Lecky et al v. Virginia State Board of Elections et al

Filing 124

MEMORANDUM OPINION re Motion for Preliminary Injunction. Signed by District Judge T. S. Ellis, III on 1/11/18. (klau, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
KENNETH J. LECKY, et al.,
Plaintiffs,
v.
VIRGINIA STATE BOARD OF
ELECTIONS, et al.,
Defendants.

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Case No. 1:17-cv-1336

MEMORANDUM OPINION
This matter is before the Court on plaintiffs’ Motion for a Preliminary Injunction (Doc.
36). Plaintiffs, four residents of Virginia House District 28 (“HD 28”), brought this suit claiming
that their First and Fourteenth Amendment rights were infringed when poll workers mistakenly
gave ballots for House District 88 (“HD 88”) to residents of HD 28 at the general election in
Virginia on November 7, 2017. Plaintiffs are now seeking a preliminary injunction ordering
officers of the Virginia State Board of Elections to vacate the certification results for HD 28,
barring the Clerk of the Virginia House of Delegates (“House of Delegates”) from seating the
winner of the HD 28 race, and ordering a new election for HD 28.
I.
Plaintiffs are all registered voters and residents of HD 28 in Virginia. Each of the
plaintiffs voted in the November 7, 2017 general election in Virginia. On Election Day, three of
the plaintiffs, Kenneth Lecky, Dolores (“D.D.”) Lecky, and Phillip Ridderhof were given ballots
for HD 88 despite being residents of HD 28. Amy Ridderhof successfully voted in HD 28. 1

1

Despite successfully voting in HD 28, Amy Ridderhof argues that her vote was diluted when HD 88 voters were
mistakenly permitted to vote in HD 28.

1

Defendants include several organizations as well as individuals.

The organizations

include: the Virginia State Board of Elections (“State Board of Elections”), which regulates
Virginia elections and certifies the results of those elections; the Virginia Department of
Elections (“Department of Elections”), which implements election laws and regulations to
support accurate fair, open, and secure elections; the Stafford County Electoral Board (“Stafford
Board”), which prepares ballots, administers absentee voting, conducts elections, and ascertains
results of elections in Stafford County; and the City of Fredericksburg Electoral Board
(“Fredericksburg Board”), which prepares ballots, administers absentee voting, conducts
elections, and ascertains results of elections in the City of Fredericksburg. The individual
defendants, each sued in their official capacities, include James B. Alcorn, Clara Wheeler, and
Singleton McAllister of the State Board of Elections; Edgardo Cortes, the Commissioner of the
Department of Elections; Doug Filler, Marie Gozzi, and Gloria Chittum of the Stafford Board;
Greg Riddlemoser, the General Registrar of Stafford County; Rene Rodriguez, Aaron Markel,
and Cathie Fisher Braman of the Fredericksburg Board; Marc Hoffman, the General Registrar of
the City of Fredericksburg; Robert Thomas, Jr. (“Thomas”), the certified winner of the HD 28
election; Paul Nardo, the Clerk of the House of Delegates; and Terry McAuliffe, the Governor of
Virginia.
A brief summary of voting procedures in Virginia will provide necessary context for the
events that occurred on November 7, 2017. Voting assignments in Virginia track the United
States Census. Following the publication of a Census, the General Assembly redraws districts
and assigns localities or precincts 2 to each district based on federal and constitutional
restrictions. Precincts may be wholly within a particular district or split to include voters from

2

Precincts are entities established by localities.

2

multiple districts. After new districts are finalized, the 133 General Registrars across Virginia
manually assign addresses to districts in the Virginia Election & Registration Information
System (“VERIS”), a statewide database which contains voting data.

