying Winter, made

clear that the movement -- I'm sorry, that the movant need not

show a certainty of success, but the movant must make a,

quote, clear showing, closed quotes, of likelihood of success

on the merits. And that's from the Pashby case at 709 F.3d.

So we begin with an analysis of the various factors

to be considered for a preliminary injunction. We begin with

whether the plaintiffs have made a requisite clear showing of

likely success on the merits.

Now the Supreme Court has made clear that the first

inquiry in any suit under 1983 is whether the plaintiff has

been deprived of the rights secured by the constitution and


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the laws. And in the context of state or local election

irregularities, the Fourth Circuit has also made clear that

whether the irregularity amounts to a constitutional claim,

depends on its severity, whether it was intentional or more of

a negligent failure to carry out properly state election

procedures and whether it erodes a democratic process. That's

from the Hendon case, which we've heard reference to tonight,

and I'll say more about in a minute.

Importantly, Fourth Circuit precedent also requires

courts considering these claims to pay mind to the functional

structure embodied in the Constitution. The nature of the

federal court system and the limitations inherent in the

concepts of both -- the concepts both of limited federal

jurisdiction and the remedy afforded.

In other words, it is important for federal courts

to be exquisitely sensitive to interfering in state matters.

I think I've stated that a little too broadly. But

essentially it means that federal courts should be very

sensitive to that.

Now the plaintiffs in this case argue they were

denied their right to vote in HD-28 or had their votes diluted

in violation of the due process or equal protection clauses of

the Fourteenth Amendment.

As an initial matter, it's not entirely clear

whether there is a federal constitutional right to vote in a


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55

particular district. The districts are assigned by the

General Assembly and federal law appears to be essentially

agnostic on the question of which ballot a voter is given.

But with that said, the Supreme Court has also made clear that

a citizen has a constitutionally protected right to

participate in elections on an equal basis with other citizens

in the jurisdiction.

So I'm going to proceed on the assumption that there

is a constitutional right that is involved -- that could be

involved in voting in a particular district. That doesn't

mean I have decided this matter by any means.

Now with respect to the plaintiffs' substantive due

process claims or arguments, courts in this circuit and

elsewhere have uniformly distinguished between patent or

patent and fundamental and broad-gauged unfairness that erodes

the democratic process and garden-variety election

irregularities that do not give rise to a due process claim

under Section 1983. Numerous cases so hold, including

Hutchinson, which we've discussed here this evening.

So if we look at the cases, it's not surprising that

one side or the other picks cases that they believe reflect

something close to what happened and either characterizes it

as broad-gauged or not. So if we look at that, the Griffin

case points out that cases justifying federal intervention

have involved attacks upon the fairness of the official terms


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and procedures under which elections were conducted and have

not required the federal court to enter into the details of

the administration of the election.

Specifically, courts have found that the total

abrogation of a statutorily mandated special election --

that's the Welch case in the Fifth Circuit -- the widespread

retroactive invalidation of the absentee and shut-in ballots

cast by voters relying on official inducements -- that's the

Griffin case -- the systematic lack of uniform rules and

standards and procedures leading to failures in registration,

voting machine allocation, and poll worker training over the

course of 30 years and several elections -- that's all the

League of Women Voters against Brunner -- and last minute

consolidation of precincts resulting in hours long waiting

times all -- that resulted in large numbers of people not

being able to vote at all, all amount to the kind of

broad-gauged unfairness that renders an election patently and

fundamentally unfair.

Now, on the other hand, the inaccurate tabulation of

votes stemming from malfunctioning electronic voting devices

-- that's the Shannon case and the Hennings against Grafton

case and the White-Battle case -- the dilution of illegal

votes caused by election officials permitting non-democrats to

vote in a democratic primary -- that's the Powell case in the

Second Circuit -- the mistaken use of wrong district map in


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assigning voters -- that's the -- that's the Harris City

Department of Education against Harris City, Texas -- and the

inadvertent printing of ballots that fail to comply with the

statutory requirement -- that's the Hendon case -- have all

been deemed to be garden-variety irregularities insufficient

to state a due process claim.

In my view, and I recognize that it's a judgment.

This will come as no surprise to all of you, that's what I do.

That's what judges do. They make judgments.

In my judgment, plaintiffs have not made the

requisite clear showing that the assignment of voters to

incorrect House Districts and the distribution of ballots

associated with those incorrect House Districts amounts to the

kind of broad-gauged unfairness necessary to state a due

process claim.

