United States District Court, E.D. Virginia, Alexandria Division
KENNETH J. LECKY, et al., Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.
MEMORANDUM OPINION
T. S.
Ellis, III United States District Judge
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]
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 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.
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:
• 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 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 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 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 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, ...