Because roads and

addresses do not follow the 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 can further complicate this
process. When an election occurs, the State Board of Elections provides VERIS data to polling
locations so that poll workers can distribute the correct ballots to individual voters.
In 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 and the City
of Fredericksburg between HD 28 and HD 88. 3 Specifically, using the precincts in existence as
of April 1, 2011, 4 the General Assembly assigned 12 full precincts and part of another precinct in
Stafford County and two full precincts and part of another precinct in the City of Fredericksburg
to HD 28. See Va. Code § 24.2-304.3. General Registrars statewide then updated the addresses
assigned to each district in VERIS, accounting for changes to the boundaries.
Several months after the 2011 redistricting, the City of Fredericksburg redrew its precinct
lines. As a result, several precincts not formerly split between HD 28 and HD 88 became split
between the districts, meaning that voters in the same precinct were located in different house
districts. Different voters at the polling place would have different ballots from voters in polling
booths next to them depending not on the current precinct lines, but on the precinct lines that were
previously in the 2010 Census reports.

3

Stafford County also contained precincts within HD 2.

4

See Va. Code. § 24.2-304.-3(C).

3

The general election for the House of Delegates occurred on Tuesday, November 7, 2017.
On that day, plaintiffs all went to their respective polling locations to attempt to vote in the HD
28 race between Joshua Cole (“Cole”) and Thomas. Amy Ridderhof successfully voted in HD
28. Phillip Ridderhof, despite being correctly assigned in the VERIS database as a voter in HD
28, received a ballot for HD 88 due to poll worker 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 D.D. Lecky a ballot for HD 88,
she told the poll workers that she believed she should have been registered to vote in HD 28.
After she voted, DD Lecky raised her concerns again to two Board Members, Rodriguez and
Markel, who directed her to the map of HD 28. When the map suggested that she had been
assigned to the wrong district, the Board Members determined, on the basis of the VERIS
database, that the map was incorrect and removed it from the polling place. The election
officials also denied provisional ballots to the affected voters on Election Day based on their
determination that the VERIS database was entitled to a presumption of validity and that if the
database were incorrect, state mechanisms could remedy the errors. Specifically, the Virginia
Code allows an unsuccessful candidate in an election to request a recount of the votes cast in the
election 5 or to contest the validity of the election in the General Assembly on the basis of
objections to the conduct or results of the elections. 6
Complaints prompted the Department of Elections to investigate the reasons for, and the
extent of, any irregularities. On November 27, 2017, the Department of Elections issued a
summary of the findings of the investigation, including:

5

See Va. Code 24.2-802.

6

See Va. Code 24.2-803.

4

•
•
•
•

260 voters were incorrectly listed in the VERIS database as residing in HD 2 or HD 88,
rather than HD 28.
86 of those 260 individuals voted in the November 7 election.
124 voters who were not residents of HD 28 were incorrectly listed as residents of HD
28.
61 of those 124 individuals voted in the November 7 election.

Thus, in total, 384 voters were assigned to incorrect districts in the VERIS database, 147 of
whom voted in the November 7, 2017 election.
Plaintiffs brought this suit pursuant to § 1983 on November 21, 2017, alleging violations
of their First and Fourteenth Amendment rights and seeking a temporary restraining order
(“TRO”) to enjoin the Department of Elections from certifying the results of the HD 28 election.
Because the statutory deadline for certifying the election results was fast-approaching, plaintiffs
sought a prompt hearing on the request for a TRO. Following full argument on the merits, the
Court denied the motion for a TRO, noting that, for the reasons stated by the Court in the course
of the hearing, plaintiffs had not met the requirements for the issuance of a TRO as set forth in
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).

Specifically, the

plaintiffs had not made a clear showing of likelihood of success on the merits. Nor did the
record reflect that the plaintiffs would suffer immediate irreparable harm as there was a potential
state remedy for any inadvertent error in the distribution of ballots. And the balance of equities
and public interest weighed in favor of allowing certification to proceed. 7 Accordingly, on
November 22, 2017, an Order issued denying plaintiff’s motion for a TRO. See Lecky v. Va.
State Bd. of Elections, 1:17-cv-1336, at *1 (E.D. Va. Nov. 22, 2017) (Order). Thereafter,
pursuant to Virginia Code § 24.2-679, the State Board of Elections certified the results of HD 28

7

In the hearing, the Court emphasized that principles of separation of powers and federalism establish a preference
that where, as here, state or local election irregularities occur, those irregularities should be addressed in the first
instance through state mechanisms—in this case, contest proceedings in the General Assembly. That is not to say
that federal courts should never interfere in state or local elections, but these principles suggest that states should be
afforded the first opportunity to remedy errors in their own elections.