Rather, as in the Shannon, Hennings, Powell, Harris

and Hendon cases, the allegations in the amended complaint

attribute those election or these election irregularities

largely to innocent human or mechanical error in entering the

addresses assigned to each precinct and at most negligence on

the part of election officials in failing to take steps to

correct those errors. So that's important what I've just

said. What I've just said is I think that at most -- at most

there -- there are some negligent errors in failing to make

these corrections.


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I don't think there is any evidence or claim that

there was any great conspiracy to dilute these votes in HD-28

or to do anything else nefarious. Certainly no evidence of

that is shown. Some evidence was adduced last night that

these things were talked about. And today I heard from a

response saying they aren't the same as the issues that are

being raised today. I'm not entirely clear. I'm going to

look more closely at that, because I'm going to write an

opinion about this, but I don't see that as the same. I think

these officials acted reasonably in these circumstances. I'll

say more about that in a minute. That doesn't mean that I

think they reached the right result. But I think they acted

reasonably and without any intent or discriminatory animus or

anything else.

(Discussion off the record.)

THE COURT: Now I think the -- as in Shannon,

Hennings, Powell, Harris, and Hendon the allegations in the

amended complaint, I think, attribute the election

irregularities, I think here, largely to innocent human or

mechanical error in entering the addresses assigned to each

precinct or negligence on the part of election officials in

failing to take prompt steps to correct those errors.

Now the election officials' failure to offer

provisional ballots to affected voters on election day, in my

view, does not arise to a due process violation.


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If you think about it a minute, the statute on

provisional ballots you have to show up and you have to file

an affidavit that says you're entitled to vote in that

district and then you get only one ballot. What you can't do

is give ballots for somebody in HD-28 and then they get a

ballot in HD-88 and they go and vote. Because you can't ever

count -- you can't ever keep them out. There might be a way

to do it, but I think the officials in these circumstances

made a reasonable decision to rely on the data that they had,

the VERIS data that they had, in their determinations. And I

don't find that is sufficient to trigger the broad-gauged,

patent, and fundamental unfairness that erodes the democratic

process, that would be -- that would be necessary to state a

due process claim.

Now in Hendon plaintiff voters brought equal

protection and due process claims alleging that their right to

vote was violated when the ballots in the General Election

failed to comply with the technical requirements of a North

Carolina statute. Although the Fourth Circuit acknowledged

the failure of the ballots to comply fully with statutory

requirements, the Fourth Circuit there found that that failure

does not constitute a violation of the due process clause,

because there's no indication that the failure was other than

simple negligence on the part of election officials.

So, as in Hendon, even assuming the failure of


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election officials to provide provisional ballots, which I

don't think was a violation of Virginia law, but I think that

there is no persuasive indication or evidence that the failure

was other than simple negligence on the part of election

officials.

So in sum, because allegations suggest that the

errors were, in my view, no more than garden-variety

irregularities, that doesn't mean that it isn't important to

those people whose votes should have been counted in HD-28 or

HD-88 and were not that it's not a big deal to them. Of

course I understand it's a big deal. But it's -- there are

other big deals here like federal courts sticking their noses

into state election procedures, which may have to happen. If

I go on and hear this case and I hear more evidence and I make

appropriate findings, I could order a new election. But it's

going to take much, much more than I've seen before today.

And I indicated that during the TRO. I think to some extent

the plaintiffs recognized that I am not an enthusiastic -- not

enthusiastic about interfering in state elections and that I

hope the General Assembly would take care of it. Well, that

wasn't a path that was chosen. And I understand that. Who

knows what I would have done if I had been a lawyer in this

case. I might have made the same choice.

But in any event, I did make my preference for state

remedy for this problem known. In any event, as I said the


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allegations here and the evidence that has been presented

suggest the errors here were no more than garden-variety

irregularities and I don't believe the plaintiffs have made

the requisite clear showing of likely success on their

substantive due process claim.

The procedural due process claim or argument

similarly fails. Put simply, the plaintiffs have failed to

allege as sufficiently constitutionally protected a sufficient

constitutionally protected interest. For example, in the

Brunner case, the Sixth Circuit considered a similar

procedural due process claim, namely the -- that failures of

election procedures deprive voters of their liberty interest

in voting without adequate pre or post deprivation process.

The Brunner court recognized that even though the

voting system in that case impinged on fundamental right to

vote, plaintiffs nonetheless had failed to allege a

constitutionally protected interest. The plaintiffs here

point to no authority actually supporting the existence of a

procedural due process claim. Indeed, the only voting case

they cite in this section of their brief, Bush against Gore

and Hunter against Hamilton City involved a substantive due

process, an equal protection claim, not a procedural due

process claim. So in my view, the plaintiffs here have not

made the requisite clear showing that they're likely to

succeed on the merits of their procedural due process claim.