5

for the 2017 general election with Thomas receiving 11,842 votes and Cole receiving 11,760
votes—a margin of victory of 82 votes. A later recount, requested by losing candidate Cole,
confirmed Thomas as the winner of the election, but reduced the margin of victory to 73 votes.
Cole did not give written notice of his intent to contest the election within three days of the
conclusion of the recount, and, as such, these election results are now final. 8
Because the only remedy plaintiffs sought in the original complaint was an injunction
prohibiting the Department of Elections from certifying the election results, an Order issued on
November 29, 2017, directing plaintiffs to show cause why the complaint should not be
dismissed as moot. See Lecky v. Va. State Bd. of Elections, 1:17-cv-1336, at *1 (E.D. Va. Nov.
29, 2017) (Order). On December 6, 2017, plaintiffs filed an amended complaint and the motion
for a preliminary injunction at issue here. The amended complaint alleges that the errors in
house district assignments were the result of “[d]efendants employing inadequate safeguards,
including allocating insufficient resources, against erroneous depravations [sic] of the right to vote.”
Am. Compl. ¶ 33. The amended complaint further alleges 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.

To support this allegation, plaintiffs attached

declarations to their reply in support of the motion for a preliminary injunction which disclosed that
in March 2015, the Fredericksburg Registrar’s Office received a telephone call about possibility of
voters being given incorrect ballots for two districts. Later, on April 22, 2016, at a meeting of the
Fredericksburg Board, Chairman Rodriguez discussed the problem of incorrectly assigned voters and
requested that the issue be fixed. Plaintiffs also filed a motion to file supplemental briefing on
8

Although not essential or material to resolution of this preliminary injunction, it is worth noting that the
Department of Elections’ report revealed that 61 people mistakenly voted in HD 28, rather than HD 88, and 86
people incorrectly voted in HD 88, rather than HD 28. Given Thomas’s margin of victory was 73 votes, the election
results would only change if many of the voters who mistakenly voted in HD 28 voted for Thomas, and if many of
the voters who mistakenly voted in HD 88 intended to vote for Cole. In any event, this calculation is irrelevant and
certainly does not render moot the request for a preliminary injunction.

6

January 4, 2018, the night before the hearing on their motion for a preliminary injunction. Plaintiffs
attached declarations to that motion which provided additional evidence of the discussion of these
problems prior to 2017, namely that the Speaker of the House of Delegates complained about the
incorrect assignment of voters in April 2015 and the loser of the 2015 Republican primary requested
FOIA documents in March 2016 about the assignment of voters to HD 28 and 88. Finally, the
supplemental briefing reveals that the Hoffman, the General Registrar of Fredericksburg, sent emails
to the Department of Elections in March 2017 asking how to ensure he received the correct ballots
for Fredericksburg precincts. 9
Based on these allegations, the amended complaint asserts the following five claims: (1)
denial of the right to vote in violation of substantive due process; (2) denial of the right to vote in
violation of procedural due process; (3) undue burden on the right to vote in violation of the First
Amendment and the Equal Protection Clause of the Fourteenth Amendment; (4) disparate treatment
of voters in violation of the Equal Protection Clause; and (5) disparate treatment. Plaintiffs also seek
a preliminary injunction ordering the State Board of Elections to vacate the certification results

for HD 28, barring the Clerk of the House of Delegates from seating the winner of the HD 28
race, and ordering a new election for HD 28. 10
II.
The standard for the issuance of a preliminary injunction is too well-settled to require
extended discussion. A party seeking a preliminary injunction must demonstrate “that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

9

At oral argument on the motion for a preliminary injunction, counsel for Defendant Registrars argued that these
events do not actually indicate that the election officials were aware in advance of the specific problems that
occurred on November 7, 2017. Specifically, counsel noted that the errors addressed in 2015 and in 2016 involved
voters different from the voters affected in the 2017 election.
10

On January 8, 2018, following oral argument and before an order or a memorandum opinion issued, plaintiffs
noticed an appeal of the Court’s oral denial of plaintiff’s motion for a preliminary injunction. Merely noting an
appeal, however, does not preclude issuance of this Memorandum Opinion.

7

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Winter, 555
U.S. at 20). With respect to likelihood of success on the merits, the Fourth Circuit has made
clear that though the movant need not show a certainty of success, he must make a “clear
showing” that he is likely to succeed on the merits. Pashby v. Delia, 709 F.3d 307, 320 (4th Cir.
2013). Analysis of each of these factors discloses that plaintiffs have not made the required
showing for a preliminary injunction.
A.
To begin with, plaintiffs have not made the requisite clear showing of likely success on
the merits. The Supreme Court has made clear that the first inquiry in any suit under § 1983 is
“whether the plaintiff has been deprived of a right secured by the Constitution and laws.” Baker
v. McCollan, 443 U.S. 137, 140 (1979) (internal quotation marks omitted). In the context of
state or local election irregularities, the Fourth Circuit has also made clear that “[w]hether 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 the state election procedures and whether it
erodes the democratic process.” Hendon v. N.C. State Bd. of Elections, 710 F.2d 177, 182 (4th
Cir. 1983) (quoting Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)). Importantly, Fourth
Circuit precedent also requires courts considering these claims to pay mind to “[t]he functional
structure embodied in the Constitution, the nature of the federal court system, and the limitations
inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by
section 1983 . . . .” Hutchinson v. Miller, 797 F.2d 1279, 1282 (4th Cir. 1986) (quoting Gamza,
619 F.2d at 452). In other words, it is important for federal courts to be exquisitely sensitive to
interfering in state and local elections because, as the Supreme Court has noted, states have the

8

power “to regulate the elections of their own officials.” Oregon v. Mitchell, 400 U.S. 112, 125
(1970) (opinion of Black, J.). This does not mean that federal courts should never intrude into
the state electoral process, but it does underscore that federal courts should not do so absent
thorough consideration of both the merits of the claims and the implications of intervention.
Plaintiffs in this case argue that they were denied the right to vote in HD 28 11 or had their
votes diluted in violation of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. With respect to plaintiff’s substantive due process claims, courts in this circuit and
elsewhere have uniformly distinguished between “broad-gauged,” “patent and fundamental
unfairness that erode the democratic process” and “garden variety election irregularities” that do
not give rise to a due process claim under § 1983. See, e.g., Hutchinson, 797 F.2d at 1283,
1287. 12 In this regard, cases justifying federal intervention have involved attacks “upon the
fairness of the official terms and procedures under which the election was conducted” and have
not required the federal court to “enter into the details of the administration of the election.”
Griffin, 570 F.2d at 1078. Importantly, “[m]ere fraud or mistake will not render an election
invalid.” Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998) (holding that the Hawaii
Supreme Court’s ex post clarification of state law to count 45,000 blank ballots as cast ballots
amounted to “a garden variety election irregularity,” and not a substantive due process violation).

11

As an initial matter, it is not clear that there is a federal constitutional right to vote in a particular district. The
districts are assigned by the General Assembly, and federal law appears to be agnostic on the question of which
ballot a voter is given. With that said, the Supreme Court “has made clear that a citizen has a constitutionally
protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v.
Blumstein, 405 U.S. 330, 336 (1972). Accordingly, it is appropriate to assume that such a right exists.
12

See also, e.g., Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005); Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir.
1978); Hendon, 710 F.2d at 182.

9

Applying these principles, courts have found that the “total abrogation of a statutorily‐
mandated special election,” 13 the widespread “retroactive invalidation of the absentee and shut‐in
ballots” cast by voters relying on official inducements, 14 the systematic lack of uniform rules,
standards and procedures leading to failures in registration, a lack of sufficient voting machines,
and inadequate poll worker training over the course of 30 years and several elections, 15 and the
last minute consolidation of precincts resulting in hours long wait times and mass
disenfranchisement, 16 all amount to the kind of “broad-gauged unfairness” that renders an
election patently and fundamentally unfair. On the other hand, the inaccurate tabulation of votes
stemming from malfunctioning electronic voting devices, 17 the dilution of legal votes caused by
election officials permitting non-Democrats to vote in a Democratic primary, 18 the mistaken use
of the wrong district map in assigning voters, 19 the inadvertent printing of ballots that failed to
comply with statutory requirements, 20 and the post-election counting of 45,000 blank ballots as
“cast ballots” despite election officials’ pre-election policy of not counting blank ballots, 21 have
all been deemed “garden variety irregularities” insufficient to state a due process claim. In sum,
courts have clearly drawn a line between “broad-gauged unfairness” and “garden variety election
irregularities,” and the task here is to determine where the problems that occurred on November
7, 2017 fall.
13