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Now finally, with respect -- well not quite finally.

Let me mention, there was something said about the Krieger

case. That was a case in which two rounds of ballots were

misprinted and a third correct ballot was sent out even though

the state election officials decided to count the first two

sets of ballots or first set of ballots where one of the

candidates was not even identified. The Court determined that

this was a broad-gauged unfairness because the election

officials made the decision to count hundreds of ballots that

did not list all of the qualified candidates. In my view

that's very different from this case.

In addition, also cited in the course of argument,

was the Bennett case. This falls on the other side. There

the Ninth Circuit held that a Hawaii Supreme Court

interpretation of a state law resulting in the counting of an

additional 45,000 ballots as cast ballots within the meaning

of the state constitution was not a fundamentally unfair

abridgment of the right to vote. Although, the state election

commission had informed voters before the election that

abstention ballots -- and that's what happened, they didn't

put in their vote, they just left it blank -- that abstention

ballots would not count towards the total number of ballots

cast, that fact did not persuade the Ninth Circuit that the

Hawaii Supreme Court had violated the substantive due process

rights of Hawaii voters by choosing to interpret the Hawaii


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Constitution differently.

So importantly, the Ninth Circuit noted that the

state -- the states have the right to determine their own

election rules. And that's true here as well. There's

actually a good deal more law about that that I don't have the

time to get into, but I do think it's important to reference

that.

In the -- so let me proceed. I think the plaintiffs

have failed to make a clear showing of likelihood of success

on the merits with respect to their equal protection claims.

They argue that Anderson-Burdick framework applies. And under

that framework any interest in Virginia, any interest Virginia

might have in differentiating between the residents of HD-28

does not outweigh the severe deprivation associated with a

denial of the right to vote. But it's not clear that

Anderson-Burdick line of cases even applies here. In fact, I

don't believe it does.

In Anderson-Burdick and their progeny courts have

considered the constitutionality of state statutes,

regulations, or policies that burden the right to vote, not

accidental mistakes on the part of election officials in

administering an election. To hold otherwise would

effectively transform any inadvertent error in the

administration of state elections into a federal equal

protection violation and I don't think the law supports such a


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conclusion.

Here the plaintiffs do not allege that the incorrect

assignments of voters was the result of a state policy or a

state regulation or statute. Rather, plaintiffs identified a

series of mistakes and corresponding failures to take

corrective action. And there was, I think, this late admitted

evidence that was brought to my attention is meant to show

that it was ongoing for a long time. But I heard today, from

one of the advocates, that those are different. Of course I

will look more carefully at that in the future, but for now

I'm not persuaded. The only policy plaintiffs identify is the

local election officials' decision not to provide provisional

ballots to voters who identified themselves as assigned to the

incorrect district on election day. And they say allegedly

that's in violation of Virginia law. I don't agree with that

being in violation of Virginia law.

I think if we look at the text of Virginia Code

24.2-653A -- I think what the statute is focussing on is on

people who are not permitted to vote because they don't appear

to be registered and they file an affidavit, they're given a

provisional ballot. As I said the problem with someone who

says that I'm supposed to vote in HD-28, you've given me a

vote -- a ballot for HD-88, that can't be remedied on the spot

with a provisional ballot. I suppose what could have happened

-- but there's no precedent for it -- is that they could have


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given someone both ballots, put them away, figured out the

right, and then counted them. They could have done that. I

don't believe the federal constitution requires that. I think

they were reasonable in relying on VERIS as it existed.

Now so the Seventh Circuit in Hennings considered a

similar claim, namely the failure of election officials to

provide substitute paper ballots when voting machines

malfunctioned in violation of state law. They said that was a

violation of state law. That wasn't sufficient to raise an

equal protection claim because the mere violation of a state

statute by an election official will not give rise to a

constitutional claim and an action under Section 1983. That

is Hennings quoting Snowden against Hughes in the Supreme

Court.

So in my view, at this point, plaintiffs have not

made clear that the Anderson-Burdick framework applies here.

Plaintiffs also allege that election officials violated the

equal protection clause by providing some HD-28 voters with

correct ballots and others with incorrect ballots. Plaintiffs

contend that this disparate treatment of voters living in the

same district was arbitrary and thus amounts to an equal

protection violation.

And the Supreme Court has noted that generally

uneven or erroneous application of an otherwise valid statute

may constitute denial of equal protection, but only if it


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represents intentional or purposeful discrimination. That's

the Snowden case in 321 U.S.