Welch v. McKenzie, 765 F.2d 1311, 1317 (5th Cir. 1985).

14

Griffin, 570 F.2d at 1070–71.

15

See League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008).

16

Ury v. Santee, 303 F. Supp. 119, 126 (N.D. Ill. 1969).

17

Shannon, 394 F.3d at 90; Hennings v. Grafton, 523 F.2d 861, 863-64 (7th Cir. 1975); White-Battle v. Democratic
Party of Virginia, 323 F. Supp. 2d 696, 705 (E.D.Va. 2004).
18

Powell v. Power, 436 F.2d 84 (2d Cir. 1970).

19

Harris Cty. Dep’t of Educ. V. Harris Cty., Tex., 2012 WL 3886427 at *7 (S.D. Tex. Sept. 6, 2012).

20

Hendon, 710 F.2d at 182.

21

Bennett, 140 F.3d at 1221-23.

10

Plaintiffs have not made the requisite clear showing that the assignment of voters to the
incorrect house districts and the distribution of ballots associated with those incorrect house
districts amount to the kind of broad gauged unfairness necessary to state a due process claim.
Rather, as in Shannon, Hennings, Powell, Harris, and Hendon, the allegations in the amended
complaint attribute 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 correct those errors.
Plaintiffs rely on Griffin, Ury, and Krieger 22 to argue that this case involves broad gauged
unfairness but their reliance on these cases is misplaced as they are distinguishable from the facts
presented here. In Griffin, election officials advertised and issued absentee ballots for use in a
Democratic primary. 570 F.2d at 1067. After the primary, the losing candidate contested the
validity of the absentee ballots, and the Rhode Island Supreme Court ultimately invalidated the
absentee ballots, finding “there is no constitutional or statutory basis for allowing absentee and
shut-in voters to cast their votes in a primary election.” Id. at 1068. On these facts, the First
Circuit found that this retroactive invalidation of ten percent of the ballots cast constituted
“broad-gauged unfairness” because the election officials’ distribution of ballots that were
eventually determined to be invalid was an “officially sponsored election procedure which, in its
basic aspect was flawed.” Id. at 1076. By contrast, in this case, the amended complaint does not
allege that there is any fundamentally flawed, officially sponsored election procedure; instead,
this case involves clerical errors on the part of Registrar employees in assigning addresses to
house districts.

22

Kreiger v. City of Peoria, 2014 WL 4187500 (D. Ariz. Aug. 22, 2014).

11

Plaintiffs’ reliance on Ury is also unpersuasive. Like Griffin, Ury involved a flawed
official policy—the last minute consolidation of 32 precincts into only six precincts—which
resulted in widespread and systematic election problems, including mass disenfranchisement.
The Ury case is clearly distinguishable from the case at bar both in its cause and in its result; the
problems in Ury were caused by an official policy by the Village Board of Trustees, not a
clerical mistake by Registrar employees. Moreover, because of the consolidation of precincts in
Ury, voters on Election Day encountered long wait times, inadequate voting facilities, traffic
jams, and excessive crowding at the polling places, all of which resulted in “hundreds of voters
[being] effectively deprived of their right to vote.” 303 F. Supp. at 124. Indeed, the Ury
complaint attached affidavits of 397 voters who were unable to vote at all in the election. In
sum, the source and the scope of the problems in Ury are completely different from the clerical
errors that occurred here.
Krieger also involved a flawed officially sponsored election policy, and as such, is
unhelpful to plaintiffs’ case. In Krieger, defendants mistakenly printed two rounds of ballots that
did not include the name of one of the candidates. The Krieger court emphasized that the
plaintiffs there were not challenging the election officials’ mistake in printing the wrong ballots
because the misprinted ballots “were unintended irregularities.” Id. at *5. Rather, the Krieger
plaintiffs challenged “the official action taken by Defendants to remedy those errors,” namely the
election officials’ policy that votes cast on the misprinted ballots would be counted, despite the
fact that the misprinted ballots omitted one candidate’s name. Id. Here, by contrast, plaintiffs
are challenging the Registrar employees’ mistake in assigning 86 HD 28 voters to HD 88, not an
official policy developed by election officials to preclude certain or any HD 28 voters from
voting in HD 28.