Importantly, in the voting contest, the Supreme

Court has more recently recognized that arbitrary treatment in

some circumstances can also result in equal protection

violation, even where it is not intentionally discriminatory.

That's Bush against Gore, which once it was issued was said

don't rely on this for anything in the future.

Neither of these factors, neither arbitrary or

intentional discrimination, exists here. To begin with, as

I've mentioned before, the amended complaint contains no

allegations nor has any evidence been presented that any

individual or that any invidious or intentional discriminatory

behavior exists on the part of the election officials.

At most, the amended complaint discloses negligence

on the part of registrar employees in entering information and

negligence on the part -- perhaps on the part of election

officials in failing to correct mistakes once they became

aware of them.

In Gamza, an error in setting up matrices on voting

machines meant that many votes for one candidate were

erroneously assigned to a different candidate. There, the

Fifth Circuit concluded that the error did not constitute

denial of equal protection of the laws because there was no

evidence that the initial error in setting up the matrices and


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the subsequent miscount of the ballots resulted from anything

other than entirely innocent human error. Now that's Gamza at

619 F.2d at 452.

Nor, in my view, have plaintiffs made a clear

showing that the election officials subjected voters to

arbitrary distinctions. Courts have generally found equal

protection violations where a lack of uniform standards and

procedures results in arbitrary and disparate treatment of

different voters. Bush against Gore, for example, in the

recounts. Similarly the Sixth Circuit in Brunner found that

the facts in the complaint adequately alleged an equal

protection violation because nonuniform rules, standards, and

procedures for elections in Ohio had resulted in massive

disenfranchisement and unreasonable dilution of the vote,

depending on a voter's residence.

So by contrast, that's -- this case is quite

different. The amended complaint here does not allege that a

lack of uniform or specific standards and procedures

contributed to the erroneous assignment of voters to House

Districts. Instead, the complaint alleges that the election

irregularities resulted from mere human error in failing to

assign addresses to the right location and negligent in

failing to correct fully the errors once election officials

learned of the possibility of incorrect assignments.

Plaintiffs do not argue that the procedures for


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assigning localities are not uniform or that the voters were

treated differently once they informed poll workers that they

believed themselves assigned to a different district. So,

it's far from clear that plaintiffs are likely to succeed on

their claim that state officials imposed distinctions so

arbitrary as to amount to equal protection violations.

Now with respect to the issue of irreparable harm,

plaintiffs essentially contend that any deprivation of a

constitutional right automatically constitutes irreparable

harm. This ignores an important part of the analysis courts

must conduct. And let me be clear, having found that there's

not a clear showing of success on the merits, there is no

obligation to go on to the other factors. But I do so anyway.

You spilled a lot of ink and so I'm going to do it.

As I've said, any deprivation of a constitutional

right automatically constitutes irreparable harm ignores an

important part of the analysis the Courts must conduct in

considering whether to grant a preliminary injunction.

Namely, whether a party is likely to suffer irreparable harm.

In this case, assuming these plaintiffs were denied the right

to vote in HD-28 in the November 7th, '11 -- November 7th

election, that irreparable harm has already occurred. The

important question is thus whether additional irreparable

harm, if preliminary relief is not granted, occurs. And their

reply in support of their motion for preliminary injunction,


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plaintiffs suggest that important House of Delegates business

takes place in the first month of a session.

Yes, I won't quarrel with that. I suppose some

people might quarrel with the notion that important work takes

place there. Brings back memories. Back in the late '60s,

early '70s I participated in trying to get a bunch of law

changes for the procedural code and so I appeared numerous

times, worked with committees, and worked with changing the

statute and the most I can say that if you're going to be a

legislator you should have very, very long patience. And

you've got to be prepared to tolerate a lot of foolishness.

In any event, that's irrelevant.

So in their reply brief, as I pointed out,

plaintiffs suggest that the House of Delegates business in the

first few weeks is very important. And I take that point.

That's a fair point. Namely, the Speaker is chosen and

committee assignments are selected.

Plaintiffs allege that this process affects many of

the bills and will be considered in the session in how votes

occur and suggests that this -- that this cannot later be

repaired. But at the same time, Thomas can be removed from

his office if a new election is ordered and if Joshua Cole

prevails.

As such, some of the harm can later be remedied.

Not all of it. I think there is some -- some strength to the


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claim that there is irreparable harm. But as I said, that

becomes irrelevant if there's no clear showing of likelihood

of success on the merits.