12

To the extent plaintiffs do challenge the election officials’ response to the irregularities,
namely the Fredericksburg Board Members’ failure to provide provisional ballots to some voters,
this challenge falls short of establishing a substantive due process violation. To begin with, it is
not at all clear that the officials’ actions violated Virginia law. The Virginia Code provides that
“[w]hen 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 paper ballot . . . .”
Va. Code § 24.2-653. The plain text of the Code clearly contemplates the distribution of
provisional ballots to voters who claim to be registered to vote, but whose names do not appear
in the VERIS registration lists. The Code does not refer to situations where, as here, voters
appear in the database assigned to one district, but claim to be registered in another district. In
other words, there is no authority in the Code that requires the issuance of provisional ballots
based on district assignment errors in the VERIS street file. Moreover, the Fredericksburg
officials’ decision not to provide provisional ballots was reasonable given the circumstances.
The officials could not have allowed the voters to cast a ballot in HD 88 and to fill out a
provisional ballot in HD 28 because it would be impossible to track and remove the HD 88 votes
if investigation determined the voter was actually assigned to HD 28. Weighing these options,
the officials made the reasonable decision to presume the validity of the statewide database and
to allow the voters to cast actual, not provisional, ballots in HD 88.
Even assuming, arguendo, the election officials’ failure to provide provisional ballots
was a violation of Virginia law, this violation would still not rise to the level of a due process
violation. In Hendon, plaintiffs there 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
technical requirements of a North Carolina statute. Although the Fourth Circuit in Hendon

13

acknowledged “the failure of the ballots to comply fully with statutory requirements,” the court
found that failure “does not constitute a violation of the due process clause” because “[t]here is
no indication that the failure was other than simple negligence on the part of election officials.”
710 F.2d at 182. As in Hendon, even assuming the failure of election officials to provide
provisional ballots amounted to a violation of Virginia law, plaintiffs have provided no
indication that the failure was other than simple negligence on the part of the Fredericksburg
officials. In sum, because the allegations suggest the errors here were no more than garden
variety irregularities, plaintiffs have not made the requisite “clear showing” of a likelihood of
success on their substantive due process claim. Pashby, 709 F.3d at 320.
Plaintiffs’ procedural due process argument similarly fails. Put simply, plaintiffs have
failed to make a clear showing that mistakes in the administration of an election can give rise to a
procedural due process claim. For example, in League of Women Voters of Ohio v. Brunner, the
Sixth Circuit considered a similar procedural due process claim, namely that flawed election
procedures deprived voters of “their liberty interest in voting” without “adequate pre- or postdeprivation process.” Brunner, 548 F.3d at 379. The Brunner court recognized that even though
the voting system in that case “impinge[d] on the fundamental right to vote,” the system did not
implicate procedural due process and plaintiffs failed to allege a constitutionally protected
interest.

Id.

Plaintiffs here point to no authority actually supporting the existence of a

procedural due process claim in this context of election irregularities. Indeed, the only voting
cases plaintiffs cite in this section of their brief—Bush v. Gore 23 and Hunter v. Hamilton Cty. Bd.
of Elections 24—both involved substantive due process and equal protection claims, not

23

531 U.S. 98, 105 (2000) (per curiam).

24

635 F.3d 219, 223 (6th Cir. 2011).

14

procedural due process claims.

Accordingly, plaintiffs have not made the requisite clear

showing that they are likely to succeed on the merits of their procedural due process claim.
Finally, plaintiffs have failed to make a clear showing of a likelihood of success on the
merits with respect to their equal protection claims.

Plaintiffs first argue that the

Anderson/Burdick balancing test 25 applies and that under that framework, any interest Virginia
might have in differentiating between residents of HD 28 does not outweigh the severe
deprivation associated with a denial of the right to vote.

But it is not clear that the

Anderson/Burdick line of cases applies here. 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.
See, e.g., Burdick, 504 U.S. at 433 (applying balancing test to “voting regulation”). 26 To hold
otherwise would effectively transform any inadvertent error in the administration of state and
local elections into a federal equal protection violation.
Plaintiffs here do not allege that the incorrect assignment of voters was the result of a
state policy, regulation, or statute; instead plaintiffs identify a series of mistakes and
corresponding failures to take corrective action. The only policy plaintiffs identify is the local

25

The Anderson/Burdick balancing test, derived from Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi, 504 U.S. 428 (1992), provides that:
A court considering a challenge to a state election law must weigh “the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by
its rule,” taking into consideration “the extent to which those interests make it necessary to burden the
plaintiff’s rights.”
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).

26

See also, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 181 (2008) (assessing the constitutionality of
“an Indiana statute requiring citizens to present photo identification issued by the government”); Anderson, 460 U.S.
at 782-83 (challenging an Ohio statute requiring an Independent Presidential candidate to file a statement of
candidacy). Plaintiffs cite N.E. Ohio Coalition for the Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) for the
proposition that Anderson/Burdick applies even where there is no state decision or action taken. But that case also
involved a state decision or policy, namely the state’s automatic disqualification rule for wrong precinct ballots.

15

election officials’ decision not to provide provisional ballots to voters who identified themselves
as assigned to the incorrect district on Election Day, allegedly in violation of Virginia law. As
mentioned above, it is not clear that the failure to provide provisional ballots constituted a
violation of Virginia law; indeed, the plain text of the statute does not contemplate the situation
at issue here. See supra p. 11. And, as in the substantive due process context, even assuming the
Fredericksburg officials’ failure to provide provisional ballots amounted to a violation of state
law, it would not rise to the level of an equal protection violation. The Seventh Circuit, in
Hennings, considered a similar claim based on the failure of election officials to provide
substitute paper ballots when voting machines malfunctioned in violation of state law. The
Hennings court concluded that these errors did not give rise to an equal protection claim because
“[m]ere violation of a state statute by an election official . . . will not give rise to a constitutional
claim and an action under Section 1983.” Hennings, 523 F.2d at 864 (quoting Snowden v.
Hughes, 321 U.S. 1, 11 (1944)). Accordingly, plaintiffs have not succeeded in establishing that
the Anderson/Burdick framework of analysis applies here.
Next, plaintiffs argue that the election officials violated the Equal Protection Clause by
providing some HD 28 voters with the correct ballots and others with the incorrect ballots. In
this respect, the Supreme Court has noted that generally “[u]neven or erroneous application of an
otherwise valid statute constitutes a denial of equal protection only if it represents ‘intentional or
purposeful discrimination.’” Snowden, 321 U.S. at 8. 27 And in the voting context, the Supreme
Court has recently recognized that “arbitrary” treatment of voters, in some circumstances, can
also result in equal protection violations, even where it is not intentionally discriminatory. See

27

See also Gamza, 619 F.2d at 453 (noting that there is a “distinction between state laws and patterns of state action
that systematically deny equality in voting, and episodic events that, despite non-discriminatory laws, may result in
the dilution of an individual’s vote.”); Powell, 436 F.2d at 88 (“Uneven or erroneous application of an otherwise
valid statute constitutes a denial of equal protection only if it represents ‘intentional or purposeful discrimination.’”).