Next is the balance of equities whether the public

interest weighs in favor of plaintiff -- plaintiffs. To be

sure, the right of suffrage is a fundamental matter. No doubt

about that. But the Fourth Circuit has emphasized the

importance of considering, in these cases, the functional

structure embodied in the constitution, the nature of the

federal court systems, and the limitations inherent in the

concepts of both limited federal jurisdiction, and of the

remedy afforded by Section 1983. That is, as I mentioned, is

from Hutchinson and Gamza.

In this case, the structure of the constitution and

the nature of the federal court system weigh somewhat in favor

of the defendants. As the Fourth Circuit recognized in

Hutchinson, which is a case more -- which is a case that has

been much discussed here -- the constitution anticipates --

this is Hutchinson -- anticipates that the electoral process

is to be largely controlled by the states and reviewed by the

legislature. And the Supreme Court has made clear that the

states undoubtedly retained primary authority to regulate the

elections of their own officials. That goes back almost a

century.

Virginia here has done its job of ensuring due


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process by providing numerous avenues by which to challenge

election results, including recounts and election contests in

the House of Delegates and others. Intervention of a federal

court into the details of this election would be, on this

record, would be inconsistent with proper respect for the role

of others whose job it is to canvass the returns and declare

the prevailing party. And the granting of an injunction might

also provide incentives for candidates and voters to ignore

principal roots established to challenge an election.

The Supreme Court has noted that federal voiding of

a state election is "drastic." That's the word in Bell

against Southwell is "drastic" if not staggering remedy. And

as such it is a form of relief to be guardedly exercised.

So a federal court must exercise caution before

interfering in a state election, particularly on a threshold

motion before all facts have been developed. Although a great

many have been developed.

So, in conclusion, plaintiffs have not made a clear

showing that they are likely to success on the merits of their

claims under the due process or equal protection clause, nor

have they shown that the balance of hardships and public

interest favor an injunction. So I'm denying the motion for a

preliminary injunction.

But having said that, let me be clear, if the facts

were different I wouldn't hesitate to call for a new election.


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If there were large groups of people, obviously if they were

denied the right to vote because of their ethnicity or for

some other reason, that would fall on the other side of the

Hutchinson line. But in this case, I come back to saying that

it's my judgment at this time, on this record, that there is

no clear showing of likelihood of success on the merits to

warrant a preliminary injunction. And I say that fully

cognizant of the argument made by the plaintiffs that

important things happen in the early part of the General

Assembly.

Now having denied the motion for a preliminary

injunction, the next thing that ought to happen in this

litigation is parties ought to file their motions to dismiss,

if you intend to. We have a lot of defendants in this case

that I think perhaps have no business in the case. But I may

be wrong. And I'm prepared to reconsider that, but I want

motions to dismiss, if you feel your client is entitled to

one, to be filed promptly. And so that we can resolve that

and determine whether this case goes on or not. I will issue

an opinion that sets out what I have said tonight and more.

So the parties will have that.

Now I appreciate your patience. I know that my

ruling is disappointing to a large number of you, but the one

thing you -- I hope you cannot be disappointed is I have not

ignored your claims. I have not failed to pay attention to


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them and failed to consider the authorities you've cited.

That doesn't mean I know I'm right. What it means is I've

done the best I could and I think I'm right and that's what I

do.

And I also want to thank counsel for your briefs and

your arguments. They were helpful and interesting. There's

not a lot of law in this area of this kind of irregularity,

this kind of situation. But I think this case will be helpful

to voting officials around Virginia to make sure they have

things as up-to-date and as correct as they can.

Thank you for your patience. Court stands in recess

until Monday.

(Proceedings adjourned at 7:49 p.m.)


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74

CERTIFICATE OF REPORTER

I, Tonia Harris, an Official Court Reporter for

the Eastern District of Virginia, do hereby certify that I

reported by machine shorthand, in my official capacity, the

proceedings had and testimony adduced upon the Motion for

Preliminary Injunction in the case of the KENNETH J. LECKY,

et al versus VIRGINIA STATE BOARD of ELECTIONS, et al,

Criminal Action Number 1:17-CV-1336, in said court on the

5th day of January, 2018.

I further certify that the foregoing 74 pages

constitute the official transcript of said proceedings, as

taken from my machine shorthand notes, my computer realtime

display, together with the backup tape recording of said

proceedings to the best of my ability.

In witness whereof, I have hereto subscribed my

name, this the January 7, 2018.

______________________________Tonia M. Harris, RPROfficial Court Reporter


in the united states court of appeals for the …...marc erik elias bruce v. spiva brian simmonds...

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