16

Bush, 531 U.S. at 104–05 (“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.”).
But neither intentional discrimination nor arbitrary distinctions have been shown to exist here.
To begin with, as mentioned before, the amended complaint contains no allegations
suggesting any invidious or intentionally discriminatory behavior 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 of election officials in failing to
correct the mistakes once they became aware of those mistakes. 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. The Fifth Circuit concluded that the error did not constitute a denial of
equal protection of the laws because “there [was] no evidence that the initial error in setting up
the matrices and the subsequent miscount of the ballots resulted from anything but entirely
innocent human error.” Gamza, 619 F.2d at 452-54. Similarly here, the allegations suggest these
irregularities were the result of “innocent human error,” and not invidious discriminatory
behavior.
Nor 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.
For example, in Bush v. Gore, the Supreme Court found that “[t]he recount mechanisms
implemented in response to the decisions of the Florida Supreme Court do not satisfy the
minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental
right” because of the “absence of specific standards to ensure [the recount procedure’s] equal
application.” 531 U.S. at 105-06. Similarly, the Sixth Circuit in Brunner found the facts in the

17

complaint adequately alleged an equal protection violation because the “non-uniform standards,
processes, and rules” for elections in Ohio had resulted in mass disenfranchisement and
unreasonable dilution of the vote depending on a voter’s residence. 548 F.3d at 466.
By contrast, the amended complaint here does not allege that a lack of uniform or specific
standards or procedures contributed to the erroneous assignment of voters to house districts.
Instead, the complaint suggests that the election irregularities resulted from mere human error in
failing to assign addresses to the right location and negligence in failing to correct the errors once
election officials learned of the possibility of incorrect assignments. Plaintiffs do not argue that
the procedures for assigning localities are not uniform or that voters were treated differently once
they informed poll workers that they believed themselves to be assigned to a different district.
Accordingly, it is not clear that plaintiffs are likely to succeed on their claim that state officials
imposed distinctions so arbitrary as to amount to an equal protection violation.
B.
With respect to irreparable harm, plaintiffs essentially contend that any deprivation of a
constitutional right automatically constitutes irreparable harm. But this contention ignores an
important of part of the analysis courts must conduct in considering whether to grant a
preliminary injunction, namely whether the party “is likely to suffer irreparable harm in the
absence of preliminary relief.” Di Biase, 872 F.3d at 230 (quoting Winter, 555 U.S. at 20). In
this case, assuming these plaintiffs were denied the right to vote in HD 28 in the November 7
election, that irreparable harm has already occurred. The important question is thus whether
additional irreparable harm will occur if the Clerk of the House of Delegates is permitted to seat
Thomas as the winner of HD 28. In their reply in support of their motion for a preliminary
injunction, plaintiffs suggest that important House of Delegates business takes place in the first

18

month of a session, namely the Speaker is chosen and committee assignments are selected.
Plaintiffs allege that this process affects many of the bills that will be considered in the session
and how votes occur, all of which are effects that cannot later be repaired. Even assuming the
seating of a single member can have the effect plaintiffs claim, this factor does not weigh
decisively in favor of an injunction at this time because Thomas can be removed from office if a
new election is ordered and if Cole ultimately prevails. And even if this single factor weighs in
favor of plaintiffs, plaintiffs’ failure to make a clear showing of likelihood of success on the
merits nonetheless ends the matter.
C.
Finally, the balance of hardships and the public interest do not weigh in favor of an
injunction at this time and on this record. To be sure, “right of suffrage is a fundamental
matter,” 28 but the Fourth Circuit has emphasized the importance of considering in these cases
“[t]he functional structure embodied in the Constitution, the nature of the federal court system,
and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy
afforded by section 1983 . . . .” Hutchinson, 797 F.2d at 1282 (quoting Gamza, 619 F.2d at 452).
In this case, the structure of the Constitution and the nature of the federal court system weigh
against the issuance of a preliminary injunction. As the Fourth Circuit recognized in Hutchinson,
“[t]he Constitution anticipates that the electoral process is to be largely controlled by the states
and reviewed by the legislature.” Id. at 1283. And “states undoubtedly retain primary authority
‘to regulate the elections of their own officials.’” Id. (citing Oregon, 400 U.S. at 125). Virginia
here has done its job of ensuring due process by providing numerous avenues by which to
challenge election results, including recounts and election contests. Intervention of a federal

28

Reynolds v. Sims, 377 U.S. at 555.

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